[2020] KEHC 8292 (KLR)
The court found that the applicant failed to prove that the deceased held the suit property as a trustee for him. The title deed was in the name of the deceased, and there was no credible evidence of a trust arrangement. The court emphasized that its jurisdiction is confined to the distribution of the estate to...
Source-derived case information.
- Citation
- [2020] KEHC 8292 (KLR)
- Parties
- Respondent: Susan Wanjiru Gitau; Applicant: George Kahuthu Karanja
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2867 of 2013
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- application dismissed
- Legal Topics
- Succession of Estates, Trusts in Land, Probate Jurisdiction, Beneficiary Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Susan Wanjiru Gitau
Respondent
George Kahuthu Karanja
Applicant
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the applicant is a beneficiary of the estate of the deceased entitled to a share of the suit property.
- 2 Whether the deceased held the suit property as a trustee for the applicant.
- 3 Whether the probate court has jurisdiction to determine issues of trust and ownership of property.
Ratio Decidendi
The court found that the applicant failed to prove that the deceased held the suit property as a trustee for him. The title deed was in the name of the deceased, and there was no credible evidence of a trust arrangement. The court emphasized that its jurisdiction is confined to the distribution of the estate to beneficiaries and does not include the determination of trust or ownership disputes, which should be addressed in the Environment and Land Court. Consequently, the applicant was not recognized as a beneficiary, and his application for review and inhibition was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 10.7.2018 is dismissed.
- Each party to bear its own costs of the application.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
FAMILY DIVISION
SUCCESSION CAUSE NO. 2867 OF 2013
IN THE MATTER OF THE ESTATE OF MATHEW MBUGUA KARANJA (DECEASED)
SUSAN WANJIRU GITAU .....1ST ADMINISTRATOR/RESPONDENT
-VERSUS-
GEORGE KAHUTHU KARANJA..........BENEFICIARY/APPLICANT
JUDGMENT
1. The Deceased herein MATHEW MBUGUA KARANJA (Deceased) alias MBUGUA son of KARANJA intestate on 16th October, 1999 while domiciled in Kenya.
2. The grant of Letters of Administration was made to SUSAN WANJURU GITAU on 9. 6.2014 and confirmed on 17. 9.2014 and rectified on 16. 11. 2015. The Certificate of Confirmation was further rectified on 13. 3.2017.
3. The Applicant filed a Summons for review and setting aside of the Certificate of Confirmation dated 10. 7.2018 and sought an order of inhibition inhibiting all dealings relating to Title Number KIAMBAA/MUCHATHA/T.346 (hereafter referred to as the suit property).
4. The Applicant filed an Affidavit in Support of the Application in which he stated that he is a beneficiary of the suit property which was held by the deceased who was his brother as a trustee.
5. The Administrator of the Estate of the deceased herein SUSAN WANJIRU GITAU filed a Replying Affidavit dated 12. 10. 2018 in which she stated that the Applicant had tried to defraud the deceased of the Land but the matter was handled administratively and a suit filed by the Applicant being HCCC No. 1066 of 1999 was dismissed.
6. The Parties gave viva voce evidence. The Applicant said the Property as registered in the name of the deceased by their late father and the deceased was holding the same as a trustee.
7. The Applicant produced a document which was written in Kikuyu language and which was translated stating that the deceased had agreed with the Applicant to share the suit property and that the deceased had been refunded Ksh.500 which he had contributed.
8. I find the title deed in respect of the suit property is in the name of the deceased.
9. There is no evidence that the deceased was holding the said property as a trustee or on behalf of himself and the Applicant.
10. The Applicant is not in occupation of the suit property and there is evidence that a suit filed against the deceased in respect to the suit property was dismissed for want of Prosecution.
11. Although the Applicant submitted that the said case was not determined on merit, the fact remains that the alleged trust by the Applicant has not been proved.
12. It is not the duty of this Court to establish the existence of a trust. The Jurisdiction of Family Court is Limited to transmission of the estate to the beneficiaries.
13. They also relied on H.C SUCCESSION CAUSE NO. 864 OF 1996 [2015] eKLR where the Court held it had no jurisdiction to resolve the proprietary interest based on an alleged trust and the appropriate forum was the Land and Environment Court. It was thus held,
“The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determining issues of ownership of property and declaration of trust. It is not a matter of the probate court being incompetent to deal with such issues but rather that the provisions of the Law of Succession Act and the relevant subsidiary legislation do not provide a convenient mechanism for determination of such issues. A party who wishes to have such matters resolved ought to file a substantive suit to be determined by the Environment and Land Court.”
14. I find that in the current case, the Applicant is not one of the beneficiaries of the Estate. The Applicant suit against the deceased was dismissed in 2015. It is not clear whether the said had already substituted the Defendant with the personal representative of the deceased on whether the suit had abated.
15. I find that the Applicant has failed to prove his case to the required stand and I dismiss the Application dated 10. 7.2018.
16. This being a family dispute each party to bear its own costs of the Application.
DELIVERED, SIGNED AND DATED IN OPEN COURT THIS 7TH DAY OF FEBRUARY, 2020
ASENATH ONGERI
JUDGE OF THE HIGH COURT OF KENYA, NAIROBI.