In re Estate of Johana Ndura Wakaritu alias Ndura s/o Wakaritu (Deceased) [2017] KEHC 499 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

SUCCESSION CAUSE NO. 374 OF 2008

IN THE MATTER OF THE ESTATE OF JOHANA NDURA WAKARITU alias NDURA s/o WAKARITU (DECEASED)

DOMINICA WAMUYU KIHU

JOHN MACHARIA MUCHIRI........................PROTESTORS

VERSUS

JOSEPH WAKARITU NDURA

MARY WANGUI NDUR................................ARESPONDENT

RULING

FACTS

1. The estate relates to the late Johana Ndura Wakaritu alias Ndura s/o Wakaritu (deceased) who died intestate on the 11th June, 2001 at Jamii Hospital; the identifiable properties comprising the estate of the deceased are the following land parcel numbers;

i. Magutu/Gathehu/53,

ii. Magutu/Gathehu/144,

iii. ½ share Plot No.42 Gathehu,

iv. Plot No.58/A Ihawagi.

2. The Deceased died intestate and was survived by a widow, five sons and three (3) daughters as listed hereunder, namely;

i. Mary Wangui Ndura –widow

ii. Joseph Wakaritu Ndura –son

iii. Samuel Muraguri Ndura – son

3. The Petitioners are the widow and son of the deceased and had jointly petitioned for Letters of Administration on the 23/07/2008; the Grant was issued on the 11/12/2008; the petitioners then proceeded to file the Summons for Confirmation of the Grant on the 10/0/2011 and therein proposed the mode of distribution of the four properties.

4. The 1st Protestor placed a caveat on the 24/03/2009 preventing any dealings with the estate of the deceasd

RESPONDENTS CASE

ISSUES FOR DETERMINATION

1. After hearing the rival presentations of the respective parties and reading the written submissions this court has framed the following issues for determination;

i. Whether all the grand children are dependants and whether they are entitled to benefit from the deceaseds estate;

ii. Distribution of the estate of the deceased.

ANALYSIS

2. The parties had recorded a consent in court on the 5/05/2016 and agreed that the remains of one of the protestors namely Eunice Mumbi Mwangi (now deceased) be interred on the Sagana property pending hearing and determination of the matter; that in the event the parcel was found to belong to the 1st house then her remains be exhumed and buried on the portion distributed to the 2nd house.

FINDINGS AND DETERMINATION

3. The grand-children are not dependants of the deceased and do not qualify to inherit any interest in the deceased’s estate.

4. The Protest is hereby dismissed.

5. The Grant is hereby confirmed on the terms as set out hereunder;

i. The property known as is land parcel number Konyu/Gachuku/ 14 measuring 1. 5 Acres shall be divided equally between the protestor and the respondent.

6. Each party shall bear their own costs.

It is so ordered.

Dated, Signed and Delivered at Nyeri this 7th day of September, 2017.

HON. A. MSHILA

JUDGE.