[2020] KEHC 54 (KLR)
The court found that although the applicant was not included in the deceased's will, her claim as a daughter and beneficiary was valid. The Chief had listed her as a beneficiary, and the deceased had generally intended to provide for his children equally. The court determined that revoking the grant would be...
Source-derived case information.
- Citation
- [2020] KEHC 54 (KLR)
- Parties
- Applicant: Tabitha Kathure Mukindia; Respondent: John Nteere Mwarania; Respondent: Susan Marete
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 279 of 2013
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation/annulment of Grant and Stay of Execution
- Outcome
- Application for revocation/annulment of grant allowed in part; application for stay of execution struck out; certificate of confirmation to be amended to include applicant as beneficiary; each party to bear own costs.
- Legal Topics
- Succession, Revocation of Grant, Will Interpretation, Beneficiary Entitlement
- 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
Tabitha Kathure Mukindia
Applicant
John Nteere Mwarania
Respondent
Susan Marete
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation/annulment of Grant and Stay of Execution
Legal Issues
- 1 Whether the applicant, as a daughter of the deceased, was unlawfully excluded from the distribution of the estate.
- 2 Whether the grant issued and confirmed should be revoked or annulled due to non-inclusion of the applicant as a beneficiary.
- 3 Whether the applicant is entitled to a share of the estate despite not being provided for in the deceased's will.
Ratio Decidendi
The court found that although the applicant was not included in the deceased's will, her claim as a daughter and beneficiary was valid. The Chief had listed her as a beneficiary, and the deceased had generally intended to provide for his children equally. The court determined that revoking the grant would be unnecessary and inefficient. Instead, the court ordered that the applicant be added to the list of beneficiaries and allocated a share in the estate assets alongside her siblings. The certificate of confirmation of grant was to be amended accordingly, and the application for revocation was allowed in part. The application for stay of execution was struck out as overtaken by events....
Court Disposition
Application for revocation/annulment of grant allowed in part; application for stay of execution struck out; certificate of confirmation to be amended to include applicant as beneficiary; each party to bear own costs.
Orders
- Applicant Tabitha Kathure Mukindia to be added as a beneficiary in the estate and allocated shares as specified in the ruling.
- Certificate of Confirmation of Grant dated 22nd November 2018 to be issued in the reviewed terms.
Full Case Text
Judgment text and source record
70 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
SUCCESSION CAUSE NO 279 OF 2013
IN THE MATTER OF THE ESTATE OF THE LATE MUKINDIA MWIREBUA(DECEASED)
JOHN NTEERE MWARANIA............PETITIONER
VERSUS
SUSAN MARETE...................................OBJECTOR
TABITHA KATHURE MUKINDIA...APPLICANT
RULING
1. Tabitha Kathure Mukindia the applicant in application dated 5th February 2020, sought for orders of revocation and/or annulment of grant that was made to John Mutere M’Mwarania and confirmed on 22nd November 2018. The application was based on the ground that she was the daughter of the deceased and that she had been left out of the distribution of the estate of her father.
2. She averred in her affidavit in support of the application that she was entitled to an equal share as her siblings and that she had not denounced her right as a beneficiary.
3. The applicant also filed an application dated 11 August 2020 seeking for temporary stay of execution of the grant herein pending the hearing and determination of the application for revocation.
4. In response to the application John Nteere M’Mwarania filed a replying affidavit sworn on 24th August 2020 and averred that the applicants applications were an after thought and were not merited and therefore an abuse of the court. He claimed that the applicant was aware when this cause was filed in 2013 and he acknowledged that the deceased in his will did not provide for the applicant. He therefore urged the court not to stop the process of the implementation of the grant and dismiss the application.
5. Susan Marete also filed a Replying affidavit, asking the court to dismiss the application for reasons that the Will written by the deceased was found to be valid and the same had not been set aside.
6. In consideration of the submissions by counsel, it is apparent that although the Chief of Ntakira Location listed Tabitha kathure Mukindia as a beneficiary, the will drawn by the deceased on 1st December 2003 did not include her or provide for her as a beneficiary. Although the applicant did not bring her application under Section 26 of the Law of Succession Act, this court finds that her concerns are valid as she seeks that this court provides for her in the deceased persons estate. It will not be necessary and it will be a waste of time and resources to have the grant herein revoked inorder for the parties to start the process of determining what the applicant should be provided for a fresh. In that regard, this court finds that since the deceased had decided to provide for his children in equal measure, the applicant herein will be added in the list of beneficiaries in the Will and to get a share in all the assets where the other beneficiaries are benefiting as follows :-
7. a) Ntima/Ntakira/ 483
Francis Kamathi 1 acre
John Nteere 1 acre
Simon Murithi 1 acre
Isabella Gacheri – 0. 32 acres
Karuru Mukindia 0. 50 acres
Purity Makandi 1 acre
Tabitha Kathure Mukindia 0. 50 acres
b) Meru Central Farmers cooperative union
Francis Kamathi
John Nteere
Simon Muriithi
Isabella Gacheri
Karuru Mukindia
Purity Makandi
Tabitha Kathure Mukindia to share equally
c) Money In Post Bank to John Nteere in whole
d) MiruaMeru Farm cooperative Society to be shared equally
Francis Kamathi
John Nteere
Simon Muriithi
Isabella Gacheri
Karuru Mukindia
Purity Makandi
Tabitha Kathure Mukindia
e) MIRIGA MIERU LANDLESS COOP SHARES
To be shared equally by
Francis Kamathi
John Nteere
Simon Muriithi
Isabella Gacheri
Karuru Mukindia
Purity Makandi
Tabitha Kathure Mukindia
d) Household goods and Domestic Animals.
Francis Kamathi
John Nteere
Simon Muriithi
Isabella Gacheri
Karuru Mukindia
Purity Makandi
8. Certificate of Confirmation dated on 22nd November 2018 to be issued in the above reviewed terms.
9. The Applicants application dated 5th February 2020 is therefore allowed in part. The application dated 11th August 2020 is overtaken by events and the same is struck out. Costs of both application be borne by the parties on their own.
HON.ANNE ADWERA ONG’INJO
JUDGE
RULING DATED AND DELIVERED AT MERU ON THIS 24th DAY OF SEPTEMBER 2020.
HON.ANNE ADWERA ONG’INJO
JUDGE
In the presence:-
MS Nyagah Advocate for Objector/1st Respondent
MS Mutunga Mboos Advocate for Petitioner/2nd Respondent - No appearance
MS Kimathi Kiara, Advocate for Applicant- No appearance
HON.ANNE ADWERA ONG’INJO
JUDGE