[2017] KEHC 634 (KLR)
The court found that the protestors' claims, being based on alleged fraud and trust, were outside the scope of succession proceedings and should have been pursued in a separate civil court. The protestors were given an opportunity to institute such proceedings but failed to do so. The deceased was survived by a...
Source-derived case information.
- Citation
- [2017] KEHC 634 (KLR)
- Parties
- Applicant: Joan Nyambura Mwangi; Respondent: Emiliana Wairimu Kirubi; Respondent: Margaret Wachuka Kamau
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 443 of 2013
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Summons for confirmation of grant allowed; grant confirmed; estate to be distributed as proposed by the administrator.
- Judges
- DW Mbuteti
- Legal Topics
- Succession, Confirmation of Grant, Beneficiaries, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joan Nyambura Mwangi
Applicant
Emiliana Wairimu Kirubi
Respondent
Margaret Wachuka Kamau
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the protestors, as siblings and half-siblings of the deceased, are entitled to a share of the deceased's estate based on alleged fraud and trust regarding the land parcels.
- 2 Whether the protestors' claims fall within the scope of succession proceedings or require separate civil litigation.
- 3 Who are the rightful beneficiaries of the deceased's estate under succession law.
Ratio Decidendi
The court found that the protestors' claims, being based on alleged fraud and trust, were outside the scope of succession proceedings and should have been pursued in a separate civil court. The protestors were given an opportunity to institute such proceedings but failed to do so. The deceased was survived by a widow and adult children, who are the rightful heirs under the Law of Succession Act. The protestors were not dependants of the deceased and thus not entitled to a share of the estate. The court confirmed the grant and ordered distribution as proposed by the administrator, with the consent of the beneficiaries.
Court Disposition
Summons for confirmation of grant allowed; grant confirmed; estate to be distributed as proposed by the administrator.
Orders
- The summons for confirmation of grant dated 01/07/2014 is allowed.
- The grant is confirmed.
Full Case Text
Judgment text and source record
21 paragraphs
IN THE HIGH COURT OF KENYA AT MURANG’A
SUCCESSION CAUSE NO 443 OF 2013
(FORMERLY NYERI HC SUCC CAUSE NO 545 OF 2012)
(FORMERLY MURANG’A PM SUCC CAUSE NO 162 OF 2002)
IN THE MATTER OF THE ESTATE OF ANTONY GITHERE KIRUBI -DECEASED
JOAN NYAMBURA MWANGI..........................ADMIN/ APPLICANT
VERSUS
1. EMILIANA WAIRIMU KIRUBI
2. MARGARET WACHUKA KAMAU...........................PROTESTORS
J U D G M E N T
1. This cause started off as Murang’a PM Succession Cause No 162 of 2002. A grant of letters of administration therein was made to the Administrator herein, Joan Nyambura Mwangi (alias Joan Mwangi) on 01/11/2002 and issued on the same day. A summons dated 05/06/2003 for confirmation of grant was subsequently filed. An affidavit of protest was filed on 25/02/2005 by one Emiliana Wairimu Kirubi, who described herself as the Deceased’s mother. She made her own counter-proposals for distribution. Another affidavit of protest was filed by Margaret Wachuka Kamau (on behalf of herself and others). They are all sisters or step-sisters of the Deceased. The cause was then transferred to the High Court at Nyeri, and then on 05/12/2012 to this court, before the protested summons for confirmation of grant was disposed of.
2. Once the matter was in the High Court, another summons for confirmation of grant dated 01/07/2014 was filed. The earlier summons for confirmation dated 05/06/2003 is therefore marked withdrawn. This judgment will thus be in respect to the second summons dated 05/06/2003 for confirmation of grant.
3. I have read the affidavit sworn in support as well as the affidavits of protest. It turns out that the Protestors are the siblings and half-siblings of the Deceased. Their claim in the Deceased’s estate is based upon the allegation that the parcels of land comprising the Deceased’s estate were at one time one parcel of land which their father owned but which the Deceased had fraudulently caused to be registered in his name and later sub-divided into the various parcels now comprising his estate. For this reason they claim to be entitled to these parcels of land as being part of their father’s estate.
4. It is common ground that the parties’ father died about two years after the Deceased died. He never brought any claim nor filed suit against the Deceased over the alleged fraud.
5. In the course of these proceedings, when it appeared that the Protestors’ claim in the Deceased’s estate was based on alleged fraud and trusts, and thus outside the limited ambit of these succession proceedings, the Protestors were accorded time to institute appropriate civil proceedings in a civil court. They did not and the summons for confirmation of grant was fixed for hearing. They did not attend the hearing.
6. The Deceased was survived by a widow (the Administrator) and children (all now adults). They are his rightful heirs. The Deceased’s siblings (the Protestors) were not his dependants maintained by him, and cannot be rightful beneficiaries of his estate.
7. In the circumstances, I will allow the summons dated 01/07/2014 and confirm the grant. Distribution shall be as proposed at paragraph 7 of the supporting affidavit, which proposal was consented to in Form 37. It is so ordered.
DATED AND SIGNED AT MURANG’A THIS 20TH DAY OF JULY 2017
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 21ST DAY OF JULY 2017