https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10522

In re Estate of Koka (Deceased) (Succession Cause 41 of 1999) [2026] KEHC 10522 (KLR) (7 July 2026) (Ruling) Neutral citation: [2026] KEHC 10522 (KLR) Republic of Kenya In the High Court at Machakos Succession Cause 41 of 1999 NIO Adagi, J July 7, 2026 IN THE MATTER OF THE ESTATE OF JOHN MWAKA KOKA DECEASED In the matter of Comas Munyao Mwaka 1st Petitioner Monicah John Koka 2nd Petitioner Ruling 1.The first application is by Cosmas Munyao Mwaka (Herein after referred to as “the Administrator”) dated 14th March 2025 seeking for orders that the Certificate of Confirmation of Grant issued to Cosmas Munyao & Monicah John Koka on 6.10.2020 be rectified in terms of the schedule of distribution attached thereto and for costs to be provided. 2.The application is supported by the supporting affidavit of the Administrator sworn on 14.03.2025 who depones that;a.The Certificate of Confirmation of Grant with a schedule annexed on the mode of distribution was issued by the Honourable Court on 6.10.2020.b.The properties belonging to the deceased were inadvertently left out being Mumbui/Kasinga /1280 measuring 0.05Ha and Athi River / Athi River Block 1/3763 (Plot No.2018 ¼ Acre).c.It is also necessary to amend and indicate the correct shares for the beneficiaries in relation to Plot Mitaboni Mutituni/1787.d.It is also necessary to indicate the correct Plot name in relation to Plot No. 1766 Katalembo which bears a typing error to read Plot No. 1767 Katalembo.e.It is necessary to indicate SHARE No. 1610 MATUU is to be shared between 2 beneficiaries.f.That all beneficiaries consent to having these rectified as evidenced by the attached agreement and that no party will be prejudiced if the orders sought are granted.g.This Court has the powers to order for the rectification of the Grant. The application is made in good faith and to the best interest of the estate of the deceased. Response by Co-Administrator to 1st Application 3.In response to the first application by the Administrator, the Co-Administrator filed a replying affidavit dated 22/12/2025. In response to paragraph 3 of the supporting affidavit to the first application, she averred that it behoves the Administrator to provide a certified copy of the Title Deed to all that land known as Athi River /Athi-River Block 1/3763 (Plot No. 2018 14 Acre). Upon such production, she would propose that the same be distributed equally among the deceased's two houses. She has since sought a copy of the said title from the applicant vide a letter dated 25/11/2025. 4.In response to paragraphs 4 and 6 of the supporting Affidavit that address Plot No. Mitaboni/Mutituni/1787 and Share No. 1610-Wendano Matuu, she wishes to clarify that after hearing both herself, her witnesses and those of the Administrator herein, this Court effectively distributed the estate herein in a Judgement dated 27th May 2015. 5.The Co-administrator invites the court to note and appreciate that at paragraph 2 of the said Judgment, the Court noted that at its own instigation, the parties recorded a consent as to that extent and partly to the distribution of the estate. This included the aforesaid Plot No. Mitaboni/Mutituni/1787 and Share No. 1610-Wendano Matuu which was distributed pursuant to the said consent. It is therefore not open for the applicant to re-open the issue by way of an application for rectification of the Grant. certificate of Confirmation of Grant has since been issued in terms of the aforesaid Judgment on 06/10/2020. 6.It further bears mentioning that Plot No. 1766 Katalembo has already been distributed in terms of the aforesaid judgment jointly between both parties. 7.To the best of the Co-Administrator’s understanding, the application dated 14th March 2025 is a thinly veiled attempt at re-distribution of the estate hidden behind an application for rectification of the grant. She further believes that the same has been brought as a knee jerk reaction to her application dated 05/05/2025 that essentially remains unopposed even as at the date of swearing her replying affidavit. 8.The Co-administrator avers that there is no consent attached to the application by the beneficiaries as alleged. The second application dated 5/5/2025 9.The second application is by Monicah John Koka (Herein after referred to as “the Co-Administrator”) dated 5th May 2025 seeking for orders that:-a.the Certificate of Confirmation of Grant dated 21st September 2020 and issued to Cosmas Munyao Mwaka and Monicah John Koka on 6th October 2020 be reviewed and/or rectified with regard to Land Parcel No. Machakos/Mua Hills /272 in the following aspects;i.Portion 'A' measuring 5.3879 Ha or thereabout be registered in the name of Cosmas Munyao Mwaka;ii.Portions 'B' and 'C' measuring 1.622 Ha and 1.0387 Ha or thereabout respectively be registered in the name of Monicah John Roka;iii.Portion 'D' measuring 0.5309 Ha or thereabout be registered jointly in the names of Cosmas Munyao Mwaka and Monicah John Koka in equal shares.b.the Certificate of Confirmation of Grant dated 21st September 2020 and issued to Cosmas Munyao Mwaka and Monicah John Koka on 6th October 2020 be reviewed and/or rectified with regard to Land Parcel No. Mitaboni/Mutituni/ 1787 in the following aspects;i.Portion 'A' measuring 0.055 Ha or thereabout be registered in the name of Cosmas Munyao Mwaka;ii.Portion 