[2005] KEHC 2332 (KLR)
The court found that the applicant, as the surviving spouse with a life interest in the estate property, had satisfied the statutory requirements under Section 37 of the Law of Succession Act. The two adult children, being of full age, had given their written consent to the sale. The purpose of the sale—to pay for...
Source-derived case information.
- Citation
- [2005] KEHC 2332 (KLR)
- Parties
- Applicant: Petitioner (Widow of Samuel Githagui Kinyanjui); Respondent: Children of the deceased (including Morgan Kinyanjui and Rosaline Nyambura)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 2201 of 2001
- Procedural Posture
- Succession Cause / Ruling on Application for Leave to Sell Estate Property
- Outcome
- application granted
- Judges
- FI Koome
- Legal Topics
- Administration of Estates, Life Interest, Sale of Estate Property, Consent of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Petitioner (Widow of Samuel Githagui Kinyanjui)
Applicant
Children of the deceased (including Morgan Kinyanjui and Rosaline Nyambura)
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Leave to Sell Estate Property
Legal Issues
- 1 Whether the applicant should be granted leave to sell LR No. Dagoretti/Kinoo/T.198 to pay school fees for the deceased's children.
- 2 Whether the sale proceeds should be deposited in a bank account operated by the widow and two adult children.
- 3 Whether the requirements of Section 37 of the Law of Succession Act regarding sale of property by a surviving spouse with life interest have been met.
Ratio Decidendi
The court found that the applicant, as the surviving spouse with a life interest in the estate property, had satisfied the statutory requirements under Section 37 of the Law of Succession Act. The two adult children, being of full age, had given their written consent to the sale. The purpose of the sale—to pay for the education of the deceased's children—was deemed reasonable and in the best interests of the beneficiaries. The court was satisfied that the application was properly brought and that granting leave to sell the property was justified under the circumstances. Accordingly, the court granted the application as prayed in terms of prayers 2 and 3, allowing the sale of LR No....
Court Disposition
application granted
Orders
- Leave is granted to the applicant to sell LR No. Dagoretti/Kinoo/T.198.
- The sale proceeds shall be deposited in a bank account to be operated by the widow and the two adult children.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI Succession Cause 2201 of 2001
IN THE MATTER OF THE ESTATE OF SAMUEL GITHAGUI KINYANJUI
RULING
I have considered the Summons brought by the petitioner under Section 37 of the Law of Succession and Rules 49 and 73 of the P & A rules.
The applicant has sought for leave of the court to sell LR No. Dagoretti/Kinoo/T.198 to be able to pay school fees for the three children. She has further sought for leave so that the sale proceeds may be deposited in a bank account to be operated between the widow and the two grown up children.
According to the supporting affidavit, the child known as Morgan Kinyanjui has been admitted to the University of Nairobi for a degree course which was supposed to have commenced in February 2005 whereby he has been unable to pay Kshs.198,750/= and therefore deferred the course.
Rosaline Nyambura is also desirous of joining a college to undertake a course and the last born child who is still a minor is in preparatory school whereby the school fees per term is Kshs.18,500/=.
The applicant has another parcel of land being LR No. Dagoretti/Waithaka/1085 whereby they reside with the children.
According to the provisions of the Section 37 a surviving spouse who is entitled to a life interest with the consent of the co-trustees and all the children of full age and with the content of the court, can sell the interest held for life.
In this case the two children who are of age have duly filed their consent to the proposed sale. I am satisfied that the applicant should be granted leave to dispose of the property held in trust for reasons given in the application.
Accordingly the application dated 26th April 2005 in terms of prayers 2 and 3 is granted.
Orders accordingly.
MARTHA KOOME
JUDGE