[2011] KEHC 1161 (KLR)

[2011] KEHC 1161 (KLR)

The court held that confirmation of the grant could be done before a formal survey of the estate land, as the physical boundaries of each beneficiary's share were already marked and each beneficiary resided on their respective portion. The court further found that Susan Evalyne Atsieno, as the widow of Eliud...

Source-derived case information.

Citation
[2011] KEHC 1161 (KLR)
Parties
Applicant: Mathew Dindi Wamurwa; Respondent: Christopher Makokha; Respondent: Godfrey Wamurwa
Court
High Court
Court Station
High Court at Busia
Jurisdiction
Kenya
Judgment Date
28 September 2011
Case Number
Probate & Administration 58 of 2004
Procedural Posture
Probate and Administration / Judgment
Outcome
Protest dismissed; confirmation of grant allowed; share of Eliud Chadwick Opiyo to go to his widow and minor child.
Legal Topics
Confirmation of Grant, Inheritance Rights, Succession of Land, Widow and Child Entitlement
Source Language
english
Family and Children Land and Property Confirmation of Grant Inheritance Rights Succession of Land Widow and Child Entitlement

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Summary, issues, holding and outcome

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Parties

Mathew Dindi Wamurwa

Applicant

Christopher Makokha

Respondent

Godfrey Wamurwa

Respondent

Procedural Posture

Probate and Administration / Judgment

Legal Issues

  1. 1 Whether confirmation of the grant should be done before or after a survey of the shares of land allotted to each beneficiary is done.
  2. 2 Whether Susan Evalyne Atsieno, the widow of Eliud Chadwick Opiyo, is entitled to the share which would have gone to her deceased husband.

Ratio Decidendi

The court held that confirmation of the grant could be done before a formal survey of the estate land, as the physical boundaries of each beneficiary's share were already marked and each beneficiary resided on their respective portion. The court further found that Susan Evalyne Atsieno, as the widow of Eliud Chadwick Opiyo, and her minor child J.E.O, were entitled to inherit the share of land that belonged to the deceased, regardless of the widow's current residence. The Law of Succession Act and the Constitution provide that the widow is the first entitled to inherit, and in her absence, the child is entitled. The objector's argument that the widow should be barred due to her residence...

Court Disposition

Protest dismissed; confirmation of grant allowed; share of Eliud Chadwick Opiyo to go to his widow and minor child.

Orders

  • Confirmation of the grant may proceed before a formal survey is conducted.
  • The share belonging to Eliud Chadwick Opiyo shall go to his wife, jointly with an administrator of her choice, to hold for her benefit and for the benefit of J.E.O until the child attains the age of 18 years.