[2012] KEHC 2217 (KLR)
The court found that the protestor successfully challenged the petitioner's original proposal to transmit the entire estate to herself. The court was satisfied that the deceased's family had met and agreed on the distribution of the estate in accordance with the deceased's wishes, as evidenced by a memorandum of...
Source-derived case information.
- Citation
- [2012] KEHC 2217 (KLR)
- Parties
- Applicant: Lucy Warima Macharia; Respondent: John Gichuki Macharia
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 355 of 2008
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant and Protest
- Outcome
- Protest sustained in part; grant confirmed subject to agreed distribution.
- Judges
- JK Sergon
- Legal Topics
- Succession, Distribution of Estate, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Warima Macharia
Applicant
John Gichuki Macharia
Respondent
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant and Protest
Legal Issues
- 1 Whether the petitioner was entitled to have the entire estate transmitted to herself.
- 2 Whether the estate should be distributed according to the wishes of the deceased as agreed by the beneficiaries.
- 3 Whether the proposed mode of distribution complies with the Law of Succession Act.
Ratio Decidendi
The court found that the protestor successfully challenged the petitioner's original proposal to transmit the entire estate to herself. The court was satisfied that the deceased's family had met and agreed on the distribution of the estate in accordance with the deceased's wishes, as evidenced by a memorandum of understanding signed by the beneficiaries. The protestor did not deny the existence of this agreement. The court therefore sustained the protest and directed that the grant be confirmed on condition that the distribution be done as proposed in the petitioner's replying affidavit, reflecting the family agreement and the deceased's wishes.
Court Disposition
Protest sustained in part; grant confirmed subject to agreed distribution.
Orders
- The grant of letters of administration is confirmed on condition that the distribution of the estate be done as proposed in paragraph 8 of the replying affidavit of Lucy Warima Macharia sworn on 17th March 2011.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
SUCCESSION CAUSE NO.355 OF 2008
IN THE MATTER OF THE ESTATE OF
JOSEPH MACHARIA MAGWA
AND
LUCY WARIMA MACHARIA……………………...............................….…………………CITOR
AND
JOHN GICHUKI MACHARIA & OTHERS………........................................…………………CITEES
R U L I N G
On 1st December 2008, a grant of letters of administration intestate in respect of the estate of Joseph Macharia Magua, deceased was made to Lucy Warima Macharia, hereinafter referred to as the petitioner. The petitioner has now taken up the summons for confirmation of grant dated 13th July 2009 which is supported by an affidavit she swore. John Gichuki Macharia, hereinafter referred to as t he protestor filed an affidavit of protest to oppose the mode of distribution. This court directed the dispute to be sorted out by affidavit evidence and by written submissions.
I have considered the affidavit evidence plus the written submissions filed by both sides. Both the parties have identified the assets and beneficiaries of the deceased’s estate. In paragraph 5 of the affidavit of the petitioner, it is proposed that
L.R. No. Sosian/Sosian Block 1/10267 (Mifugo)
L.R. No.Sosian/Sosian Block 1/10268 (Mifugo) and
L.R. No.Nyeri/Naromoru/25 be wholly transmitted to the petitioner. The protestor pointed out that the deceased was married to two wives hence the petitioner was not entitled to award herself the entire estate. When served with the affidavit of protest, the petitioner filed a replying affidavit in which she admitted that the deceased was married to two wives. She now revealed that the deceased had expressed his wishes to have the shared between the two families giving each individual an equal portion. She attached to her replying affidavit a copy of some handwritten understanding duly signed by the beneficiaries on who the assets should be shared. It is said the memorandum of understanding was conducted by Peter Gichuki Wambugu, the deceased’s brother and Michael Kamau Ndimu an elder. The protestor did not deem it fit to file an affidavit to controvert the averments contained in the petitioner’s replying affidavit despite having been given leave to do so.
The protestor decided to respond to the issue touching on the distribution done by an agreement by the beneficiaries through his written submission. He did not deny the allegation that the family agreed on the mode of distribution. He simply stated that the proposed mode of distribution is in equitable, unjust and unfair. He claimed that the proposed distribution does not comply with the provisions of the Law of Succession Act. After a careful consideration of the material placed before me I am convinced the protestor has successful challenged the petitioner’s original mode of distribution. The issue which I must settle is which mode of distribution should the court adopt between the one proposed by the protestor in his affidavit of protest and that of the petitioner in the petitioner’s replying affidavit. After weighing the proposals I am convinced that the deceased’s family met on 22/11/2003 under the chairmanship of Peter Gichuki Wambugu the deceased’s brother where they agreed to distribute the estate according to the wishes of the deceased. In short, I am satisfied that the deceased expressed his wishes intervivos to his brother. Consequently I sustain the protest but direct that he grant be confirmed on condition that the distribution be done as proposed in paragraph 8 of the replying affidavit of Lucy Warima Macharia sworn on 17th March 2011. Each party to meet his or her own costs.
Dated and delivered this…17th day of august,2012.
J.K. SERGON
JUDGE