[2013] KEHC 6565 (KLR)
The court found that Mutitu/Ngoru Block 2/19 was transferred to Lilian Wanja Ngure before the deceased's death and thus constituted an inter vivos gift, excluding it from the estate. The allocation of Nyandarua/Ol'Joro-Orok/887 to Beatrice Wanja Ngure was justified as the two properties were of nearly equal value...
Source-derived case information.
- Citation
- [2013] KEHC 6565 (KLR)
- Parties
- Applicant: Beatrice Wanja Ngure; Respondent: Lilian Wanja Ngure
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2611 of 1998
- Procedural Posture
- Succession Cause / Ruling on Distribution of Estate Assets
- Outcome
- Application to revisit the allocation of Nyandarua/Ol'Joro-Orok/887 dismissed; distribution as per confirmed grant upheld.
- Judges
- DN Musyoka
- Legal Topics
- Succession, Inter Vivos Gift, Estate Distribution, Hotch Potch Rule
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Wanja Ngure
Applicant
Lilian Wanja Ngure
Respondent
Procedural Posture
Succession Cause / Ruling on Distribution of Estate Assets
Legal Issues
- 1 Whether the property Mutitu/Ngoru Block 2/19 formed part of the deceased's estate for distribution.
- 2 Whether the allocation of Nyandarua/Ol'Joro-Orok West/887 to Beatrice Wanja Ngure should be revisited in light of the inter vivos gift to Lilian Wanja Ngure.
- 3 How the principle of bringing property to the hotch potch under Section 42 of the Law of Succession Act applies to the distribution between the two houses.
Ratio Decidendi
The court found that Mutitu/Ngoru Block 2/19 was transferred to Lilian Wanja Ngure before the deceased's death and thus constituted an inter vivos gift, excluding it from the estate. The allocation of Nyandarua/Ol'Joro-Orok/887 to Beatrice Wanja Ngure was justified as the two properties were of nearly equal value and each daughter came from a different house. Applying Section 42 of the Law of Succession Act, the court held that the principle of bringing property to the hotch potch required consideration of prior benefits to ensure fairness between the houses. Therefore, the distribution as previously confirmed was equitable and should stand.
Court Disposition
Application to revisit the allocation of Nyandarua/Ol'Joro-Orok/887 dismissed; distribution as per confirmed grant upheld.
Orders
- Nyandarua/Ol'Joro-Orok/887 shall remain the property of Beatrice Wanja Ngure.
- Mutitu/Ngoru Block 2/19 shall remain the property of Lilian Wanja Ngure.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
SUCCESSION CAUSE NO. 2611 OF 1998
IN THE MATTER OF THE ESTATE OF STEPHEN NGURE MBUTHIA (DECEASED)
RULING
The issue relating to the distribution of the estate of the deceased was resolved before Rawal J, as she was then, by consent of the parties. It was also agreed that Mutitu/Ngoru Block 2/19 had been gifted inter vivos to Lilian Wanja Ngure, a daughter in the second house. The only issue outstanding resolution is the distribution of Nyandarua/Ol'Joro-Orok West/887.
The grant herein was confirmed 17th May 2000. Nyandarua/Ol'Joro-Orok West/887 was alloted to Wanja Ngure, a daughter in the first house. The court has been invited to revisit this allocation. To facilitate the same it was directed that a valuation be done of Mutitu/Ngoru Block 2/19 and Nyandarua/Ol'Joro-Orok/887.
I have on record three valuations- one on Mutitu/Ngoru Block 2/19, and the other on Nyandarua/Ol'Joro-Orok/887. The valuation on Mutitu/Ngoru Block 2/19 was done by Ark Consultants Ltd. Their report is dated 26th October 2006 and in it the value of the property was put at Kshs.900,000. 00. Nyandarua/Ol'Joro-Orok/887 was valued by Ark Consultants Ltd and the District Valuation Officer for Nyandarua and Samburu Districts. They assessed the value of the property at Kshs.750,000. 00 and Kshs.880,000. 00 respectively. Their reports are dated 27th October 2006 and 19th October 2006, respectively.
As at the time of the valuation, Mutitu/Ngoru Block 2/19 was registered in the name of Lilian Wanja Ngure, while Nyandarua/Ol'Joro-Orok/887 was registered in the name of Wanja Ngure. The registration of Lilian Wanja Ngure as proprietor of Mutitu/Ngoru Block 2/19 was done on 29th March 1993, well before the deceased's death on 30th July 1998. There is no green card on record to indicate who the previous owner was, but if it was transferred from the deceased, Stephen Ngure Mbuthia, then this was an inter vivos transfer, and the said property did not form part of the estate of the deceased, hence it was not available for distribution as part of the estate.
The registration of the other Wanja Ngure, also known as Beatrice, as proprietor of Nyandarua/Ol'Joro-Orok/887 was effected on 8th August 2000. That was done two years after the demise of the deceased, and it followed the confirmation of the grant on 17th May 2000. The court is being asked to revisit this devolution to Beatrice Wanja Ngure, and to look at it in the context of the inter vivos gift made to Lilian Wanja Ngure.
I note that the two daughters came from each of the two houses. Lilian Wanja Ngure, the beneficiary of the inter vivos transfer of Mutitu/Ngoru Block 3/19, comes from the second house, while Beatrice Wanja Ngure, the beneficiary of the devolution of Nyandarua/Ol'joro-Orok/887, is from the first house. The other assets have been shared out equally or evenly between the two houses. It would appear to me that if Nyandarua/Ol'Joro-Orok/887 is subjected to division between the two houses, the first house would be disadvantaged. The two assets appear to be of almost equal value. Justice would be served by Beatrice Wanja Ngure retaining Nyandarua/Ol'Joro-Orok/887.
The law allows me, while distributing an estate intestate, to take into account any previous benefits. This rule is called bringing property to the hotch potch. It should apply to this estate in balancing out the distribution as between the first and the second house. The rule is stated in Section 42 of the Law of Succession Act, which provides:-
“42. Where -
(a) an intestate has, during his lifetime or by will, given or settled any property to or for the benefit of a child, grandchild
or house;...
that property shall be taken, into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.”
In the end, I hold that Nyandarua/Ol'Joro-Orok/887 shall remain the property of Beatrice Wanja Ngure and Mutitu/Ngoru Block 2/19 the property of Lilian Wanja Ngure. The rest of the estate shall devolve as per the certificate of confirmation of grant dated 17th May 2000. Costs shall be in the cause.
SIGNED DATED and DELIVERED in open court this 30th day of August, 2013.
W.M. MUSYOKA
JUDGE