[2014] KEHC 3795 (KLR)
The court found that the reduction in acreage of land parcel Ngandori/Kiriari/1222 was not attributable to any wrongdoing or negligence by the respondent as administrator, but rather to the provision of access roads and survey realities. The court held that the proper course was for the family to agree on...
Source-derived case information.
- Citation
- [2014] KEHC 3795 (KLR)
- Parties
- Applicant: Farrington Njiru Ndwiga; Respondent: Fredrick Njiru Ndwiga
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 255 of 2004
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- application dismissed
- Legal Topics
- Revocation of Grant, Estate Administration, Land Distribution, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Farrington Njiru Ndwiga
Applicant
Fredrick Njiru Ndwiga
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the confirmed grant issued on 19/10/1999 should be revoked due to the administrator's failure to effect transmission of shares to beneficiaries.
- 2 Whether the discrepancy in acreage of land parcel Ngandori/Kiriari/1222 justifies revocation of the grant.
- 3 Whether the administrator's failure to amend the grant to reflect the actual acreage warrants annulment.
Ratio Decidendi
The court found that the reduction in acreage of land parcel Ngandori/Kiriari/1222 was not attributable to any wrongdoing or negligence by the respondent as administrator, but rather to the provision of access roads and survey realities. The court held that the proper course was for the family to agree on redistribution of the land in light of the reduced acreage and for the administrator to seek amendment of the grant accordingly. There was no sufficient ground to revoke or annul the confirmed grant, as the administrator had not acted fraudulently or failed in his duties to a degree warranting such drastic relief. The application for revocation was therefore dismissed.
Court Disposition
application dismissed
Orders
- The application for revocation/annulment of the confirmed grant is dismissed.
- The parties are directed to agree on redistribution of land parcel Ngandori/Kiriari/1222 within 45 days.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION CAUSE NO. 255 OF 2004
IN THE MATTER OF THE ESTATE OF SAMUEL NDWIGA M'THARA (DECEASED)
FARRINGTON NJIRU NDWIGA.......................................APPLICANT
VERSUS
FREDRICK NJIRU NDWIGA..….......…PETITIONER/RESPONDENT
R U L I N G
1. The Applicant herein filed the application dated 24th January 2013, under Rule 44(1) Probate and Administration Rules seeking an order revoking the confirmed grant of 19/10/1999.
2. The reasons are that:-
(i) The Respondent (administrator) has failed to effect transmission of the various shares to the beneficiaries.
(ii) Land parcel No. Ngandori/Kiriari/1222 covers a smaller area on the ground than what is in the register.
(iii) Inspite of (ii) the Respondent has failed to have the grant amended accordingly.
3. In his supporting affidavit he has reiterated the grounds.
4. The respondent filed a replying affidavit sworn on 5th March 2013. He actually blames the delays on the applicant who has been filing numerous applications and also constantly changing advocates.
5. He admits that the parcel complained of has lesser acreage than is registered. He also states that the provision of access roads had contributed to the decrease of the land available for distribution.
6. Both parties filed submissions as agreed.
7. I have considered the affidavits, the annextures and the submissions.
8. The deceased's estate herein comprised of two parcels of land namely:-
(I) Land parcel No. MBETI/KIAMURINGA/7
(II) Land parcel No. NGANDORI/KIRIARI/1222
9. The applicant has no problem with the 1st parcel of land.
10. His complaint is about the 2nd parcel which is of lesser acreage on the ground than that what is in the register. This has really nothing to do with the Respondent as the administrator.
11. It must be clear to the family members that as a result of the reduced acreage their previous allocations will have to be slightly reduced. The issue of access roads must also be considered when establishing their various shares.
12. This is something the family ought to have sat down and agreed on to enable the Respondent apply to Court for the necessary amendment.
13. I therefore find no serious reason to make this Court revoke/annul the confirmed grant to the Respondent.
The parties are directed to sit as a family and agree on how the land No. Ngandori/Kiriari/1222 will be redistributed among them taking into account the above mentioned facts. This should be done within 45 days.
14. Once they have agreed on the mode of redistribution the Respondent may then apply for the necessary amendment. The beneficiaries must be present in Court when the application for amendment comes for hearing or they may file consents to the amendments.
15. Otherwise the application for revocation/annulment lacks in merit and is dismissed.
No orders as to costs.
DELIVERED, DATED AND SIGNED AT EMBU THIS 2ND DAY OF JULY 2014.
H.I. ONG’UDI
J U D G E
In the presence of:-
Mr. Nderitu for Kiama for Applicant
Mr. Ithiga for P.N. Mugo for Respondent
Parties
Njue CC