[2019] KEHC 3489 (KLR)
The court found that the petitioner’s entitlement as a purchaser or beneficiary could not be determined solely on the affidavits and documentary evidence presented. The petitioner’s claim to have purchased land from the deceased was disputed by the protester and not sufficiently supported by unambiguous evidence....
Source-derived case information.
- Citation
- [2019] KEHC 3489 (KLR)
- Parties
- Applicant: Baariu M’Imana M’Mugambi; Respondent: Abel Kiramunya M’Mungania
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 236 of 2015
- Procedural Posture
- Succession Cause / Ruling on Protest to Confirmation of Grant; Directions for Viva Voce Evidence
- Outcome
- Ruling on distribution deferred; matter set for viva voce evidence and directions.
- Legal Topics
- Succession of Estates, Distribution of Estate, Purchaser Claims in Estate, Beneficiary Consent, Land Adjudication, Creditor Status in Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Baariu M’Imana M’Mugambi
Applicant
Abel Kiramunya M’Mungania
Respondent
Procedural Posture
Succession Cause / Ruling on Protest to Confirmation of Grant; Directions for Viva Voce Evidence
Legal Issues
- 1 Whether the petitioner is a purchaser or beneficiary of the deceased's estate.
- 2 Whether the petitioner is entitled to 1.40 acres from parcel No. 273 and 0.20 acres from parcel 4676.
- 3 Whether the proposed modes of distribution by both petitioner and protester are fair and supported by evidence.
Ratio Decidendi
The court found that the petitioner’s entitlement as a purchaser or beneficiary could not be determined solely on the affidavits and documentary evidence presented. The petitioner’s claim to have purchased land from the deceased was disputed by the protester and not sufficiently supported by unambiguous evidence. Both the petitioner’s and protester’s proposed modes of distribution lacked the necessary consents from all beneficiaries and failed to provide clear criteria for distribution. The court held that the only way to ascertain the petitioner’s entitlement and resolve the competing claims was to hear viva voce evidence from the petitioner, protester, Ruth Kanja, and the advocate who...
Court Disposition
Ruling on distribution deferred; matter set for viva voce evidence and directions.
Orders
- Ruling on distribution of the estate is deferred to enable the court to take viva voce evidence from the petitioner, protester, Ruth Kanja, and the advocate who attested to the agreement.
- All beneficiaries to attend court to confirm their agreement or otherwise with the proposed modes of distribution.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO. 236 OF 2015
IN THE MATTER OF THE ESTATE OF CHARLES M’MUNGANIA – ALIAS CHARLES MUNGANIA -DECEASED.
BAARIU M’IMANA M’MUGAMBI.........................................PETITIONER
VS
ABEL KIRAMUNYA M’MUNGANIA.........................................OBJECTOR
RULING
The deceased herein died on 29th September 2012 aged 80 years old. According to letter dated 25th March 2015 written by Assistant Chief of Ruongo Sub-location he was survived by one wife Ruth Kanya and 12 children, 6 daughters and 6 sons.
The District Land Adjudication and Settlement officer for Igembe District by a letter dated 14. 4.2015 confirmed that land parcel No. 273 was recorded in the name of the deceased Charles Mungania. Grant of Letters of Administration was made to Baariu M’Imana M’Mugambi on 9th July 2015 who was authorised to take Letters of Administration Incitation Cause No. 290 of 2013 on 12th March 2015 when the wife of the deceased Ruth Kanja failed to do so when Baariu M’Imana M’Mugambi filed summons for confirmation dated 11th February 2016 and proposed mode of Distribution in affidavits sworn on 11. 2.2016 giving himself 1. 40 acres which he allegedly bought from the deceased. Abel Kiramunya M’Mungania filed affidavit of protest worn on 23rd June 2018 in which he averred that the Petitioner was not son of the deceased. He averred that his step mother Ruth Kanja had by a letter dated 10th April 2013 – AKM1- told the Land Adjudication Officer that the deceased didn’t sell land to the petitioner and that her about turn to support his proposal was fraudulent. The protester gave his proposal how the estate should be distributed and left out the petitioner/Purchaser.
Protester said the beneficiaries are already settled in their respective portions. He contended that the Petitioner had not tendered any evidence to prove he purchased land from the deceased and is therefore not a creditor to the estate of the deceased but is only colluding with his step –mother to wrongly get a lions share of the estate. He averred further that the petitioner is a liar because he claims he is a purchaser and at the same time son of the deceased.
The Protester also said the proposal by Petitioner is not fair and just and there is no criteria in the mode of distribution and there is no explanation why land is to be held in trust for other beneficiaries same of whom have died.
In response to the protest the Petitioner in Further Supporting Affidavit sworn on 18th July 2019 produced land sale Agreement BMS dated 1st March 2012 in which he claimed he bought 1. 40 acres from the deceased to be excised from Parcel No. Antubetwe Kiongo Adjudication Section No. 273. He also annexed BM2, a letter which he claimed was written by the deceased on how he had shared out Parcel No. 273. The said letter is however not dated. The Petitioner Counsel proposed that the court determines the application for confirmation based on affidavits on record.
The Petitioner cited Ruth Kanja as a creditor to the estate of the deceased. His interest was in parcel No. 273 Antubetwe Kiongo Adjudication section in which he claimed to have purchased 1. 40 acres of land. However in his proposed mode of distribution he went ahead and also allocated himself 0. 20 acres from parcel 4676.
The Petitioner didn’t also deny or admit that other than the 2 parcels mentioned in his affidavit the deceased had other assets registered in his name as indicated in the affidavit of the protester. The consent by the petitioner is alleged to have been thumb printed by Ruth Kanja.
There are 3 minor. There are 2 beneficiaries whose initials are cancelled. The other 3 beneficiaries have initials and names written in full.
The protesters proposal has equally not been consented to and the court has not been given any criteria used to arrive at the proposed mode of distribution by the protester. The view of this court is that the petitioner’s entitlement can only be ascertained through viva voce evidence.
Ruling in distributing is therefore deferred to enable court take evidence of the protester, petitioner and Ruth Kanja as well as the advocate who attested to the agreement to establish the claim. Further the beneficiaries should also attend and confirm they are agreeable with either what the petitioner has proposed in so far as parcel no. 273 is concerned and also whether they are agreeable with the proposal of the Protester in respect to the other assets listed by him in the affidavit.
HON A. ONG’INJO
JUDGE
RULING DELIVERED, DATED AND SIGNED IN COURT ON 17TH DAY OF OCTOBER 2019.
In the presence of :
C/A: Kinoti
MS Mbogo & Muriuki Advocates
Ms Mbijiwe Advocate holding brief for Mr Muriuki for Petitioner
Protester – Present in person.
Mention 21. 11. 2019 for directions.
HON A. ONG’INJO
JUDGE