[2021] KEHC 7282 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

(CORAM: CHERERE-J)

SUCCESSION CAUSE NO.582 OF 2015

IN THE MATTER OF THE ESTATE OF MBUUTHA MAITI (DECEASED)

IN THE MATTER OF INCLUSION AS BENEFICIARY

BY ROBERT NTAARA

AND

IN THE MATTER

BETWEEN

NJIRU MBUTHA.......................................1STPETITIONER

TABITHA KARAMANA............................2NDPETITIONER

BERNARD T. KINYUA............................3RDPROTESTOR

AND

JOSEPH BARIO......................................1STPROTESTOR

FAITH RIGIRI LAMBII...........................2NDPROTESTOR

JUDITH NKOROI...................................3RDPROTESTOR

BEATRICE MWENGA MBUUTHA.........4THPROTESTOR

ROSE MURIIRA.....................................5THPROTESTOR

RULING

Introduction

1. By a ruling dated 29th November, 2018, the deceased’s estate comprising of LR.NO. NTIMA/NTAKIRA/1737 was distributed asequally in the following terms:

1stHouse

Joanina Mukiri

Julius Koome (deceased) – Equal shares to Stellan Ntinyari Kimaita, Grace Karwira Koome, Isaiah Mugiira Koome, Phineas Mwongela Koome and Moses Mutembei Kinyua

2ndHouse

Judith Nkoroi

Faith Rigiri (deceased) share to Charity Karegi Kararu

Beatrice Mwendwa

Charles Muriira (deceased) share to Rose Muriira

3rdHouse

Tabitha Karimana (widow)

Jacob Mburugu

Harriet Kiende

Isabella Kagwiria

Sarah Karwira

Karuru Rose

Joseph Muchui (deceased) share to Anderson Mutembei to be held in trust for Tabitah Karimama and Jacob Mburugu

James Mugambi

4thHouse

Njiru Mbutha (widow)

Emily Kairuthi

Francis Mugambi

Samuel Murithi

Charity Kathure

6thHouse

Benjamin Kinyua (deceased) –Equal shares to Juliet MataareaM’Marete, Bernard T.Kinyua, Julius Koome Kinyua, Jostino Murungi Kinyua, Joyce K. Anampiu, Nicjholas Maiteithia, Martin Muthuri, Ann Mwendwa, Juster Gacheri, Halun Nturibi and Anceta Kananu

Summons

2. By Summons dated 1st February, 2021 filed on even date, ROBERT NTARA(Applicant) prays for orders that:

1. The court be pleased to review its orders dated25thSeptember, 2018 and include applicant as a beneficiary in the confirmed grant

2. Costs be in the cause

3. The application is based on the ground that the Applicant who is a son of the deceased from the 2nd house was denied a share of deceased’s estate.

4. The summons is supported by an affidavit sworn by the Applicant on 29th January, 2021 in which he avers that there is no evidence that he had been provided for.

5. In response, JUDITH NKOROI (3rd Protestor) by her replying affidavit sworn on 24th February,2021 contends that the court found thatCatherine Nkirote, Joseph Bario and Robert Ntara (Applicant) had been provided for by the deceased in his lifetime.

6. The Respondent contends that deceased subdivided his land L.R. KIRUA/RUIRI/607into two portionsL.R. KIRUA/RUIRI/1605and1606as evidenced by a green card markedJN1. That subsequently,L.R. KIRUA/RUIRI/1606was portioned intoL.R. KIRUA/RUIRI/1893 to 1895as buttressed by a green card markedJN2. ThatL.R. KIRUA/RUIRI/1894was transferred to Robert Ntara (Applicant) as demonstrated by a green card marked JN3.

Analysis and Determination

7. I have considered the affidavit evidence on record and deduced two issues for determination as follows:

1. Whether Robert Ntara (Applicant) was provided for by the deceased during his lifetime.

2. Whether the applicant has satisfied the threshold for grant of an order of review

8. Section 42 of the Law of Succession which provides as follows:

Where—

a. an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or

b. property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35 of this Act,that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.

9. It is not disputed that deceased settled L.R. KIRUA/RUIRI/1894 in favour of Robert Ntara (Applicant) as demonstrated by a green card marked JN3.

10. The Applicant’s contention that there was no evidence that he hadbeen provided for is therefore not merited and it is rejected.

11. Section 42 of the Act provides for the taking into account during distribution, gifts made to beneficiaries by the Deceased during his life, as follows:

Previous benefits to be brought into accountWhere—

a. an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or

b. property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35 of this Act, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child,grandchild or house.”

12. From the totality of the material presented before the court, I find that the Applicant has not demonstrated discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the impugned judgment was passed, or some self-evident error oromission on the face of the record, or any other sufficient reason that would entitle him to an order of review.

13. From the foregoing analysis, I have come to the conclusion that the Summons dated 1st February, 2021 filed on even date is devoid of merit and it is dismissed.

14. Costs to the Respondents.

DATED AT MERU THIS 22NDDAY OF APRIL, 2021

T. W. CHERERE

JUDGE

Court Assistant

Applicant

For Respondent- Morris Kinoti

- N/A

- Ms. Atieno for M/s J.K.Ntarangwi & Co. Advocates