[2023] KEHC 23637 (KLR)
The court found that the issues raised by the protestor regarding her status as a wife and her daughters' status as dependants, as well as the alleged subdivision of the estate property, could not be adequately resolved on the basis of affidavit evidence alone. In the interests of substantive justice and to...
Source-derived case information.
- Citation
- [2023] KEHC 23637 (KLR)
- Parties
- Applicant: M/s Opondo; Respondent: Shikanda; Respondent: M/s Mabangu and Kimathi
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Succession Cause E024 of 2021
- Procedural Posture
- Succession Cause / Ruling on Mode of Hearing for Protest and Confirmation of Grant
- Outcome
- Judgment on confirmation of grant arrested; matter to proceed by viva voce evidence at confirmation hearing.
- Judges
- F Gikonyo
- Legal Topics
- Succession, Dependants, Customary Law Marriage, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M/s Opondo
Applicant
Shikanda
Respondent
M/s Mabangu and Kimathi
Respondent
Procedural Posture
Succession Cause / Ruling on Mode of Hearing for Protest and Confirmation of Grant
Legal Issues
- 1 Whether the protestor and her daughters qualify as dependants under section 29 of the Law of Succession Act.
- 2 Whether the protestor was married to the deceased under Maasai customary law.
- 3 Whether the estate property had been subdivided as alleged by the protestor.
Ratio Decidendi
The court found that the issues raised by the protestor regarding her status as a wife and her daughters' status as dependants, as well as the alleged subdivision of the estate property, could not be adequately resolved on the basis of affidavit evidence alone. In the interests of substantive justice and to ascertain the rightful beneficiaries, the court exercised its discretion under Rule 41 of the Probate and Administration Rules to direct that viva voce (oral) evidence be taken at the hearing for confirmation of grant. The earlier directions for determination by written submissions were reviewed and set aside, and the scheduled judgment was arrested to allow for oral testimony.
Court Disposition
Judgment on confirmation of grant arrested; matter to proceed by viva voce evidence at confirmation hearing.
Orders
- The protest and confirmation of grant shall be heard by viva voce evidence from all relevant parties.
- Earlier directions for determination by written submissions are reviewed and set aside.
Full Case Text
Judgment text and source record
20 paragraphs
In re Estate of Leshan Nick Ole Letoluo (Deceased) (Succession Cause E024 of 2021) [2023] KEHC 23637 (KLR) (11 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23637 (KLR)
Republic of Kenya
In the High Court at Narok
Succession Cause E024 of 2021
F Gikonyo, J
October 11, 2023
IN THE MATTER OF THE ESTATE OF LESHAN NICK OLE LETOLUO (DECEASED)
Ruling
1. On 29/3/2023, the court directed that the protest filed herein be canvassed within the confirmation hearing by way of written submissions.
2. Parties filed written submissions thereto and a date was set for judgment.
3. However, a different pathway has become necessary as shall be borne out later.
4. The global claim in the protestor is that she and her two daughters are dependants of the deceased under section 29 of the Law of Succession Act, and they too have a right to inherit the estate property.
5. The specific grounds stated are that, she is the wife of the deceased, and her daughters are children of the deceased, for; i) she was married to the deceased under Maasai customary law; and ii) they are children whom the deceased had taken into his family as his own, and as were being maintained by the deceased immediately prior to his death, respectively.
6. In addition, she stated that, prior to his death, the deceased had sub-divided his land parcel number 290 into four distinct portions with the intention of assigning them as follows; 7643 to his son Kuntai; 7644 to the protestor which was their matrimonial home; 7645 was where the borehole was to serve both matrimonial homes; and 7646 to Salome Leshan which was her matrimonial home.
7. The court is aware that the petitioner has stated; i) that the said property of the deceased has not been subdivided; and ii) that the protestor was merely an acquittance or a concubine of the deceased.
8. The court is acutely aware of the directions given on March 29, 2023 to the effect that the protest be canvassed within the confirmation of grant through written submissions. However, upon thoughtful perusal and consideration of the claims by the protestor and the nature of affidavit evidence filed, this is a case that should be resolved upon viva voce evidence as a matter of substantive justice.
9. Thus, in accordance with rule 41 of the Probate and Administration Rules, the court shall, during the hearing for confirmation of grant, hear oral evidence by the protestor as well as the petitioner and all persons who have filed affidavits herein in order to ascertain the rightful beneficiaries of, and eventually distribute the estate. Earlier directions are accordingly reviewed.
10. As a consequence, the judgment that was to be delivered today is hereby arrested. Orders accordingly.
DATED, SIGNED AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 11TH DAY OF OCTOBER, 2023. --------------------------F. Gikonyo M.JudgeIn the presence of:-M/s Opondo for Petitioner2. Shikanda for Protestor3. M/s Mabangu and Kimathi for 3rd Administrator4. Mr. Muraguri C/A.