[2013] KEHC 2448 (KLR)
The court determined that the most appropriate and fair manner of subdivision of L.R. No.Konyu/Baricho/91 was to split the land into two equal portions as recommended by the District Surveyor in sketch A of the report dated 23rd January 2013. The court found that this approach best balanced the interests of both...
Source-derived case information.
- Citation
- [2013] KEHC 2448 (KLR)
- Parties
- Applicant: Anna Wamuyu Muhingo; Respondent: Joseph Muriuki Muhingo
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 112 of 1989
- Procedural Posture
- Succession Cause / Ruling on Mode of Subdivision of Estate Land
- Outcome
- Land to be subdivided into two equal portions as per surveyor's sketch A; each party to bear own costs.
- Judges
- JK Sergon
- Legal Topics
- Succession of Estates, Land Subdivision, Distribution of Inheritance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anna Wamuyu Muhingo
Applicant
Joseph Muriuki Muhingo
Respondent
Procedural Posture
Succession Cause / Ruling on Mode of Subdivision of Estate Land
Legal Issues
- 1 What is the fair and appropriate mode of subdivision of L.R. No.Konyu/Baricho/91 among the beneficiaries of the deceased's estate?
- 2 Should the permanent house on the land influence the manner of subdivision?
Ratio Decidendi
The court determined that the most appropriate and fair manner of subdivision of L.R. No.Konyu/Baricho/91 was to split the land into two equal portions as recommended by the District Surveyor in sketch A of the report dated 23rd January 2013. The court found that this approach best balanced the interests of both parties, ensuring equality and fairness in the distribution of the deceased's estate, and declined to give preference to the location of the permanent house as argued by the respondent. Each party was ordered to bear their own costs.
Court Disposition
Land to be subdivided into two equal portions as per surveyor's sketch A; each party to bear own costs.
Orders
- L.R. No.Konyu/Baricho/91 to be subdivided as shown in sketch A of the District Surveyor’s report dated 23rd January 2013.
- Each party to meet his or her own costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CAUSE NO.112 OF 1989
IN THE MATTER OF ESTATE OF GAICHUHIA MUHINGO - DECEASED
AND
ANNA WAMUYU MUHINGO.........................................................APPLICANT
VERSUS
JOSEPH MURIUKI MUHINGO..................................................RESPONDENT
RULING
On 4th January 2011, this court made an order in the following terms:-
“1. THAT the District Surveyor Nyeri be and is hereby ordered to visit the land in dispute being L.R. No.Konyu/Baricho/91 to do a subdivision which ensures that the permanent house built on the suit land is on the portion to be transmitted to JOSEPH MURIUKI MUHINGO.
2. THAT Surveyor to take into account the views of both JOSEPH MURIUKI MUHINGO, ANNA WAMUYU MUHINGO and PAUL GACHARI GACHONDE in order to get the best and reasonable mode of subdivision.
3. THAT the parties herein being JOSEPH MURIUKI MUHINGO and PAUL GACHAHI GACHONDE to meet the surveyors costs in equal measure.
4. THAT the District Surveyor Nyeri be and is hereby ordered to visit the land and file his report within the next (30) thirty days.
5. THAT the matter to be mentioned on 20th January 2012 for further orders and directions.”
On 20th January 2012, when this matter came up for mention, Miss Kabethi, learned counsel for the objector confirmed to this court that the District Surveyor, Nyeri, had visited the land in dispute i.e. L.R. No.Konyu/Baricho/91 in compliance with the abovementioned order. By that time the surveyor had not filed his report hence the matter was adjourned to 15th June 2012 for mention for further orders and directions. On the aforesaid date both M/S Kabethi, learned advocate for the objector and Mr. Baru, Learned advocate for the petitioner made brief submissions on how the land should be subdivided. M/S Kabethi was of the view that her client was ready to take any side of the land so long as the land is split into two equal portions. Mr. Baru on his part was of the view that the land be subdivided in such a way that the petitioner gets a wider footage to ensure the house fell on his side.
I have considered the surveyor's report plus the divergent submissions from both sides. It would appear from the surveyor’s report that the most appropriate and fair manner of subdivision is that suggesting to have the land split into two equal portions (as per sketch A). I order that L.R. No.Konyu/Baricho/91 be subdivided as shown in sketch A of the District Surveyor’s report dated 23rd January 2013. Each party to meet his or her own costs.
Dated, signed and delivered in open court at Nyeri this 23rd day of August, 2013.
J. K. SERGON
JUDGE
In the presence of Baru for the Petitioner
N/A for Kabethi for Objector