[2000] KEHC 426 (KLR)
The court found that there was no evidence to prove that the petitioner and the deceased had assisted the objector in purchasing land parcel ABOGETA/KITHANGARE/261. As the deceased died intestate and the petitioner and objector are the only surviving children, section 38 of the Laws of Succession Act applies,...
Source-derived case information.
- Citation
- [2000] KEHC 426 (KLR)
- Parties
- Applicant: Petitioner (name not specified); Respondent: Objector (name not specified)
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- ? 48 of 1988
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Partially allowed; estate to be distributed as per court's orders.
- Legal Topics
- Intestate Succession, Distribution of Estate, Land Registration, Inheritance Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Petitioner (name not specified)
Applicant
Objector (name not specified)
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the estate of the deceased should be distributed equally between the petitioner and the objector as the only surviving sons.
- 2 Whether the objector was assisted by the deceased and the petitioner in purchasing land parcel ABOGETA/KITHANGARE/261, thereby disentitling him from a share in the estate.
- 3 Whether land parcel ABOGETA/KITHANGARE/331 should be registered solely in the petitioner's name due to his actions in retrieving it after a sale.
Ratio Decidendi
The court found that there was no evidence to prove that the petitioner and the deceased had assisted the objector in purchasing land parcel ABOGETA/KITHANGARE/261. As the deceased died intestate and the petitioner and objector are the only surviving children, section 38 of the Laws of Succession Act applies, requiring equal division of the estate among the children. However, land parcel ABOGETA/KITHANGARE/331, which the petitioner had retrieved from a purchaser, should be registered in the petitioner's name. The remaining parcels, ABOGETA/KITHANGARE/271 and ABOGETA/KITHANGARE/541, are to be shared equally between the petitioner and the objector.
Court Disposition
Partially allowed; estate to be distributed as per court's orders.
Orders
- Land parcel ABOGETA/KITHANGARE/271 shall be shared equally between the petitioner and the objector.
- Land parcel ABOGETA/KITHANGARE/541 shall be shared equally between the petitioner and the objector.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL IN NAIROBI
(CORAM: KWACH, SHAH & OWUOR JJ.A) CIVIL APPEAL (APPLICATION) NO. 60 OF 1995 BETWEEN
The deceased ZAKAYO MUTIGA died in 1980. He died intestate and left the following parcels of land under his name:- ABOGETA/KITHANGARI/271 Measuring 2. 31 Ha. ABOGETA/KITHANGARI/331 Measuring 0. 25 Ha. ABOGETA/KITHANGARI/541 Measuring 1. 94 Ha.
The Petitioner and the objector are the only surviving sons of the deceased. The two heirs differed as to the mode of distribution of the estate hence this objection proceeds.
It was the objectors case that the estate of his deceased father which is comprised of the three parcels of land as stated above should be distributed equally between him and the Petitioner being the only surviving sons of the deceased while the Petitioner submitted that he objector is not entitled to any share since him and the deceased had assisted in financially to purchase land parcel NO.ABOGETA/KITHANGARI/261 where he now resides with his family. This was way back in 1966 and which fact is denied by the objector who said that he had purchased the same with his own funds. The petitioner concedes that land parcels No.
ABOGETA/KITHANGARE/541 can be shared equally between hiseldest son KAARIA MORFORT and the eldest son of the objector ASHFORD MUTWIRI but land parcel No.ABOGETA/KITHANGARE/331 should be registered in his name because his deceased father had sold it and he paid off the purchaser to retrieve the same.
The evidence adduced by the petitioner has not proved that him and the deceased had in any away assisted the objector to purchase land parcel No.ABOGETA/KITHANGARE/261 in 1966.
Having made such a finding and the deceased having died intestate, section 38 of the Laws of Succession Act Cap 160 comes into play. The Petitioner and the objector being the only surviving children of the intestate deceased, the estate shall devolve upon them and shall be equally divided among them except land parcel
No.ABOGETA/KITHANGARE/331 measuring 0. 25 Ha which the Petitioner had retrieved from a purchase. That is to say the land parcel No.ABOGETA/KITHANGARE/271 and No.ABOGETA/KITHANGARE/541 shall be shared between the petitioner and the objector equally.
These are the orders of this court. Dated this 22nd day of June, 2000
J.LA. OSIEMO
JUDGE