[2017] KEHC 499 (KLR)
The court found that under the Law of Succession Act, grandchildren are not automatically considered dependants of the deceased unless they were being maintained by the deceased prior to death. In this case, there was no evidence that the grandchildren were dependants. Therefore, they are not entitled to inherit...
Source-derived case information.
- Citation
- [2017] KEHC 499 (KLR)
- Parties
- Applicant: Dominica Wamuyu Kihu; Applicant: John Macharia Muchiri; Respondent: Joseph Wakaritu Ndura; Respondent: Mary Wangui Ndura
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 374 of 2008
- Procedural Posture
- Succession Cause / Ruling on Protest and Confirmation of Grant
- Outcome
- protest dismissed; grant confirmed; estate distributed as ordered
- Legal Topics
- Succession, Intestate Estate Distribution, Dependants Definition, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dominica Wamuyu Kihu
Applicant
John Macharia Muchiri
Applicant
Joseph Wakaritu Ndura
Respondent
Mary Wangui Ndura
Respondent
Procedural Posture
Succession Cause / Ruling on Protest and Confirmation of Grant
Legal Issues
- 1 Whether all the grandchildren are dependants and whether they are entitled to benefit from the deceased's estate.
- 2 How the estate of the deceased should be distributed.
Ratio Decidendi
The court found that under the Law of Succession Act, grandchildren are not automatically considered dependants of the deceased unless they were being maintained by the deceased prior to death. In this case, there was no evidence that the grandchildren were dependants. Therefore, they are not entitled to inherit from the estate. The court further confirmed the grant and ordered the distribution of the estate as proposed, specifically dividing land parcel Konyu/Gachuku/14 equally between the protestor and the respondent. The protest was dismissed and each party was ordered to bear their own costs.
Court Disposition
protest dismissed; grant confirmed; estate distributed as ordered
Orders
- The protest is dismissed.
- The grant is confirmed as set out in the ruling.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CAUSE NO. 374 OF 2008
IN THE MATTER OF THE ESTATE OF JOHANA NDURA WAKARITU alias NDURA s/o WAKARITU (DECEASED)
DOMINICA WAMUYU KIHU
JOHN MACHARIA MUCHIRI........................PROTESTORS
VERSUS
JOSEPH WAKARITU NDURA
MARY WANGUI NDUR................................ARESPONDENT
RULING
FACTS
1. The estate relates to the late Johana Ndura Wakaritu alias Ndura s/o Wakaritu (deceased) who died intestate on the 11th June, 2001 at Jamii Hospital; the identifiable properties comprising the estate of the deceased are the following land parcel numbers;
i. Magutu/Gathehu/53,
ii. Magutu/Gathehu/144,
iii. ½ share Plot No.42 Gathehu,
iv. Plot No.58/A Ihawagi.
2. The Deceased died intestate and was survived by a widow, five sons and three (3) daughters as listed hereunder, namely;
i. Mary Wangui Ndura –widow
ii. Joseph Wakaritu Ndura –son
iii. Samuel Muraguri Ndura – son
3. The Petitioners are the widow and son of the deceased and had jointly petitioned for Letters of Administration on the 23/07/2008; the Grant was issued on the 11/12/2008; the petitioners then proceeded to file the Summons for Confirmation of the Grant on the 10/0/2011 and therein proposed the mode of distribution of the four properties.
4. The 1st Protestor placed a caveat on the 24/03/2009 preventing any dealings with the estate of the deceasd
RESPONDENTS CASE
ISSUES FOR DETERMINATION
1. After hearing the rival presentations of the respective parties and reading the written submissions this court has framed the following issues for determination;
i. Whether all the grand children are dependants and whether they are entitled to benefit from the deceaseds estate;
ii. Distribution of the estate of the deceased.
ANALYSIS
2. The parties had recorded a consent in court on the 5/05/2016 and agreed that the remains of one of the protestors namely Eunice Mumbi Mwangi (now deceased) be interred on the Sagana property pending hearing and determination of the matter; that in the event the parcel was found to belong to the 1st house then her remains be exhumed and buried on the portion distributed to the 2nd house.
FINDINGS AND DETERMINATION
3. The grand-children are not dependants of the deceased and do not qualify to inherit any interest in the deceased’s estate.
4. The Protest is hereby dismissed.
5. The Grant is hereby confirmed on the terms as set out hereunder;
i. The property known as is land parcel number Konyu/Gachuku/ 14 measuring 1. 5 Acres shall be divided equally between the protestor and the respondent.
6. Each party shall bear their own costs.
It is so ordered.
Dated, Signed and Delivered at Nyeri this 7th day of September, 2017.
HON. A. MSHILA
JUDGE.