'B' measuring 0.7785 Ha or thereabout be registered in the name of Monicah John Koka;iii.Portion 'C' measuring 0.5168 Ha or thereabout be registered in the name of Cosmas Munyao Mwaka.c.Costs of this application be provided for. 10.The second application is supported by the supporting affidavit sworn on 5/5/2025 by the Co-administrator who depones that:-a.A Rectified Certificate of Confirmation of Grant dated 21/09/2020 was issued to the Co-administrator and Cosmas Munyao Mwaka on 6th October 2020.b.upon the failure and/or refusal by the Petitioner/ Respondent herein, this Honourable Court in an order dated 04/ 10/2023 and issued on 28th March 2024 mandated the Deputy Registrar to execute all necessary transfer by transmission forms on behalf of the Administrator herein.c.following issuance of the said order, distribution of the estate herein kicked off in earnest. A surveyor was identified and duly tasked with implementation of the aforesaid grant.d.in the course of such implementation, a ground survey was carried out in the presence of all parties on the deceased's properties known as Land Parcel Machakos/Mua Hills /272 and Mitaboni /Mutituni /1787.e.the aforementioned ground survey revealed the existence and/or necessity of access roads passing through the aforesaid properties. This discovery would mean that the acreages for both beneficiaries would have to reduce so as to factor in the said road. The appointed surveyor indicated as much in the surveyor's report dated 1st April 2024.f.in the aforesaid report, to completely factor in the access road, it was recommended that the grant be rectified as indicated in the sketch maps attached thereto.g.the aforesaid recommendations accordingly factor in an access road measuring 0.2187 Ha in Land Parcel No. Machakos/Mua Hills/ 272 and one measuring 0.0497 Ha or thereabouts in Land Parcel No. Mitaboni/ Mutituni/ 1787 whose inclusion will have the effect of reducing the listed acreages for all beneficiaries in equal measure.h.that this Honourable Court has such wide powers donated to it by law to entertain any application and grant such orders as will enable the ends of justice to be met.i.in the premises, the instant application has been brought so as to complete administration of the estate herein by transmission of the estate properties to all parties as listed in the certificate of confirmation of grant.j.unless the instant application is heard and the orders sought granted, final distribution of the estate remains untenable; which situation will invariably prejudice the interests of all beneficiaries named in the confirmed grant. As such, no prejudice will be suffered by any party if the instant application is allowed as prayed. Response by the Administrator to the second application 11.In opposition to the second application, the Administrator filed a replying affidavit sworn on 26/01/2026 and depones that the ground survey alluded to by the Co-administrator was carried out in the presence of all parties is misleading and untrue. The Administrator avers that he is willing to and will endeavour to be present and fully participate in a survey exercise to be carried out on Land Parcel No. Machakos/Mua Hills/272 and Mitaboni/Mutituni/1787 by a Government Surveyor whose costs and/or charges should be met by both parties. He further avers that the Government Surveyor ought to be directed to carry out survey work on the above impugned parcels of land and provide an official report on the issue of the access roads and final acreages to be transmitted to Court. That the survey is necessary in order to address the issue of access roads, determine the final acreages to be transmitted to the beneficiaries of the estate and consequently facilitate the complete administration of the estate of the deceased Analysis and Determination of the two applications 12.I have carefully considered both applications, the affidavits and the parties’ rival submissions. 13.In as far as the first application is concerned, the Co-Administrator calls upon the Administrator to provide a certified copy of the Title Deed to all that land known as Athi River /Athi-River Block 1/3763 (Plot No. 2018, ¼ Acre) and upon such production, she would propose that the same be distributed equally among the deceased's two houses. She has since sought a copy of the said title from the Administrator vide a letter dated 25/11/2025. 14.However, the Co-administrator opposes the other prayers sought by the Administrator and submits that Plot No. Mitaboni /Mutituni /1787 and Share No. 1610-Wendano Matuu, were effectively distributed by this Court in a Judgement dated 27th May 2015. 15.The Co-administrator invites the Court to note and appreciate that at paragraph 2 of the said Judgment, the Court noted that at its own instigation, the parties recorded a consent to that extent and partly to the distribution of the estate. This included the aforesaid Plot No. Mitaboni/Mutituni/1787 and Share No. 1610-Wendano Matuu which were distributed pursuant to the said consent. It is therefore not open for the Administrator to re-open the issue by way of an application for rectification of the Grant. A Certificate of Confirmation of Grant has since been issued in terms of the aforesaid Judgment. 16.The Administrator did not challenge the Co-Administrator’s foregoing contentions and this Court having looked at the judgement dated 27th May 2015, agrees with the Co-administrator’s position on the matter. 