[2018] KEHC 1445 (KLR)
The court found that the protestor failed to substantiate the claim that any beneficiaries or properties were omitted from the proposed distribution. The proposal by the 2nd administrator was found to be equitable and in accordance with Section 38 of the Law of Succession Act, which mandates equal distribution among...
Source-derived case information.
- Citation
- [2018] KEHC 1445 (KLR)
- Parties
- Applicant: Eugenio Mbae Njagi; Respondent: Andriano Nkonge Njagi
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 6 of 2017
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- protest dismissed; grant confirmed
- Judges
- BB Limo
- Legal Topics
- Intestate Succession, Distribution of Estate, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eugenio Mbae Njagi
Applicant
Andriano Nkonge Njagi
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the proposed mode of distribution by the 2nd administrator is equitable and in accordance with the Law of Succession Act.
- 2 Whether the protestor has established that any beneficiaries or properties were omitted from the proposed distribution.
Ratio Decidendi
The court found that the protestor failed to substantiate the claim that any beneficiaries or properties were omitted from the proposed distribution. The proposal by the 2nd administrator was found to be equitable and in accordance with Section 38 of the Law of Succession Act, which mandates equal distribution among surviving children where there is no surviving spouse. The court concluded that there was no merit in the protest and confirmed the grant as per the proposal in paragraph 5 of the affidavit sworn on 5th February 2018.
Court Disposition
protest dismissed; grant confirmed
Orders
- The grant issued on 29th November, 2017 is confirmed as per paragraph 5 of the affidavit sworn on 5th February 2018 in support of Summons for Confirmation of Grant.
- No order as to costs.
Full Case Text
Judgment text and source record
58 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
MISC. SUCCESSION CAUSE NO. 6 OF 2017
IN THE MATTER OF THE ESTATE OF THE LATE M'BUNDI M'ARIMI - (DECEASED)
EUGENIO MBAE NJAGI....................APPLICANT
VERSUS
ANDRIANO NKONGE NJAGI.......RESPONDENT
J U D G M E N T
1. This cause relates to the estate of M'BUNDI M'ARIMI who died intestate on the 2nd October, 2001 leaving behind the following dependants surviving him;
(i) Eugenio Mbae Njagi
(ii) Andriano Nkonge Njagi
(iii) Wilfred Gitonga Njagi
(iv) Godfrey Gitari Njagi
(v) Cisto Ndiga Njagi
(vi) Gilbert Kinyua Njagi
(vii) Anisilas Kimathi Njagi
(viii) David Mutembei Njagi
2. The properties comprising the estate in this cause are as follows:
a) Muthambi/Upper Karimba/701
b) Muthaambi/Upper Karimba/34
c) Karingani/Mariani/4709
d) Karingani/Mariani/11
e) Karingani/Mariani/489
f) Kajuki/Kamutiria/473
g) Plot No. 12A at Kajuki Market
3. Eugenio Mbae Njagi and Andriano Nkonge Njagi were appointed joint administrators by consent of the beneficiaries in this court on 29th November, 2017 and on 6th February, 2018, Andriano Nkonge Njagi vide Summons for Confirmation of Grant dated 6th February, 2018 applied for confirmation of grant and gave a proposal under paragraph 5 of his affidavit in support of the confirmation sworn on 5th February 2018. The proposal made is as follows:
(A) Muthambi/Upper Karimba/701
The second administrator proposed that the property be divided equally among all the 8 children.
(B) L.R Muthambi/Upper Karimba/34
Wilfred Gitonga - whole (0. 9 acres)
(C) L.R. Karingani/Mariani/4709
(i) Acquilina Karima Kaburu - 1. 25 acres
(ii) Eugenio Mbae Njagi - 0. 75 acres
(ii) Mary Mukwanyaga Njagi - 1. 25 acres
(iv) Gilbert Kinyua Njagi - 0. 375 acres
(v) Godfrey Gitari Njagi - 0. 375 acres
(D) L.R. Karingani/Marimanti/11
(i) Andriano Nkonge Njagi - whole (1 acre)
(E) L.R. Karingani/Mariani/489
(i) Mary Mukwanyaga Njagi - whole ( 0. 65 acres)
(F) L.R. Kajuki/Kamutiria/423
(i) Aquilina Karimi Kaburu
(ii) Cisto Ndiga Njagi
(iii) Godfrey Gitari Njagi Jointly
(iv) Wilfred Gitonga Njagi
(G) Plot No. 12A Kajuki Market
(i) David Mutembei Njagi - whole
4. The 1st administrator, Eugenio Mbae Njagi disagreed and filed a protest on the above proposal stating that the 2nd administrator had not listed all the properties and beneficiaries and that on that basis the grant should not be confirmed. However interestingly the protestor did not give any details of what properties comprising the estate were left out or which beneficiaries were left out. This court gave both the 2nd administrator (Andriano Nkonge Njagi) and the protestor chance to put in submissions but it is only the 2nd administrator who filed his written submissions. The protestor for unknown reasons failed to put in any submissions to justify his protest.
5. An estate of a deceased person dying intestate with no surviving spouse but with surviving child or children is distributed in accordance with the provisions of Section 38 of Law of Succession Actwhich provides that an estate should be distributed equally among the surviving children. I have considered the proposal made by the 2nd administrator under paragraph 5 of his affidavit in support of confirmation of grant and find that the proposal is to a large extent equitable and fair to all the beneficiaries. I do not find any basis for the protest raised by the protestor herein. He has not named the alleged beneficiaries locked out by the 2nd administrator. He has also failed to give details of the properties that comprise the estate that were left out by the proposed mode of distribution under paragraph 5 of the affidavit in support of the application for confirmation.
In the premises, this court finds no merit in the protest filed.
The grant issued on 29th November, 2017 is hereby confirmed as per paragraph 5 of the affidavit sworn on 5th February 2018 in support of Summons for Confirmation of Grant. This court further makes no order as to costs as this is a family matter.
Dated, signed and delivered at Chuka this 29th day of November, 2018.
R.K. LIMO
JUDGE
29/11/2018
Judgment signed, dated and delivered in open court in the presence of Mutani for Applicant and Mugo holding brief for Murithi for protestor.
R.K.LIMO
JUDGE