[2020] KEHC 8426 (KLR)
The court found that the orders made on 14th November 2018, which altered the distribution of the estate, were granted without notice to all beneficiaries, specifically the applicant and her siblings. There was no evidence that they were served with the application or hearing notice, nor was there a surveyor's...
Source-derived case information.
- Citation
- [2020] KEHC 8426 (KLR)
- Parties
- Petitioner: Josephine Mucece; Applicant: Judith Karegi Mwenda
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 175 of 2008
- Procedural Posture
- Succession Cause / Ruling on Application for Review and Reinstatement of Prior Orders
- Outcome
- Application allowed; orders of 14th November 2018 set aside.
- Legal Topics
- Succession, Grant Rectification, Estate Distribution, Notice to Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephine Mucece
Petitioner
Judith Karegi Mwenda
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Review and Reinstatement of Prior Orders
Legal Issues
- 1 Whether the orders made on 14th November 2018 regarding the distribution of the estate should be reviewed and set aside due to lack of notice to all beneficiaries.
- 2 Whether the subdivision and redistribution of LR Kiirua/Nkando/540 was conducted without proper service and consultation with all beneficiaries, particularly those of Morris Mwongera M’Twaruchiu.
- 3 Whether the share due to Morris Mwongera M’Twaruchiu should be specified and transmitted directly to his children.
Ratio Decidendi
The court found that the orders made on 14th November 2018, which altered the distribution of the estate, were granted without notice to all beneficiaries, specifically the applicant and her siblings. There was no evidence that they were served with the application or hearing notice, nor was there a surveyor's report to support the changes. The lack of notice and opportunity to be heard constituted a breach of the beneficiaries' rights under the Law of Succession Act and principles of natural justice. Consequently, the court set aside the orders of 14th November 2018, reinstating the prior position and ensuring that all beneficiaries are properly notified and heard in any future...
Court Disposition
Application allowed; orders of 14th November 2018 set aside.
Orders
- Orders granted on 14th November 2018 are set aside.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO. 175 OF 2008
IN THE MATTER OF THE ESTATE OF ROSALIA NKINDA M’TURUCIO (DECEASED)
JOSEPHINE MUCECE..................................................................................PETITIONER
VERSUS
JUDITH KAREGI MWENDA..........................................................................APPLICANT
RULING
1. Application dated 5. 7.2019 comes up for determination. The applicant Judith Karegi Mwenda sought that ruling dated 14th November 2018 in relation to distribution of the estate of Rosalia Nkinda M’turuchiu be reviewed and that orders made on 3rd May 2017 be reinstated. It was also prayed that share due to Morris Mwongera M’Twaruchiu be specified and same be transmitted to his children.
2. It was also sought that subdivisions done in regard to LR Kiirua/Nkando/540 pursuant to the orders of 14th November 2018 be cancelled and same to revert to the original parcel of land. It was prayed that survey and subdivision be done by District surveyor.
3. The application was based on the ground that the petitioner by an application dated 28th August 2018 sought rectification of confirmed grant which application was allowed on 14. 11. 2018 and changed the distribution that was made by the court on 20. 9.2017 and reduced the share of Morris Mwongera without consulting his beneficiaries. It was argued that the petitioner didn’t serve the beneficiaries of Morris Mwongera or their advocate with the application dated 28. 8.2018 and the hearing notice for 14. 11. 2018 was also not served. It was argued that the beneficiaries of Morris Mwongera are adults and desire that the share of their father should be transmitted directly to them.
4. It was argued that the beneficiaries of Morris Mwongera were not informed when survey was being done and they were not shown share due to them.
5. The application was also supported by the affidavit of Judith Karegi Mwenda sworn on 5th July 2019 saying that it was not true as claimed in application dated 28th August 2018 that all beneficiaries had agreed on the redistribution of the estate and that those who appeared in court on 14. 11. 2018 were not the only beneficiaries. Judith Karegi claimed that the petitioner added share due to Jesca Karimi M’Turuchiu to the confirmed grant.
6. I have perused the record of this court and confirmed that application dated 28. 8.2018 was heard and allowed on 14th November 2018 by Justice Mrima after interrogating Cecilia Nthiori, Jerica Karimi and Fridah Makena as well as Josephine Mucece the Administrator. There is nothing to show that the applicant herein and her siblings were served and were not in court. The petitioner did not indicate particulars of surveyor who carried out survey and she didn’t have a report from the said surveyor to confirm to court the averments of the administrator. It is also not explained why Jerica Karimi was to get 1. 85 acres from the initial 0. 50 acres.
7. The confirmed grant didn’t also include provision of road, of 0. 085 acres as it is assumed that the beneficiaries will provide roads of access as a matter of course.
8. Inconsideration that application dated 28. 8.2018 was allowed without notice to all beneficiaries as and particularly the applicant and her siblings this court hereby sets the orders granted on 14. 11. 2018 aside.
9. Each party to bear their own costs.
HON A. ONG’INJO
JUDGE
RULING DELIVERED, DATED AND SIGNED IN COURT ON30th DAY OF JANUARY 2020.
In the presence of :
C/A: Mwenda
Petitioner:- Mr Muthomi Advocate holding brief for Mburugu for Petitioner
Applicant:- Mrs Ntarangwi Advocate
HON A. ONG’INJO
JUDGE