[2016] KEHC 3148 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

SUCCESSION CAUSE NO. 468 OF 2004

IN THE MATTER OF THE ESTATE OF THE LATE HEZEKIAH THUKU KIARA-DECEASED

CHARLES GITONGA THUKU…………........………...............................1STRESPONDENT

MARY WAMBUI THEURI.........................................................................2NDRESPONDENT

VS

BENARD NGATIA THUKU...…….......................................................................APPLICANT

RULING

Benard Ngatia Thuku the applicant herein seek orders that:-

a. Thatthis honourable court be pleased to authorize the Deputy Registrar to sign all the relevant documents necessary on behalf of the Respondent in order to give effect to the certificate of confirmation of the grant issued herein on 15th May 2013.

b. Thatthe Nyeri District Land Registrar be directed to dispense with the production of the Title Deed No. L.R. Thengenge/Karangia/217 and the Respondents passport size photograph, PIN Certificate or their identity cards while registering the transfer.

c. Thatthe shares Registrar be directed to dispense with the production of shares certificates, the Respondents Passport size photographs, PIN certificates or their identity cards while registering the transfer form.

d. Thatthe costs of this application be provided for.

The main ground in support thereof is that the first Respondent who is the administrator of the estate has refused to execute such documents as may be necessary to facilitate the distribution of the properties to the beneficiaries in the grant among them the applicant herein. Even though the grant was confirmed on 16th May 2013, the estate has not been distributed.

The first Respondent in his replying affidavit filed on 14th June 2014 avers that he was aggrieved by the judgement rendered on 16th May 2014 and promptly filed a notice of appeal and asked to be supplied with copies of the proceedings and judgement and has not been supplied with the said documents and accused the applicant of rushing to have the estate distributed before the appeal is heard hence the application in his view is brought in bad faith.

Both advocates adopted the contents of their respective affidavits and left it to the court to determine the application.

I have evaluated the affidavit evidence filed by both parties. It is not disputed that the grant was confirmed in 2013 and since then the estate has not been distributed. It is also admitted that a notice of appeal was filed on 22nd May 2010 and proceedings applied for by the first Respondent. The first Respondent insists he has not received the proceedings, hence he was unable to file the appeal. Unfortunately, that position cannot be true. The court record shows that the proceedings were typed and certified on 5th July 2013 and on 28th August 2013 the Deputy Registrar wrote to the first Respondent care of his address P. O. Box 165 Nyeri and notified him that the proceedings were ready for collection upon payment of Ksh. 160/=. Curiously, the first Respondent in his above mentioned Replying affidavit gives box 165, Nyeri as his address, the same address the court addressed the above letter.

Other than the first letter applying for the proceedings, there is nothing on record to show that the first Respondent ever made any other attempt to follow up the proceedings. Clearly, his excuse that he has not received the proceedings cannot be taken seriously and confirms that he has never been serious in pursuing the alleged appeal.

Further, he has never applied for stay of the judgement pending appeal. Notice of appeal is not a bar to execution of a court decree. There is nothing to justify his refusal to sign such papers as may be necessary to enforce the grant and give each beneficiary his/her share.

The second Respondent has not filed any response to the application and there is nothing on records to show that she is opposing the application.

Accordingly, I find that the application dated 21st March 2014 has merits and is well founded, hence I allow the said application and order as follows:-

a. Thatthe administrator to the deceased's estate Charles Gitonga Thuku and all the beneficiaries to the deceased's' estate be and are hereby ordered to within 14 days from the date of this order, to execute all the requisite documents including forms RL 7 and RL 19 and mutation forms or such documents as may be necessary to facilitate the sub-division ofThegenge/Karangia/217, into threeportions as follows,Bernard Ngatia Thuku--1. 9 acres, Charles Gitonga Thuku--0. 95 acresandMary Wambui Thuku--0. 95 acres and transfer the said portions to the respective beneficiaries in conformity with the grant of letters of administration issued on 24th May 2011 and confirmed on 16th May 2013.

AND furtherthe administratorCharles Gitonga Thuku or Mary Wambui Thukuor any of the beneficiaries having custody of the original tile is ordered to avail the said original title forThegenge/Karangia/217, certified copies of their national Identity cards and income tax pin and pass port size photos or such other documents as may be necessary to facilitate the aforesaid process.

b. Thatin default of executing the requisite documents as herein above ordered, the Deputy Registrar of this Honourable court be and is hereby authorized to execute all the necessary documents to facilitate the implementation of the grant of letters of administration issued in this cause dated 24th May 2011 and confirmed on the 16th May 2013.

c. Thatin the event of the administratorCharles Gitonga Thuku or Mary Wambui Thukuorany of the beneficiariesfailing to produce the original title or any of the documents as herein above ordered, the Land Registrar Nyeri County be and is hereby directed to dispense with the said original title/documents for purposes of effecting the aforesaid sub-division and registration/transfer as herein above ordered.

d. Thatthe administrator Charles Gitonga Thuku or Mary Wambui Theuri or any of the beneficiaries having custody of original share certificates for shares for Tetu Housing Sacco Shares and Nyeri Farmers Sacco Shares is hereby ordered to produce the said documents within 14 days from the date of this order and to execute such documents as may be necessary to facilitate the transfer of the said shares to the respective beneficiaries as ordered in the grant of letters of administration confirmed on 16th May 2013.

e. Thatin the event of failing to comply with paragraph (d) above within 14 days from the date of this order, the Deputy registrar of this court is hereby authorized to sign such documents as may be necessary to effect the transfer of Tetu Housing Shares and Nyeri Farmers Sacco Shares to the respective beneficiaries as ordered in the certificate of confirmation of grant dated 16 My 2013.

f. Furtherfor the purposes of transfer of the aforesaid shares, production of the original share certificates, copies of national identity cards, income tax pin and passport size photos shall be dispensed with in the event the respondent or any beneficiary fails to avail them with the said period of 14 days stated above.

g. ThatCharles Gitonga Thuku be and is hereby ordered to pay the costs of this application.

Right of appeal 30 days

Signed, Delivered and Dated at Nyeri this 26thday of September2016

John M. Mativo

Judge