[2018] KEHC 7241 (KLR)
The court determined that the dispute over the distribution of LR NO. MWIMBI/CHOGORIA/291 hinges on whether the portion allocated to Kenneth Micheni M’Twaiti is justifiably larger due to an alleged land depression that may render part of the land undevelopable. Given the conflicting positions of the parties and the...
Source-derived case information.
- Citation
- [2018] KEHC 7241 (KLR)
- Parties
- Applicant: Celestino Kinegeni M’ Muthara; Respondent: Grace Kaari Njeru
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 121 of 1989
- Procedural Posture
- Succession Cause / Interlocutory Ruling on Distribution Dispute and Expert Report Order
- Outcome
- Determination of distribution and confirmation of grant deferred pending expert report.
- Judges
- F Gikonyo
- Legal Topics
- Succession Distribution, Estate Administration, Land Allocation Dispute, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Celestino Kinegeni M’ Muthara
Applicant
Grace Kaari Njeru
Respondent
Procedural Posture
Succession Cause / Interlocutory Ruling on Distribution Dispute and Expert Report Order
Legal Issues
- 1 Whether the distribution of LR NO. MWIMBI/CHOGORIA/291 among the beneficiaries is fair and equitable.
- 2 Whether the portion allocated to Kenneth Micheni M’Twaiti is justified due to alleged land depression and undevelopability.
- 3 Whether the protestor Grace Kaari Njeru is entitled to an increased share of the estate property.
Ratio Decidendi
The court determined that the dispute over the distribution of LR NO. MWIMBI/CHOGORIA/291 hinges on whether the portion allocated to Kenneth Micheni M’Twaiti is justifiably larger due to an alleged land depression that may render part of the land undevelopable. Given the conflicting positions of the parties and the materiality of the land's physical condition to the fairness of distribution, the court found it necessary to order an expert investigation by the district physical planner and surveyor. The outcome of this investigation will inform the final distribution of the estate. Accordingly, the court deferred the determination of the distribution and confirmation of grant pending the...
Court Disposition
Determination of distribution and confirmation of grant deferred pending expert report.
Orders
- District physical planner and surveyor, Tharaka Nithi County, to visit LR NO. MWIMBI/CHOGORIA/291 and report on the existence, location, and impact of any depression within 30 days.
- Case to be given priority and assigned a hearing date after the report is filed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
SUCCESSION CAUSE NO.121 OF 1989
In the Matter of the Estate of Leah Karimi Alias Leah Zacharia (Deceased)
CELESTINO KINEGENI M’ MUTHARA..............PETITIONER
VERSUS
GRACE KAARI NJERU...........................................PROTESTOR
RULING
Physical planning report
[1] These proceedings relate to the estate of Leah Karimi alias Leah Zacharia (Deceased).The children of the deceased are:-
a) Celestino Kinegani- son
b) Herodion Miti- son (deceased)
c) Joanes Njeru-son (deceased)
d) Kenneth Murungi; and
e) Sarah Ithiru Riungu- daughter (deceased)
The share of Herodion M’Iti is being taken by Kenneth Micheni M’Twaiti and that of Joanes Njeru is being taken by Grace Kaari. The estate property is LR NO. MWIMBI/CHOGORIA/291. Parties cannot agree on distribution. But, it seems that the only disagreement is the share due to the protestor and Kenneth Micheni M’Twaiti. The Petitioner is contented with 0. 18 acres which he says was given to him by his father. I note that Kenneth Micheni is taking 0. 42 acres- according to the Petitioner. But, the protestor is saying that her portion is too small and she wants it increased to 0. 20 acres and that of Kenneth be reduced accordingly to 0. 32 acres. One striking thing; it has been alleged by the petitioner that Kenneth Micheni is getting a bigger portion because a large portion of that land has a depression and cannot be developed. That is a substantial issue that calls for further investigation by the court through experts in land use, planning and survey. Accordingly, I direct that the district physical planner and survey, Tharaka Nithi County, to visit the estate property and specifically establish:(1) whether the portion of land measuring approximately 0. 42 acres and being occupied by the family of late Herodion Miti Muthara has a depression; and (2) if so, the location and size of the depression; and (3) whether the depression makes or does not the land undevelopable. A report thereto to be filed in the next 30 days. As this cause is quite aged, I shall fast track it. Accordingly, I will assign the case a date on the basis of priority. Determination of distribution of the estate and confirmation of grant is deferred to 4. 4.2018. It is so ordered.
Dated, signed and delivered in open court at Meru this 1st day of March, 2018.
.............................
F. GIKONYO
JUDGE
In the presence of:
Mr. Kiogora advocate for protester
Mr. Kitheka advocate for Petitioner
F. GIKONYO
JUDGE