[2018] KEHC 6528 (KLR)
The court found that the distribution of LR. No. Nyandarua/Mirangine/200 was conclusively settled by the consent of the parties, which was recorded in court and confirmed by the evidence. Allegations regarding the sale of trees and cows were not substantiated by credible evidence and thus could not affect the...
Source-derived case information.
- Citation
- [2018] KEHC 6528 (KLR)
- Parties
- Applicant: Gabriel Mailu Mutio; Respondent: Lawrence Kamuya Mutio; Respondent: Joseph Mutua Mutio
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 425 of 2009
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- grant confirmed; estate distributed as per consent and court's orders
- Legal Topics
- Succession, Distribution of Estate, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Mailu Mutio
Applicant
Lawrence Kamuya Mutio
Respondent
Joseph Mutua Mutio
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the distribution of LR. No. Nyandarua/Mirangine/200 among the beneficiaries is fair and in accordance with the law.
- 2 Whether the proceeds from the sale of trees and cows should be shared among the beneficiaries or given to a specific beneficiary.
- 3 Whether the grant of representation should be confirmed based on the consent and evidence presented.
Ratio Decidendi
The court found that the distribution of LR. No. Nyandarua/Mirangine/200 was conclusively settled by the consent of the parties, which was recorded in court and confirmed by the evidence. Allegations regarding the sale of trees and cows were not substantiated by credible evidence and thus could not affect the distribution. The court was persuaded, based on the material before it and the role played by Elizabeth Ngina Mutio in caring for the deceased, that the remaining cows should be given to her. The grant was therefore confirmed, and the estate distributed as per the consent and the court's determination regarding the cows.
Court Disposition
grant confirmed; estate distributed as per consent and court's orders
Orders
- LR. No. Nyandarua/Mirangine/200 to be distributed as: Gabriel Muilu Mutio - 5 acres; Joseph Mutua Mutio - 5 acres; Lawrence Kamuya Mutio - 5 acres; Anne Minoo Mutio - 2 acres; Elizabeth Ngina Mutio - 2 acres; Rachel Wayua Mutio - 2 acres.
- 2 cows to be given to Elizabeth Ngina Mutio.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
SUCCESSION CAUSE NUMBER 425 OF 2009
IN THE MATTER OF THE ESTATE OF GRACE MBITHE MULI ALIAS KAVENI MUTIO YOMBIA (DECEASED)
GABRIEL MAILU MUTIO.......................................PETITIONER
VERSUS
LAWRENCE KAMUYA MUTIO.........................1ST OBJECTOR
JOSEPH MUTUAL MUTIO................................2ND OBJECTOR
JUDGMENT
1. This judgment is in respect of the estate of Grace Mbithe Muli alias Kaveni Mutio Yombia (Deceased).
2. The Petitioner and the Objectors are joint administrators pursuant to a consent of the parties recorded on the 28/7/2011.
3. Each party had filed their proposed distribution, the Petitioner on 18/8/2011 and the Objectors on 26/11/2012. Directions were given that matter proceeds by way of viva voce evidence.
4. Before commencement of the hearing, the parties approached the Court on 21/11/2013 with an agreement on the distribution of LR. No. Nyandarua/Mirangine/200 and a consent was recorded as follows;
(i) Gabriel Muilu Mutio - 5 acres
(ii) Joseph Mutua Mutio - 5 acres
(iii) Lawrence Kamuya Mutio - 5 acres
(iv) Anne Minoo Mutio - 2 acres
(v) Elizabeth Ngina Mutio - 2 acres
(vi) Rachel Wayua Mutio - 2 acres
5. The Petitioner and the 1st Objector gave oral testimony. The Petitioner accused the 1st Objector of cutting trees from the estate and selling the same for Kshs. 200,000/=. He is also accused of selling 2 cows in June 2014. The 2nd Objector is accused of selling 1 cow of Kshs. 19,000/=.
6. The Petitioner seeks to share the proceeds for the sales. He proposes that Ngina should get one cow.
7. When cross-examined, he confirms agreement with the consent on the distribution recorded in Court. He had no valuation report in respect of trees allegedly cut.
8. The 1st Objector testified that the Petitioner and his son Keli cut trees from the estate. He maintained the proposals for distribution as per his affidavit. Over and above reiterating distribution as per the consent recorded, the 1st Objector proposes that the remaining cows be given to Elizabeth Ngina Mutio as a token for taking care of the mother (deceased).
9. On record are affidavits by Grace Nthenya Mutua and Ajelline Muindi alias Anjeline Wanduru Mundi renouncing their right to inherit.
10. Suffice it to note that the allegations and counter allegation on the sale of trees and cows have not been adequately substantiated or proved. A fact is not proved if it is neither proved nor disproved.
11. The issue of distribution of LR. No. Nyandarua/Mirangine/200 is settled by the consent of the parties recorded in Court on 21/11/2013 and further confirmed by the evidence on record.
12. As regards the distribution of the cows, I have considered the material before me and I am persuaded that the same should be given to Elizabeth Ngina Mutio.
13. With the result that the grant herein is confirmed. The distribution of the estate shall be as follows;
1. LR. No. Nyandarua/Mirangine/200
(I) Gabriel Muilu Mutio - 5 acres
(ii) Joseph Mutua Mutio - 5 acres
(iii) Lawrence Kamuya Mutio - 5 acres
(iv) Anne Minoo Mutio - 2 acres
(v) Elizabeth Ngina Mutio - 2 acres
(vi) Rachel Wayua Mutio - 2 acres
2. 2 cows to Elizabeth Ngina Mutio
14. Each party shall bear its own costs.
Dated and Signed at Nakuru this 23rd day of May, 2018.
A. K. NDUNG’U
JUDGE