[2015] KEHC 1432 (KLR)
The court found that the application for removal of cautions/restrictions and reversion of the land register to the administrator could not be determined before the pending summons for revocation of grant was heard and disposed of. The existence of unresolved issues regarding the validity of the grant, including...
Source-derived case information.
- Citation
- [2015] KEHC 1432 (KLR)
- Parties
- Applicant: Elizabeth Mutitu Jacob; Applicant: Charles Mwaniki Jacob; Applicant: Margaret Wanjira Jacob; Applicant: Jane Muthoni Jacob; Respondent: Gichovi Jacob Munduwameru; Respondent: Benson Njagi Jacob; Respondent: Robert Nyaga Jacob
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 134 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application for Removal of Cautions/restrictions and Reversion of Land to Administrator
- Outcome
- application dismissed
- Legal Topics
- Succession, Grant Revocation, Estate Administration, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Elizabeth Mutitu Jacob
Applicant
Charles Mwaniki Jacob
Applicant
Margaret Wanjira Jacob
Applicant
Jane Muthoni Jacob
Applicant
Gichovi Jacob Munduwameru
Respondent
Benson Njagi Jacob
Respondent
Robert Nyaga Jacob
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Removal of Cautions/restrictions and Reversion of Land to Administrator
Legal Issues
- 1 Whether the cautions/restrictions on land parcel Ngandori/Kirigi/17 should be removed pending determination of revocation of grant application.
- 2 Whether the land register should be reverted to the administrator to enable sub-division as per the confirmed grant.
- 3 Whether the application should be determined before the pending summons for revocation of grant.
Ratio Decidendi
The court found that the application for removal of cautions/restrictions and reversion of the land register to the administrator could not be determined before the pending summons for revocation of grant was heard and disposed of. The existence of unresolved issues regarding the validity of the grant, including alleged non-disclosure of material facts and the status of beneficiaries, necessitated that the revocation application be prioritized. The court held that it would be improper to grant the orders sought in the present application while the legitimacy of the grant itself was under challenge. Consequently, the application was dismissed for lack of merit, with the court emphasizing...
Court Disposition
application dismissed
Orders
- The application dated 5/1/2015 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION CAUSE NO. 134 OF 2011
In the matter of the Estate of JACOB M’MIRU (Deceased)
ELIZABETH MUTITU JACOB........ 1ST APPLICANT/ADMINSTRATOR
CHARLES MWANIKI JACOB……………….…………2ND APPLICANT
MARGARET WANJIRA JACOB……………………….3RD APPLICANT
JANE MUTHONI JACOB………………………....…….4TH APPLICANT
VERSUS
GICHOVI JACOB MUNDUWAMERU……………... 1ST RESPONDENT
BENSON NJAGI JACOB……………….…………..2ND RESPONDENT
ROBERT NYAGA JACOB………………….……….3RD RESPONDENT
R U L I N G
This is a ruling on an application dated 5/1/2015 brought under Section 3 and 3A of the Civil Procedure Act seeking for the following prayers:-
1. That the honourable court be pleased to order to for removal of the cautions/restrictions lodged against land parcel No. Ngandori/Kirigi/17.
2. That the names appearing in the said land register be cancelled and be reverted to the administrator (Elizabeth Mutitu Jacob) to carry out the sub-division as per the confirmed grant issued on 19th December 2014.
3. That the costs of this application be at cause.
The 1st applicant depones in the supporting affidavit that she is the widow of the deceased Jacob M’Miru and the administrator of his estate. The grant was confirmed on 27/11/2014. The 2nd, 3rd and 4th applicants are her children and that she registered the land Ngandori/Kirigi/17 in their names after the death of the deceased for purposes of securing it. At that time the three children were of tender age. She depones that they are beneficiaries of the estate of the deceased and that she wants the land to revert to her so that she can be able to sub-divide it among all the beneficiaries.
In the replying affidavit of the 1st respondent Jacob Gichovi, he states that he has the authority of the other respondents to swear the affidavit. He states that they have filed summons for revocation of grant dated 29/12/2014. The grounds supporting the summons is that the applicant lied to the court that the deceased was the owner of LR. Ngandori/Kirigi/17. The land is registered in the names of the five sons of the deceased including the deponent. He urges the court to dismiss the application to allow the summons for revocation of grant to be heard.
The applicant in her further affidavit depones that her husband died in 1961 and he was survived by 8 children. After the death of her husband she registered the respondents as proprietors of the land without their knowledge for they were under age. It was in the year 2005 that the respondents learnt that they were the registered proprietors of the land. The respondents have attempted to transfer the land to other people but her younger son and daughters placed the restriction on the land. The respondents did not object to the mode of distribution which was included in the grant. All the beneficiaries are her biological children and are entitled to equal shares.
The court record shows that the respondents filed an application dated 29/12/2014 seeking for revocation of the grant issued to the 1st applicant on 19/12/2014. The grounds in support of the summons are that the 1st applicant failed to inform the court that one of the beneficiaries Kariuki Jacob and the 4th applicant herein was deceased at the time the grant was confirmed.
In view of the fact that there is a pending application for revocation of grant, it is important that the said application be disposed of before the orders in this application are considered. It has also been revealed in this application that the 1st applicant failed to disclose some material facts to the court when the grant was being confirmed. There is a host of issues that must be sorted out through the summons of revocation or by other informal means within the family before any further steps can be taken.
I find that this application lacks merit and it is hereby dismissed.
It is hereby so ordered.
DELIVERED, DATED AND SIGNED AT EMBU THIS 7TH DAY OF OCTOBER, 2015.
F. MUCHEMI
J U D G E
In the presence of:-
Petitioners
Protesters