[2008] KEHC 113 (KLR)
The court found that the applicant, as the granddaughter of the deceased and daughter of Celipha Njoki Mwaniki, was a dependant of the deceased within the meaning of the Law of Succession Act. The evidence established that she had continuously cultivated a portion of the estate property and was in occupation. The...
Source-derived case information.
- Citation
- [2008] KEHC 113 (KLR)
- Parties
- Applicant: Teresa Murugi Gachuru; Respondent: Zipporah Mbuki Githae; Respondent: Nancy Ngima Nduguya
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 275 of 2000
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Application for revocation of grant allowed; confirmed grant revoked; applicant included as beneficiary.
- Judges
- MM Kasango
- Legal Topics
- Succession, Grant Revocation, Dependant Entitlement, Intestate Estate, Land Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresa Murugi Gachuru
Applicant
Zipporah Mbuki Githae
Respondent
Nancy Ngima Nduguya
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the applicant, as a granddaughter of the deceased, is entitled to a share of the estate property Mahiga/Rokera/379.
- 2 Whether the confirmed grant issued to Zipporah Mbuki Githae and Nancy Ngima Nduguya should be revoked for failure to include the applicant as a beneficiary.
- 3 Whether the applicant qualifies as a dependant under the Law of Succession Act.
Ratio Decidendi
The court found that the applicant, as the granddaughter of the deceased and daughter of Celipha Njoki Mwaniki, was a dependant of the deceased within the meaning of the Law of Succession Act. The evidence established that she had continuously cultivated a portion of the estate property and was in occupation. The court held that the confirmed grant, which excluded the applicant, was obtained without full disclosure of all beneficiaries and was therefore subject to revocation. The applicant was entitled to a third share of the property Mahiga/Rokera/379, and a fresh grant was to be issued to include her as a beneficiary alongside the respondents.
Court Disposition
Application for revocation of grant allowed; confirmed grant revoked; applicant included as beneficiary.
Orders
- The title issued in the joint names of Zipporah Mbuki and Nancy Ngima in respect of title Number Mahiga/Rokera/379 is hereby cancelled.
- The land registrar is hereby ordered to cancel the title issued to Zipporah Mbuki and Nancy Ngima over Mahiga/Rokera/379 notwithstanding that the original title document will not be availed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
SUCCESSION CAUSE 275 OF 2000
TERESIAH WANJUGU METHU
Alias WANJUGU METHU ………………..….…… DECEASED
Versus
ZIPPORAH MBUKI GITHAE ….…………....…..DEFENDANT
JUDGMENT
Zipporah Mbuki Githae petitioned for grant of letters of administration intestate in respect of this estate in August 2000. In so doing she stated the beneficiaries of the estate were herself and Nancy Ngima Nduguya. A grant was issued herein on 6th December 2000. Following an application for confirmation of grant the grant was confirmed to the effect that Zipporah Mbuki Githae and Nancy Ngima Nduguya were to get the property Mahiga/ Rokera/379 jointly. An application was filed by Teresa Murugi Gachuru for revocation of that grant. The matter was ordered to be heard by way of viva voce evidence. The applicant in support of her application stated that the deceased was her grandmother. The deceased had three daughters namely Celipha Njoki Mwaniki, Zipporah Mbuki Githae and Nancy Ngima Nduguya. She stated that she was in occupation of the estate property and is still occupying the same. That when the petitioner filed this succession cause she failed to state that she was entitled to a portion that belonged to her deceased mother Celipha Njoki Mwaniki. She stated that she and her mother were cultivating a portion of that land and when her mother passed away she was left cultivating the same. That it was not until a person who had been given the right to oversee that land chased her away when she realized that this succession cause had been filed denying her her right to inherit. Zipporah Mbuki in evidence denied the applicant’s claim. She stated that by the time the applicant’s deceased mother died the applicant was a young child. That the applicant is married in the same area where the land is. This witness termed the evidence of the applicant as lies. On being cross examined this witness stated that the applicant has been looking after her coffee bushes for a period of 2 years. Nancy Ngima said that the evidence of the applicant were all lies. She however stated that the applicant and her have been living together and were on good terms. She stated that when the applicant’s mother died the land had not been consolidated. The applicant called a witness by the name of Peter Kariho. He was of no use to the court because he did not know why he had been summoned to court. I had the opportunity of hearing and observing the witness as they gave their evidence. Both the respondents were very disruptive to the court in speaking even after being cautioned by the court. Their behaviour in my view can be attributed to their advanced age. The applicant and the respondents are in agreement that the applicant is the daughter of Celipha Njoki Mwaniki who was the daughter to the deceased in this estate. Zipporah did even accept that the applicant is in occupation of the property. From the evidence adduced before court and from my observation of the witnesses I find that the applicant was a dependant of the deceased in this matter. I find that she has continually cultivated a portion for that land. By virtue of Cap 26 of the Law of Succession Act I find that the applicant is entitled to a third of the property. The judgment of the court is in the following terms:-
1. The title issued in the joint names of Zipporah Mbuki and Nancy Ngima in respect of title Number Mahiga/Rokera/379 is hereby cancelled.
2. The land registrar is hereby ordered to cancel the title issued to Zipporah Mbuki and Nancy Ngima over Mahiga/Rokera/379 notwithstanding that the original title document will not be availed.
3. That the grant confirmed on 22nd June 2000 in this matter is hereby revoked.
4. That a fresh grant do issue in the following terms; zipporah Mbuki Githae, Nancy Ngima Nduguya and Teresa Murugi Gachuru to get equal portion of the property Mahiga/Rokera/379.
5. there shall be no orders as to costs in respect of the application for revocation dated 26th December 2006.
DATED AND DELIVERED THIS 22ND DAY OF OCTOBER 2008
MARY KASANGO
JUDGE