https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9229

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **SUCCESSION CAUSE NO. 2692 OF 2006** **IN THE MATTER OF THE ESTATE OF THE LATE JEDIDAH WANJIKU KARAU (DECEASED)** **DAVID CURURU WANGUNYU …………………………….. APPLICANT** **ANDREW KURIA WANGUNYU ……………………………. APPLICANT** **VERSES** **JOHN THIONGO THANDE ………………………….. 1ST RESPONDENT** **PENINAH NJERI NDOMBI …………………………. 2ND RESPONDENT** **RITA WABUGI GITU …………………….………….. 3RD RESPONDENT** **RULING** 1. The application dated **20th April 2023** seeks orders that: **(a) That the Court be pleased to adopt the distribution agreement in respect to property known as Dagoretti/Kangemi/1010 dated 10th February 2022 and annexed herein as AK1 as a further order of the Court.** **(b) That the caution lodged by the 1st Administrator/ Respondent John Thiongo Karau Thande against title number Dagoretti/Kangemi/1010 on 14th December 2020 be removed forthwith.** **(c) The Court be pleased to issue consequential orders for the Deputy Registrar of the High Court to execute such instrument of transfer in default of execution by the Administrators.** **(d) That an order do issue directing the 1st Respondent to surrender to the surveyor the original title No. Dagoretti/Kangemi/1010 in default of which its production be dispensed with by the Land Registrar Nairobi.** **(e) Costs be paid by the estate.** 2. The application is based on the grounds thereof and the sworn affidavit of Andrew Kuria Wangunyu dated 20th April 2023. 3. The substance of the application is that the parties entered into a mediation settlement dated 9th May 2019 which culminated into the grant being confirmed on 21st May 2019. 4. That the said grant did not provide specific plots on the ground and the burden largely left to the parties to reach a consensus. 5. That the Administrators convened a meeting on 10th February 2022 where the beneficiaries who included the Applicants ratified what had been agreed upon. The meeting was hosted by the 1st Respondent in his house and witness by one Rev. Geoffrey Njenga who had mediated between the parties. 6. The meeting he deponed went on very well and all the parties picked their portions of the plots save for the four portions which had houses and the minutes were signed. The Applicant gave a chronology of all the plots and their respective numbers. 7. He said that there remained, a ¼ acre plot which was unallocated and the parties agreed that the same would be sold to defray the expenses or alternatively the surveyor would be advised to subsume it by enlarging the portions so as to accommodated the same within the other plots. 8. The 1st Respondent was advised to surrender the original title deed for purposes of the titling work and also to remove the caution he had placed in the register. 9. It is their case that the 1st Respondent has failed to carry out the two demands as agreed upon hence this application. 10. Other than the survey plans the Applicant has equally attached a copy of the photographs the parties took after the meeting. 11. The 1st Respondent in his replying affidavit sworn on 28th April 2023 opposed the application on the grounds among others that the sub division undertaken was not in tandem with the grant and that more parcels had been created contrary to the grant. 12. That the parties cannot vary the grant first of all without making a variation of the grant hence the action by the surveyors was wrong and illegal and that the Applicants were already in contempt of Court. 13. The Court has perused the application and the answer by the 1st Respondent. 14. I have also perused the minutes by the partes held at the home of the Applicant in which the parties agreed to have the parcel divided in the manner proposed. 15. The said minutes chaired by Rev. Njenga who had chaired the successfully mediation meeting agreed to vary the grant so as to accommodate other interest of the parties. There is no evidence of any objection raised by the Respondent s or at all. Neither is there evidence of coercion or undue influence by any of the parties least of all the chair of the meeting. 16. The objection came after the fact. It may be true that the grant did not give full subdivision of the property as explained by the 1st Respondent in his opposition. The parties nevertheless have the liberty to alter so as to suit their interest and subsequently as the case herein to request the Court to amend the grant accordingly. 17. In this case it is clear that the parties agreed to carry out a further subdivision so as to accommodate the interest of all the parties as per the mediation settlement. None including the Respondents lost. As a matter of fact, it settled the major sticking issues of distribution. 18. Subsequently they were all in a jovial mood as evidence by the photos attached to the Applicant’s application. That annexure was not rebutted by either of the parties. 19. Elsewhere in this matter this Court has made a ruling which carried affidavits from the area Assistant Chief who clearly appears on the said photo. 20. The Court will not impede the beneficiaries from enjoying the fruits of their bequest. This matter has been in this corridor for the last 20 years. The Respondent /Administrator must let the family enjoy a peaceful occupation of the property by removing the caution he has placed in the register as well as surrendering the original title to the lands office for purposes of carrying out the transmission exercise. 21. It is not lost to this Court that long and protracted litigation must be discouraged. The parties herein have been litigating and majorly the cause has been the Administrators. There may not be equality in distribution but equity at the end of the day prevails. 22. The 1st Respondent from the averments on record was able to get a larger share of the estate. The survey report it seems was able to squeeze the parties to the frontage of the Nakuru Nairobi highway which was a major sticking point. 23. **In view of the above observations, I shall allow the application and direct as hereunder:** **(a) The distribution agreement dated 10th February 2022 in respect to land parcel number Dagoretti/Kangemi/ 1010 is adopted as the order of the Court.** **(b) The 1st Respondent is hereby directed to remove the caution placed against title number Dagoretti/Kangemi/1010 on 14th December 2020 forthwith and not later than 14 days from the date herein and in default the Land Registrar Nairobi is directed to remove it without further reference to the 1st Respondent.** **(c) The 1st Respondent is hereby directed within 14 days from the date herein to surrender the original title deed for land parcel Dagoretti/Kangemi/1010 to the Deputy Registrar of this Court and in default the Land Registrar Nairobi to dispense with its production.** **(d) The 1st Respondent and all the Administrators of this estate jointly and severally shall execute the transmission instruments in favour of the beneficiaries and in default the Deputy Registrar of this Court shall execute without further reference to them.** **(e) Costs in the cause.** **Dated signed and delivered via video link this** **25th day of June 2026.** **H K CHEMITEI** **JUDGE. FCIArb.**