[2018] KEHC 5917 (KLR)
The court found that the initial grant was properly revoked due to the omission of beneficiaries. The only asset of the estate is a parcel of land measuring 16.5 acres. The court held that the proposal by Basilio M’Mungania M’Mwithimbu to distribute the estate equally among the children of the deceased and/or their...
Source-derived case information.
- Citation
- [2018] KEHC 5917 (KLR)
- Parties
- Applicant: Basilio M’Mungania M’Mwithimbu; Applicant: Stephen Gitonga M’Rimberia; Respondent: Thomas Mburugu M’Mbwi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 227 of 2004
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant
- Outcome
- Application for confirmation of grant allowed; certificate of confirmation to issue as per equitable distribution proposed.
- Legal Topics
- Succession, Confirmation of Grant, Distribution of Estate, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Basilio M’Mungania M’Mwithimbu
Applicant
Stephen Gitonga M’Rimberia
Applicant
Thomas Mburugu M’Mbwi
Respondent
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant
Legal Issues
- 1 Whether the proposed mode of distribution of the estate is lawful and equitable.
- 2 Whether all beneficiaries, including legal representatives of deceased beneficiaries, are adequately provided for.
- 3 Whether the omission of beneficiaries in the initial grant justified its revocation.
Ratio Decidendi
The court found that the initial grant was properly revoked due to the omission of beneficiaries. The only asset of the estate is a parcel of land measuring 16.5 acres. The court held that the proposal by Basilio M’Mungania M’Mwithimbu to distribute the estate equally among the children of the deceased and/or their survivors is both constitutional and legal. The court further directed that the legal representative of a deceased beneficiary (Margaret Kang’ongi) should also be provided for unless there is a renunciation or no surviving beneficiary. The court ordered the issuance of a certificate of confirmation of grant in accordance with the equitable distribution proposed, ensuring all...
Court Disposition
Application for confirmation of grant allowed; certificate of confirmation to issue as per equitable distribution proposed.
Orders
- Certificate of confirmation of grant to issue in accordance with the proposed mode of distribution.
- Legal representative Margaret Kang’ongi to be provided for unless survivors renounce their right or there is no survivor.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
SUCCESSION CAUSE NO. 227 OF 2004
IN THE MATTER OF ESTATE OF M’MWITHIMBU
M’MWIIRA ALIAS MWITHIMBU TUBU (DECEASED)
BASILIO M’MUNGANIA M’MWITHIMBU.....1ST APPLICANT
STEPHEN GITONGA M’RIMBERIA................2ND APPLICANT
VS
THOMAS MBURUGU M’MBWI...............................PETITIONER
RULING
By an application dated 29th June 2017 Mrs Ntarangwi Advocate for applicant sought that grant made to Basilio M’Mungania M’Mwithimbu and Thomas Mburugu M’Mbwi be confirmed. The application is supported by the affidavit of Basilio M’Mungania M’Mwithimbu sworn on 29th June 2017 proposing mode of distribution as follows:-
(1) L.R.No. Kiirua/Ruiri/512
Lucy Mukiri
Consolata Gatwiri
Jeniffer Mwari
Hellen Karegi M’Mburi
Josephine Makena
Mary KinyaTo share 2 acres in equal shares.
Jeaninah Karambu
Charity Nkatha
Judith Kiende
Agnes Kagendo
Caroline Kajuju2 acres to be shared equally
The remaining land is to go to Thomas Mburugu, Simon Kirimi, James Muthuiya, Stanley Mwongera and Patrick Mutethia to get 2. 5 acres each.
This proposal is nearly similar to what was agreed on in chief’s letter dated 28th July 1998.
Basilio M’Mungania and Thomas Mburugu also made a proposal for distribution in affidavit dated 29th June 2017. The grant of letters of Administration was revoked because the petitioner omitted the names of the beneficiaries as shown in the affidavit of the applicant to application for revocation sworn on 6th day of October 2011 at paragraph 17 and confirmed at paragraph 2 of the affidavit of Geoffrey Mboroki and paragraph 6 of Thomas Mburugus affidavit sworn on 9th July 2013. The estate should therefore be inherited by the children of the deceased and/or their survivors where those beneficiaries are deceased.
In that respect it is not explained why and how the Thomas Mburugu M’Mbui made the proposal in his affidavit. The only parcel of land making up the estate is 16. 5 acres and the proposal by Basilio M’Mungania M’Mwithimbu to share the estate equally is constitutional and legal but the legal representative Margaret Kang’ongi should also be provided for unless the survivors renounce their right to benefit from their mothers share or unless there is no such survivor. Certificate of confirmation to issue. The costs of the cause shall be borne by each party.
HON. A.ONG’INJO
JUDGE
RULING SIGNED, DELIVERED AND DATED THIS 21ST DAY OF JUNE 2018.
IN THE PRESENCE OF:
C/A:
Applicants:- Ms Nyaga holding brief for Ntarangwi
Petitioner:-Ms Nyenyire Advocate – N/A
HON. A.ONG’INJO
JUDGE