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MagistratePartially AllowedSuccession Cause (Summons for Confirmation of Grant), Githongo Law Courts· [2024] KEMC 92 (KLR)

In re Estate of Iracha Gakiri (Deceased) (Succession Cause 97 of 2019) [2024] KEMC 92 (KLR)

Magistrates' Court (Senior Principal Magistrate), Githongo Law Courts
29 May 2024
TST.A. Sitati
2,567 words in judgment
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The bottom line

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A Kenyan court ruled that family land bought with your own documented purchase counts as yours, and every child of a parent who died without a will shares the estate equally.

What this practically means

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Executive summary

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This was a summons for confirmation of grant in the estate of Iracha M'Muthamia, who died intestate in 1979 leaving five sons, four of whom predeceased the confirmation proceedings, leaving widows. The Petitioner Administratix proposed distribution of the two estate parcels (Abothuguchi/Uruku/467 and Uruku/Nkuene/472) excluding the Protestor, Frederrick Murungi Ntoiracha, the sole surviving son, on the basis that the deceased had in 1974 gifted him land in Nturukuma (a bull and cash to purchase 2 acres) where he had lived since 1974. The Protestor counter-proposed equal distribution, producing a 1980 sale agreement and official search showing he purchased the Nturukuma land himself after the deceased's death. The court framed the question as whether a gift inter vivos of the Nturukuma land should be deducted from the Protestor's share. Applying the parol evidence rule (sections 97 and 98, Evidence Act) and section 96 (presumption for documents over twenty years old), the court admitted the sale agreement and rejected the Petitioner's oral evidence of a 1974 gift. It held that any oral will would have lapsed after 3 months under section 9 of the Law of Succession Act. The court found parcels 467 and 472 to be the net intestate estate and ordered equal distribution among all five beneficiaries under sections 35 and 38, the widows holding in trust for themselves and their surviving children. The Petitioner's mode of distribution was rejected as unfair. Judgment delivered at Githongo on 29 May 2024 by T.A. Sitati, Senior Principal Magistrate, with a 30-day right of appeal.

Key legal issues

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01

Whether the Nturukuma land was a gift inter vivos to the Protestor by the deceased

Holding

No - the Protestor bought the land in 1980 after the deceased's death in 1979, per the sale agreement; the claim of a 1974 oral gift was rejected

Reasoning

The court relied on the sale agreement and official search produced by the Protestor, which showed purchase in 1980 after the father's demise. Oral evidence by the Petitioner's witnesses asserting a 1974 gift was excluded under the parol evidence rule and sections 97 and 98 of the Evidence Act. The over-40-year-old sale agreement was admitted under section 96 of the Evidence Act (presumption for documents twenty years old).

p. 5
02

Correct mode of distribution of the net intestate estate

Holding

Parcels 467 and 472 to be shared equally among all five beneficiaries (widows of deceased sons holding in trust and the Protestor) under sections 35 and 38 of the Law of Succession Act

Reasoning

Since the deceased died intestate in 1979 with five sons, and any oral will lapsed after 3 months under section 9 of the Law of Succession Act, equal distribution among the beneficiaries was mandated. The Petitioner's proposal to exclude the Protestor was rejected as unfair.

p. 6

Legal principles established

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  • Oral extrinsic evidence may not be adduced to contradict the contents of a written agreement (parol evidence rule, sections 97 and 98 of the Evidence Act)
  • Where an intestate leaves no surviving spouse, the net intestate estate is divided equally among the children (section 38, Law of Succession Act)

Court orders

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  1. 1.Certificate of Confirmation of Grant issuing in equal sharing of Abothuguchi/Uruku/467 and Uruku/Nkuene/472 amongst Pauline Kainda Mathiu, Eunice M'Rimberia, Evangeline Kairigo Kaburu, Frederrick Murungi Ntoiracha and Loise Riinya Kinoti, the widows to hold in trust for themselves and their surviving children
  2. 2.Right of appeal is 30 days

Authorities

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Legislation

  • Law of Succession Actsection 9
  • Law of Succession Actsection 35
  • Law of Succession Actsection 38
  • Evidence Actsection 96
  • Evidence Actsection 97
  • Evidence Actsection 98

Cases cited (2)

  • Universal Education Trust Fund v Monica Chopeta
    (2012) eKLR
  • Muthuuri v National Industrial Credit Bank Ltd
    (2003) KLR 145
Jurisdiction invoked
Law of Succession Act (Cap 160) - summons for confirmation of grant

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, "In re Estate of Iracha Gakiri (Deceased) (Succession Cause 97 of 2019) [2024] KEMC 92 (KLR)", Case Analysis (2024). Succession Cause (Summons for Confirmation of Grant), Githongo Law Courts. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/92/eng@2024-05-29

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