https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/190

In re Estate of Thiga (Deceased) (Succession Cause E368 of 2023) [2026] KEMC 190 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEMC 190 (KLR) Republic of Kenya In the Murang'a Law Courts Succession Cause E368 of 2023 GK Waithira, SRM June 24, 2026 IN THE MATTER OF THE ESTATE OF MWANGI THIGA (DECEASED) Ruling 1.This ruling disposes of the Summons dated 16th March 2026, whereby the applicant has sought orders that the court directs the District Land Registrar, Ruiru lands registry to dispense with the production of the original title deed for Ruiru/KIU Block 2 (Githunguri)/2046 (herein “the subject property”) while registering transmission forms. 2.In support of the application, the administrator, Stanley Thiga Mwangi, swore an affidavit on even date claiming that he was unable to effect the transmission of the subject property as the title document could not be found. He averred that he had tried advertising the loss of the title in a newspaper, but was still unable to trace it. He had tried to approach the land registrar at the Ruiru land registry to find out whether transmission was possible without the original title document, but the registrar had been emphatic that transmission could only be effected with the express order of the court. 3.The administrator averred that the distribution of the estate had dragged on and that the beneficiaries were anxious to have the transmission concluded. As no prejudice would be suffered, the court was urged to allow the application. 4.The application was disposed of by way of written submissions, which this court has duly considered. Issues, Analysis And Determination 5.The sole issue for determination in the present suit is whether the court should direct the land registrar to dispense with the production of the title document of the subject property, to enable the administrator to transmit the land to the beneficiaries. 6.It is worth noting that the administrator had made a similar application to dispense with the production of title documents for other assets owned by the deceased on the grounds that those title documents had been misplaced by the deceased. This court, differently constituted, dismissed that application having found inter alia that there was no evidence to show that the land registrar had declined to dispense with the production of the original title documents. 7.In the foregoing decision of this court delivered on 24th July 2025, reliance was placed on the case of In re Estate of Phillip Kiogo Tunga (Deceased) [2020] eKLR which was cited with approval by the court in the case of Gatumu v Registrar of Lands Nairobi (Miscellaneous Application E097 of 2023) [2026] KEELC 223 (KLR) (22 January 2026) (Ruling) among other decisions. 8.Undeterred, the applicant has now moved the court to dispense with the title documents of the subject parcel of land. In the case of Gatumu v Registrar of Lands Nairobi (supra), the court held as follows on the exercise of the registrar’s powers to dispense with title documents;“The issue of dispensation of title has been addressed in various case laws including the case of John Chege Mbatia v Harbir Singh Rooprai & 2 others [2021] eKLR the Hon Justice Mbugua relied on two cases on the issue, that is Re Estate of Phillip Kiogo Tunga (Deceased) [2020] eKLR and the case of Charles Ntiritu M’Ikunyua & 3 others v Stephen Robert Gitonga Njagi [2021] eKLR. In the first case it was held that though production of the original title deed is the general requirement in registration of transfer of land, Land Registrars have consistently failed to exercise discretion provided in law to dispense with production of original title deed in appropriate cases. The court went on to hold that that the Land Registrar has power to dispense with the production of the original title and that there is no requirement that exercise of the power is dependent upon a Court order to do so.In the Charles Ntiritu case (supra), the court observed that where a party desires the exercise of the Land Registrar’s discretion in its favour the correct procedure is to request the Land Registrar in writing citing reasons for why they ought to be allowed not to produce the original title deed; perchance the Registrar refuses to exercise that discretion only then should the requesting party move to court if aggrieved by the Registrar’s decision. ...In this matter the applicants has not produced any evidence to show that she sought to be excused from the requirement to produce the original certificate of lease in order for the land to be registered in his favour; also, no evidence has been adduced to demonstrate the respondent’s refusal to dispense with the production of the original certificate of leaseof the suit land.” 9.Although the applicant has averred that the land registrar has failed to exercise the powers given under Section 31 of the Land Registration Act to