[2008] KEHC 2317 (KLR)
The court held that the respondent, as the grandson of the deceased and the child of the deceased's daughter who predeceased the deceased, was entitled to inherit in place of his mother under section 41 of the Law of Succession Act. The court found that the right to inheritance is not contingent upon occupation,...
Source-derived case information.
- Citation
- [2008] KEHC 2317 (KLR)
- Parties
- Appellant: Jotham Wambugu Kagiriko; Respondent: Moses Muchira
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal Appeal of 1976
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Succession, Inheritance Rights, Devolution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jotham Wambugu Kagiriko
Appellant
Moses Muchira
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the respondent was entitled to inherit a portion of parcel No. Ngariama/Kabare/150.
- 2 Whether there was sufficient evidence to show the respondent was an unmarried daughter of the deceased.
- 3 Whether occupation, development, or marital status are relevant to inheritance rights under Kenyan succession law.
Ratio Decidendi
The court held that the respondent, as the grandson of the deceased and the child of the deceased's daughter who predeceased the deceased, was entitled to inherit in place of his mother under section 41 of the Law of Succession Act. The court found that the right to inheritance is not contingent upon occupation, development, or the marital status of the beneficiary. The evidence established that the respondent was a responsibility of the grandfather's family, and the appellant's arguments regarding lack of occupation or development of the land, as well as the marital status of the respondent's mother, were without merit. The appeal was therefore dismissed for lack of merit.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Appeal 76
JOTHAM WAMBUGU KAGIRIKO………..………….APPELLANT
VERSUS
MOSES MUCHIRA………………………………….RESPONDENT
JUDGMENT ON APPEAL
This is an appeal on a succession dispute. The Appellant filed the appeal against Resident Magistrate Judgment in Succession Case No. 186 of 2004 made on 11/11/2005 and sets out grounds of appeal:-
1. that the Trial Magistrate erred in holding that Respondent was entitled to inherit a portion of parcel No. Ngariama/Kabare/150.
2. when there was no evidence to show that both Respondents father and brother had own land.
3. there was no evidence to support the finding that the respondent was an unmarried daughter of deceased.
4. Trial Magistrate to consider that respondent and his mother have never resided, worked on or put any development on the suit land.
The right to inheritance is not determined on occupation of land or development or the marital status or a beneficiary. For these reasons grounds of appeal number 3 and 4 are without merit. From the record it appears the appellant was brother of the Respondents sister had died. The cause related to the estate of the petitioners father who was grandfather of the Respondent. The Trial court made a finding that the grandson who survived her deceased unmarried mother was entitled to inherit in place of his mother. The evidence of the Respondent shows that he was a responsibility of the grandfather’s family. On material side Appellant educated the Respondent up to stand seven and brought the Respondent up. It therefore unreasonable for the petitioner Appellant to assert that the Respondent’s mother was married to his biological father.
It is my view that this cause falls under section 41 where a child takes inheritance in place of his deceased parent. The deceased died on 23/7/82 and the daughter mother of the Respondent died in 1999.
Upon perusing the record and hearing the Appellant’s arguments, I am satisfied that his appeal has no merit and the same is hereby dismissed with costs.
Dated this 22nd May, 2008.
J. N. KHAMINWA
JUDGE
22/5/2008
Khaminwa – Judge
Njue – Clerk
Ms Thungu HB for Wairimu
Mr. Moses Muchira present.
Ruling read in open court.
J. N. KHAMINWA
JUDGE