[2021] KEHC 7564 (KLR)
The court determined that the issues raised, particularly the applicant's alleged marriage to the deceased under Kikuyu customary law and his status as a beneficiary, require resolution through oral evidence at a full trial. The court found that the affidavit evidence alone was insufficient to conclusively determine...
Source-derived case information.
- Citation
- [2021] KEHC 7564 (KLR)
- Parties
- Applicant: David Mwangi Ndirangu; Respondent: Joseph Maina Gathege; Respondent: Mary Muthoni Mwangi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 23 of 2018
- Procedural Posture
- Succession Cause / Directions Before Full Trial
- Outcome
- Matter to proceed to full trial; status quo of the estate maintained.
- Judges
- HK Chemitei
- Legal Topics
- Succession, Revocation of Grant, Customary Marriage, Status of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Mwangi Ndirangu
Applicant
Joseph Maina Gathege
Respondent
Mary Muthoni Mwangi
Respondent
Procedural Posture
Succession Cause / Directions Before Full Trial
Legal Issues
- 1 Whether the applicant was married to the deceased under Kikuyu customary law.
- 2 Whether the grant issued to the respondents should be revoked.
Ratio Decidendi
The court determined that the issues raised, particularly the applicant's alleged marriage to the deceased under Kikuyu customary law and his status as a beneficiary, require resolution through oral evidence at a full trial. The court found that the affidavit evidence alone was insufficient to conclusively determine the applicant's claim and the propriety of the grant issued to the respondents. Accordingly, the matter was set down for a full hearing, and the status quo of the estate was ordered to be maintained pending the outcome of the objection proceedings.
Court Disposition
Matter to proceed to full trial; status quo of the estate maintained.
Orders
- The matter shall proceed to a full trial with the applicant as plaintiff and respondents as defendants.
- The status quo of the estate as at the date of these directions is to be maintained pending determination of the objection.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
SUCCESSION CAUSE NO. 23 OF 2018
IN THE MATTER OF THE ESTATE OF THE LATE ANNA WANJIRU GATHEGE ALIAS ANNE WANJIRU GATHEGE ALIAS ANN WANJIRU GATHEGER (DECEASED)
DAVID MWANGI NDIRANGU..........................................APPLICANT /OBJECTOR
VERSUS
JOSEPH MAINA GATHEGE................................1ST PETITIONER/RESPONDENT
MARY MUTHONI MWANGI..............................2ND PETITIONER/ RESPONDENT
DIRECTIONS.
1. The court has perused the pleadings herein and in particular the application dated 7th February 2020 in which the applicant seeks to revoke the grant issued to the respondents. A clear look at the application indicates that the applicant claims to have been the husband to the deceased and the respondents the daughter and cousin respectively.
2. There is also a critical issue whether the applicant married the deceased under the tenets of Kikuyu customary law. Although there is an affidavit sworn to that effect it is the view of this court that all the above must be subjected to viva voce evidence.
3. In the premises let this matter proceed to a full trial. The applicant shall be the plaintiff and the respondents the defendants. Meanwhile the status quo of the estate as at the time of this directions be and is hereby maintained pending the determination of the objection herein.
DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 29TH DAY OF APRIL 2021.
H K CHEMITEI
JUDGE.