[2004] KEHC 608 (KLR)
The High Court found that the trial magistrate had sufficient oral and documentary evidence before him to conclude that the deceased intended the land to be distributed as per the respondent's protest, including the portion retained for the deceased and subsequently bequeathed to the respondent. The appellate court...
Source-derived case information.
- Citation
- [2004] KEHC 608 (KLR)
- Parties
- Appellant: Stephen Munene Murathi; Respondent: Geofrey Magondu Mitambo
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 192 of 2002
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- JM Khamoni
- Legal Topics
- Succession Disputes, Confirmation of Grant, Distribution of Estate, Oral Wills, Probate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Munene Murathi
Appellant
Geofrey Magondu Mitambo
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in granting the protest regarding the distribution of the deceased's land parcel.
- 2 Whether the oral and documentary evidence presented was sufficient to support the deceased's wishes for distribution of the estate.
- 3 Whether the grant of letters of administration should be confirmed as per the trial court's judgment.
Ratio Decidendi
The High Court found that the trial magistrate had sufficient oral and documentary evidence before him to conclude that the deceased intended the land to be distributed as per the respondent's protest, including the portion retained for the deceased and subsequently bequeathed to the respondent. The appellate court held that there was no justification to interfere with the trial court's findings, as the evidence supported the respondent's position and the magistrate's application of the law was proper. The appeal was dismissed, and the trial court's judgment was affirmed, with directions for the confirmation of the grant and issuance of the certificate of confirmation if not already done.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
Civil Appeal 192 of 2002
STEPHEN MUNENE MURATHI…………………………..…………APPELLANT
Versus
GEOFREY MAGONDU MITAMBO……………...………………..RESPONDENT
(Appeal from the Judgment of J. N. Nyaga S.R.M. in Succession Cause No. 36 of 2000 delivered on 22nd November 2002 in the S.R.M.’s Court, Karatina)
JUDGMENT
This appeal comes from a Succession Cause No. 36 of 2000 in the Senior Resident Magistrate’s Court at Karatina concerning the estate of Munathi Gathoroko where three persons, namely, Stephen Munene Munathi, Geoffrey Magondu Munathi and Mary Mumbi Githui, were together issued with a Grant of Letters of Administration on 14th September 2001.
When the Summons for Confirmation of that grant was filed (by Chamber Summons dated 18th March 2002), Geoffrey Magondu Munathi, one of the administrators, filed an affidavit of protest because he did not agree with the proposed equal sub division of the deceased’s parcel of land registration No. MAGUTU/GATEI/206into three portions so that each one of the three coadministrators gets 0. 36 hectare. According to him his father had verbally distributed the land into four portions so that the father (the deceased) remained with a portion for himself after dividing the land between the above mentioned three beneficiaries in equal shares. The Protester, Geoffrey Magondu Mitambo relied on a document he claimed had been written and signed by the deceased in the presence of witnesses named in the document which concluded by giving the portion of land retained by the deceased to Geoffrey Magondu Mitambo after the death of the deceased.
That evidence was before the trial magistrate who at the end wrote the judgment dated 22nd November 2002 granting the protest and this appeal is against that judgment.
I have carefully considered the evidence adduced before the learned Senior Resident magistrate in the light of the submissions made before me. The whole thing has become a dispute between the appellant Stephen Munene Murathi and the Respondent Geoffrey Magondu Mitambo and it would appear that Mary Mumbi Githui, the third Co- Administrator, does not exist. Clearly she did not appeal, meaning she is not against the magistrate’s judgment dated 22nd November 2002.
From the proceedings before the learned magistrate, I hold the opinion that, on the balance of probabilities, there was sufficient evidence for him to have come to the conclusion he came to. There was genuine evidence, oral and documentary, expressing the wish of the Deceased in relation to the distribution of the suit parcel of land.
In the circumstances, I see no good reason for interfering with the trial magistrate’s judgment.
Accordingly, this appeal is hereby dismissed with no order as to costs because the Appellant and the Respondent are brothers who should live together in unity and peace.
As the trial magistrate’s judgment dated 22nd November 2002 should have confirmed the Grant of Letters of Administration dated 14th September 2001 and a certificate of Confirmation of Grant issued, the relevant case file be taken back to the trial court for action to be taken – if to-date that has not been done.
Dated this 27th day of May 2005.
J. M. KHAMONI JUDGE
Present: Both parties in persons.