In re Estate of Mwangi Macharia (Deceased) [2018] KEHC 5184 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

SUCCESSION CAUSE NO. 411 OF 2015

RE ESTATE OF MWANGI MACHARIA (DECEASED)

JUDGMENT

1. The deceased died intestate. From the oral and documentary evidence, he was an only child, remained unmarried and had no other dependents.

2. The deceased was the registered owner of a parcel of land described as Loc.15/Kangure/2363 [hereafter the suit land]. The land measures approximately 2. 25 hectares.

3. The administrator is Pius Wachira Mwangi. He wears two hats: That of a creditor by virtue of a sale agreement for the suit land; and, the proposed administrator of the estate.

4. The cause is not opposed. But in view of the alleged sale, and in the interests of justice, I directed the administrator to testify on oath. He bought the land for Kshs 50,000 on 16th October 2006. He said that he took care of the deceased who was ailing; and, that he allowed the deceased to be interred on the suit land.

5. He called one other witness, Nicholas Maina Wachira. In addition, there is a deposition by the administrator in support of the summons for confirmation of grant dated 8th December 2016; and, a further affidavit sworn on 10th January 2018. There is also a verifying affidavit by his counsel of record, Mr. Jeremiah Mbuthia, sworn on 11th June 2018. The latter attested to the sale agreement.

6. The issue for determination is whether the administrator proved the sale. Rule 40 (3) of the Probate and Administration Rules empowers the succession court to deal with the matter; or, to refer such a dispute to a civil court; in this case, the Environment and Land Court. This cause was duly gazetted; has not been contested; and, the issue of sale is fairly straightforward. I am thus well placed to determine the matter.

7. I am satisfied from the oral evidence and the sale agreement (exhibit 3) that the administrator paid valuable consideration for the land on 16th October 2004. The conveyance was corroborated by the deposition of counsel, Mr. Jeremiah Mbuthia, sworn on 11th June 2018. From the search certificate (exhibit 2) the deceased was the registered owner of the suit land. He died on 8th January 2006 before effecting the transfer.

8. I am also satisfied from the evidence of Nicholas Maina Wachira (PW2) and the letter dated 8th December 2017 from the area chief (exhibit 4) that the deceased was the only child, never married and had no known dependents.

9. I allow the summons dated 8th December 2016. The sole property known as Loc.15/Kangure/2363 shall devolve wholly to Pius Wachira Mwangi.

9. The grant shall be confirmed in terms of this judgment.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’Athis 25th day of July 2018.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of:

Mr. Pius Wachira Mwangi (The administrator).

Ms. Dorcas and Mr. Kiberenge, Court Clerks.