[2011] KEHC 1705 (KLR)
The court found that the petitioner, Irene Wanjiku Mwangi, based her claim on the assertion that the deceased held part of the land in trust for her late father. However, such a claim of trust cannot be determined within the current succession proceedings. The Law of Succession Act restricts the petitioner's...
Source-derived case information.
- Citation
- [2011] KEHC 1705 (KLR)
- Parties
- Applicant: Irene Wanjiku Mwangi; Respondent: Daniel Kingori; Respondent: Joyce Waitherero Nuthu
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 126 of 2001
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant and Protest
- Outcome
- Confirmation of grant postponed for six months to allow petitioner to establish trust claim in separate proceedings.
- Judges
- JK Sergon
- Legal Topics
- Succession of Estates, Confirmation of Grant, Constructive Trust, Distribution of Land, Dependant Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Irene Wanjiku Mwangi
Applicant
Daniel Kingori
Respondent
Joyce Waitherero Nuthu
Respondent
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant and Protest
Legal Issues
- 1 Whether the petitioner, as a dependant and not a direct heir, is entitled to a share of the estate of Kingori Mwangi, deceased.
- 2 Whether the claim of trust by the petitioner over the disputed land can be determined within the succession proceedings.
- 3 What is the appropriate mode of distribution of L.R. no. Chinga/Kagongo/199 among the beneficiaries.
Ratio Decidendi
The court found that the petitioner, Irene Wanjiku Mwangi, based her claim on the assertion that the deceased held part of the land in trust for her late father. However, such a claim of trust cannot be determined within the current succession proceedings. The Law of Succession Act restricts the petitioner's entitlement as she is not a direct heir but may claim as a dependant. The court held that the confirmation of grant should be postponed for six months to allow the petitioner to institute separate proceedings to establish her trust claim as required by Rule 41(3) of the Probate & Administration Rules. Each party was ordered to bear their own costs.
Court Disposition
Confirmation of grant postponed for six months to allow petitioner to establish trust claim in separate proceedings.
Orders
- Confirmation of grant is postponed for six months pending the petitioner instituting proceedings to establish her claim under Rule 41(3) of the Probate & Administration Rules.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CAUSE NO. 126 OF 2001
IN THE MATTER OF THE ESTATE OF
NUTHU MWANGI aliasKINGORI MWANGI …..........................…..DECEASED
AND
IRENE WANJIKU MWANGI,…...................................….....……PETITIONER
VERSUS
DANIEL KINGORI &JOYCE WAITHERERO NUTHU.............PROTESTORS
RULING
A grant of letters of administration in respect of the estate of Kingori Mwangi, deceased was made to Irene Wanjiku Mwangi, the Petitioner herein on 18th September 2002. The Petitioner applied for the grant to be confirmed vide the summons for confirmation of grant dated 4th February 2009. The summons is supported by the affidavit of the petitioner. Daniel Kingori and Joyce Waitherero Nuthu, being the protestors, each filed an affidavit of protest to oppose the summons. This court directed the dispute to be disposed of by the reception of oral evidence.
I have considered the evidence tendered by both sides and the material placed before me plus the written submissions. The Petitioner gave her evidence and summoned the evidence of three independent witnesses. In sum, the evidence of the petitioner and her witnesses is to the effect that the deceased made it clear that his parcel of land known as L.R. no. Chinga/Kagongo/199 should be divided into three equal portions. It is said that the deceased wishes were actualized on the ground with each beneficiary building on their own portion. The petitioner proposed the land to be shared as follows:
Irene Wanjiku Mwangi - 1/3 share
Joyce Waitherero- 1/3 share
Rahel Wambui - 1/3 share
Rahel Wambui Kingori had on her part proposed that the land be shared in the following manner:
Rahel Wambui - 5 acres
Joyce Waitherero - 2. 3 acres
Irene Wanjiku- 1. 5 acres.
Daniel Maina Kingori, on his part proposed that thetrio i.e. Rahel Wambui, Joyce Waitherero and Irene Wanjiku be removed fro the sharing and their children be allowed to share the land in equal measure. The petitioner is of the view that her proposal is the fairest.
It is now clear that the petitioner herein is the sister to the deceased while the protestor is a son of the deceased. The law of succession Act is categorical on the mode of distribution in respect of interstate estates. The petitioner can only claim as a dependant but not as a direct heir.
Regrettably Rahel Wambui did before these proceeding were completed. The petitioner has made very interesting submissions. She claimed she was the unmarried daughter of Nuthu Mwangi, a brother Kingori Mwangi, deceased. The deceased is said to have been registered as the proprietor of the parcel of land in dispute in trust for himself and the late father of the petitioner. Rahel Wambui Kingori and Joyce Waitherero both claim to be the wives of Kingori Mwangi, deceased. It is said there is a constructive trust in favour of Irene Wanjiku Mwangi who was entitled to get half the share of the land registered in the name of Kingori Mwangi ie. 1/3 of the land.
After anxiously considering the submissions of both sides I have come to the conclusion that the claim by the petitioner is that based on trust. Irene Wanjiku Mwangi, is basically saying that the late Kingori Mwangi, held 1/3 of L.R. no. Chinga/Kagongo/199 in trust for her late father Nuthu Mwangi. Such a claim cannot be established through this cause. A fair order is to direct that the confirmation of grant be postponed for 6 months pending the petitioner taking out the necessary proceedings to establish her claim under rule 41(3) of the Probate & Administration Rules. Each party to meet his or her own costs.
Dated and delivered this 29th day of July 2011.
J.K. SERGON
JUDGE
In open court in the presence of G. Mwangi for petitioner and N/A for Ndirangu for objector.
J.K. SERGON
JUDGE