[2013] KEHC 2423 (KLR)
The court found that there was a substantive dispute regarding the ownership of one acre of the estate land, with the petitioner claiming that the deceased held it in trust for her following a purchase from a third party. The court determined that it would be unjust to confirm the grant and distribute the estate...
Source-derived case information.
- Citation
- [2013] KEHC 2423 (KLR)
- Parties
- Applicant: Monicah Njeri Mwangi; Respondent: Peter Karanja Mwangi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 742 of 2011
- Procedural Posture
- Succession Cause / Judgment on Summons for Confirmation of Grant and Protest
- Outcome
- Proceedings stayed pending determination of trust claim; confirmation of grant deferred.
- Judges
- JK Sergon
- Legal Topics
- Succession of Estates, Confirmation of Grant, Customary Law Marriage, Trusts in Land, Beneficiary Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Monicah Njeri Mwangi
Applicant
Peter Karanja Mwangi
Respondent
Procedural Posture
Succession Cause / Judgment on Summons for Confirmation of Grant and Protest
Legal Issues
- 1 Whether the petitioner is entitled to a share of the deceased's estate as a beneficiary under the Law of Succession Act.
- 2 Whether the deceased had distributed her land inter vivos among the beneficiaries.
- 3 Whether the petitioner owns one acre of the estate land held in trust by the deceased.
Ratio Decidendi
The court found that there was a substantive dispute regarding the ownership of one acre of the estate land, with the petitioner claiming that the deceased held it in trust for her following a purchase from a third party. The court determined that it would be unjust to confirm the grant and distribute the estate before this claim was properly adjudicated. The court therefore ordered a stay of the confirmation proceedings for 90 days to allow the petitioner to institute the necessary proceedings to establish her claim under Rule 41(3) of the Probate and Administration Rules. The outcome of those proceedings would determine the final distribution of the estate. Costs were ordered to abide...
Court Disposition
Proceedings stayed pending determination of trust claim; confirmation of grant deferred.
Orders
- These proceedings are stayed for 90 days.
- The petitioner is directed to take out necessary proceedings to establish her claim under Rule 41(3) of the Probate and Administration Rules.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CAUSE NO. 742 OF 2011
IN THE MATTER OF THE ESTATE OF NJERI KARANJA – (DECEASED)
MONICAH NJERI MWANGI …............................ PETITIONER
VERSUS
PETER KARANJA MWANGI …..............................PROTESTOR
JUDGMENT
A grant of letters of administration intestate in respect of the Estate of Njeri Karanja, deceased was made to Mary Wambui Mwangiwho later passed on and was replaced by Monicah Njeri Mwangi on 2nd August, 2010. Monicah Njeri Mwangi hereinafter referred to as the Petitioner has now taken up the summons dated 18. 8.2010 seeking to have the grant confirmed. Peter Karanja Mwangi, hereinafter referred to as the Protestor opposed the summons by filing an affidavit of Protest he swore on 30th September, 2010. This directed the dispute to be determined by affidavit evidence and by written submissions.
I have carefully considered the averments made by the parties herein. In the summons for confirmation of grant the Petitioner proposed for the Estate to be distributed as follows:
Monica Njeri Mwangi to get 5. 5 acres
Joseph Kamande Mwangi to get 2. 5 acres
John Kanyutu Mwangi to get 1. 0 acre
Peter Karanja Mwangi to get 1. 0 acre
John Kanyutu Mwnagi and Peter Karanja Mwangi (Protestors) each filed affidavits of Protest to oppose the application claiming the deceased had shared out her land inter vivos as follows:
Peter Karanja - 3. 3 acres
Joseph Kamande - 3. 3. acres
John Kanyutu - 3. 3. acres
They also averred that the Partitioner was not a wife of the deceased. They further alleged that one John Kamande Ngugi was using the Petitioner to grab the deceased's land.
When faced with the above averments, the petitioner filed a further affidavit and sought for the support of Mary Wanjiku Muiruri, Joseph Kamande Mwangi and Francis Wainaina Njogu. It was averred that the deceased married Mary Wambui Mwangi under the Kikuyu marriage known as Polyandry, hence Mary Wambui Mwangi or her successor is entitled to succeed the deceased. Monica Njeri Mwangi averred that since Kanuthu Karanja was not bearing children she married her to bear children for her. The deceased's husband one Karanja Wakumbau had three wives namely; Njeri Karanja, Kanuthu Karanja and Wanjiru Karanja. It is also averred that the deceased was registered as the owner of Loc. 7/Ichagaki/645as trustee for her family and her two co-wives since she was the eldest wife of Karanja Wakumbau. Monicah Njeri Mwangi further alleged that she was chased away from the aforesaid land in 1974 but did not mean her dependency with the deceased within the meaning of Section 29 of the Law of Succession Act lapsed. She claimed her children being the deceased's grandchildren were entitled to a share of the Estate as proposed by the Petitioner. The Petitioner also avers that she purchased 1 acre from Francis Wainaina Njogu which parcel was consolidated with 2 acres to comprise Loc.7/Ichagaki/645. This claim complicates the dispute. This may explain the reason why the Petitioner proposed to give herself a bigger portion of the Estate land.
Having carefully considered the evidence tendered by both sides, there is an allegation that one acre comprising Loc.7/Ichagaki/645 is owned by the Petitioner. It is said the deceased held the same in trust for the Petitioner. I think it is only fair to have this claim established before proceeding to confirm the grant. Consequently, I order that these proceedings be stayed for 90 days. In the meantime, the Petitioner is directed to take out the necessary proceedings to establish her claim under Rule 41(3) of the Probate and Administration Rules. Costs shall abide the outcome of the aforesaid proceedings.
Dated, signed and delivered this 23rd day of August, 2013
J.K. SERGON
JUDGE
In open court in the presence of Mr. Kiminda holding brief for
Njoroge for Petitioner
N/A Protestor