[2021] KEHC 1050 (KLR)
The protestor, Paul Njoroge, failed to discharge the burden of proof required under Section 107 of the Evidence Act to establish the existence of a pending suit (Thika ELC Case No. 155 of 2019) affecting the estate property. The court found that there was no evidence before it to support the protestor's claim, and...
Source-derived case information.
- Citation
- [2021] KEHC 1050 (KLR)
- Parties
- Applicant: Moses Muturi Mbugua; Applicant: Edward Njuguna Ngugi; Applicant: Hezron Kaburu Boro; Respondent: Paul Njoroge; Respondent: Margaret Mwihaki Njoroge
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 90B of 2016
- Procedural Posture
- Succession Cause / Ruling on Protest to Confirmation of Grant
- Outcome
- protest dismissed; grant confirmed
- Judges
- MM Kasango
- Legal Topics
- Succession, Confirmation of Grant, Burden of Proof, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Muturi Mbugua
Applicant
Edward Njuguna Ngugi
Applicant
Hezron Kaburu Boro
Applicant
Paul Njoroge
Respondent
Margaret Mwihaki Njoroge
Respondent
Procedural Posture
Succession Cause / Ruling on Protest to Confirmation of Grant
Legal Issues
- 1 Whether the protestor proved the existence of a pending suit affecting the estate property.
- 2 Whether the grant issued to the applicants should be confirmed in light of the protest.
Ratio Decidendi
The protestor, Paul Njoroge, failed to discharge the burden of proof required under Section 107 of the Evidence Act to establish the existence of a pending suit (Thika ELC Case No. 155 of 2019) affecting the estate property. The court found that there was no evidence before it to support the protestor's claim, and the previous judgment by Justice W. Musyoka had already conclusively determined that titles obtained on the strength of the revoked grant were invalid. As a result, the protest to the confirmation of the grant failed, and the summons for confirmation of grant dated 25th January, 2021 was unopposed. The court confirmed the grant issued to the applicants as sought.
Court Disposition
protest dismissed; grant confirmed
Orders
- The protest by Paul Njoroge is dismissed.
- The grant issued on 11th February, 2019 to Moses Muturi Mbugua, Edward Njuguna Ngugi, and Hezron Kaburu Boro is confirmed as sought by the summons dated 25th January, 2021.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
SUCCESSION CAUSE NO. 90B OF 2016
IN THE MATTER OF THE ESTATE OF THE LATE MARY WAIRIMU KIMOTHO aka WAIRIMU KIMOTHO (DECEASED)
RULING
1. This succession has had a very chequered history. There is a comprehensive judgment delivered by Justice W. Musyoka on 26th October, 2016 in this matter. I would not wish to repeat the background the learned judge set out in that judgment relating to the Estate of Mary Wairimu KimothoaliasWairimu Kimotho deceased. It suffices to state that the deceased passed away on 9th August, 1996. Margaret Mwihaki Njoroge obtained a grant of letters of administration intestate which grant was confirmed on 15th August, 2012. Following that confirmation Margaret sub-divided the deceased’s estate property, namely KABETE/KIBICHIKU/205. By his afore stated judgment of Justice W. Musyoka that grant was revoked and the confirmed grant was cancelled. The court by that judgment found that Margaret had failed to prove her claim of trust over the property. The learned judge ordered cancellation of all the sub-divisions carried out on the strength of the confirmed grant.
2. Although Margaret filed a notice of appeal dated 1st November, 2016 that appeal does not seem to have been pursued.
3. Following the revocation of the grant and cancellation of the confirmed grant issued to Margaret, a petition for grant of letters of administration intestate was filed by Moses Muturi Mbugua, Edward Njugunaand Hezron Kaburu Boro. A grant was issued to the three persons on 11th February, 2019. On three persons seeking confirmation of that grant, by the summons dated 25th January, 2021, Paul Njoroge who describes himself as a beneficiary of this estate filed an affidavit of protest. The protest is based on his allegation that the estate property is the subject of Thika ELC Case No. 155 of 2019. Although the protestor stated there is an existing suit in Thika ELC, he failed to attach any proof to his affidavit of protest of such a case. The affidavit of protest failed the test of Section 107 of the Evidence Act which provides:-
“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
4. The protestor had a burden to prove the existence of that alleged case before ELC Court. I will however further add that the judgment of Justice W. Musyoka was very conclusive that those who obtained titles on the strength of the confirmed grant issued to Margaret did not have good title.
5. In totality, the claim made by the protestor fails. The protestor failed to discharge his burden of proof.
6. It follows therefore that the summons for confirmation of grant dated 25th January, 2019 is unopposed. The grant issued on 11th February, 2019 to Moses Muturi Mbugua, Edward Njuguna Ngugiand Hezron Kaburu Borois hereby confirmed as sought by the summons dated 25th January, 2021.
RULING DATED AND DELIVERED AT KIAMBU THIS 16TH DAY OF DECEMBER, 2021.
MARY KASANGO
JUDGE
CORAM:
COURT ASSISTANT: MAURICE
FOR PETITIONERS : MR. D. KIRIMI
FOR PAUL NJOROGE : NO APPEARANCE
COURT
RULING DELIVERED VIRTUALLY.
MARY KASANGO
JUDGE