[2017] KEHC 5686 (KLR)
The court found that there was no provision in the deceased's will granting Wanjiru Makimei any share in Lari/Kambaa/Githogoiyo/50. The will expressly bequeathed this property to the deceased's sons in equal shares. The application to amend the certificate of confirmation of grant was based on inconsistent and...
Source-derived case information.
- Citation
- [2017] KEHC 5686 (KLR)
- Parties
- Applicant: Wanjiru Makimei; Respondent: Peter Muturi; Respondent: Samwel Kuria; Respondent: Njuguna Makimei; Respondent: John Kuria
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 703 of 1984
- Procedural Posture
- Succession Cause / Ruling on Application to Amend Certificate of Confirmation of Grant
- Outcome
- application dismissed
- Judges
- DN Musyoka
- Legal Topics
- Succession, Wills, Confirmation of Grant, Estate Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wanjiru Makimei
Applicant
Peter Muturi
Respondent
Samwel Kuria
Respondent
Njuguna Makimei
Respondent
John Kuria
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Amend Certificate of Confirmation of Grant
Legal Issues
- 1 Whether Wanjiru Makimei is entitled to four (4) acres or eleven decimal four (11.4) acres out of Lari/Kambaa/Githogoiyo/50 from the deceased's estate.
- 2 Whether the certificate of confirmation of grant should be amended to reflect such entitlement.
- 3 Whether the will of the deceased provides for Wanjiru Makimei in respect of Lari/Kambaa/Githogoiyo/50.
Ratio Decidendi
The court found that there was no provision in the deceased's will granting Wanjiru Makimei any share in Lari/Kambaa/Githogoiyo/50. The will expressly bequeathed this property to the deceased's sons in equal shares. The application to amend the certificate of confirmation of grant was based on inconsistent and unsupported claims, as the summons and affidavit conflicted on the acreage and the will did not support either claim. Therefore, there was no legal basis to grant the orders sought by the applicant.
Court Disposition
application dismissed
Orders
- The application dated 20th November 2001 is dismissed.
- The cause is transferred to the High Court of Kenya at Kiambu for final disposal.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 703 OF 1984
IN THE MATTER OF THE ESTATE OF MAKIMEI KURIA (DECEASED)
RULING
1. The summons dated 20th November 2001 seeks amendment of the certificate of confirmation of grant dated 15th October 1999 so as to reflect that Wanjiru Makimei is entitled to four (4) acres out of Lari/Kambaa/Githogoiyo/50. In the affidavit in support sworn on 20th November 2001, the applicant administrator avers that in his will the deceased had provided that Wanjiru Makimei was entitled to eleven decimal four (11. 4) acres out of Lari/Kambaa/Githogoiyo/50 yet that is not reflected in the certificate of confirmation of grant.
2. Obviously, there is confusion as to whether the said Wanjiru Makimei is entitled to four (4) acres or to eleven decimal four (11. 4) acres, given that the summons and the affidavit are not in sync.
3. More fundamentally, I have scrupulously perused the will of the deceased on record; I have not come across any provision for Wanjiru Makimei in Lari/Kambaa/Githogoiyo/50. Lari/Kambaa/Githogoiyo/50 is disposed of in clause 3(c) of the will, which states as follows:-
‘I give – my farm No. 50 Lari/Kambaa/Githogoiyo to my sons Peter Muturi, Samwel Kuria, Njuguna Makimei and John Kuria in equal shares absolutely…’
4. Clearly, there is no basis for the order sought. I shall accordingly dismiss the application dated 20th November 2001.
5. I note that none of the assets of the estate are situated within Nairobi, but largely in the Lari area of Kiambu County. I shall accordingly direct that the cause be transferred to the High Court of Kenya at Kiambu for final disposal.
DATED, SIGNED and DELIVERED at NAIROBI this 12TH DAY OF MAY, 2017.
W. MUSYOKA
JUDGE