[2019] KEHC 11350 (KLR)
The court found that the applicants were not entitled to benefit from the estate because credible evidence, unchallenged by the applicants, established that they were not children of the deceased, having been born after his death. Their exclusion from the distribution was therefore justified. The court further held...
Source-derived case information.
- Citation
- [2019] KEHC 11350 (KLR)
- Parties
- Applicant: Francis Ndungu Wathegi; Applicant: Simon Gitau Wambui; Respondent: The Public Trustee
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 886 of 1989
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule, JO Nyarangi
- Legal Topics
- Succession, Revocation of Grant, Beneficiary Entitlement, Intestate Estate, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Ndungu Wathegi
Applicant
Simon Gitau Wambui
Applicant
The Public Trustee
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the applicants were entitled to benefit from the estate of the deceased as children of the deceased.
- 2 Whether the grant and certificate of confirmation should be revoked for lack of consent and knowledge of the applicants.
- 3 Whether the inclusion of Pauline Nyambura Muritu as a beneficiary was lawful.
Ratio Decidendi
The court found that the applicants were not entitled to benefit from the estate because credible evidence, unchallenged by the applicants, established that they were not children of the deceased, having been born after his death. Their exclusion from the distribution was therefore justified. The court further held that the applicants, having no claim to the estate, could not challenge the inclusion of other beneficiaries such as Pauline Nyambura Muritu, whose entitlement was supported by evidence of purchase from the family. The application for revocation of grant was thus unmerited and dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for revocation of grant is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 886 OF 1989
IN THE MATTER OF THE ESTATE OF WATHEGI WAYO - (DECEASED)
FRANCIS NDUNGU WATHEGI.................................................1ST APPLICANT
SIMON GITAU WAMBUI..........................................................2ND APPLICANT
VERSUS
THE PUBLIC TRUSTEE..............................................................RESPONDENT
RULING
1. The deceased Wathegi Wayo died intestate on 24th October 1985. The Public Trustee petitioned for the grant of letters of administration intestate which was issued on 17th October 1989, and confirmed on 16th August 1997. The estate was distributed to the beneficiaries. On 19th December 2012 the applicants Francis Ndungu Wathegi and Simon Gitau Wambui filed summons seeking the revocation of the grant and certificate of confirmation. The grounds were that the confirmation was done without their consent and knowledge, and that they had not been provided for in the distribution. The applicants had, however, been involved at the time the petition was filed.
2. There is no dispute that the deceased had four houses, and that the applicants were from the fourth house. Their mother Mary Wambui Wathegi had other children who are Alice Wairimu, Harun Kariuki, Abraham Kamau, Lucy Njeri and Ruth Wanjiru who, together with their mother, were provided for in the distribution.
3. The deceased left land parcels Chania/Mataara/447, Chania Ngorongo/1251 and Plot No. 43, Gituamba. The distribution of Chania/Ngorongo/1251 was done on 5th April 1995 by Justice Githinji (as he then was) and that of Chania/Mataara/ 447 and plot No. 43, Gituamba was done by Justice Kuloba on 30th July 1997.
4. In the replying affidavit by Deputy Public Trustee Mukulu Ngilu Kariuki, who had conduct of the matter, she deponed that the distribution followed various family meetings. In the meetings, an issue was raised that the applicants were not the children of the deceased; that they had been born after the demise of the deceased. Neither the applicants nor their mother contested the claim when it was raised. It was for that reason that the applicants were excluded from benefitting from the estate of the deceased.
5. The applicants did not file any further affidavit to challenge the averments of the Public Trustee. It follows that there was reason why they were not provided for in the estate. The reason was that they were not the children of the deceased.
6. The other complaint by the applicants in seeking revocation was that a stranger, Pauline Nyambura Muritu, had benefitted from the estate. First, now that the applicants have no claim to the estate they cannot decide who should benefit and who should not. Secondly, and more important, Pauline Nyambura Muritu had bought a portion of parcel from the deceased’s family which allowed her to be included in the estate’s distribution. This was supported by the Public Trustee.
7. In all, I find the applicants’ application for revocation not merited. It is dismissed with costs.
DATED and SIGNED at NAIROBI this 22ND day of MAY 2019
A.O. MUCHELULE
JUDGE
DATED and DELIVERED at NAIROBI this 27TH day of MAY 2019
J.N. ONYIEGO
JUDGE