dispense with the production of the original title, there is no evidence that a written application was made requesting the exercise of those powers by the land registrar. There is also no evidence to demonstrate that the land registrar declined to exercise the discretion provided under the law. 10.Further, section 33 of the Land Registration Act, provides the procedure to be followed for replacement of a lost certificate of title thus;33. Lost or destroyed certificates and registers(1)Where a certificate of title or certificate of lease is lost or destroyed, the proprietor may apply to the Registrar for the issue of a replacement certificate of title or certificate of lease, and shall produce evidence to satisfy the Registrar of the loss or destruction of the previous certificate of title or certificate of lease.(2)The Registrar shall require a statutory declaration to be made by all the registered proprietors, and in the case of a company, the director, where property has been charged, the chargee that the certificate of title or a certificate of lease has been lost or destroyed.(3)If the Registrar is satisfied with the evidence proving the destruction or loss of the certificate of title or certificate of lease, and after the publication of such notice in the Gazette and in any two local newspapers of nationwide circulation, the Registrar may issue a replacement certificate of title or certificate of lease upon the expiry of sixty days from the date of publication in the Gazette or circulation of such newspapers; whichever is first.(4)If a lost certificate of title or certificate of lease is found, it shall be delivered to the Registrar for cancellation.(5)The Registrar shall have powers to reconstruct any lost or destroyed land register after making such enquiries as may be necessary and after giving due notice of sixty days in the Gazette.(6)Upon the issue of a replacement certificate no further dealings shall be carried out using the replaced certificate. 11.It is submitted that the land registrar’s position on the foregoing provision is that the above process can only be initiated by registered proprietors of land. It is submitted that according to the land registrar, the process is not open to administrators of estates of deceased proprietors. Once again, this court notes that there is no proof of the land registrar’s refusal to allow the administrator to follow the process under Section 33 for the stated reasons. Moreover, Section 79 of the Law of Succession Act vests the property of the deceased in an administrator as a personal representative. 12.Where a public body declines to exercise powers vested in it by law, its decision is amenable to judicial review. The Land Registration Act provides an avenue for review of the decisions of the Land Registrar in Section 86 of the Act thus;86. Review of the decision of the Registrar.(1)If any question arises with regard to the exercise of any power or the performance of any duty conferred or imposed on the Registrar by this Act, the Registrar or any aggrieved person shall state a case for the opinion of the Court, and thereupon the Court shall give its opinion, which shall be binding upon the parties.(2)The Rules Committee shall make rules on the procedures to be followed by the Registrar or an aggrieved person under subsection (1). 13.Although the administrator asserts that this is a matter within the jurisdiction of the probate court, it clearly is not as was held by Musyoka J. in the case of In re Estate of Daniel Khasievera Anusu (Deceased) [2022] KEHC 26951 (KLR)“9. What follows confirmation of a grant is transmission of the assets to the named beneficiaries as per or according to the certificate of confirmation of grant. Transmission of property as per the certificate of confirmation of grant is a concept in land or property law. It is not regulated by succession law, hence the silence in the Law of Succession Act and the Probate and Administration Rules on it. It is not a succession matter whatsoever, and, therefore, transmission of assets as per the certificate of confirmation of grant should not tax the mind of the probate court at all. I even doubt whether the High Court has any jurisdiction to touch anything to do with transmission of property after confirmation of the grant.” 14.While this court empathizes with the administrator's position, the law must be applied as enacted. The manner in which a statute is drafted reflects the legislature's intention to remedy a particular mischief. The court is not at liberty to supplant legislation under the guise of interpretation. 15.The upshot of the foregoing is that this court finds no merit in the Summons dated 16th March 2026. The same is dismissed with no orders as to costs. DATED, SIGNED AND DELIVERED AT MURANG’A THIS 24TH DAY OF JUNE 2026.HON. GRACE WAITHĨRASENIOR RESIDENT MAGISTRATERuling read on the virtual platform in the presence of;C/A JeremiahMr. Tumu for the applicant