[2012] KEHC 2432 (KLR)
The court found that the protestor's claim to part of the estate was based on an alleged trust, which cannot be determined within the confirmation of grant proceedings. Instead, such a claim must be established through separate proceedings as specified by the Probate and Administration Rules and the Civil Procedure...
Source-derived case information.
- Citation
- [2012] KEHC 2432 (KLR)
- Parties
- Applicant: Teresia Njeri Mwangi; Respondent: Grace Njoki Wanderi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 769 of 2009
- Procedural Posture
- Succession Cause / Ruling on Summons for Confirmation of Grant and Protest
- Outcome
- Confirmation of grant postponed for 90 days to allow determination of trust claim.
- Judges
- JK Sergon
- Legal Topics
- Succession, Confirmation of Grant, Trusts in Estate, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresia Njeri Mwangi
Applicant
Grace Njoki Wanderi
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Confirmation of Grant and Protest
Legal Issues
- 1 Whether the protestor, as a sister-in-law to the deceased, is a beneficiary entitled to a share of the estate.
- 2 Whether the deceased held LOC.12/SUB-LOC.1/471 in trust for Josphat Wanderi Njuguna, the protestor's late husband.
- 3 Whether the confirmation of grant should be postponed pending determination of the trust claim.
Ratio Decidendi
The court found that the protestor's claim to part of the estate was based on an alleged trust, which cannot be determined within the confirmation of grant proceedings. Instead, such a claim must be established through separate proceedings as specified by the Probate and Administration Rules and the Civil Procedure Rules. Accordingly, the court postponed the confirmation of the grant for 90 days to allow the protestor to initiate proceedings to determine the trust claim. The outcome of the confirmation of grant will depend on the resolution of that claim.
Court Disposition
Confirmation of grant postponed for 90 days to allow determination of trust claim.
Orders
- Confirmation of grant is postponed for 90 days.
- The protestor is directed to take out proceedings to determine the trust claim under Order 37 rule 1 of the Civil Procedure Rules within 90 days.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATNYERI
SUCCESSION CAUSE 769 OF 2009
In the matter of the estate of the late Mwangi Njuguna (deceased)
And
TERESIA NJERI MWANGI……..…………………….…….….PETITIONER
GRACE NJOKI WANDERI……………………………..............OBJECTOR
RULING
In the Summons dated 27th January 2009, Teresia Njeri Mwangi, hereinafter referred to as the Petitioner, applied for the Grant of Letters of Administration intestate in respect of the Estate of Mwangi Njuguna, deceased, given to her on 17th June 2008 to be confirmed. She filed an affidavit she swore in support of the Summons. Grace Njoki Wanderi opposed the Summons for Confirmation of Grant by filing an affidavit of Protest. Learned Counsels appearing in this matter recorded a consent order to have the dispute disposed of by affidavit evidence and by written submissions.
I have considered the averments contained in affidavits filed in support and against the Summons plus the rival written submissions. In the Summons for Confirmation of Grant, the Petitioner identified the following properties to be assets of the Estate which were available for distribution:
i) LOC. 12/BLOCK 1/471
ii) LOC. 12/BLOCK 1/465
iii) Shares with Endana Farmers Co. Ltd.
The petitioner proposed for the aforesaid assets to be transmitted to her. The Protestor on her part complained that she was excluded from the sharing of Estate yet she is a beneficiary. She claimed that she was the widow of the late Josphat Wanderi Njuguna who was a brother of Mwangi Njuguna, deceased. In essence the Protestor claims he is a sister in-law to the deceased. The Protestor alleged that she has been residing together with her here children in LOC.12/SUB-LOC.1/471, a parcel of land measuring approximately 2 acres while the Petitioner resides in LOC.12/SUB-LOC.1/465, a parcel of land measuring approximately 3. 2 acres. She proposed for the Estate to be distributed as follows:
·LOC.12/SUB-LOC.1/471 – Grace Njoki Wanderi.
·LOC.12/SUB-LOC.1/465 – Teresia Njeri Mwangi.
·Shares with Endana Farmers Co. Ltd. - Teresia Njeri Mwangi
It is the Protestor’s submission that the deceased was registered as the Proprietor of LOC.12/SUB-LOC.1/471 in trust for Josphat Wanderi Njuguna, her deceased husband. The Petitioner denied the Protestor’s claim. She alleged that the late Josphat Wanderi died without a wife or children hence the Protestor is a stranger to the Estate.
After critically examining the Protestor’s claim, it is clear in my mind that her claim is based on trust. Such a claim can only be established in the manner specified under rule 41(3) of the Probate and Administration Rules. Consequently, I hereby postpone the confirmation of grant for 90 days and direct the Protestor to take out proceedings to determine the claim based on trust under Order 37 rule 1 of the Civil Procedure Rules within the aforesaid period of 90 days. Costs to abide the outcome of the summons for Confirmation of Grant.
Dated and delivered at Nyeri this 2nd day of August, 2012.
J. K. SERGON
JUDGE