[2017] KEHC 5518 (KLR)
The court found that the disputes regarding the alleged oral will, the distribution of the estate between the two houses, and the alleged sale of estate property before confirmation are material and cannot be adequately resolved through written submissions and affidavits alone. Given the significance of these issues...
Source-derived case information.
- Citation
- [2017] KEHC 5518 (KLR)
- Parties
- Applicant: Solomon Bundi Rintari; Respondent: M’ Kiambati M’ Ringera; Respondent: M’ Mbijiwe M’ Ringera
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 597 of 2010
- Procedural Posture
- Succession Cause / Ruling on Mode of Distribution and Directions for Viva Voce Evidence
- Outcome
- Application for confirmation and protests to be determined by viva voce evidence; matter to be given priority.
- Judges
- F Gikonyo
- Legal Topics
- Succession Estates, Oral Wills, Distribution of Property, Probate and Administration, Viva Voce Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Solomon Bundi Rintari
Applicant
M’ Kiambati M’ Ringera
Respondent
M’ Mbijiwe M’ Ringera
Respondent
Procedural Posture
Succession Cause / Ruling on Mode of Distribution and Directions for Viva Voce Evidence
Legal Issues
- 1 Whether the estate of the deceased was distributed by an oral will during his lifetime.
- 2 Whether the allegations of sale of estate property before confirmation are substantiated and their legal effect.
- 3 Whether written submissions and affidavits are sufficient to resolve the disputes or viva voce evidence is necessary.
Ratio Decidendi
The court found that the disputes regarding the alleged oral will, the distribution of the estate between the two houses, and the alleged sale of estate property before confirmation are material and cannot be adequately resolved through written submissions and affidavits alone. Given the significance of these issues to the proper distribution of the estate under the Law of Succession Act, the court determined that viva voce evidence from witnesses is necessary to unravel the truth and ensure justice. Accordingly, the court directed that the application for confirmation of grant and all protests be determined by way of viva voce evidence, in addition to the affidavits and submissions...
Court Disposition
Application for confirmation and protests to be determined by viva voce evidence; matter to be given priority.
Orders
- The application for confirmation of grant and all protests shall be determined by way of viva voce evidence to be taken on a date assigned by the court.
- The matter shall be given priority.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO. 597 OF 2010
In the Matter of the Estate of M’ Ringera M’ Kungania (Deceased)
SOLOMON BUNDI RINTARI…………………………………..PETITIONER
Versus
M’ KIAMBATI M’ RINGERA………………………………..1ST OBJECTOR
M’ MBIJIWE M’ RINGERA…………….…………………..2ND OBJECTOR
RULING
Efficacy of viva voce evidence
[1] In a ruling delivered on 7th September 2016, this court directed the Objectors to file and serve their mode of distribution within 10 days of today which failing the order of stay herein shall lapse and administration of the estate shall proceed as per the confirmed grant.
[2] Pursuant to this directive, parties filed their respective submissions. But upon careful consideration of the submissions and the affidavits filed, critical matters have emerged which I do not think could be effectively determined through mere written submissions. Those matters- and I will mention them below- require intense interrogation; something that cannot be achieved in a restricted method as written submissions.
[3] From the record, it appears the deceased had two houses. The disclosed children of the 1st house are; M’Rintari M’Ringera, M’Muguongo M’Ringera and Loise Gaiti. Those of the 2nd house are; M’Kiambati M’Ringera, M’Mbinjiwe M’Ringera and Rosemary Karwitha. Again, after perusal of the record, it seems the deceased had two parcels of land namely, NTAKIRA/546 and KIIRUA/205. The objectors have alleged that the deceased in an oral will shared his properties during his lifetime to the two houses. They claim that he gave the 1st house land number NTAKIRA/546 where the members of the 1st house including their grandchildren live: and that he gave the 2nd house land number KIIRUA/205. Further claims were made; that now the petitioner who comes from the 1st house is now laying a claim over KIIRUA/205 in order to deprive the other house its inheritance. Are these not matters of extreme significance in distribution of the estate of the deceased under the Law of Succession Act especially in light of section 42 of the Act? See the objectors’ affidavits.
[3] In addition, there are allegations that Mary, Loise and Moses Mbaya has sold large tracks of the estate property before confirmation and that those buyers are the source of trouble in this case. Once more; are these allegations not of special interest to the law? Worthy of note is that, the Petitioner has not uttered any specific denial of the foregoing allegations. In my considered view, these matters are boggling yet so important in law and distribution of the estate of the deceased. As such, the court is required to make a special endeavour to unravel them: and in particular, by calling for viva voce evidence from witnesses. Accordingly, in order to attain the duty of the court under rule 41(1) of the Probate and Administration Rules, I direct that the Application for confirmation and all protests filed herein shall be determined by way of viva voce evidence to be taken on a date to be assigned by court. This is in addition to the affidavits and submissions filed herein. The matter shall also be given priority. It is so ordered.
Dated, signed and delivered in open court at Meru this 10th day of May 2017
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F. GIKONYO
JUDGE
In the presence of:
Mrs. Kaume for objectors
Mr. Muthami for Anampiu Gikunda for petitioner
All parties – present
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F. GIKONYO
JUDGE