17.With regard to the second application, the Co-administrator contends that A Rectified Certificate of Confirmation of Grant dated 21/09/2020 was issued to herself and Cosmas Munyao Mwaka on 6th October 2020. Upon the failure and/or refusal to execute by the Administrator herein, this Court in an order dated 04/10/2023 and issued on 28/03/2024 mandated the Deputy Registrar to execute all necessary transfer by transmission forms on behalf of the Administrator herein. 18.Following issuance of the said order, distribution of the estate herein kicked off in earnest. A surveyor was identified and duly tasked with implementation of the aforesaid grant. In the course of such implementation, a ground survey was carried out in the presence of all parties on the deceased's properties known as Land Parcel Machakos/Mua Hills /272 and Mitaboni /Mutituni /1787. The aforementioned ground survey revealed the existence and/or necessity of access roads passing through the aforesaid properties. This discovery would mean that the acreages for both beneficiaries would have to reduce so as to factor in the said road. The appointed Surveyor indicated as much in the Surveyor's Report dated 1st April 2024. 19.In the aforesaid report, to completely factor in the access road, it was recommended that the grant be rectified as indicated in the sketch maps attached thereto. 20.The aforesaid recommendations accordingly factor in an access road measuring 0.2187 Ha in Land Parcel No. Machakos/Mua Hills/ 272 and one measuring 0.0497 Ha or thereabouts in Land Parcel No. Mitaboni/Mutituni/1787 whose inclusion will have the effect of reducing the listed acreages for all beneficiaries in equal measure. 21.This Court observes that the Administrator seems to disagree with Surveyor's Report dated 1st April 2024 and the recommendations therein. The Administrator disputes that the survey was carried out in the presence of all parties and that the Co-administrator’s regarding the same is misleading and untrue. The Administrator avers that he is willing to and will endeavour to be present and fully participate in a survey exercise to be carried out on Land Parcel No. Machakos/Mua Hills/272 and Mitaboni/Mutituni/1787 by a Government Surveyor whose costs and/or charges should be met by both parties. He further avers that the Government Surveyor ought to be directed to carry out survey work on the above impugned parcels of land and provide an official report on the issue of the access roads and final acreages to be transmitted to Court. 22.Again, this court observes that in as much as the Administrator disagrees with the surveyor’s report and disputes that the survey exercise was not conducted in the presence of all the beneficiaries herein, he has not presented any reasons why he disagrees with the Surveyor’s Report dated 1st April 2024 and the recommendations. He has not stated why he want’s the Government Surveyor to re-survey the subject property. He has equally not provided any evidence to contradict the Co-administrator’s stand that all the beneficiaries were present. He has not explained why he thinks the Co-administrator is misleading and untrue. He has himself not denied that he was present during the survey exercise herein. 23.Taking all the facts of the matter herein into account, I find that the Administrator is portraying himself as a difficult and stubborn person who only wants things to go his way and who is not willing to co-operate with his Co-administrator, no wonder this Court in an order dated 04/ 10/2023 and issued on 28th March 2024 had to mandate the Deputy Registrar to execute all necessary transfer by transmission forms on behalf of the Administrator herein. Accordingly, this court makes the following orders:-a.As regards the application dated 14/3/2025, the Administrator is directed to provide a certified copy of the Title Deed to all that land known as Athi River /Athi-River Block 1/3763 (Plot No. 2018 ¼ Acre) and upon such production, an official search will be conducted jointly by the Administrator and his Co-administrator herein and should the same be found to be forming part of the estate of the deceased herein, the same shall be distributed equally among the deceased's two houses.b.The other prayers in the Administrator’s application dated 14/3/2025 are declined.c.The Co-administrators application dated 5/5/2025 is allowed as prayed. After the rectifications sought by the Co-administrator, the Administrator and his Co-administrator are granted six (6) months to administer the estate to completion.d.Should the Administrator fail, decline and/or refuse to execute the necessary transfer by transmission forms, this court does mandate the Deputy Registrar of this court to execute all such forms on behalf of the Administrator herein to enable smooth completion of transmission and distribution of the estate herein.e.Each party to bear their own costs of their respective application.f.Matter to be mentioned after six (6) months for an update on the progress of transmission and distribution of the estate.It is hereby so ordered. RULING DATED & SIGNED AT MACHAKOS THIS 7TH JULY 2026.NOEL ADAGIJUDGEDELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 7TH JULY 2026In the presence of:Mr. Kilonzi hb for Mr. Nzei for 2nd PetitionerMs. Wangui Kabuu for 1st PetitionerMillygrace- Court Assistant