[2008] KEHC 3661 (KLR)
The court found that there was sufficient evidence to show that plot No. 1112/717 was purchased by the deceased and that the failure to register the title in his name before his death was a mere formality. There was no proof that the deceased intended to give the plot absolutely to his son to the exclusion of other...
Source-derived case information.
- Citation
- [2008] KEHC 3661 (KLR)
- Parties
- Applicant: Pilisila Wanjira Maringa; Respondent: Flora Waithira Njeru; Respondent: Nderi Joseph Karweria; Respondent: Agnes Nthambi Karweria; Respondent: Municipal Council of Embu
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 20 of 2003
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application
- Outcome
- Interlocutory order granted in favour of the applicant; property to be preserved pending hearing.
- Legal Topics
- Succession of Estates, Intermeddling With Estate Property, Beneficiary Rights, Land Title Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pilisila Wanjira Maringa
Applicant
Flora Waithira Njeru
Respondent
Nderi Joseph Karweria
Respondent
Agnes Nthambi Karweria
Respondent
Municipal Council of Embu
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application
Legal Issues
- 1 Whether plot No. 1112/717 forms part of the estate of the deceased Maringa Kiondo.
- 2 Whether the applicant is entitled to protection of the property pending determination of the succession proceedings.
- 3 Whether the transfer of the plot to the stepson or his wife was valid and binding on the estate.
Ratio Decidendi
The court found that there was sufficient evidence to show that plot No. 1112/717 was purchased by the deceased and that the failure to register the title in his name before his death was a mere formality. There was no proof that the deceased intended to give the plot absolutely to his son to the exclusion of other beneficiaries, especially considering he had two wives and multiple beneficiaries. The court held that the plot forms part of the estate and must be protected for the benefit of all beneficiaries. Accordingly, the court granted an order to preserve the property pending the final determination of the succession proceedings and directed that oral evidence be taken on the...
Court Disposition
Interlocutory order granted in favour of the applicant; property to be preserved pending hearing.
Orders
- Order granted under prayer 2 of the application to protect plot No. 1112/717 pending determination of the proceedings.
- Applicant to serve this order on the respondents forthwith.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Succession Cause 20 of 2003
IN THE MATTER OF THE ESTATE OF MARINGA KIONDO - DECEASED
PILISILA WANJIRA MARINGA………………………..………….APPLICANT
Versus
FLORA WAITHIRA NJERU………………………...……..1ST RESPONDENT
NDERI JOSEPH KARWERIA…………………………….2ND RESPONDENT
AGNES NTHAMBI KARWERIA………………………….3RD RESPONDENT
MUNICIPAL COUNCIL OF EMBU…………………..…..4TH RESPONDENT
RULING
Pilisila Wanjira Maringa filed this application under several provisions of law- Section 45 and 48 of cap 160 and P&A rule 49 and 73. The dispute is concerning plot No. 1112/717 within Embu Municipality. The application states that the plot was purchased by her deceased husband from its registered owner Mr.Simon Njogu Mungari but the deceased died on 27/4/2002 before the council lease was registered in his name. After his death advocate tried to get the land registered in the name of stepson of Applicant. This transaction was not known to applicant and other beneficiaries. When the applicant applied for a grant the step son the said Patrick Anderson Njeru Maringa objected to her obtaining grant. Patrick has died but his wife Florah Waithera Njue wanted to sell the plot to the other Respondent for Shs.900,000/=.
It is then that the applicant objected. Now there is constructions going on, on that plot and there is collection of rents from some houses on the plot. The replying affidavit shows that the said plot was of the deceased husband of Applicant. She says the father gave the plot to her husband Patrick Anderson Njeru now deceased. That is a matter of proof. She does not explain the sale of plot as stated in the supporting affidavit.
Upon consideration, I find that there is evidence that the plot was of the deceased by purchase. The issue of changing the title was a formality which did not happen because he died. There is no proof that the deceased who had two wives would give the plot to this son absolutely. There were other beneficiaries.
I therefore find that the plot was part of the estate of the deceased and should be protected for the benefits of all beneficiaries. I grant order under prayer 2 in the application pending determination of these proceedings. Costs to the applicant.
Concerning prayer 3, 4 and 5, I order that oral evidence be given by all parties concerned. The applicant shall serve this order on the Respondents forthwith. Hearing shall be on priority basis.
It is so ordered. Costs in the cause.
Dated this 15th February, 2008.
J. N. KHAMINWA
JUDGE
15/2/2008
Khaminwa – Judge
Njue – Clerk
Applicant – present
N/A for Respondent
Read in open court.
J. N. KHAMINWA
JUDGE