[2019] KEHC 7661 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 1191 OF 2012

IN THE MATTER OF THE ESTATE OF SAMUEL MWANGI WACHIRA (DECEASED)

ROSALIND NGUNJU MWANGI........................................PETITIONER/RESPONDENT

V E R S U S

JANE NJOKI MWANGI................................................................................RESPONDENT

RULING

1. By an application dated 12. 6.2017, the Applicant sought confirmation of grants made on 8. 3.2016 in respect of the deceased estate in the instant matter. The respondent filed an affidavit of proposed subdivision for confirmation of grant dated 17th July, 2017 and averred that Edward Karuguya Wachira and Winnie Gathoni Wachira who are brother and mother to the deceased are not beneficiaries for purposes of the law.

2. The Applicant by replying affidavit sworn on 27. 7.2017 responded and objected to the mode of sharing in paragraphs 6,7 and 8 of the said affidavit of subdivision and specifically points out LR Nairobi/ Block 118/349 for the same is jointly owned with Edward Karuguya Wachira and the said Edward Karuguya Wachira agreed to surrender his half share in consideration for the deceased surrendering his shares in Plot Mavoko Town 12/2064, Drumvalle Farmers Co-operative LR Block 118/884andDrumvalle Farmers Co-operative LR Block 1181/1265 and thus it would be unfair to exclude him from the distribution. In support of the same, she attached a copy of the family minutes.

3. The court gave directions that the matter be heard by way of viva voce evidence. The counsel for the Respondent was absent and there was an affidavit of service on record and the court was satisfied that the Respondent had been duly served with the hearing notice and thereafter allowed the Applicant to proceed to tender her evidence in the absence of the Respondent.

4. Pw1 was Jane Njoki Mwangi who testified that the court directed her an her co-wife to talk on the distribution of the estate but however her co-wife refused and this prompted her to give a proposed mode of distribution and she sought the same to be distributed as per her proposal. She also sought to rely on her witness statement dated 5th December, 2017 and sought the same to be adopted.

5. Pw2 was Edward Karuguya Wachira. He testified that the deceased was his elder brother and they did real estate business together.He sought to adopt his witness statement wherein he testified that he agreed with the mode of distribution by the applicant and sought urged the court to reject the mode proposed by the petitioner.

6. The evidence of the Applicant was not challenged or controverted by the Petitioner who did not attend court and thus the court did not hear her side of the petition for confirmation of grant nor hear her proposal for distribution.

7. The Applicant herein submitted that the property be distributed as per her proposal for all persons truly entitled to sharing of the assets were not excluded.

8. After going through the pleadings, evidence on record and the parties submissions, I find the issues for determination are;

a. Whether this court can determine Edward Karuguya Wachira’s and Winnie Gathoni Wachira’s claim of estate of deceased estate.

b. Whether Edward Karuguya Wachira and Winnie Gathoni Wachira are entitled to the portion of the deceased parcel of land subject herein.

c. Whether the grant may be confirmed.

9. The attention of the court is drawn to Edward Karuguya Wachira’s claim to property that is from his deceased brother’s estate. The said Edward Karuguya Wachira has not filed any affidavit of protest but however he has given his evidence. The deceased’s mother Winnie Gathoni Wachira did not say anything about being made a beneficiary.

10. In the Matter of Estate of Gachuru Kabogo NAI SUCC NO. 2830 of 2001 the court held that, during confirmation of grant hearing, of ownership of a property of an estate is contested, the property not contested is confirmed and the contested is heard under Order XXXVI (36) CPRas separate.

11. In another matter Charles Murithi Kungu –Vs- Ann Njoki Njenga NAI HCCC 19 0f 2004the court ordered that a dispute as to whether a particular asset formed part of the estate of deceased or belonged to the applicant be dealt with through an originating summons brought underORDER XXXVI RULE 1.

12. It therefore follows that this court cannot determine Edward Karuguya Wachira’s and Winnie Gathoni Wachira’s claim to the deceased’s estate for there is no application before the court to that effect. It also follows that whether or not Edward Karuguya Wachira and Winnie Gathoni Wachira are entitled to the portion of the deceased parcel of land subject herein can only be determined in a separate cause outside this cause.

13. The court will therefore confirm grant but on the issue of distribution. From the evidence on record, the petitioner failed to demonstrate why her mode of distribution should be allowed over that of the applicant who testified and relied on her pleadings and witness statements that were not controverted. In this regard, the mode of distribution in items 1, 2, 3 and 6 vide paragraph 1(e) of the Applicant’s affidavit dated 12/6/2017 are allowed as prayed and they are confirmed. The items 4 and 5 as per the schedule shall be held by the administrators in trust for Edward Karuguya Wachira and Winnie Gathoni Wachira pending the determination of their claims in the proper forum which should be lodged within 60 days from the date hereof failing which the said properties shall be amenable for distribution by the administrators.

There will be no orders as to costs.

It is so ordered.

Dated and delivered atMachakosthis 8th day of May, 2019.

D.K. KEMEI

JUDGE