[2011] KEHC 1722 (KLR)
The court found that the protestor, Moses Kibui Kabora, had been involved in the succession proceedings and had not raised any objection until the confirmation stage. The evidence showed that the protestor had already sold his entitlement in L.R. NO. MUHITO/THIKA/442 to John Munyiri Muriithi, who was therefore not a...
Source-derived case information.
- Citation
- [2011] KEHC 1722 (KLR)
- Parties
- Applicant: Michael Gichuhi Kabora; Respondent: Moses Kibui Kabora
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 308 of 2004
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Protest dismissed; grant confirmed as proposed by the applicant.
- Judges
- JK Sergon
- Legal Topics
- Confirmation of Grant, Distribution of Estate, Beneficiary Entitlement, Protest to Confirmation, Sale of Inheritance, Customary Succession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Gichuhi Kabora
Applicant
Moses Kibui Kabora
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the proposed distribution of L.R. NO. MUHITO/THIKA/442 accords with the wishes of the deceased and the law.
- 2 Whether the protestor was properly involved in the succession proceedings and entitled to object to the confirmation of grant.
- 3 Whether the protestor had already disposed of his entitlement in the estate to a third party.
Ratio Decidendi
The court found that the protestor, Moses Kibui Kabora, had been involved in the succession proceedings and had not raised any objection until the confirmation stage. The evidence showed that the protestor had already sold his entitlement in L.R. NO. MUHITO/THIKA/442 to John Munyiri Muriithi, who was therefore not a stranger to the estate. The proposed distribution by the applicant reflected the wishes of the deceased and the entitlement of each house as per customary succession arrangements. The protest lacked merit as the protestor had already disposed of his share, and the grant was confirmed as proposed by the applicant. Each party was ordered to bear their own costs due to the...
Court Disposition
Protest dismissed; grant confirmed as proposed by the applicant.
Orders
- The protest is dismissed.
- The grant is confirmed as proposed by the applicant.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
SUCCESSION CAUSE NO. 308 OF 2004
IN THE MATTER OF THE ESTATE OF WARUGURU KAMBORA (DECEASED)
MICHAEL GICHUHI KABORA.................................................. APPLICANT
VERSUS
MOSES KIBUI KABORA........................................................RESPONDENT
JUDGMENT
The subject matter of this judgment is the Summons for Confirmation of Grant dated 11th March 2005 and the affidavit of Protest sworn on 25th May 2005. The dispute was directed to be determined by affidavit evidence and by written submissions.
I have considered the facts deponed in the affidavits filed in support of the summons and those deponed in the affidavit of Protest plus the written submissions. Michael Gichuhi Kabora, the Petitioner, has proposed that the only asset of the Estate i.e. L.R. NO. MUHITO/THIKA/442 to be shared in the following ratio between the following:
1. Michael Gichuhi Kabora – 0. 4 acres.
2. James Muriithi Kambora – 0. 4 acres
3. Charles Gichuhi Kambora 0. 7 acres.
4. Moses Kibue Kambora – 0. 7 acres.
In the same breath, the Petitioner made the proposals:
(i)Land given to Charles Gichuhi Kabora to be transmitted to Patrick Maina Gichuhi.
(ii)The land given to Moses Kibue Kabora to be transferred to John Munyiri Muriithi.
Moses Kibue Kambora the protestor herein, opposed the Petitioner’s proposal. He claimed that the Petitioner took up Letters of Administration without involving him. He claimed that the Petitioner managed to get title in respect of the parcel of land without his knowledge. He claimed that the Petitioner made a false averment when he stated that the Protestor had consented to his portion being given to John Munyiri Muriithi who according to him is a stranger to the Estate. The Petitioner averred in his further affidavit that the Protestor was involved right from the beginning in the application for the grant and that he never raised any objection. The Petitioner averred that the Protestor was provided for just like the other beneficiaries during the deceased’s lifetime. He claimed the Protestor was given L.R. NO. GITHI/KIREREMA/683. The Petitioner stated that the proposed distribution was in accordance with the deceased’s wishes. He averred that the Protestor had sold his entitlement in L.R. NO. MUHITO/THIHA/442 to John Munyiri Muriithi. The Petitioner stated that John Munyiri Muriithi was not therefore a stranger.
Having considered the rival submissions, it is now quite evident that the Petitioner applied for the grant in his capacity as the
Son of the deceased. The aforesaid parcel of land was transmitted to the deceased after a successful succession cause in the Estate of her late husband who was also the father of the Petitioner and the Protestor. I am convinced that the Protestor, the Petitioner with their siblings, was provided for by their deceased father, during his lifetime. I am also satisfied that the deceased’s husband who was married to three wives reserved the parcel of land known as L.R. NO. MUHITO/THIHA/442 to be shared by his wives. The first house is represented by Michael Gichuhi Kabora and James Muriithi Kabora were to get 0. 8 acres while the 2nd and 3rd houses were to each get 0. 7 acres. Those houses were represented by Charles Gichuhi Kabora and Moses Kibue Kambora respectively. I am also convinced that the Protestor herein had sold his entitlement to John Munyiri Muriithi. The Protestor admitted when he testified before this Court that he had sold his portion to John Munyiri Muriithi.
In the end, I see no merit in the Protest. I dismiss it and proceed to confirm the grant as proposed by the Petitioner. Since the dispute involves brothers, I direct that each of them meets his own costs.
Dated and delivered at Nyeri this 29th day of July 2011.
J. K. SERGON
JUDGE
In open court in the presence of Mr. Mugo for the Applicant and Mr. Mungai for the protestor.
J. K. SERGON
JUDGE