[2014] KEHC 3754 (KLR)
The court found that the dispute over the distribution of the deceased's estate had already been determined by the clan elders on 4th February 1981, and that the petitioner had not challenged this determination. The court further held that the alleged trust claimed by the petitioner was not established as required...
Source-derived case information.
- Citation
- [2014] KEHC 3754 (KLR)
- Parties
- Applicant: Wanhoji Kamau; Respondent: Geremano Wanjohi Ruheni; Respondent: Richard Githinji Ruheni; Respondent: Lucy Wanjugu Gichohi; Respondent: Priscilla Wamuyu Njaga; Respondent: Mary Wambui Kariuki; Respondent: Agnes Njambi Ruheni
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 809 of 2009
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Protest allowed; grant confirmed as per protestors' proposal.
- Legal Topics
- Succession of Estates, Distribution of Land, Customary Law Inheritance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wanhoji Kamau
Applicant
Geremano Wanjohi Ruheni
Respondent
Richard Githinji Ruheni
Respondent
Lucy Wanjugu Gichohi
Respondent
Priscilla Wamuyu Njaga
Respondent
Mary Wambui Kariuki
Respondent
Agnes Njambi Ruheni
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the estate of the deceased should be distributed according to the petitioner's proposal or the protestors' proposal.
- 2 Whether the clan elders' decision of 4th February 1981 should determine the mode of distribution.
- 3 Whether the alleged trust claimed by the petitioner was established in law.
Ratio Decidendi
The court found that the dispute over the distribution of the deceased's estate had already been determined by the clan elders on 4th February 1981, and that the petitioner had not challenged this determination. The court further held that the alleged trust claimed by the petitioner was not established as required by law. The court accepted the protestors' proposal for distribution as set out in their affidavit, noting that the married daughters had renounced their claim to the land. The protest was allowed, and the grant was confirmed in accordance with the protestors' proposed distribution.
Court Disposition
Protest allowed; grant confirmed as per protestors' proposal.
Orders
- The protest is allowed.
- The grant is confirmed with distribution as per paragraph 9 of the affidavit of protest.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC IN KENYA
*/IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CAUSE NO. 809 OF 2009
RUHENI GITUalias RUHENI S/O GITU .................................. DECEASED
AND
GEREMANO WANJOHI RUHENI.…........................................ PETITIONER
AND
WANJOHI KAMAU ….........................................................................CITOR
JUDGMENT
The petitioner WANJOHI KAMAU petitioned for grant of letters of administration in the matter of the estate of RUHENI GITU and cited the following:
GEREMANO WANJOHI RUHENI
RICHARD GITHINJI RUHENI
LUCY WANJUGU GICHOHI
PRISCILLA WAMUYU NJAGA
MARY WAMBUI KARIUKI
AGNES NJAMBI RUHENI
On 6th October 2009 the citees entered appearance through the law firm of MAINA KARINGITHI & Co. Advocates and on 21st December 2010 letters of administration were issued to the petitioner herein.
On 14th August 2012 the petitioner filed an application for confirmation of the letters of administration herein and proposed distribution as follows:
LR. MUHITO/MUYU/549 - 2. 9 acres
a. GEREMANO WANJOHI RUHENI - 0. 725 acre absolutely
b. RICHARD GITHINJI RUHENI - 0. 725 acre absolutely
c. WANJOHI KAMAU - 1. 45 acre absolutely
On 12th November 2012 GEREMANO WANJOHI RUHENI, RICHARD GITHINJI RUHENI and AGNES NJAMBI RUHENI filed an affidavit of protest in which they deponed that the deceased died on 21st November 1992 and not 1962 as had been alleged. It was stated that the deceased was a brother to the petitioners father and therefore the estate should be divided as follows:
1) WANJOHI KAMAU - 0. 70 Acres
2)GEREMANO WANJOHI RUHENI- 0. 733 acres
3) RICHARD GITHINJI RUHENI - 0. 733 acres
4) AGNES NJAMBI RUHENI - 0. 733 acres
MARY WAMBUI KARIUKI, PRISCILLA WAMUYU NJAGA and LUCY WANJUGU GICHOHI all married daughters of the deceased filed an affidavit in support of the protest and deponed that they did not wish to share in the distribution of LR. NO. MUHITO/MUYU/545 and supported the proposed distribution by the protestors.
SUBMISSION
Directions were given that the protest be heard by way of written submission which have now been filed. On behalf of the protestors it was submitted that this proposed mode of distribution was influenced by the outcome of earlier meeting held on 4th February 1981 produced as annexture GRA '2' where the parties in dispute were the deceased Ruheni Gitu and the petitioner herein where it was decided that the land be shared as follows:
RUHENI GITU - 2. 2. Acres
WANJOHI KAMAU - 0. 7 Acres
It was submitted that the petitioner never challenged the clan decision and is in occupation of 0. 7 acres portion. It was further submitted that the applicant has not challenged the said proceedings.
On behalf of the petitioner it was submitted that the suit land was registered in name of the deceased in trust for the entire GITU RUHENI's family and therefore the petitioner is after his deceased father's half from his uncle and therefore the land should be divided into two. It was submitted that the protest is based upon a false averment and lie on the part of the protestor.
I have stated before that the protest of this nature ought to be heard by way of oral evidence. It is clear from the petitioners submission that the same has attempted to introduce evidence which is untested through his written submission and has not answered the affidavit by this protestor.
The dispute herein having been determined by the clan elders on 4th February 1981 and the petitioner having not disputed the side determination and noting that the issue of alleged trust has not been established as the law requires I allow the protest herein and order that the grant be confirmed with distribution as per paragraph 9 of the affidavit of protest.
This being a family dispute each party shall bear their own cost.
Dated, signed and delivered at Nyeri this 11th day of July 2014.
J. WAKIAGA
JUDGE
Court: Ruling read in open court in the absence of the parties and their advocates.
J. WAKIAGA
JUDGE
11/7/2014