[2021] KEHC 13231 (KLR)
The court found that the applicants' attempt to alter the distribution of the estate as confirmed by the certificate of confirmation was improper and amounted to an attempt to disinherit women beneficiaries. The applicants had not sought a stay or review of the certificate, nor had they obtained the consent of other...
Source-derived case information.
- Citation
- [2021] KEHC 13231 (KLR)
- Parties
- Applicant: Francis Kimani Gichuki; Applicant: David Muniu Riunge; Respondent: Theresa Wanjiru Riunge; Respondent: Josephine Njeri Riunge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 3079 of 2002
- Procedural Posture
- Succession Cause / Ruling on Application to Vary Distribution of Estate
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Succession, Estate Distribution, Confirmation of Grant, Gender Equality in Inheritance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Kimani Gichuki
Applicant
David Muniu Riunge
Applicant
Theresa Wanjiru Riunge
Respondent
Josephine Njeri Riunge
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Vary Distribution of Estate
Legal Issues
- 1 Whether the applicants can unilaterally alter the distribution of the estate as confirmed by the court.
- 2 Whether the applicants' actions amounted to disinheritance of women beneficiaries contrary to the confirmed certificate.
- 3 Whether the valuation and expenses incurred by the applicants without consent bind the estate.
Ratio Decidendi
The court found that the applicants' attempt to alter the distribution of the estate as confirmed by the certificate of confirmation was improper and amounted to an attempt to disinherit women beneficiaries. The applicants had not sought a stay or review of the certificate, nor had they obtained the consent of other administrators or beneficiaries for the valuation and proposed redistribution. The law requires that any variation of a confirmed grant must be done through proper legal channels—appeal or review—not by unilateral action. The expenses incurred by the applicants for valuation without consent are not binding on the estate. The application was therefore dismissed with costs to...
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondents.
- The applicants shall bear the costs of the valuation and related expenses personally; the estate is not liable.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 3079 OF 2002
IN THE MATTER OF THE ESTATE OF JOSEPH GICHUKI RIUNGE (DECEASED)
FRANCIS KIMANI GICHUKI.............................1ST APPLICANT
DAVID MUNIU RIUNGE.....................................2ND APPLICANT
-VERSUS-
THERESA WANJIRU RIUNGE........................1ST RESPONDENT
JOSEPHINE NJERI RIUNGE..........................2ND RESPONDENT
RULING
1. On 9th July 2018 a certificate of confirmation in respect of the estate of the deceased Joseph Gichuki Riunge was issued to Theresa Wanjiru Riunge (1st respondent), Francis Kimani Gichuki (1st applicant), Francis Mburu Riunge and David Muniu Riunge (2nd applicant). The 2nd respondent Josephine Njeri Riunge is one of the daughters of the deceased, and a beneficiary of the estate. On the application by the respondents, on 27th November 2019, the applicants and Francis Mburu Riunge were directed to distribute the estate of the deceased as per the certificate of confirmation within 60 days, failing which the Deputy Registrar was to effect the distribution.
2. It is clear that by 17th February 2020 when the applicants brought the instant application, the estate had not been distributed. Instead they had unilaterally identified a valuer (Q Macs Realtors Ltd) to value the properties of the estate, and on the basis of this valuation they had come up with a new proposal on the distribution of the estate. An example will suffice. LR No. Limuru/Bibirioni/246 was according to the certificate of confirmation supposed to be shared equally to all the 9 beneficiaries of the deceased who include the respondents. In the distribution proposal contained in the application, it was only the applicants and the other male beneficiaries (Francis Mburu Ruinge and Boniface Njunge Gichuki) who were going to equally share this property. The women beneficiaries, including the respondents, were not going to share in this parcel of land. Secondly, in the proposal Naivasha/Mwichingiri Block 1/297 has been shared so that the applicants each gets 1 acre, Mary Wanjiru Riunge gets 3 acres, the 1st respondent gets 1. 5 acres, Francis Mburu Riunge gets 1. 5 acres, Boniface Njunge Gichuki gets 1. 5 acres and the 2nd respondent gets 2 acres. In the certificate of confirmation each beneficiary was to get an equal share from the parcel.
3. It is clear that the intention of the instant application is not only to delay the distribution of the estate of the deceased but also to disinherit the women beneficiaries of some of the properties of the estate. The applicants did not like the ordered equal sharing of every piece of land comprised in the estate of the deceased. They have not come to terms with the confirmation that was done on 9th July 2019, which they challenged on appeal but did not care to obtain the stay of the decree and orders. Now that the court ordered that the administrators of the estate do share the estate or the Deputy Registrar comes into the picture, once again applicants have sought to challenge that by the present application.
4. Further, the applicants undertook a valuation without the consent and participation of the other administrators and incurred a bill of Kshs.623,330/= and other expenses bringing the total of Ksh.900,000/= which the 2nd applicant allegedly paid. They will shoulder this illegal transaction, and will not commit the estate of the deceased in any way.
5. The certificate of confirmation can only be overturned by an appeal process, or varied and/or set aside by the process of review. The present notice of motion was brought under sections 82 and 83 of the Law of Succession Act, Articles 22 and 23 of the Constitution, sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 51 rules 1 and 4 of the Civil Procedure Rules. It was neither an application for stay of the certificate of confirmation nor an application to review the same.
6. The consequence is that, I dismiss the application with costs.
DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF JULY 2021.
A.O. MUCHELULE
JUDGE