[2018] KEHC 1974 (KLR)
The court held that, in the absence of documentary evidence establishing that the properties listed by either party belonged to the deceased, it cannot proceed to distribute such properties as part of the estate. The court emphasized that it is incumbent upon the parties to provide proof of ownership, such as title...
Source-derived case information.
- Citation
- [2018] KEHC 1974 (KLR)
- Parties
- Applicant: Polycarp Koome Kubai; Applicant: Felix Gacamba; Applicant: Mary Kubai; Applicant: Judith Naitore; Respondent: Salome Kaimuri Kubai
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 229 of 2004
- Procedural Posture
- Succession Cause / Interlocutory Ruling on Evidence for Distribution
- Outcome
- Directions issued for parties to file and exchange evidence of ownership before distribution; no final distribution ordered.
- Judges
- A Mabeya
- Legal Topics
- Succession, Estate Distribution, Proof of Ownership, Probate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Polycarp Koome Kubai
Applicant
Felix Gacamba
Applicant
Mary Kubai
Applicant
Judith Naitore
Applicant
Salome Kaimuri Kubai
Respondent
Procedural Posture
Succession Cause / Interlocutory Ruling on Evidence for Distribution
Legal Issues
- 1 Whether the properties listed by the parties form part of the deceased's estate for distribution.
- 2 Whether sufficient evidence has been provided to establish ownership of the listed properties by the deceased.
Ratio Decidendi
The court held that, in the absence of documentary evidence establishing that the properties listed by either party belonged to the deceased, it cannot proceed to distribute such properties as part of the estate. The court emphasized that it is incumbent upon the parties to provide proof of ownership, such as title documents or official searches, to satisfy the court that the assets in question form part of the deceased's estate. Without such evidence, any distribution would risk including property not legally belonging to the estate, which is impermissible under succession law. The court therefore directed the parties to file and exchange the necessary documentary evidence before any...
Court Disposition
Directions issued for parties to file and exchange evidence of ownership before distribution; no final distribution ordered.
Orders
- Parties to file and exchange copies of titles or searches for the respective properties they contend belong to the deceased within 7 days.
- Matter to be mentioned on 13th December, 2018 to confirm filing and to set a date for judgment.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO. 229 OF 2004
IN THE MATTER OF THE ESTATE OF THE LATE STANLEY MUCHIRI KUBAI (DECEASED)
POLYCARP KOOME KUBAI........................1ST PETITIONER
FELIX GACAMBA.........................................2ND PETITIONER
MARY KUBAI................................................3RD PETITIONER
JUDITH NAITORE........................................4TH PETITIONER
VERSUS
SALOME KAIMURI KUBAI ................................OBJECTOR
R U L I N G
1. This matter relates to the estate of Stanley Muchiri Kubai(the deceased) whose main issue is its distribution. Upon perusal of the records, it is clear that the petitioner and the objector have given reports that are contradicting as regards what constitutes the assets of the deceased. The Petitioners have set out the following as the assets of the deceased:-
a) PLOT NO. 5272 ITHIMA/ANTUAMBUI
b) PLOT NO. 5542 ITHIMA/ANTUAMBUI
c) PLOT NO. 5112 ATHIRU RUUJINE
d) PLOT NO. 4474 ATHIRU RUUJINE
e) PLOT NO. 1748 ATHIRU RUUJINE
f) PLOT NO. 5746 CAPE CORNER
g) PLOT NO. 3156 MAUA
h) PLOT NO. 3135 MAUA
i) PLOT NO. 9947 MAUA
j) LAND PARCEL 2234 MUTUATI/AMWATHI II (gathering stage)
2. On the other hand, the objector’s list has the following as constituting the assets of the deceased:-
a) ATHIRU RUUJINE PLOT NO. 5112
b) ATHIRU RUUJINE PLOT 1748
c) ATHIRU RUUJINE PLOT NO. 4475
d) ATHIRU RUUJINE PLOT NO. 4475
e) ITHIMA/ANTUAMBUI/15275
f) ITHIMA/ANTUAMBUI/542
g) AMWATHI MAUA PLOT NO. 196
h) AMWATHI MAUA PLOT NO. 3135
i) AMWATHI MAUA PLOT 3156
j) MUTUATI/AMWATHI/2234 (gathering stage)
3. None of the parties have produced any evidence to show that the deceased owned the properties they have set out to distribute. It must be demonstrated to a family court that the properties sought to be distributed belong to the deceased and therefore form part of his estate. Without any such evidence, the court cannot commence any distribution of such property, lest it distributes property that does not form part of the estate.
4. In this regard, to enable this court render its judgment on distribution, I direct that:-
a) the parties do file and exchange copies of titles or searches for the respective properties that they contend belong to the deceased within 7 days.
b) this matter be mentioned on the 13th December, 2018 to confirm the filing of the same and to give a date for judgment
It is so ordered.
DATED and DELIVERED at Meru this 29th day of November, 2018.
A. MABEYA
JUDGE