[2007] KEHC 1456 (KLR)
The court found that the objector failed to prove his entitlement to the deceased's property on a balance of probability. The evidence showed that the property had been given to the petitioner by the deceased with a conditional arrangement regarding the lost son, who has not returned. The objector's claim lacked...
Source-derived case information.
- Citation
- [2007] KEHC 1456 (KLR)
- Parties
- Applicant: Joseph Karuga Munyi; Respondent: Francis Ngacha Munyi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 225 of 2005
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- objection dismissed
- Legal Topics
- Succession to Land, Distribution of Estate, Proof of Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Karuga Munyi
Applicant
Francis Ngacha Munyi
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the objector is entitled to inherit the deceased's property.
- 2 Whether the estate property should be distributed as proposed by the petitioner.
- 3 Whether the petitioner is entitled to the whole of the estate property in the absence of the deceased's son.
Ratio Decidendi
The court found that the objector failed to prove his entitlement to the deceased's property on a balance of probability. The evidence showed that the property had been given to the petitioner by the deceased with a conditional arrangement regarding the lost son, who has not returned. The objector's claim lacked evidentiary support, and even his witnesses confirmed the property was intended for the petitioner. The court therefore dismissed the objection and upheld the petitioner's entitlement to the estate property.
Court Disposition
objection dismissed
Orders
- The objection is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NYERI
SUCCESSION CAUSE 225 OF 2005
IN THE MATTER OF THE ESTATE OF KARUGA KIHARA
alias KARUGA C/O KIHARA….......................................................................DECEASED
JOSEPH KARUGA MUNYI……….……...........................................………PETITIONER
Versus
FRANCIS NGACHA MUNYI….…….........................................…………….OBJECTOR
JUDGMENT
The petitioner in petitioning for Letters of Administration stated that the deceased was survived by himself, a nephew, and by Eugenia Wairimu, a daughter to the deceased. The asset of the estate is GITHU/KIHARO/187. At confirmation of grant the petitioner prayed that the estate asset be distributed equally between himself and James Kihara Karuga. An objection was raised by Francis Ngacha Munyi. The said objector is the brother to the petitioner. The hearing of that objection proceeded by way of viva voce evidence. The information that came from that evidence was that the estate property belonged to the paternal uncle of both the petitioner and the objector. This uncle had two children a boy and a girl. The daughter was included in the petition. The son disappeared a long time ago from his father’s home. There was no clear evidence of the exact date of his disappearance. It was however stated that it was during the time that people were residing at the village. That would seem to be in the 1950s. Both in evidence by the petitioner and the objector is clear that their paternal uncle before his death had given the estate property to the petitioner on condition that if the lost son, who was called Kihara Karuga did return the petitioner was to share that property with him. To date he has not returned. The petitioner is therefore entitled to the whole of that land but he stated that he desires to share it with James Kihara Karuga, namesake of the lost son. The objector was of the view that he is also entitled to inherit the uncle’s property. The objector did not lay any basis for making that claim. Even the witnesses that he called confirmed that the property had been given to the petitioner and this was because the deceased daughter was then married. In the end the court finds that objector has failed to prove his case on a balance of probability. The same is hereby dismissed with no orders as to costs.
MARY KASANGO
JUDGE
Dated and delivered at Nyeri this 15th day of November 2007.
By: M. S. A. Makhandia
JUDGE