[2010] KEHC 2330 (KLR)
The court found that the issue of whether the deceased held the land as a trustee for himself and the Objectors could not be determined within the current succession proceedings. Such a question of trust must be addressed in a separate suit under the Civil Procedure Rules. Consequently, the court stayed further...
Source-derived case information.
- Citation
- [2010] KEHC 2330 (KLR)
- Parties
- Applicant: Jane Wangari Waigwa; Respondent: Erastus Nderitu Kabinga; Respondent: Laban Kagondu Weru
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 17 of 2009
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Proceedings stayed; parties directed to seek remedy in civil court; costs in the cause.
- Legal Topics
- Succession of Estates, Confirmation of Grant, Trust in Land, Probate and Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Wangari Waigwa
Applicant
Erastus Nderitu Kabinga
Respondent
Laban Kagondu Weru
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the deceased held L.R. NO. KIRIMUKUYU/MUTATHINI/159 as a trustee for himself and the Objectors.
- 2 Whether the question of trust can be determined within succession proceedings.
- 3 How the estate should be distributed among the parties.
Ratio Decidendi
The court found that the issue of whether the deceased held the land as a trustee for himself and the Objectors could not be determined within the current succession proceedings. Such a question of trust must be addressed in a separate suit under the Civil Procedure Rules. Consequently, the court stayed further proceedings in the succession cause and directed the parties to seek the appropriate remedy in the proper forum. Costs of the application and protest were ordered to be in the cause.
Court Disposition
Proceedings stayed; parties directed to seek remedy in civil court; costs in the cause.
Orders
- Further proceedings in this cause are stayed.
- Parties to seek appropriate remedy under Order XXXVI rule 1 of the Civil Procedure Rules.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Succession Cause 17 of 2009
IN THE MATTER OF THE ESTATE OF WAIGWA KIBINGA ALIAS JOSHUA
WAIGWA KABINGA – DECEASED
JANE WANGARI WAIGWA…………………………....………………PETITIONER
VERSUS
ERASTUS NDERITU KABINGA…………………………………..1ST OBJECTOR
LABAN KAGONDU WERU………………………………….........2ND OBJECTOR
JUDGMENT
The grant of letters of administration intestate in respect of the Estate of Waigwa s/o Kabinga alias Joshua Waigwa Kabinga, deceased were granted to Jane Wangare Waigwa hereinafter referred to as the “Petitioner” on 29th December 2006. She thereafter applied to the aforesaid grant to be confirmed vide the Summons for Confirmation of Grant dated 22nd April 2008. Erastus Ndiritu Kabinga and Laban Kagondu Waru, hereinafter referred to as the “Objectors”, filed an affidavit of Protest they jointly swore to oppose the summons for confirmation of grant. The Petitioner filed the affidavit of Joseph Gathogo Mbuthia and a further affidavit she swore to respond to the allegations in the affidavit of protest. The Objectors were also granted leave to file further affidavits. This court gave directions to have both the summons for confirmation of grant to be determined by affidavit evidence and by written submissions.
I have considered the averments made in the affidavits and the submissions filed herein by both sides. There is no dispute that the parcel of land known as L. R. NO. KIRIMUKUYU/MUTATHINI/159 was registered in the name of Waigwa s/o Kabinga, deceased. The Petitioner is before this court seeking to succeed the deceased as the legal representative. The Objectors being brothers of the deceased, have alleged that the deceased was registered as the proprietor of the aforementioned parcel of land as a trustee for himself and the Objectors. This court has been urged to determine the question of trust. According to the Objectors, the land should be shared in equal portions between them and the Petitioner as the legal representative of the deceased. The Petitioner acknowledged that Erastus Ndiritu Kabinga was a brother to her deceased husband. She, however, alleged that Laban Kagondu Waru was not related to the deceased. I have agonized over the issue and I think the question of trust cannot be determined through these proceedings. It can only be determined underOrder XXXVI rule 1 of the Civil Procedure Rules. Pursuant to the provisions of rule 41 (2) and (93)of the Probate and Administration Rules, I hereby stay further proceedings in this cause and direct the parties to seek for the appropriate remedy as aforestated. Costs of the application and protest to be in the cause.
Dated and delivered at Nyeri this 7th day of May 2010.
J. K. SERGON
JUDGE
In open court in the presence of:-
Kiminda for Applicant and
Mr. Kingori holding brief Maina for the Protestor.