[2010] KEHC 3180 (KLR)
The court found that due to the extensive nature of the estate, the divergent proposals for distribution, and the suggestion that an oral will may exist, it would be unjust to determine the matter solely on written submissions and affidavits. Oral evidence is necessary to clarify the factual background, the...
Source-derived case information.
- Citation
- [2010] KEHC 3180 (KLR)
- Parties
- Applicant: Joseph Mbaabu Marete; Respondent: Margrate Nyoroka M’Marete; Respondent: Paul Kithinji Marete
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 5 of 1996
- Procedural Posture
- Succession Cause / Ruling on Mode of Hearing and Distribution
- Outcome
- Order for viva voce hearing; previous order for written submissions set aside.
- Judges
- MM Kasango
- Legal Topics
- Succession, Administration of Estates, Oral Wills, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mbaabu Marete
Applicant
Margrate Nyoroka M’Marete
Respondent
Paul Kithinji Marete
Respondent
Procedural Posture
Succession Cause / Ruling on Mode of Hearing and Distribution
Legal Issues
- 1 Whether the estate of the deceased should be distributed based on written submissions and affidavits or by oral evidence.
- 2 Whether there exists an oral will affecting the distribution of the estate.
- 3 How to ensure a just and equitable distribution among beneficiaries given the extensive nature of the estate.
Ratio Decidendi
The court found that due to the extensive nature of the estate, the divergent proposals for distribution, and the suggestion that an oral will may exist, it would be unjust to determine the matter solely on written submissions and affidavits. Oral evidence is necessary to clarify the factual background, the intentions of the deceased, and the circumstances of the beneficiaries. The court therefore set aside the previous order for written submissions and directed that the matter proceed by viva voce evidence to ensure a fair and informed decision on the distribution of the estate.
Court Disposition
Order for viva voce hearing; previous order for written submissions set aside.
Orders
- The order that the matter be heard by way of written submissions and affidavit is set aside.
- The matter is to be fixed for hearing by viva voce evidence at a date to be fixed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Succession Cause 5 of 1996
IN THE MATTER OF THE ESTATE OF MUSA M’MARETE M’RINGERA (DECEASED)
JOSEPH MBAABU MARETE ……………....….. APPLICANT
VERSUS
MARGRATE NYOROKA M’MARETE …….. 1ST OBJECTOR
PAUL KITHINJI MARETE ………………….. 2ND OBJECTOR
RULING
Although this matter was coming up for judgment for reasons that I shall explain, I declined to do the judgment. Joseph Mbaabu Marete petitioned for letters of administration intestate on 14th January 1995. In the petition, he described himself as the son of the deceased. He listed the surviving beneficiaries as 12 siblings and 2 widows. There is however now only one widow surviving. Although in his petition he only mentioned one property it has later transpired after the filing the objections and affidavits that the deceased estate is very extensive. It transpired that the deceased had many parcels of land, tea bushes and bank accounts. It is not clear whether the failure to set out the correct properties owned by the deceased was by error or by design. This matter, when it appeared before Justice Emukule was ordered to be heard by way of written submissions and affidavits on distribution. The parties filed their affidavits suggesting various mode of distributions and their advocates filed submissions. As stated before, the deceased estate is very extensive. It transpired also in some of those affidavits that there is possibility that the deceased left an oral will. In view of the divergent suggestions on distribution in view of intimation that there possibly was an oral will, I have found it very very difficult to be able to reach a decision on how the beneficiaries should share the deceased estate. I am of the view that it is necessary for parties to give oral evidence in order to acquaint the court on the reasons behind their suggested mode of distribution. It is such evidence that will assist the court to know even where some of the beneficiaries are already settled to aid the court to reach a just decision. It is for that reason that I hereby set aside the order that this matter be heard by way of written submissions and affidavit. I now direct that this matter be fixed for hearing by viva voce evidence at a date that will be fixed at the reading of this ruling.
Dated and delivered at Meru this 12th day of March 2010.
MARY KASANGO
JUDGE