[2019] KEHC 7518 (KLR)
The court, faced with parties unable to agree on the terms of engagement for valuers and surveyors in the distribution of the deceased's estate, adopted the terms agreed upon by both sides and settled the disputed terms. The court ordered that each party appoint a valuer and surveyor, with an umpire to be appointed...
Source-derived case information.
- Citation
- [2019] KEHC 7518 (KLR)
- Parties
- Applicant: Jonathan Njuguna Mwangi; Respondent: John Gitata Mwangi; Respondent: Josephat Njoroge Mwangi; Respondent: Stephen Njuguna Mwangi; Respondent: Christopher Mwaura Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 494 of 1994
- Procedural Posture
- Succession Cause / Ruling on Terms of Engagement for Experts and Arbitral Tribunal
- Outcome
- Application for settlement of terms of engagement for experts and arbitral tribunal allowed in terms set out by the court.
- Judges
- A Ali-Aroni
- Legal Topics
- Estate Distribution, Succession, Arbitration of Inheritance Disputes, Valuation of Land, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jonathan Njuguna Mwangi
Applicant
John Gitata Mwangi
Respondent
Josephat Njoroge Mwangi
Respondent
Stephen Njuguna Mwangi
Respondent
Christopher Mwaura Mwangi
Respondent
Procedural Posture
Succession Cause / Ruling on Terms of Engagement for Experts and Arbitral Tribunal
Legal Issues
- 1 Whether the court should adopt the terms of engagement for experts as proposed by the applicant or the respondents.
- 2 How the arbitral tribunal should be constituted and what terms should govern its operation in the distribution of the estate property.
Ratio Decidendi
The court, faced with parties unable to agree on the terms of engagement for valuers and surveyors in the distribution of the deceased's estate, adopted the terms agreed upon by both sides and settled the disputed terms. The court ordered that each party appoint a valuer and surveyor, with an umpire to be appointed by the Chairperson of the Chartered Institute of Arbitrators Kenya, forming a five-member arbitral tribunal. The tribunal is to consider the will, the certificate of confirmation, prior proposals, usage and access to the land, and benefits enjoyed by the parties since 2003. The tribunal's award will be binding, and each party will bear its own costs. This approach ensures an...
Court Disposition
Application for settlement of terms of engagement for experts and arbitral tribunal allowed in terms set out by the court.
Orders
- Each party shall appoint a valuer and a surveyor; the Chairperson, Chartered Institute of Arbitrators Kenya, shall appoint the umpire in consultation with the parties' appointees, forming the arbitral tribunal.
- The tribunal shall consider the will, certificate of confirmation, prior proposals, land usage, access to River Kiu, and benefits enjoyed by the parties since 2003 in determining equal distribution.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
PROBATE AND ADMINISTARTION DIVISION
SUCCESSION CAUSE NO. 494 OF 1994
IN THE MATTER OF THE ESTATE OF MWANGI MBOTHU (DECEASED)
JONATHAN NJUGUNA MWANGI....................APPLICANT
-VERSUS-
JOHN GITATA MWANGI...........................1ST RESPONDENT
JOSEPHAT NJOROGE MWANGI............2ND RESPONDENT
STEPHEN NJUGUNA MWANGI..............3RD RESPONDENT
CHRISTOPHER MWAURA MWANGI......4TH RESPONDENT
R U L I N G
1. Following an application dated 12th October 2017 filed on behalf of Jonathan Njuguna Mwangi (Applicant) as against John Gitata Mwangi, Josephat Njoroge Mwangi, Stephen Njuguna Mwangi and Christopher Mwaura Mwangi (1st-4th Respondents), and responses filed thereto the parties entered into various consents including engagement of Experts to wit; valuers and surveyors to assist with the valuation and eventual distribution of L.R. No. 6909/7 Kihiu Estate.
2. It has emerged that the parties cannot not agree on terms of engagement of the experts and each has filed their own terms and the court has been called upon to consider both sets and make a verdict on the terms. It is to be noted however that the parties did agree on a number of terms.
3. Having considered the terms of reference filed by both sides, both dated and file on the 6th of March, 2019, the court adopting the agreed terms and settling the disputed one’s orders and directs as follows; -
a. Each party shall appoint a valuer and a surveyor. Thereafter the Chairperson, Chartered Institute of Arbitrators Kenya shall appoint the Umpire in consultations with the valuers and Surveyors appointed by the parties. The five will form the Arbitral Tribunal (Tribunal)
b. In determining how the property is to be shared equally, the tribunal will take into account, among other factors the terms of the will of the late Mwangi Mbothu and the Certificate of Confirmation issued on 29th September, 1999;
c. The Tribunal will further take into account the propriety of confirming or varying the respective proposals made in a letter dated 3rd November, 1997 or if need be make fresh determination;
d. The Tribunal will assume that each party will use his share as a farm and consequently, consider usage and access to River Kiu and will ensure that portions of arable land and those which are not are to be shared equally;
e. In addition, the tribunal shall take into account the respective benefits enjoyed by the parties amongst them occupation of the farm house and improvements on the land by all parties since 2003.
f. The tribunal shall schedule a meeting and/or hearing at which it may seek further information that is relevant to the matters in issue from the respective parties.
g. The tribunal shall finalize and issue its report to the respective parties within 60 days from the date of engagement.
h. The award of the tribunal shall be binding on all parties.
4. Each party will bear its own costs.
DATED, SIGNEDandDELIVEREDat NAIROBI this 9th DAY OF May, 2019.
………………
ALI-ARONI
JUDGE
In the presence of:
….………………….…………………………………… Advocates for Applicants
….………………….………………………………… Advocates for Respondent