[2011] KEHC 1599 (KLR)
The court found that the only asset available for distribution was L.R. no Othaya/Kihugiru/837. The protestors' main objection was that John Mwangi Wanyaga had been excluded from the distribution. However, John Mwangi Wanyaga appeared before the court and expressly stated he had no interest in claiming a portion of...
Source-derived case information.
- Citation
- [2011] KEHC 1599 (KLR)
- Parties
- Applicant: Joseph Kiundu Wanyaga; Respondent: John Gikaria Wanyaga; Respondent: John Mwangi Wanyaga
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 927 of 2009
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- protest dismissed; grant confirmed as prayed
- Legal Topics
- Succession, Confirmation of Grant, Distribution of Estate, Beneficiary Exclusion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kiundu Wanyaga
Applicant
John Gikaria Wanyaga
Respondent
John Mwangi Wanyaga
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the grant of letters of administration intestate should be confirmed as prayed by the petitioner.
- 2 Whether John Mwangi Wanyaga was unlawfully excluded from the distribution of the estate asset L.R. no Othaya/Kihugiru/837.
- 3 Whether the protest by the protestors has merit in light of John Mwangi Wanyaga's stated lack of interest in the estate asset.
Ratio Decidendi
The court found that the only asset available for distribution was L.R. no Othaya/Kihugiru/837. The protestors' main objection was that John Mwangi Wanyaga had been excluded from the distribution. However, John Mwangi Wanyaga appeared before the court and expressly stated he had no interest in claiming a portion of the land. As a result, the basis of the protest fell away. The court held that since the only ground for protest was the alleged exclusion of a beneficiary who had disclaimed any interest, the protest could not succeed. The grant was therefore confirmed as prayed in the summons for confirmation of grant dated 17th November 2010.
Court Disposition
protest dismissed; grant confirmed as prayed
Orders
- The protest is dismissed.
- The grant is confirmed as prayed in the summons for confirmation of grant dated 17th November 2010.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
SUCCESSION CAUSE NO. 927 OF 2009
IN THE MATTER OF THE ESTATE OF
WANYAGA KAARA ……….………….........................……………….DECEASED
AND
JOSEPH KIUNDU WANYAGA ……...............................………………PETITIONER
versus
JOHN GIKARIA WANYAGA
JOHN MWANGI WANYAGA……..............................……………….PROTESTORS
JUDGMENT
A grant of letters of administration intestate in respect of the estate of Wanyaga Kaara, deceased was made to Joseph Kiundu Wanyaga, hereinafter referred to as the ‘Petitioner’ on 13th April 2010. The Petitioner has now applied for the grant to be confirmed vide the summons for confirmation of grant dated 17th November 2010. John Gikaria Wanyaga and John Mwangi Wanyaga, hereinafter referred to as the Protestors filed an affidavit of protest they jointly swore to oppose the summons. This court gave directions to have the dispute disposed of by affidavit evidence and by written submissions. In the end, the petitioner was the only party who filed his submissions
I have considered the facts deponed in affidavit filed in support of the summons for confirmation of grant and those deponed in the affidavit of protest. The petitioner identified L.R. no Othaya/Kihugiru/837 to be the only asset of the estate available for distribution between himself, John Gikaria Wanyaga and Peter Gakuo Ndegwa. The Protestors main contention is that the Petitioner did not name John Mwangi Wanyaga as one of the beneficiaries of the land. The petitioner averred that the deceased had given each of his sons intervivos 1. 5 acres and was left with L.R. no.Othaya/Kihugiru/837. It is the Petitioner’s submission that it was the deceased’s wish that the land be shared in equal portions between the three sons named in the affidavit in support of the summons. When John Mwangi Wanyaga appeared before this court he indicated that he has no interest to claim a portion of the aforesaid land. The main reason why the protestors opposed the confirmation of grant is the allegation that the petitioner had excluded John Mwangi Wanyaga from sharing the land. Now that John Mangy Wanyaga has indicated he has no interest to share the land, then the protest must fail. The same is dismissed and the grant is ordered confirmed as prayed in the summons for confirmation of grant dated 17th November 2010. Each party to meet his own costs.
Dated and delivered this 29th day of July 2011.
J.K. SERGON
JUDGE
In open court in the absence of parties with notice.