[2011] KEHC 3815 (KLR)
The court found that while the properties in question were registered in the name of the deceased and the applicant's proposed distribution was not inherently objectionable, the protestor's claim that a portion of LOC. 10/KAHUTI/950 was held in trust for him introduced a substantive issue that could not be resolved...
Source-derived case information.
- Citation
- [2011] KEHC 3815 (KLR)
- Parties
- Applicant: Samuel Kagechu Mwangi; Respondent: Edward Kimani Gachango
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 274 of 2010
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Proceedings stayed pending determination of trust claim.
- Judges
- JK Sergon
- Legal Topics
- Succession of Estates, Distribution of Land, Trusts in Land, Beneficiary Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Kagechu Mwangi
Applicant
Edward Kimani Gachango
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the listed beneficiaries are entitled to inherit the estate of the deceased as proposed by the applicant.
- 2 Whether the protestor has a valid claim of trust over a portion of LOC. 10/KAHUTI/950 registered in the deceased's name.
- 3 Whether Muithe Arabia Maiba is entitled to a share of the estate.
Ratio Decidendi
The court found that while the properties in question were registered in the name of the deceased and the applicant's proposed distribution was not inherently objectionable, the protestor's claim that a portion of LOC. 10/KAHUTI/950 was held in trust for him introduced a substantive issue that could not be resolved within the confirmation proceedings. The court held that such a trust claim must be determined through separate proceedings as provided under rule 41 of the Probate and Administration Rules. Accordingly, the court stayed further proceedings in the succession cause and directed the protestor to initiate the necessary proceedings within 90 days to establish his claim. The costs...
Court Disposition
Proceedings stayed pending determination of trust claim.
Orders
- Further proceedings in this cause are stayed.
- The protestor is directed to take out necessary proceedings to establish his claim within 90 days from the date hereof.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
SUCCESSION CAUSE NO. 274 OF 2010
IN THE MATTER OF THE ESTATE OF JONAH KAGECHU MUGEKENYI ALIAS JONAH KAGECHU – DECEASED
SAMUEL KAGECHU MWANGI……..……..................................PETITIONER
VERSUS
EDWARD KIMANI GACHANGO & OTHERS…….….……..……PROTESTORS
JUDGMENT
A grant of Letters of Administration intestate in respect of the Estate of Jonah Kagechu, deceased, was made to Samuel Kagechu Mwangi, hereinafter referred to as the Applicant, on 24th September 2004 by the Principal Magistrate’s Court, Muranga. He has now taken out the Summons for Confirmation of Grant dated 29th March 2005 in which he prayed for the grant to be confirmed. Edward Kimani Gachango, hereinafter referred to as the Protestor, opposed the summons by filing an affidavit of Protest. When the dispute came up for hearing, the subordinate court made an order transferring the Succession Cause to this Court for hearing and determination on the ground that the Court had no pecuniary interest to hear and determine the cause. Directions were given directing the matter to be determined by oral evidence and by submissions.
I have considered the evidence and the submissions. The Applicant has listed the following persons as those who survived the deceased:
1. Samuel Kagechu Mwangi – grandson.
2. Muithe Arabia Maiba – Stepson.
3. James Kariuki – stepson.
4. Edward Kimani – Stepson.
The Applicant also identified the following properties as the assets of the Estate:
(i)LOC. 10/KAHUTI/950.
(ii)LOC. 10/GATHINJA/229.
He proposed for the aforesaid properties to be distributed as follows:
(i) LOC. 10/KAHUTI/950.
Samuel Kagechu Mwangi - 1. 5 acres
Edward Kimani - 1. 5 acres
(iii)LOC. 10/GATHINJA/229
James Kariuki - 1. 45 acres
Muithe Arabia Maiba - 1. 45 acres.
Edward Kimani Gachango opposed the application for confirmation of grant for various reasons. He was of the view that the deceased was survived by himself, being a step son and two sons namely James Kariuki Gerishon and Kenneth Macharia. He claimed that Muithe Arabia Maiba was not related to the deceased hence he was not entitled to share the deceased’s Estate. The Protestor claimed that the deceased gave Muithe Arabia Maiba, a small portion to occupy in a temporary basis within L.R. NO. LOC. 10 GATHINJA/229. The Protestor further alleged that Samuel Kagechu Mwangi, being a grandson was not entitled to inherit the deceased’s Estate. The Protestor claimed that the deceased gave him 1. 3 acres and that he bought 1. 7 acres which was consolidated to form LOC. 10/KAHUTI/950 and registered in the deceased’s name. He proposed to solely inherit LOC. 10/KAHUTI/950. He proposed that LOC. 10/GATHINJA/229 be shared in equal measure between James Kariuki Gerishon and Keneth Macharia.
At the close of evidence, learned counsel appearing in this cause, were permitted to file written submissions. There is no dispute that the two pieces of land are registered in the name of the deceased. There is no doubt aslo that Muithe Arabia Maiba is occupying a portion of LOC. 10/GATHINJA/229. The Protestor has claimed that he owns a portion measuring 1. 7 acres comprising in LOC. 10/KAHUTI/950. The Protestor is indirectly saying that the aforesaid portion of the land was registered in the name of the deceased in trust for him. The Protestor claims he has put up a permanent building which he used to claim owner occupier house allowance. There is also evidence that Muithe Arabia Maiba occupies nearly half of LOC. 10/GATHINJA/229. It is not difficult to decide this dispute but there is a complication which has arisen in view of the Protestor’s claim. Basically the Protestor is alleging that a portion measuring 1. 7 acres comprised in LOC. 10/KAHUTI/950 was his land which he purchased but was registered in the name of the deceased in trust for him. Such an issue can only be determined in the manner provided for under rule 41 of the Probate and Administration Rules. A fair order is to stay further proceedings in this cause and direct the Protestor to take out the necessary proceedings to establish his claim within 90 days from the date hereof. Costs of these proceedings to abide the outcome of this cause.
Dated and delivered at Nyeri this 25th day of February 2011.
J. K. SERGON
JUDGE
In open court in the presence of Mr. Ng’ang’a holding brief Kirubi for Petitioner and Mwangi holding Gacheru for objector.