[2019] KEHC 8126 (KLR)
The court found that the Applicant had already received Ksh.500,000 from the sale proceeds of the suit property, as confirmed by the Respondent's affidavit and not rebutted by the Applicant. The court accepted the Respondent's explanation regarding the utilization of proceeds and the withholding of certain funds by...
Source-derived case information.
- Citation
- [2019] KEHC 8126 (KLR)
- Parties
- Plaintiff: Maria Gatitu Joseph; Plaintiff: Elizabeth Thairora; Plaintiff: Lucy Kinya; Plaintiff: Gabriel Kubai Kingori; Defendant: Dominic Ntongai Kingori; Applicant: Timothy Gachanja Ngunyangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 4 of 2011
- Procedural Posture
- Civil Suit / Ruling on Post Judgment Application for Distribution of Sale Proceeds
- Outcome
- application dismissed
- Legal Topics
- Distribution of Estate, Sale of Property, Beneficiary Entitlements, Costs of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maria Gatitu Joseph
Plaintiff
Elizabeth Thairora
Plaintiff
Lucy Kinya
Plaintiff
Gabriel Kubai Kingori
Plaintiff
Dominic Ntongai Kingori
Defendant
Timothy Gachanja Ngunyangi
Applicant
Procedural Posture
Civil Suit / Ruling on Post Judgment Application for Distribution of Sale Proceeds
Legal Issues
- 1 Is the 1st Defendant/Applicant entitled to a further Ksh.300,000 from the sale proceeds of the suit property?
- 2 Who should bear the costs of the application?
Ratio Decidendi
The court found that the Applicant had already received Ksh.500,000 from the sale proceeds of the suit property, as confirmed by the Respondent's affidavit and not rebutted by the Applicant. The court accepted the Respondent's explanation regarding the utilization of proceeds and the withholding of certain funds by the purchaser. The court further noted that some beneficiaries received less than the Applicant and did not raise complaints. The Applicant's refusal to vacate the premises contributed to the reduction of distributable funds, and he could not benefit from this conduct. The Applicant also had no right to challenge the share given to the widow, who has first priority in the...
Court Disposition
application dismissed
Orders
- The Applicant's Application dated 23.4.2018 is dismissed.
- Each party shall bear its own costs of the suit.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 4 OF 2011
MARIA GATITU JOSEPH..................................................................1ST PLAINTIFF
ELIZABETH THAIRORA.................................................................2ND PLAINTIFF
LUCY KINYA......................................................................................3RD PLAINTIFF
GABRIEL KUBAI KINGORI.............................................................4TH PLAINTIFF
<VERSUS>
DOMINIC NTONGAI KINGORI..........................................................DEFENDANT
TIMOTHY GACHANJA NGUNYANGI.......INTERESTED PARTY/APPLICANT
RULING
1. The Application coming for consideration in this Ruling is the one dated 23. 4.2018 by the 1st Defendant/Applicant seeking the following orders:
(i) THAT the Respondents do furnish the Defendant/Applicant with the detailed account of the proceeds of the sale of BLOCK x/x/x Pumwani (hereafter referred to as the suit property).
(ii) THAT Respondent and their Counsel be ordered to pay the Defendant/Applicant his share of the proceeds of the Suit Property
2. The Applicant filed a Supporting Affidavit to the said Application sworn on 23rd April 2018 in which he stated that the Property was sold for Ksh.8,000,000 and the proceeds were to be distributed equally amongst the beneficiaries.
3. The Court gave an order on 30. 11. 2010 that the property be sold and the proceeds be divided amongst all the beneficiaries.
4. The 2nd Plaintiff/Respondent has filed two affidavits in reply to Application by the 1st Defendant/Applicant.
5. I have considered the Affidavits filed herein together with the submissions by both parties. My findings are as follows;
(i) I find that it is not in dispute that the property in question was sold for Ksh.8,000,000/-.
(ii) It is also not in dispute that all the beneficiaries received payments from the sale proceeds.
6. The issues this Court must determine are as follows:
(i) Is the 1st Defendant/Applicant entitled to a further Ksh.300,000/- which he is demanding?
(ii) Who pays the costs of this Applications?
7. On the issue as to whether the 1st Defendant/Applicant is entitled to the amount of Ksh.300,000/- which he is seeking, I find that the 1st Defendant/Applicant received Ksh.500,000/- from the breakdown furnished by the 2nd Plaintiff/Respondent in her Affidavit.
8. I find that the 2nd Plaintiff/Respondent has given a plausible explanation how the proceeds were utilized and why some funds were withheld by the purchaser and the Applicant has not rebutted the said assertions.
9. I find that there are beneficiaries who received much less than the Applicant and they are not complaining.
10. The Applicant was responsible for the reduction of the funds by refusing to vacate the suit premises and he cannot be allowed to benefit from this wrong doing.
11. The Applicant has no right to complain about the share given to the widow as she has first priority in the Estate.
12. I find that the Applicant’s Application dated 23. 4.2018 has no merit and I accordingly dismiss it.
13. Since this is a family matter, I direct that each party bears its own costs of this suit.
DELIVERED, SIGNED AND DATED IN OPEN COURT THIS 3RDDAY OF MAY, 2019
ASENATH ONGERI
JUDGE OF THE HIGH COURT OF KENYA, NAIROBI