[2014] KEHC 6735 (KLR)
The court found that the sale of the estate property by the deceased's sons to the respondent was invalid because no grant of representation had been issued at the time of the transaction. The vendors, therefore, lacked legal capacity to sell the property. Furthermore, the sale excluded other beneficiaries, namely...
Source-derived case information.
- Citation
- [2014] KEHC 6735 (KLR)
- Parties
- Applicant: Florence Andesa; Applicant: Eunice Odila; Petitioner: Peter Lunyagi Musa; Respondent: John King’ori Ngirimu
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 384 of 2012
- Procedural Posture
- Succession Cause / Interlocutory Application Ruling
- Outcome
- application_allowed
- Judges
- SJ Chitembwe
- Legal Topics
- Succession, Intermeddling With Estate, Capacity of Beneficiaries, Distribution of Estate, Sale of Estate Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Florence Andesa
Applicant
Eunice Odila
Applicant
Peter Lunyagi Musa
Petitioner
John King’ori Ngirimu
Respondent
Procedural Posture
Succession Cause / Interlocutory Application Ruling
Legal Issues
- 1 Whether the respondent should be restrained from intermeddling with the deceased's estate before grant of representation is issued.
- 2 Whether the sale of the estate property by the deceased's sons without involving all beneficiaries is valid.
- 3 Whether the vendors had capacity to transact in the absence of a grant of representation.
Ratio Decidendi
The court found that the sale of the estate property by the deceased's sons to the respondent was invalid because no grant of representation had been issued at the time of the transaction. The vendors, therefore, lacked legal capacity to sell the property. Furthermore, the sale excluded other beneficiaries, namely the daughters, contrary to the principles of equal distribution under succession law. The respondent, having purchased the property without ensuring the consent of all beneficiaries and before the grant was issued, cannot claim rights over the estate. The application to restrain the respondent from intermeddling with the estate is merited and allowed.
Court Disposition
application_allowed
Orders
- The application dated 11/3/2013 is granted as prayed.
- The respondent is restrained from intermeddling with the deceased's estate.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KAKAMEGA
SUCCESSION CAUSE NO: 384 OF 2012
IN THE MATTER OF THE ESTATE OF MUSA KEYA LIBWEGE................................................................................DECEASED
AND
PETER LUNYAGI MUSA................................................................PETITIONER
AND
FLORENCE ANDESA …………………….…… 1ST OBJECTOR/APPLICANT
EUNICE ODILA ………………………..………. 2ND OBJECTOR/APPLICANT
R U L I N G
The application dated 11th March 2013 seeks to restrain the respondent, John King’ori Ngirimu from intermeddling with the deceased’s estate namely plot number Maragoli/Buyonga/2083.
The application is supported by the affidavit of Florence Andesa and Eunice Opila sworn on 11th March 2013. The respondent filed a replying affidavit sworn on 29th May 2013.
The submissions by Miss Rauto, counsel for the applicant, as well as the averments contained in the supporting affidavit is to the effect that the deceased was survived by sons and daughters. The sons sold the property to the respondent without involving the daughters. The deceased was also polygamous and no will was left by the deceased.
On his part, Mr. Didi counsel for the respondent contends that the deceased’s sons approached the respondent for assistance. The property was sold as the monthly rent was only Ksh 14,000 and it was causing disharmony amongst the children. Nobody was forced into the transaction.
The record herein shows that the deceased died on 29/3/2012. According to the letter from the chief of Maragoli location dated 17/5/2012, the deceased was survived by twelve daughters and three sons. This case was filed on 21st May 2012. No grant has been issued to the petitioner although the cause was gazzetted. The sale agreement for the purchase of the property was made on 14th May 2012 even before this cause was filed. The three sons could only sale their share as opposed to the entire property. Since no grant had been issued, the vendors lacked capacity to transact. The purchaser was represented by counsel who could have sought the consent of all the beneficiaries before preparing the sale agreement.
I do find that the application is merited and the same is allowed. The succession law provides for equal distribution of the estate amongst the children. The validity of the will ,will be dealt with during the hearing of the cause.
In the end, the application dated 11/3/2013 is granted as prayed. The respondent should keep off the deceased’s estate.
Dated, signed and Delivered at Kakamega this 27th day of February 2014.
SAID J. CHITEMBWE
JUDGE