[2021] KEHC 2094 (KLR)
The court determined that the controversy regarding the parcels of land allegedly held in trust for Stanley Kinyanjui Kiru deceased cannot be resolved on affidavit evidence alone. The issues of which parcels are available for distribution and who among the beneficiaries is entitled to inherit them are factual...
Source-derived case information.
- Citation
- [2021] KEHC 2094 (KLR)
- Parties
- Applicant: Judy Wambui Kinyanjui; Respondent: Teresiah Wanjiku Waithaka; Respondent: Peter Kimani Kinyanjui; Respondent: James Kariuki; Respondent: David Waithaka; Respondent: Stephen Thuo
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 92 of 2018
- Procedural Posture
- Succession Cause / Ruling on Protests Against Confirmation of Grant
- Outcome
- Protests to be heard by viva voce evidence; no final orders on distribution at this stage.
- Judges
- MM Kasango
- Legal Topics
- Succession of Estates, Distribution of Land, Trust Property, Beneficiary Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Judy Wambui Kinyanjui
Applicant
Teresiah Wanjiku Waithaka
Respondent
Peter Kimani Kinyanjui
Respondent
James Kariuki
Respondent
David Waithaka
Respondent
Stephen Thuo
Respondent
Procedural Posture
Succession Cause / Ruling on Protests Against Confirmation of Grant
Legal Issues
- 1 Whether the parcels of land registered in the name of Waithaka Keru Peter deceased but held in trust for Stanley Kinyanjui Kiru deceased are available for distribution among the beneficiaries of Stanley Kinyanjui Kiru.
- 2 Who among the beneficiaries of Stanley Kinyanjui Kiru deceased is entitled to inherit the identified parcels of land.
- 3 Whether certain parcels have already been sold or earmarked for specific beneficiaries and are thus unavailable for distribution.
Ratio Decidendi
The court determined that the controversy regarding the parcels of land allegedly held in trust for Stanley Kinyanjui Kiru deceased cannot be resolved on affidavit evidence alone. The issues of which parcels are available for distribution and who among the beneficiaries is entitled to inherit them are factual matters that require oral testimony. The court therefore directed that the protests be set down for hearing by viva voce evidence to enable a full and fair determination of the disputes concerning the estate of Stanley Kinyanjui Kiru deceased. The distribution of the estate of Waithaka Keru Peter deceased itself is not in controversy and does not require further inquiry at this stage.
Court Disposition
Protests to be heard by viva voce evidence; no final orders on distribution at this stage.
Orders
- The protests against confirmation of grant shall be set down for hearing by viva voce evidence.
- A hearing date shall be given at the reading of this ruling.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
SUCCESSION CAUSE NO. 92 OF 2018
IN THE MATTER OF THE ESTATE OF THE LATE WAITHAKA KERU PETER (DECEASED)
RULING
1. There are two protests filed herein against the application of confirmation of grant hereof dated 22nd July, 2020. One of the affidavits of protest was sworn by David Waithaka Kinyanjui, Stephen Thuo KinyanjuiandJames Kariuki Kinyanjuidated 17th March, 2021. The other affidavit was sworn by Judith Wambui Kinyanjui.
2. When the learned counsels appeared before me on 28th September, 2021 they intimated that the protest could be determined by affidavit evidence.
3. I have considered the matter and I am of a contrary view. It is not possible to determine what property ofStanley Kinyanjui Kiru Deceased is still available for distribution. Stanley Kinyanjui Kiru Deceasedwas brother of Waithaka Keru Peter Deceased. This succession relates to the estate of Waithaka Keru Peter deceased.
4. During the lifetime of Stanley Kinyanjui Kiru deceased and Waithaka Keru Peter deceased, it was accepted by all that Parcel No. Ndumberi/Ndumberi/1891 was registered in the name of Waithaka Keru Peter deceased, who held part of that land in trust for Stanley Kinyanjui Kiru deceased. That property was sub-divided and parcels No. Ndumberi/Ndumberi 3210, 3211, 3212, 3213, 3214, 3215, 3216, 3217 , 3218, 3219, 3220 and 3221 were determined as the parcels belonging to Stanley Kinyanjui Kiru deceased. Those parcels of land however remained registered in the name of Waithaka Keru Peter deceased upto the date of his demise and the demise of Stanley Kinyanjui Kiru deceased. The controversy is who amongst the beneficiaries of Stanley Kinyanjui Kiru deceasedshould inherit those parcels and there is yet the added controversy of whether some of those parcels are available for distribution for it is alleged that parcels Nos. 3213, 3214, 3215, 3219, 3220 and 3221 are either sold or are earmarked to specific beneficiaries.
5. It does seem however that the distribution of the land belonging to Waithaka Keru Peter deceased has no controversy.
6. My consideration of the issues raised in the protests before me has led me to conclude that the controversy of the estate of Stanley Kinyanjui Kiru deceased can only be determined after the court receives viva voce evidence. At the reading of this Ruling, a date will be given for the hearing of the protests by viva voce evidence.
RULING DATED AND DELIVERED AT KIAMBU THIS 18TH DAY OF NOVEMBER, 2021.
MARY KASANGO
JUDGE
Coram:
Court Assistant: Maurice
For Judy Wambui Kinyanjui
For Teresiah Wanjiku Waithaka…Miss Mwema H/B Mrs. Morara
For Peter Kimani Kinyanjui
For James Kariuki
David Waithaka
Stephen Thuo
COURT
Ruling delivered virtually.
MARY KASANGO
JUDGE