[2010] KEHC 1615 (KLR)
The court held that the estate of Njueini Wang’ombe could not be distributed until the liability arising from the sale of one acre of land to the Objector’s late father, as recognized by the Tetu Land Disputes Tribunal and adopted as a court judgment, was settled. The Applicant’s act of depositing the refund with...
Source-derived case information.
- Citation
- [2010] KEHC 1615 (KLR)
- Parties
- Applicant: David Gitahi Njueini; Respondent: Benedict Muriithi Wang’ondu; Protestor: Janet Wothaya Njueini; Protestor: Raphael King’ori Njueini; Protestor: Paul Wahome Njueini; Protestor: Julius Gitonga Njueini; Protestor: Michael Ngari Njueini; Protestor: Samuel Mwangi Karuri
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 262 of 1999
- Procedural Posture
- Succession Cause / Judgment on Summons for Confirmation of Grant and Protests
- Outcome
- Confirmation of grant postponed; estate to settle Objector’s claim first.
- Legal Topics
- Succession of Estates, Confirmation of Grant, Distribution of Estate, Land Sale Disputes, Arbitral Awards in Succession, Liabilities of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Gitahi Njueini
Applicant
Benedict Muriithi Wang’ondu
Respondent
Janet Wothaya Njueini
Protestor
Raphael King’ori Njueini
Protestor
Paul Wahome Njueini
Protestor
Julius Gitonga Njueini
Protestor
Michael Ngari Njueini
Protestor
Samuel Mwangi Karuri
Protestor
Procedural Posture
Succession Cause / Judgment on Summons for Confirmation of Grant and Protests
Legal Issues
- 1 Whether the estate of Njueini Wang’ombe can be distributed before settling the liability arising from a land sale agreement with the Objector.
- 2 Whether the arbitral award and court judgment recognizing the Objector’s claim must be satisfied prior to confirmation of grant.
- 3 What is the proper mode of distribution of the estate among the deceased’s children and grandson.
Ratio Decidendi
The court held that the estate of Njueini Wang’ombe could not be distributed until the liability arising from the sale of one acre of land to the Objector’s late father, as recognized by the Tetu Land Disputes Tribunal and adopted as a court judgment, was settled. The Applicant’s act of depositing the refund with the Public Trustee did not discharge the estate’s obligation, as the Public Trustee was not a party to the succession proceedings. The confirmation of grant was therefore postponed for six months to allow the Applicant to resolve the Objector’s claim. Only after this liability is settled can the court revisit the Protestors’ objections regarding the mode of distribution among the...
Court Disposition
Confirmation of grant postponed; estate to settle Objector’s claim first.
Orders
- Confirmation of grant is postponed for six months to enable the Applicant to resolve the Objector’s claim.
- The estate shall meet the costs of the Objector.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Succession Cause 262 of 1999
IN THE MATTER OF THE ESTATE OF NJUEINI WANGOMBE– DECEASED
DAVID GITAHI NJUEINI….……………………….PETITIONER
VERSUS
BENEDICT MURIITHI WANG’ONDU..………………..OBJECTOR
AND
JANET WOTHAYA NJUEINI
RAPHAEL KING’ORI NJUEINI
PAULWAHOMENJUEINI
JULIUS GITONGA NJUEINI……………………PROTESTORS
MICHAEL NGARI NJUEINI
SAMUEL MWANGI KARURI
JUDGMENT
On the 9th day of March 2009, DAVID GITAHI NJUEINI and BENEDICT MURIITHI WANG’ONDU, were granted Letters of Administration intestate in respect of the Estate of Njueini Wang’ombe, deceased.DAVID GITAHI NJUEINI, hereinafter referred to as the “Applicant”, applied for the grant to be confirmed vide the Summons for Confirmation of Grant dated5th October 2009. BENEDICT MUREITHI WANG’OMBE, hereinafter referred to as the “Objector”, filed an affidavit of Protest to contest the Summons for Confirmation.This Court directed the summons and the Protest to be determined by affidavit evidence and written submissions.
I have considered the affidavit evidence and the written submissions filed by both sides.In the Summons for Confirmation of Grant, the Applicant had proposed to have the parcel of land known as THEGENGE/KARIA/872 to be shared equally between:
(i)JANET WOTHAYA NJUEINI
(ii)DAVID GITAHI NJUEINI
(iii)RAPHAEL KINGORI NJUEINIto hold in trust for himself and the children of TABITHA WANJIRA NJUEINI, deceased.
The Objector on the other hand, was of the view that the proposed mode of distribution should not be approved because there is evidence that the Tetu Land Disputes Tribunal had made an award in which the sale of land agreement of one (1) acre between the deceased and the Objector’s father was recognized.It is the submission of the Objector that the arbitral award filed by the Tetu Land Disputes Tribunal has not been set aside hence the same should be taken into account before distribution.According to the Applicant, the award which was entered as the judgment of the Court on 10th November 1993 proposed that the Objector herein to complete the purchase by topping up the purchase price according to the current value of the portion or accept a refund of Ksh.430/= paid as a deposit.It is said the aforesaid amount was deposited with the Public Trustee hence the terms of the judgment was settled.JANET WOTHAYA NJUEINI, RAPHAEL KINGORI NJUEINI, PAUL WAHOME NJUEINI, JULIUS GITONGA NJUEINI and SAMUEL MWANGI KARURIhereinafter referred to as the “Protestors”, also filed a joint affidavit of protest in which they rejected the Applicant’s proposed mode of distribution.They all wanted the asset of the Estate to be distributed equally between the deceased’s children and the grandson.The dispute between the Applicant and the Protestor is not difficult to solve.The difficult part is that between the Applicant and the Objector.The later dispute should be sorted out first before the former can be solved.The reason is that it is only the net estate that can be distributed.In this case it is admitted that the deceased sold one (1) acre to be excised fromL.R. NO. THEGENGE/KARIA/872to the late father of the Objector.The dispute was sent for arbitration and an award was filed.The Applicant has stated that a refund of the purchase price i.e. Kshs.430/= has been deposited with the Public Trustee.I do not know why that money was deposited with the Public Trustee which is not a party to this succession proceedings.It is obvious that the award and or judgment is a liability to the Estate of Njueini Wang’ombe, deceased.Let the liability be settled first before the grant can be confirmed.For the avoidance of doubt, I hereby postpone the confirmation of grant for a period of six (6) months to enable the Applicant sort out the claim by the Objector.It is after the determination of the aforesaid claim that the Protestors’ protest may be revisited.The Estate to meet the costs of the Objector.
Dated and delivered at Nyeri this 9th day of July 2010.
J. K. SERGON
JUDGE
In open court in the presence of Mr. Macharia holding brief Mwangi for Protestor.Mr. Kimunya holding brief A. K. Kariuki for the 3rd Applicant.