[2018] KEHC 3497 (KLR)
The court found that Henry Nkunja Kibundu established himself as a dependant of the deceased, having lived on and developed parcel Njia/Burieruri/4362 with the deceased's consent and support. The protester was initially recognized as a beneficiary by the chief and other relatives, and there was no credible evidence...
Source-derived case information.
- Citation
- [2018] KEHC 3497 (KLR)
- Parties
- Applicant: Nyai Makathimo; Respondent: Henry Nkunja Kibundu
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 144 of 2015
- Procedural Posture
- Succession Cause / Ruling on Protest to Confirmation of Grant
- Outcome
- Protest allowed in part; grant confirmed with modifications.
- Legal Topics
- Succession and Inheritance, Dependant Entitlement, Distribution of Estate, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyai Makathimo
Applicant
Henry Nkunja Kibundu
Respondent
Procedural Posture
Succession Cause / Ruling on Protest to Confirmation of Grant
Legal Issues
- 1 Whether Henry Nkunja Kibundu is entitled to a share of the deceased's estate as a dependant.
- 2 Whether the property Njia/Burieruri/4362 was gifted to the protester by the deceased during his lifetime.
- 3 Whether the petitioner lawfully excluded the protester from the proposed distribution of the estate.
Ratio Decidendi
The court found that Henry Nkunja Kibundu established himself as a dependant of the deceased, having lived on and developed parcel Njia/Burieruri/4362 with the deceased's consent and support. The protester was initially recognized as a beneficiary by the chief and other relatives, and there was no credible evidence to support the petitioner's claim that the land was purchased by another. The court held that the protester was entitled to retain parcel Njia/Burieruri/4362 as a gift from the deceased. For the remainder of the estate, the petitioner, as the mother of the deceased and in the absence of a spouse or children, was entitled to inherit. The claims of other alleged beneficiaries...
Court Disposition
Protest allowed in part; grant confirmed with modifications.
Orders
- Parcel Njia/Burieruri/4362 to be retained by Henry Nkunja Kibundu as a gift from the deceased.
- All remaining parcels of land to be transmitted to the administrator (Nyai Makathimo), with discretion to transfer to other cited individuals if she wishes.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO. 144 OF 2015
IN THE MATTER OF ESTATE OF LEONARD MURUNGI MAKATHIMO - (DECEASED)
NYAI MAKATHIMO ............................................. PETITIONER
RULING
The deceased Leonard Muriungi Makathimo died on 21st March 2014 and according to the chief of Antubenga Location dated 29th October 2014 the chief listed the deceased person heirs as follows:-
1. Nyai Makathimo – Mother
2. Samuel Kimathi – Nephew
3. Eugenio Mbae Mbabu
4. Henry Nkunja
The chief also listed the deceased person’s properties as follows:-
i. Njia/Buuri –eruri/4361
ii. Njia/Buuri –eruri/4362
iii. Njia/Buuri –eruri/321
iv. Njia/Buuri –eruri/610
v. Athiru-Ruujune plot Nos 267 and 676. .
vi. Amungient Adjucation section plot no. 131
vii. Shares in A/c No. M01491873 – Consolidated bank
viii. Mwalimu Shares
ix. Bank Accounts
Samuel Kimathi Eugenio Mbae Mbaabu and Henry Nkunja Kubundu consented to the deceased persons mother Nyai Makathimo petitioning for Letters of Administration. Grant was made to Nyai Makathimo on 15th June 2015.
The Administrator filed application dated 13th December 2016 seeking relatives of the deceased cannot ignore or wish him away. The petitioner and the other relatives of the deceased have not disputed that the protester stayed with the deceased from the time he was 14 years upto the time the deceased died and even made his funeral arrangements single handedly.
The Petitioner in her affidavit sworn on 21. 5.2018 claims that Eugenio Mbae had bought Land No. Njia/Burieruri/4362 but there is no evidence of such purchase and therefore this court finds that is an afterthought. In fact the tone of that affidavit shows that it is written by a 3rd party and not the petitioner.
The Petitioner has not explained why the protester was in the initial letter from chief indicated as a beneficiary and then not provided for in the distribution.
For the shares at Consolidated bank and Mwalimu shares as well as monies in the deceased persons bank account all shall go to the deceased persons mother unless his next of kin from the respective Sacco’s or banking indicate otherwise.
To confirm grant the administrator proposed mode of distribution when affidavit sworn on 13th December 2016, Henry Nkunja Kibundu filed a protest to the said application for confirmation claiming that the deceased gave him parcel no. Njia/Buri-eruri/4362 measuring 0. 05 acres which he bought and directed him to build his homestead on it.
He said all his children were born and bred in this particular parcel of land which he still occupies to date since 2002 to 2014 when the deceased died. The protester claimed that he single handedly buried the deceased on parcel of land in question after his relatives living in Imenti including Petitioner declined to go and make burial arrangements.
He said the petitioner and other relatives of the deceased only showed up on the day of burial and forcefully obtained burial permit. He averred that the deceased disclosed to him that his other properties will be inherited by his brother Josphat Murithi.
He said the deceased person’s mother and nephews approached him so they could file succession cause and even listed him as a beneficiary to take what the deceased had given him. He said L.R. No. Njia/Burieruri/4362 is on gift he got from the deceased during his life time and he had built his homestead on it.
He said Samuel Mbae is not related at all to the deceased and has influenced the petitioner to change her mind as to who should inherit. He said Samuel Kimathi the nephew of the deceased has been grabbing as items left by the deceased and has cut down all the trees left by deceased in his other parcels of land.
In support of protesters claim John M’Rukiru swore an affidavit on 18th April, Francis Mithika Mucheke Chief of Antubeng’a location also swore an affidavit confirming claims by the protester.
From the affidavit of protest of sworn by Henry Nkunja Kibundu on 16. 5.2017, the Chief’s letter dated 29th October 2014, the affidavit sworn by John M’Rukuru on 18th April 2018 and the affidavit of chief of Antubeng’a Location sworn on 18th April 2018, this court finds that the protester has put up a very strong case as a dependant of the deceased and the petitioner and other.
For the remainder of the parcels land the Petitioner ranks in priority to any other person in absence of spouse and children to inherit from the deceased. No good explanation has been given why Samuel Kimathi and Eugenio Mbae Mbabu should claim from the deceased as they are not directly related to the deceased and in any case the mother of the deceased is still alive. I do therefore make an order that all the other remaining parcels of land shall be transmitted to the Administrator and if she wishes she can have them transferred to the other 2 people cited in the cause. No order as to costs. Certificate of confirmation to issue.
HON. A.ONG’INJO
JUDGE
RULING, DELIVERED, DATED AND SIGNED IN COURT IN
26TH JULY 2018.
In the presence of:
C/A: Penina
Mr Ojiambo holding brief for Omari Protester.
Mr Mutembei Advocate for Petitioner – No appearance.
HON. A.ONG’INJO
JUDGE