[2020] KEHC 9347 (KLR)
The court found that the applicant, having an unresolved dispute over parcel Ndarugu/Gakoe/1021 with the deceased, would be adversely affected if the estate were distributed without his participation. The court held that the applicant's interest in the property, whether as a potential creditor or otherwise, was...
Source-derived case information.
- Citation
- [2020] KEHC 9347 (KLR)
- Parties
- Respondent: Ann Nyathira Mucheru; Respondent: John Warui Jokim Kagwathi; Applicant: Peter Njore Wakaba
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 585 of 2016
- Procedural Posture
- Succession Cause / Ruling on Application for Joinder as Interested Party
- Outcome
- application allowed
- Judges
- AO Muchelule
- Legal Topics
- Probate and Administration, Joinder of Parties, Interest in Estate Property, Pending Suits, Creditor Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ann Nyathira Mucheru
Respondent
John Warui Jokim Kagwathi
Respondent
Peter Njore Wakaba
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Joinder as Interested Party
Legal Issues
- 1 Whether the applicant should be enjoined as an interested party in the succession proceedings.
- 2 Whether the applicant has a sufficient interest in the estate property Ndarugu/Gakoe/1021 to warrant joinder.
- 3 Whether unresolved disputes over the property affect the distribution of the estate.
Ratio Decidendi
The court found that the applicant, having an unresolved dispute over parcel Ndarugu/Gakoe/1021 with the deceased, would be adversely affected if the estate were distributed without his participation. The court held that the applicant's interest in the property, whether as a potential creditor or otherwise, was sufficient to warrant his joinder as an interested party. The court relied on the principle that any person whose rights may be affected by the outcome of succession proceedings should be given an opportunity to be heard, especially where the property in dispute forms part of the estate. The court also noted that the distribution of the property should not proceed until the...
Court Disposition
application allowed
Orders
- The applicant Peter Njore Wakaba is joined as an interested party in these proceedings.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 585 OF 2016
IN THE MATTER OF THE ESTATE OF IBRAHIM MUCHERU WAHOTHI(DECEASED)
ANN NYATHIRA MUCHERU.........................1ST PETITIONER/1ST RESPONDENT
JOHN WARUI JOKIM KAGWATHI...............2ND PETITIONER/2ND RESPONDENT
VERSUS
PETER NJORE WAKABA.............................................................................APPLICANT
RULING
1. The deceased Ibrahim Mucheru Wahothi died on 5th September 2013. The respondents Ann Nyathira Mucheru and John Warui Jokim Kagwathi petitioned the court for grant of probate of written Will. They were the executors of the said Will. The grant was issued on 6th June 2016. Pending is an application filed on 8th September 2016 by Obadiah Mburu Mucheru to revoke the grant of probate.
2. The present application dated 28th August 2019 was brought by Peter Njore Wakaba seeking to be enjoined in the cause as an interested party. His case is that he had had a long and unresolved dispute with the deceased over parcel Ndarugu/Gakoe/1021; that this parcel has been listed as part of the estate of the deceased; and he therefore wished to be enjoined to protect his interest in the parcel.
3. The replying affidavits were filed by the 1st petitioner and Samuel Mungai Mucheru (one of the sons of the deceased). They acknowledged the existence of the unresolved suits pending in various courts between the deceased and the applicant over the property, but opposed the application on the basis that the applicant was not a beneficiary of the deceased; that, at best, he was a creditor to the estate.
4. If the applicant is laying a claim over Ndarugu/Gakoe/1021 which has been listed as one of the free properties of the deceased to be distributed to the beneficiaries, it is clear that he will be affected adversely if the distribution proceeds without him being allowed to articulate his claim in the matter (Communications Commission of Kenya and 4 others –v- Royal Media Services Limited and 7 Others [2014]eKLR). The applicant may be able to persuade the court that Ndarugu/Gakoe/1021 was not the free property of the deceased under section 3 of the Law of Succession Act (Cap. 160), or that the distribution of the parcel should not happen until his claim to the same has been settled in the pending disputes.
5. I allow the applicant to join these proceedings as an interested party. I make no order as to costs.
DATED and DELIVERED at NAIROBI this 18TH day of FEBRUARY 2020.
A.O. MUCHELULE
JUDGE