[2011] KEHC 3445 (KLR)
The court found that the purported sale of the deceased's immovable property to Gichunge Mitu was not recognized in law because it occurred before confirmation of the grant, contrary to Section 82(ii) of the Law of Succession Act. The court emphasized that the interests of the minor children must be paramount in the...
Source-derived case information.
- Citation
- [2011] KEHC 3445 (KLR)
- Parties
- Applicant: Kailu Lawrence Kabilu; Applicant: Margaret Karambu Isaiah
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 18 of 2010
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant
- Outcome
- Grant confirmed with modifications to protect minor beneficiaries; sale to Gichunge Mitu not recognized.
- Judges
- MM Kasango
- Legal Topics
- Succession of Estates, Distribution of Property, Interests of Minors, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kailu Lawrence Kabilu
Applicant
Margaret Karambu Isaiah
Applicant
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant
Legal Issues
- 1 Whether the sale of immovable property by the petitioners before confirmation of grant was lawful.
- 2 How the estate of the deceased should be distributed, particularly in relation to the interests of minor beneficiaries.
- 3 Whether the interests of the children have been adequately protected in the proposed distribution.
Ratio Decidendi
The court found that the purported sale of the deceased's immovable property to Gichunge Mitu was not recognized in law because it occurred before confirmation of the grant, contrary to Section 82(ii) of the Law of Succession Act. The court emphasized that the interests of the minor children must be paramount in the distribution of the estate. Accordingly, the court ordered that the relevant parcels of land be held in trust by Kailu Lawrence Kabilu for the benefit of the minor children until they attain the age of majority, with Kailu Lawrence Kabilu retaining a life interest in the properties. The court declined to make any order as to costs.
Court Disposition
Grant confirmed with modifications to protect minor beneficiaries; sale to Gichunge Mitu not recognized.
Orders
- Parcel No. Njia-Cia Mwenda/3352 to be held in trust by Kailu Lawrence Kabilu on behalf of T.K, P.G, and J.M until all attain 18 years.
- Kailu Lawrence Kabilu shall have a life interest over Njia-Cia Mwenda/3352.
Full Case Text
Judgment text and source record
36 paragraphs
SUCCESSION
-Distribution
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
SUCCESSION CAUSE NO. 18 OF 2010
IN THE MATTER OF THE ESTATE OF THE LATE LAWRENCE KABILUM’MUNORU ALIAS KABILU M’MUNORU (DECEASED)
KAILU LAWRENCE KABILU ...........................................................................................................................................1ST PETITIONER
MARGARET KARAMBU ISAIAH ...................................................................................................................................2ND PETITIONER
RULING
Kailu Lawrence Kabilu jointly with Margaret Karambu Isaiah petitioned for grant of letters of administration intestate by a petition dated 8th January 2010. Those that survived the deceased were stated in form P&A5 as follows:-
1. Kailu Lawrence Kabilu – Wife 52 years
2. Margaret Karambu Isaiah – Daughter 26 years
3. T.K – Daughter Minor
4. P. G – Son Minor
5. J. M – Son – Minor
6. Rose Ciomithea – Daughter - Deceased
A grant was issued to the petitioners on 8th July 2010. The petitioners by a summons dated 17th January 2011 sought confirmation of grant. In that application, the petitioners seek to distribute the estate of the deceased by holding parcel number Njia-Cia Mwenda/796 in trust for the minor children listed above and other persons who were not listed as beneficiaries. At the hearing of the summons for confirmation, both P.G and J.M the minor children of the deceased stated to the court that parcel number Njia-Cia Mwenda/3352 was being distributed to Gichunge Mitu who had purchased it from their mother Kailu Lawrence Kabilu and that the full purchase price had not been paid by Gichunge. Section 82 (ii) of the Law of Succession Act Cap 160 is very pertinent in this case. It provides:-
“No immovable property shall be sold before confirmation of grant.”
The petitioners or any one else had no authority or power to sell the deceased immovable estate before confirmation of the grant. It therefore follows that the purported sale of the deceased land to Gichunge Mitu is not recognized in law. It should also be borne in mind that in deciding any issue involving a child the interest of the child should always be paramount. It is for that reason that I order that the grant be confirmed as follows:-
1. Parcel No. Njia-Cia Mwenda/3352 to be held in trust by Kailu Lawrence Kabilu on behalf of:-
(a)T.K
(b)P.G
(c)J.M
Until all of them have attained the age of 18 years.
2. Kailu Lawrence Kabilu shall have a life interest over Njia/Cia Mwenda/3352.
3. Parcel No. Njia-Cia Mwenda/796 to be held in trust by Kailu Lawrence Kabilu on behalf of:-
(d)T.K
(e)P.G
(f)J.M
Until all of them have attained the age of 18 years.
4. Kailu Lawrence Kabilu shall have a life interest over Njia/Cia Mwenda/796.
5. There shall be no orders as to costs.
Dated, signed and delivered at Meru this 31st day of March 2011.
MARY KASANGO
JUDGE