[2023] KEHC 21228 (KLR)
The court found that both the applicant and respondent, as nephews of the deceased, are entitled to benefit from the estate under Section 39 of the Law of Succession Act, since the deceased left no spouse, children, parents, or siblings. However, the applicant had already benefited by obtaining LR Ntima/Ntakira/1320...
Source-derived case information.
- Citation
- [2023] KEHC 21228 (KLR)
- Parties
- Applicant: James Kiambi Mutea; Respondent: M’Marete M’Mboroki
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 190 of 2000
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- summons for revocation dismissed with costs to the applicant
- Judges
- TW Cherere
- Legal Topics
- Intestate Succession, Distribution of Estate, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kiambi Mutea
Applicant
M’Marete M’Mboroki
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the applicant is entitled to LR Nyaki/Nkabune/370 as part of the deceased's estate.
- 2 Whether the applicant's exclusion of other beneficiaries from the estate is justified under the Law of Succession Act.
- 3 Whether the summons for revocation of grant dated May 31, 2022 has merit.
Ratio Decidendi
The court found that both the applicant and respondent, as nephews of the deceased, are entitled to benefit from the estate under Section 39 of the Law of Succession Act, since the deceased left no spouse, children, parents, or siblings. However, the applicant had already benefited by obtaining LR Ntima/Ntakira/1320 to the exclusion of other siblings through a separate succession cause. The court held that the applicant's attempt to acquire the remaining estate to the exclusion of other beneficiaries was motivated by greed and contrary to the principles of equitable distribution. The adversarial nature of Kenyan trials means only pleaded claims are considered, and since other siblings did...
Court Disposition
summons for revocation dismissed with costs to the applicant
Orders
- The summons for revocation of grant dated May 31, 2022 is dismissed.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
27 paragraphs
In re Estate of Mutea Nguchine (Deceased) (Succession Cause 190 of 2000) [2023] KEHC 21228 (KLR) (27 July 2023) (Ruling)
Neutral citation: [2023] KEHC 21228 (KLR)
Republic of Kenya
In the High Court at Meru
Succession Cause 190 of 2000
TW Cherere, J
July 27, 2023
IN THE MATTER OF THE ESTATE OF MUTEA NGUCHINE (DECEASED)
Between
James Kiambi Mutea
Applicant
and
M’Marete M’Mboroki
Petitioner
Ruling
Background 1. James Kiambi M’Mutia (Applicant) and M’Marete M’Mboroki (Respondent) are sons of M’Mboroki Nguchine a brother to Mutea Nguchine (Deceased) who died sometimes on December 24, 1983. The parties’ siblings include M’Nthambura M’Mboroki (deceased), Beatrice Nyoroka (deceased), Evangeline Muthoni (deceased), Kiriinya M’Mboroki (deceased), M’Marete M’Mboroki, Kaaria M’Mboroki (deceased) and Kanyuuru M’Mboroki.
2. The parties agree that Deceased did not have children of his own and that he took care of the parties herein and their siblings after their father disappeared during the state of emergency around 1950. The parties also agree that deceased’s estate comprised of LR Nyaki/Nkabune/370 and LR Ntima/Ntakira/1320.
3. The record demonstrates that Letters of Administration were issued on July 9, 2001 to M’Marete M’Mboroki (Respondent). Subsequently, the estate was distributed in terms of the Certificate of Confirmation of Grant dated July 12, 2001 to the Respondent and two other persons namely Samuel Gikundi and Tarasisio Thuranira Marete.
4. An issue has arisen as to whether the Applicant is entitled to LR Nyaki/nkabune/370.
5. Where intestate has left no surviving spouse or children as in this case, Section 39 of Law of Succession Act which provides:(1)Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of prioritya.father; or if deadb.mother; or if deadc.brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if noned.half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if nonee.the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.(2)Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund.
6. From the foregoing provision, the Applicant and the Respondent who are nephews of the deceased are beneficiaries to the estate since the deceased’s parents, sisters and brothers too having died.
7. It should be remembered that no beneficiary has a better right to a deceased’s estate than the other. This court has a duty to ensure that the estate of the deceased in this matter is distributed justifiably and no one beneficiary benefits at the expense of the beneficiaries.
8. A green card presented as evidence demonstrates that Applicant filed Succession Cause No 460 of 2010 and caused deceased’s land parcel LR Ntima/Ntakira/1320 to be distributed to him to the exclusion of his siblings. Consequently, I find that Applicant’s attempt to have the residual of the estate also distributed to him to the exclusion of his siblings including the Respondent, is in my considered view actuated by greed and the court cannot countenance such an injustice.
9. Whereas there is evidence that the parties herein have other siblings who though by law are entitled to deceased’s estate have not pleaded their case, trials in Kenya are adversarial in nature where courts decide only those matters that have been properly laid out in evidence.
10. From the foregoing, I have come to the conclusion that Applicant has not made out a good case that would entitle him to a share of or the whole of Nyaki/Nkabune/370.
11. In the end, the summons for revocation dated May 31, 2022 and filed on June 2, 2022 is devoid of merit and it is dismissed with costs to the applicant.
DATED AT MERU THIS 27TH DAY OF JULY, 2023WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Applicant - Ms Musyimi for Ojwang Sombe & Co. AdvocatesRespondent - Ms Kimotho for Gichunge Muthuri & Co. Advocates