[2009] KEHC 3413 (KLR)
The court held that section 30 of the Law of Succession Act expressly bars any application for provision for dependants under sections 26, 27, 28, and 29 after the grant has been confirmed. Since the application was brought after confirmation of the grant, the court lacked jurisdiction to entertain it. The...
Source-derived case information.
- Citation
- [2009] KEHC 3413 (KLR)
- Parties
- Applicant: Godffrey Kibuthu Githigi; Applicant: Simon Kariuki; Applicant: John T. Kariuki; Applicant: Paul Muturi Kariuki; Applicant: Charls Kariuki; Respondent: Alice Wangui Kariuki
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 238 of 2008
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection After Confirmation of Grant
- Outcome
- application dismissed
- Judges
- SP Ouko
- Legal Topics
- Succession, Confirmation of Grant, Dependants Rights, Trusts Inheritance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Godffrey Kibuthu Githigi
Applicant
Simon Kariuki
Applicant
John T. Kariuki
Applicant
Paul Muturi Kariuki
Applicant
Charls Kariuki
Applicant
Alice Wangui Kariuki
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection After Confirmation of Grant
Legal Issues
- 1 Whether the court has jurisdiction to entertain an application for provision for dependants after confirmation of grant.
- 2 Whether the application offends section 30 of the Law of Succession Act.
Ratio Decidendi
The court held that section 30 of the Law of Succession Act expressly bars any application for provision for dependants under sections 26, 27, 28, and 29 after the grant has been confirmed. Since the application was brought after confirmation of the grant, the court lacked jurisdiction to entertain it. The preliminary objection was therefore sustained, and the application was dismissed on this ground alone.
Court Disposition
application dismissed
Orders
- The application dated 20th March 2009 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Succession Cause 238 of 2008
IN THE MATTER OF THE ESTATE OF JAMES GITHIGI GATHURA (DECEASED)
AND
GODFFREY KIBUTHU GITHIGI ………....………1ST APPLICANT
SIMON KARIUKI ……………..…………….…….. 2ND APPLICANT
JOHN T. KARIUKI …………………….………… 3RD APPLICANT
PAUL MUTURI KARIUKI ………………………. 4TH APPLICANT
CHARLS KARIUKI ……………………………… 5TH APPLICANT
RULING
The grant of representation for the estate of the deceased, James Githigi Gathura was issued to Geoffrey Kibuthu Githigi (the petitioner) and subsequently confirmed on 13th March 2009.
The applicants have now brought the present application seeking that their mother, Alice Wangui Kariuki, the widow of the late Alexander Kariuki Githigi, who was one of the sons of the deceased, be compelled to share the proceeds of sale of one acre of L.R. NO. AGUTHI/GAKI/1335 pending interpartes hearing of this application and an order of inhibition to stop any dealings with the said L.R. No. AGUTHI/GAKI/1135.
The grounds upon which the application is brought are that the applicants are grandchildren of the deceased who was the father of their father. That their father predeceased the deceased, but was nonetheless entitled to one acre of the suit property. That their father’s share has been allocated to their mother who intends to sell it.
The applicants further aver that while their uncles are at liberty to sell their respective shares, the shares of their father ear-marked for their mother ought to be held by her in trust for them. That since she has already sold it at Kshs. 750,000/= that the proceeds be distributed equally to the children of their late father.
No replying affidavit on grounds of opposition have been filed in response. The mother of the applicants (the respondent) has through counsel filed a notice of preliminary objection in which it is argued that the application is incurably defective, incompetent and bad in law and that it offends section 30 of the Law of Succession Act. This ruling relates to the preliminary objection.
To the extend that the objection raised relates to the jurisdiction of this court to entertain this application after the confirmation of the grant it relates to a point of law which is capable of disposing of this application if successfully argued, in terms of the authority of Mukisa Biscuit Manufacturing Co. Ltd V. West End Distributors Ltd (1969) EA 698.
The application is expressed to be brought under sections 26, 27, 28 and 29 of the Law of Succession Act which deal with provisions for defendants. They provide interalia,that the court shall make reasonable provision out of the deceased person’s estate to his dependants.
However, section 30 of the Law of Succession Act provides that no application under sections 26, 27, 28 and 29 can be brought after the grant has been confirmed.
On that ground alone, the objection is sustained and the application dated 20th March 2009 dismissed. I make no orders as to costs.
Dated and delivered at Meru this 12th ….day of …June. 2009.
W. OUKO
JUDGE