[2018] KEHC 2750 (KLR)
The court found that Hannah Pascalina Wairimu failed to comply with the terms of the confirmed grant, which required her to hold the estate in trust for both beneficiaries equally. The applicant did not provide credible evidence of Mary Salome Gakunga's incapacity, as the affidavits purportedly filed by her were...
Source-derived case information.
- Citation
- [2018] KEHC 2750 (KLR)
- Parties
- Applicant: Hannah Pascalina Wairimu; Respondent: Mary Salome Gakunga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2241 of 2013
- Procedural Posture
- Succession Cause / Ruling on Application for Further Orders Post Confirmation of Grant
- Outcome
- application denied
- Legal Topics
- Succession, Administration of Estates, Trusteeship, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hannah Pascalina Wairimu
Applicant
Mary Salome Gakunga
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Further Orders Post Confirmation of Grant
Legal Issues
- 1 Whether the applicant complied with the terms of the confirmed grant to hold the estate in trust for both beneficiaries equally.
- 2 Whether the absence and alleged incapacity of Mary Salome Gakunga was sufficiently proved to justify unilateral actions by the applicant.
- 3 Whether the applicant properly accounted for proceeds from the sale of estate property.
Ratio Decidendi
The court found that Hannah Pascalina Wairimu failed to comply with the terms of the confirmed grant, which required her to hold the estate in trust for both beneficiaries equally. The applicant did not provide credible evidence of Mary Salome Gakunga's incapacity, as the affidavits purportedly filed by her were unsigned and no medical documents were produced. Furthermore, the applicant failed to properly account for the proceeds from the sale of Mathare North 1-304 property, as the supplementary affidavit did not disclose payments to creditors and only photocopied invoices, not receipts, were annexed. The court concluded that the application for further orders could not be granted in the...
Court Disposition
application denied
Orders
- The application dated 15th August 2018 is denied.
- The application may be reconsidered if Mary Salome Gakunga appears in court or current medical documents on her status are presented.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
IN THE MATTER OF THE ESTATE OF ALICE NJERI KARIUKI (DECEASED)
SUCCESSION CAUSE 2241 OF 2013
RULING
This court has read through this court file as shown above. The Confirmed Grant by Hon. L. J. Achode was that the properties that constitute the estate of the deceased shall be held in trust for beneficiaries; HANNAH PASCALINA WAIRIMU and MARY SALOME GAKUNGA in equal shares.
From the court record on 14th January 2015 both beneficiaries were in court for Confirmation of Grant of 15th January 2015. However, on 14th June 2016 when the application of 14th June 2016 was not granted by the same court because the Applicant did not produce the co-beneficiary and/or her consent nor medical documents to prove that May Salome Gakunga was incapacitated to manage her share of the estate.
The said application was placed before Hon. J. W. Musyoka and was granted. The Applicant Hannah Pascalina Wairimu did not fully account for the funds the purchase price for Mathare North 1-304 property Kshs. 1. 5m which she claimed in her affidavit was to pay creditors on the one hand and to complete construction of the apartments in land Title Ruiru/East/Juja/East Block 2/816 on the other hand.
The supplementary affidavit of 15th August 2018 does not disclose the payments made with regard to creditors as claimed. The purchase of building materials are annexed by photocopied invoices and not receipts to signify payments.
From the above reasons, this court finds that Hannah Pascalina Wairimu Kariuki has not complied with the Confirmed Grant of 15th January 2015 that the properties of the estate of the deceased be held in trust for both beneficiaries equally.
As L. J. Achode enquired on 14th June 2016 where is Mary Salome Gakunga? Why has she not appeared in court since Confirmation of Grant? Secondly, the affidavit of Mary Salome Gakunga filed on 15th August 2018 similar to the one filed on 14th June 2016 are both not signed but written her name “Salome”. Thirdly, as L. J. Achode enquired on 14th June 2016 where the medical documents of the said Mary Salome Gakunga were to be produced in court to confirm she is not capable of handling her part of the estate. The same was not forthcoming.
If as alleged Mary Salome Gakunga could not attend court and is not capable to manage her part of the estate how come she “signed” and filed affidavits of consent to sale of properties?
The upshot of these observations is that the instant application of 15th August 2018 is denied / not granted and shall be considered only if;
a) Mary Salome Gakunga appears in court or
b) Medical Documents current on her prognosis/progress/medical status are presented in court.
c) The title documents, agreements for sale and/or photographs of the ongoing construction of apartments in Land Title Ruiru East/Juja East Block 2/816 showing / confirming Mary Salome Gakunga’s ½ share of the said property as it is purchased / constructed from ½ of her beneficial interest in the sold property.
DELIVERED DATED SIGNED IN OPEN COURT ON 19TH DAY OF OCTOBER, 2018.
M.W.MUIGAI
JUDGE
IN THE PRESENCE OF;
Mr. Chege for the Applicants