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High CourtPartially AllowedNot stated in judgment (Chamber Summons dated 30/04/2019)· [2019] KEHC 2996 (KLR)

JERUSHA WAMBUI MUSA v NAHASHON NYAGA PHARIS & 4 others

High Court of Kenya
30 October 2019
FMF. Muchemi
1,465 words in judgment
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The bottom line

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Missed assets in an estate grant must be shared equally among all beneficiaries unless a clear, proven gift exists.

What this practically means

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Executive summary

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This High Court at Embu ruling by Muchemi J determined a chamber summons dated 30/04/2019 by the administrator, Anne Thungu, seeking rectification of a confirmed grant dated 30/01/2007 so that plot Wanguru P.T.B. 146, omitted from the petition, be registered exclusively in the name of her husband, Moses Karonzo Mbogo. She testified the deceased had gifted the plot to her husband, who had developed it for twenty-two years, and that her advocate had advised omitting it from the estate. The respondent beneficiaries opposed, contending the plot was deliberately left out, that no gift or agreement existed, and that it should devolve equally among all beneficiaries. The court, citing Musyoka J in Re Estate of Charles Kibe Karanja, held that introducing discovered assets and redistributing them is fundamental and should ordinarily be achieved by review or revision of the confirmation orders, not by rectification. However, applying Article 159(d) of the Constitution and the Overriding Objective, it treated the mis-chosen application as a technicality not to defeat substantive justice, since inclusion of the plot was unopposed. On the evidence, the court disbelieved the claimed lifetime gift and extensive development, finding the plot was deliberately omitted to benefit the applicant and her husband to the exclusion of other beneficiaries, and that caregiving and alleged debts conferred no inheritance advantage. The court directed rectification of the grant to include Wanguru PTB 146, to be shared equally by all beneficiaries, with an amended certificate to issue and each party bearing their own costs.

Key legal issues

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01

Whether a discovered asset can be brought into a confirmed grant by rectification/amendment

Holding

Inclusion of the omitted plot was merited and unopposed, but exclusive registration to the applicant's husband was refused; the court nonetheless allowed rectification to include the plot, treating the wrong form of application as a curable technicality under Article 159(d).

Reasoning

The court adopted Musyoka J's reasoning in Re Estate of Charles Kibe Karanja that introducing new assets and redistributing them is fundamental, not superficial, and should be done by review or revision of the confirmation orders. However, because the parties were unrepresented and all sought inclusion of the plot, the court invoked Article 159(d) and the Overriding Objective to treat the amendment application as not defective, while rejecting the applicant's proposed mode of distribution.

p. 2
02

Whether the applicant's husband was entitled to the plot as an inter vivos gift from the deceased

Holding

No. The claim of a lifetime gift was disbelieved; the deceased died intestate and the plot must devolve under the law on intestacy to all beneficiaries equally.

Reasoning

The respondents disputed the extent of development, showing only foundations for two rooms existed and construction began after the deceased's death; the applicant fenced the plot days before the hearing. The court found the plot was deliberately omitted to benefit the applicant and her husband, and that alleged debts or caregiving could not displace intestate succession.

p. 2

Legal principles established

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  • Discovery of assets not included in a confirmed grant cannot be effected by mere amendment/rectification of the certificate; it requires review or revision of the distribution orders so the estate is distributed afresh including the discovered assets.
  • Under Article 159(d) and the Overriding Objective, filing an amendment application instead of one for review is a technicality that should not defeat substantive justice where parties were unrepresented.
  • Taking care of a parent in old age does not confer an added advantage in inheritance.

Court orders

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  1. 1.The grant be rectified by including Wanguru PTB 146 to be shared equally by all beneficiaries
  2. 2.An amended certificate of grant to issue
  3. 3.Each party to meet their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(d)
  • Law of Succession ActSection 40

Cases cited (1)

  • In re estate of Charles Kibe Karanja (deceased)
    [2015] eKLR

    Discovered assets and redistribution require review/revision of confirmation orders, not mere rectification of the certificate.

Jurisdiction invoked
Succession jurisdiction over estates of deceased persons; Article 159(d) of the Constitution invoked on substantive justice

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "JERUSHA WAMBUI MUSA v NAHASHON NYAGA PHARIS & 4 others", Case Analysis (2019). Not stated in judgment (Chamber Summons dated 30/04/2019). Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.