[2013] KEHC 2435 (KLR)
The court found that the deceased had, during his lifetime, distributed his land among the beneficiaries as evidenced by the protestor's affidavit. This inter vivos distribution ousted the application of Section 40 of the Law of Succession Act, which would otherwise govern the distribution of the estate among the...
Source-derived case information.
- Citation
- [2013] KEHC 2435 (KLR)
- Parties
- Applicant: Ngacha Githira; Respondent: Wamuyu Githira Maina
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 278 of 2002
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Protest allowed. Grant confirmed in terms of the protestor's affidavit of protest. Each party to bear own costs.
- Judges
- JK Sergon
- Legal Topics
- Succession, Confirmation of Grant, Distribution of Estate, Inter Vivos Gift
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngacha Githira
Applicant
Wamuyu Githira Maina
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the deceased had distributed his property inter vivos, thereby ousting the statutory mode of distribution under Section 40 of the Law of Succession Act.
- 2 Whether the grant should be confirmed in accordance with the petitioner's proposal or the protestor's affidavit of protest.
Ratio Decidendi
The court found that the deceased had, during his lifetime, distributed his land among the beneficiaries as evidenced by the protestor's affidavit. This inter vivos distribution ousted the application of Section 40 of the Law of Succession Act, which would otherwise govern the distribution of the estate among the houses of a polygamous deceased. The court was convinced by the protestor's evidence and held that the grant should be confirmed in accordance with the schedule of distribution set out in the protestor's affidavit, rather than the petitioner's proposal. Each party was ordered to bear their own costs.
Court Disposition
Protest allowed. Grant confirmed in terms of the protestor's affidavit of protest. Each party to bear own costs.
Orders
- The grant is confirmed in accordance with the schedule of distribution in the affidavit of protest sworn by Wamuyu Githira Maina.
- Each party shall bear his or her own costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CAUSE NO. 278 OF 2002
IN THE MATTER OF ESTATE OF KARIUKI MAINA alias KARIUKI S/O MAINA - (DECEASED)
NGACHA GITHIRA ….........................................PETITIONER
VERSUS
WAMUYU GITHIRA MAINA................................PROTESTOR
JUDGMENT
The substantive matter in this dispute is the summons for confirmation of grant dated 29. 11. 2011 in which Ngacha Githira(Petitioner) seeks to have the grant of letters of administration issued to him on 21. 12. 2013 in respect of the Estate of Kariuki Maina alias Kariuki s/o Maina, deceased, confirmed. The Petitioner proposed to have the Estate distributed as follows:
LR.NO. Githi/muthambi/375
Wanjugu Githira - 5. 35 acres
Wamuyu Githira Maina - 5. 35 acres
Wamuyu Githira Maina (Protestor), opposed the summons by filling an affidavit of protest. He claimed that the Petitioner failed to name all those people who survived the deceased. He stated that the shares and beneficiaries have not been properly ascertained. The Protestor further stated that the deceased had devolved his property inter vivos as follows:
Wanjugu Githira - 1. 6 acres
Wamuyu Githira - 1. 6 acres
Mwangi Githira (dcd) - 1. 5 acres
Ngacha Githira - 1. 5 acres
Johnson Maina Githira - 1. 5 acres
William Kamau Githira - 1. 5 acres
Francis Irungu Githira - 1. 5 acres
It is said that the beneficiaries have occupied their respective portions as shown by the deceased. The Petitioner did not deny the allegation that the deceased had expressed and implemented his wishes inter vivos. He merely averred that the Estate should be distributed according to the houses.
There is no dispute that the deceased had two wives. The law is clear on how such an Estate should be distributed in the absence of the deceased's wishes. However in the cause before this court, it is apparent that the deceased had shared his land inter vivos as shown in the affidavit of Protest hence ousting the application ofSection 40 of the Law of Succession Act. I am convinced by the averments of Wamuyu Githira Maina contained in her affidavit of Protest she swore on 13th December, 2011. Consequently, I find the Protest to be well founded. The grant be confirmed in terms of the schedule of distribution given in the affidavit of Protest of Wamuyu Githira Maina. Each party to meet his or her own costs.
Dated, signed and delivered this 23rd day of August, 2013
J.K. SERGON
JUDGE
In the presence of Muthoni for Petitioner
N/A Muhoho for Protestor