[2017] KEHC 8030 (KLR)
The court held that the applicants could not be substituted for their deceased mother as beneficiaries of the estate without first obtaining representation to her estate. The estate had already been distributed in 1994, and the court was functus officio regarding the distribution. The proper procedure was for the...
Source-derived case information.
- Citation
- [2017] KEHC 8030 (KLR)
- Parties
- Applicant: Applicants (Daughters of the deceased widow); Respondent: Respondents (Objectors to substitution)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 591 of 1991
- Procedural Posture
- Succession Cause / Ruling on Application for Substitution of Beneficiary
- Outcome
- application dismissed
- Judges
- DN Musyoka
- Legal Topics
- Succession, Substitution of Beneficiaries, Customary Law Inheritance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Applicants (Daughters of the deceased widow)
Applicant
Respondents (Objectors to substitution)
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Substitution of Beneficiary
Legal Issues
- 1 Whether the applicants can be substituted for their deceased mother as beneficiaries of the estate without first obtaining representation to her estate.
- 2 Whether the distribution of the estate, already confirmed and effected, can be revisited through the present application.
- 3 Whether African customary law excluding daughters from inheritance applies.
Ratio Decidendi
The court held that the applicants could not be substituted for their deceased mother as beneficiaries of the estate without first obtaining representation to her estate. The estate had already been distributed in 1994, and the court was functus officio regarding the distribution. The proper procedure was for the applicants to seek representation to their mother’s estate and have her share devolve according to succession law. The application for substitution was therefore dismissed as lacking merit.
Court Disposition
application dismissed
Orders
- The application dated 27th November 2014 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 591 OF 1991
IN THE MATTER OF THE ESTATE OF WILSON WAIYAKI GITHIEYA (DECEASED)
RULING
1. The application for determination is dated 27th November 2014. It seeks that a dead widow of the deceased be substituted by her daughters.
2. The application is opposed. It is argued that the applicants ought to have first obtained representation to the estate of their mother before seeking substitution herein. Secondly, it is stated that the estate ought to be governed by African customary law which excluded daughter from benefit.
3. The deceased herein died in 1977. Representation to his estate was made to the Public Trustee. The said grant was confirmed on 9th June 1994. The estate was distributed between the widow and her three sons. The daughters were not catered for. The widow took 40% of the estate, leaving 60% thereof to be shared equally between the sons. The applicants now seek to take their mother’s place as beneficiaries of the 40% of the estate that devolved upon her.
4. The estate herein was distributed in 1994. The matter of distribution cannot be revisited in the manner proposed in the instant application. In any event, the court became functus officio so far as that issue is concerned.
5. What the applicants should do is to apply for representation to the estate of their mother, and have their mother’s share of the estate herein devolved upon her estate so that the same can be shared amongst those entitled.
6. I agree that there is no merit in the instant application. I hereby dismiss the same, but I will not grant costs to the respondents.
DATED, SIGNED and DELIVERED at NAIROBI this 3RD DAY OF FEBRUARY, 2017.
W. MUSYOKA
JUDGE