[2012] KEHC 4576 (KLR)
The court found that although the distribution of the estate appeared unequal and potentially discriminatory, the only asset in question, PLOT NO.134 OL KALOU WEST SETTLEMENT, was not registered in the name of the deceased but in the name of the Settlement Fund Trustee. Therefore, it did not form part of the...
Source-derived case information.
- Citation
- [2012] KEHC 4576 (KLR)
- Parties
- Applicant: Grace Wanjiku Kirichio; Respondent: James Muthui Mirichio
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 289 of 2011
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- application dismissed
- Judges
- SP Ouko
- Legal Topics
- Succession, Revocation of Grant, Jurisdiction of Subordinate Courts, Gender Discrimination in Inheritance, Distribution of Estate, Proof of Asset Ownership
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Wanjiku Kirichio
Applicant
James Muthui Mirichio
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration was obtained fraudulently or through defective proceedings.
- 2 Whether the subordinate court had jurisdiction to issue the grant given the alleged value of the estate.
- 3 Whether the distribution of the estate was discriminatory against female beneficiaries.
Ratio Decidendi
The court found that although the distribution of the estate appeared unequal and potentially discriminatory, the only asset in question, PLOT NO.134 OL KALOU WEST SETTLEMENT, was not registered in the name of the deceased but in the name of the Settlement Fund Trustee. Therefore, it did not form part of the deceased's estate. Additionally, the applicant was named as a beneficiary and did receive a share, contrary to her claim. The applicant failed to provide evidence of the estate's value to support the jurisdictional challenge. In the absence of proof that the property belonged to the deceased or that the value exceeded the subordinate court's jurisdiction, and given that the applicant...
Court Disposition
application dismissed
Orders
- The summons for revocation of grant is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
SUCCESSION CAUSE NO.289 OF 2011
IN THE MATTER OF THE ESTATE OF THE LATE BENJAMIN MIRICHO KARUME (DECEASED)
GRACE WANJIKU KIRICHIO…….......................APPLICANT
VERSUS
JAMES MUTHUI MIRICHO………………….RESPONDENT
RULING
The respondent/administrator James Muthui Mirichio was granted letters of administration for the estate of the late Benjamin Murichio Karume by the Principal Magistrate’s Court at Nyahururu on P.M.Succ.Cause No.136 of 1993. The grant was subsequently confirmed on 14th June, 2011.
The applicant, Grace Wanjiku Mirichio, a daughter of the deceased, now brings the instant summons for the revocation of the grant and for restraining orders on the grounds that the grant was obtained through defective proceedings that the court granting the probate had no jurisdiction; that the grant was obtained fraudulently by making a false statements and concealing from the court of material facts relating to the estate; that the respondent/administrator has subdivided NYANDARUA/OL KALOU/WEST 134 into seven (7) equal parts which he has distributed to the dependants. It is further averred that the sons have each been given 9. 3 acres, while the daughters were given 9. 3 acres to be shared between five daughters.
The applicant contends that the distribution was unfair and amounts to discrimination. The distribution ought to have been done equally irrespective of gender or marital status. The respondent/administrator has been accused of failing to disclose to the court that the value of the estate was more than Kshs.100,000/= and therefore beyond the jurisdiction of the court.
The application and the hearing notice were duly served upon the respondent/administrator who failed to respond to it or attend the court during the hearing of the application. That failure notwithstanding, the applicant is still required to prove her claim on a balance of probability.
Although clearly from the Certification of Confirmation the female children of the deceased are shown to have inherited only 2. 5 acres each while each of their brothers received 10 acres. That would have been sufficient ground to revoke grant, but for the following reasons. The only asset said to constituting the estate is PLOT NO.134 OL KALOU WEST SETTLEMENT. According to the Certificate of official search dated 5th July, 2011, that property is registered in the name of Settlement Fund Trustee and not in the name of the deceased.
Secondly, the applicant’s claims that her name was not included as a beneficiary of the deceased cannot be true. From the Certificate of Confirmation, it is clear that the applicant is named and is shown to be entitled to 2. 5 acres.
Thirdly, it is the applicant’s contention that the value of the property in question exceeds Kshs.100,000/= and was beyond the jurisdiction of the subordinate court. No valuation is annexed to this application as proof.
For these reasons, the application fails and is dismissed.
Dated, Signed and Delivered at Nakuru this 12th day of March, 2012.
W. OUKO
JUDGE