[2011] KEHC 371 (KLR)
The court found that the assets in question, L.R. NO. KONYU/GACHUKU/1201 and 1202, were valid subdivisions of the original estate property, L.R. NO. KONYU/GACHUKU/1164, and that the subdivision was done with the consent of the deceased, Wachuka Muchiri. The court further determined that L.R. NO. KONYU/GACHUKU/1201...
Source-derived case information.
- Citation
- [2011] KEHC 371 (KLR)
- Parties
- Applicant: Timothy Kimiti; Respondent: Muchemi Muchiri; Respondent: Kairu Muchiri; Respondent: Joseph Wachira; Respondent: Gerald Maina
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 15 of 2009
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Protest dismissed; grant confirmed with modifications.
- Legal Topics
- Confirmation of Grant, Distribution of Estate, Beneficiary Entitlement, Land Subdivision, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Timothy Kimiti
Applicant
Muchemi Muchiri
Respondent
Kairu Muchiri
Respondent
Joseph Wachira
Respondent
Gerald Maina
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the assets listed by the Petitioner form part of the deceased's estate for distribution.
- 2 Whether the Petitioner is a rightful beneficiary of the estate.
- 3 How the estate, specifically the subdivided parcels, should be distributed among the parties.
Ratio Decidendi
The court found that the assets in question, L.R. NO. KONYU/GACHUKU/1201 and 1202, were valid subdivisions of the original estate property, L.R. NO. KONYU/GACHUKU/1164, and that the subdivision was done with the consent of the deceased, Wachuka Muchiri. The court further determined that L.R. NO. KONYU/GACHUKU/1201 was properly reserved for Karembu Water Project as per the deceased's wishes and prior succession proceedings. The Protestors failed to prove that the Petitioner was a stranger to the estate or that the proposed distribution was unlawful. The court concluded that the grant should be confirmed as prayed, with the exception that L.R. NO. KONYU/GACHUKU/1202 be shared equally...
Court Disposition
Protest dismissed; grant confirmed with modifications.
Orders
- The Protest is dismissed.
- The grant is confirmed as prayed in the Summons for Confirmation of Grant dated 17th January 2007.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
SUCCESSION CAUSE NO. 15 OF 2009
IN THE MATTER OF THE ESTATE OF WACHUKA MUCHIRI – DECEASED
TIMOTHY KIMITI............................................PETITIONER
VERSUS
MUCHEMI MUCHIRI...................................PROTESTORS
KAIRU MUCHIRI
JOSEPH WACHIRA
GERALD MAINA
JUDGMENT
Timothy Kimiti, the Petitioner herein, took out the summons for Confirmation of Grant dated 17th January 2007 in which he applied for the grant issued to him on 12th July 2006 to be confirmed. The Petitioner swore an affidavit in support of the summons. Muchemi Muchiri, Kairu Muchiri Joseph Wachira and Gerald Maina, the 1st, 2nd, 3rd and 4th protestors opposed the Summons by filing the affidavit of Protest of Kairu Muchiri. Learned counsels appearing in this cause recorded a consent order to have the dispute disposed of by affidavit evidence and by written submissions.
I have considered the affidavit evidence and the written submissions. In his schedule of distribution, the Petitioner identified the assets of the Estate of the deceased and proposed the distribution of the same as follows:
(a) L.R. NO. KONYU/GACHUKU/1201 – Karembu Water Project.
(b) L.R. NO. KONYU/GACHUKU/1202: -
·Muchemi Muchiri
·Kairu Muchiri
·Joseph Wachira
·Gerald Maina
The Protestors opposed the Summons claiming that the parcels of land mentioned in the affidavit of Timothy Kimiti were non-existent. They claimed that the assets of the Estate were:
L.R. NO. KONYU/GACHUKU/1163 and
L.R. NO. KONYU/GACHUKU/1164
The Protestors were of the view that the Petitioner is not a beneficiary of L.R. NO. KONYU/GACHUKU/1164. The Protestors proposed for the asset of the Estate to be share in equal measure between Abraham Kairu Muchiri and Muchemi Muchiri. In a further affidavit, the Protestors stated that they have come to learn that the parcel of land known as L.R. NO. KONYU/GACHUKU/1164 has been subdivided into two subdivisions i.e. KONYU/GACHUKU/1201 and KONYU/GACHUKU/1202. They still insisted that they are the only ones who should inherit the two parcels in equal portions. They claimed the Petitioner was a stranger to the Estate. I have carefully taken into account the rival affidavit averments. It is not in dispute that L.R. NO. KONYU/GACHUKU/1164 was closed upon subdivision giving rise to L.R. NO. KONYU/GACHUKU/1201 and 1202. It is also not in dispute that the Petitioner is the Chairman of Karembu Water Project which was developed on the parcel of land known as L.R. NO. KONYU/GACHUKU/296 which was owned by the late Muchiri Chiuma who was succeeded by his wife Wachuka Muchiri vide Karatina R.M. SUCC. Cause No. 52 of 1980. In aforesaid succession cause Karembu Water Project was given 0. 7 acres. The aforesaid land i.e. L.R. NO. KONYU/GACHUKU/296 was subdivided into two subdivision i.e. L.R. NO. KONYU/GACHUKU1163 and 1164. L.R. NO. KONYU/GACHUKU/1163 was transmitted to Mwangi Muchiri while Wachuka Muchiri now deceased, retained L.R. NO. KONYU/GACHUKU/1164. The late Wachuka Muchiri subdivided her parcel into two parcels i.e. L.R. NO. KONYU/GACHUKU/1201 and 1202. It is also apparent that L.R. NO. KONYU/GACHUKU/1201was reserved for Karembu Water Project. The deceased successfully applied for consent but she did not effect the transfer before her death. I am satisfied that the late Muchiri Chiuma was given L.R. NO. KONYU/GACHUKU/1159 as an appreciation and or compensation for donating the portion now known as L.R. NO. KONYU/GACHUKU/1201to Karembu Water Project. I am also satisfied that L.R. KONYU/GACHUKU/1164 was subdivided with the consent of Wachuka Muchiri, deceased, to parcel out the portion housing Karembu Water Project.
In the end I see no merit in the Protest. The same is dismissed and the grant is ordered confirmed as prayed in the Summons for Confirmation of Grant dated 17th January 2007 on condition that L.R. NO. KONYU/GACHUKU/1202 should be given to Abraham Kairu Muchiri and Muchemi Muchiri to share in equal measure.
I direct that each party meets his or her own costs.
Dated and delivered at Nyeri this 18th day of November 2011.
J. K. SERGON
JUDGE
In open court in the presence of Mr. Kingori holding brief Kamwenji for Protestors and Kahiga holding brief Maina for Petitioners.