[2022] KEHC 12384 (KLR)

In re Estate of M'ambutu M'karaigua (deceased) (Succession Cause 248 of 2007) [2022] KEHC 12384 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12384 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 248 of 2007

TW Cherere, J

June 9, 2022

IN THE MATTER OF ESTATE OF M’AMBUTU M’KARAIGUA (DECEASED)

Between

James Mworia M’ambutu

1st Applicant

Dennis Gikunda Kirimi

2nd Applicant

and

Joseph Mwenda M’ambutu

Respondent

Ruling

Background 1. M’ambutu M’karaigua(deceased) died sometimes on January 6, 1984. His estate comprised of LR No Abothuguchi/katheri/195 and LR No Abothuguchi/Katheri/1082.

2. Letters of administration were issued to Joseph Mwenda M’ambutuon September 20, 2007. Subsequently, a certificate of confirmation of grant was issued on May 12, 2008 distributing the estate as follows:LR No Abothuguchi/Katheri/1951. James Mworia M’Ambutu 0. 88 acres2. John Kirimi M’Ambutu 0. 88 acres3. Silas Mugambi M’Ambutu 0. 66 acres4. Peter Kaimenyi M’Ambutu 0. 66 acres5. Stephen Kiogora M’Ambutu 0. 66 acres6. Joseph Mwenda M’Ambutu 0. 66 acresLR No Abothuguchi/Katheri/1082 jointly to1. Silas Mugambi M’Ambutu2. Peter Kaimenyi M’Ambutu3. Stephen Kiogora M’Ambutu4. Joseph Mwenda M’Ambutu

3. Subsequently by an application dated January 30, 2018, Tabitha Gachigo M’Ambutu (deceased’s widow) Lucy Nyegera M’Ambutu, Stella Kinanu M’Ambutu, Gladys Mungange M’Ambutu (daughters of deceased) together with Joseph Mwenda M’Ambutu (petitioner) applied for rectification of the grant to provide for the widow and daughters of the deceased.

4. By a judgment dated February 20, 2019, the court directed made the following orders:Accordingly, I order that the widow and daughters shall be provided for in the estate ¼ of an acre. The said ¼ acre shall be excised from Abothuguchi/Katheri/195. The balance shall be shared out by the persons appearing in, on the basis of the ration derived from the initial sharing stated in the certificate of confirmation herein. Other than the sharing of LR No 195 all the other entries in the earlier certificate shall remain as is. An amended certificate of confirmation of Grant shall be issued accordingly.

5. Subsequent to the judgment dated February 20, 2019, an amended certificate of confirmation of grant was issued on March 13, 2019 distributing the estate as follows:LRNo Abothuguchi/Katheri/1951. Tabitha Gachigo M’Ambutu (widow) and daughter ¼ acre2. Balance on the basis of the ratio derived from the sharing stated in the certificate of confirmation of grant herein toi.James Mworia M’Ambutu 0. 88 acresii.Silas Mugambi M’Ambutu 0. 66 acresiii.Peter Kaimenyi M’Ambutu 0. 66 acresiv.Stephen Kiogora M’Ambutu 0. 66 acresv.Joseph Mwenda M’Ambutu 0. 66 acresLR No Abothuguchi/Katheri/10825)Silas Mugambi M’Ambutu 0. 195 acres6)David Guantai 0. 390 acres7)Stephen Kiogora M’Ambutu 0. 195 acres

6. By summons dated and filed on June 27, 2019, the objector/applicants pray for:1. An order of inhibition to restrict dealing over LR No Abothuguchi/Katheri/195 and LR No Abothuguchi/Katheri/10822. Revocation and or annulment of the amended grant of letters of administration issued on February 20, 20193. Any other order4. Costs be provided for

7. The application is based on the grounds on its face and on the supporting affidavit sworn by the 1st applicant on January 27, 2019. He avers that the names of John Kirimi M’Ambutu (son of deceased who is father to the 2nd applicant) and Peter Kaimenyi M’Ambutu (also a son of the deceased) were omitted from the amended certificate of confirmation of grant was issued on March 13, 2019 which also introduced David Guantai who is a stranger to the estate.

8. In his replying affidavit sworn on November 12, 2019, the petitioner/ respondent concedes that names of John Kirimi M’Ambutu (son of deceased who is father to the 2nd applicant) and Peter Kaimenyi M’Ambutu (also a son of the deceased) were omitted from the amended certificate of confirmation of grant was issued on March 13, 2019 but gives no explanation for the said omission from LR No Abothuguchi/Katheri/195. Concerning LR No Abothuguchi/Katheri/1082, the petitioner concedes that David Guantai is a purchaser and not a beneficiary of deceased’s estate. He alleges that him and his brother Peter Kaimenyi M’Ambutu sold their shares in LR No Abothuguchi/Katheri/1082 but fails to attach evidence from the said Peter Kaimenyi M’Ambutu in support of the sale.

9. From the foregoing, I find that the summons dated and filed on June 27, 2019 case has merit for the reason that the distribution omits names of two sons of the deceased without any persuasive explanation.

10. It is therefore hereby ordered:1. The amended certificate of confirmation of grant issued on March 13, 2019 is hereby revoked2. The respondent is hereby directed to distribute the estate as ordered by the court and in the event of any difficulty in complying with the court order or if there be need for further amendment, he is at liberty to move the court appropriately.3. Respondent bears the costs of this summons4. This matter shall be mentioned on November 14, 2022 to confirm distribution of the estate.

DATED AT MERU THIS 09TH DAY OF JUNE 2022WAMAE TW CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor petitioner/respondent - Mr Gikunda for Gikunda Anampiu & Co AdvocatesFor objectors/applicants - Mr Kithinji for Kithinji Kirigiah & Co Advocates