[2012] KEHC 2893 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT NYERI

Probate & Administration 3 of 2009

FELISTER NJERI GUCHU.................................................................................................................APPELLANT

Versus

MBURU KARIUKI KIMANI.............................................................................................................RESPONDENT

JUDGMENT

This is an appeal against the judgment of M.W. Mutuku Senior Resident Magistrate in which she dismissed the objection by the protestor and confirmed the letter of administration issued to the petitioner.

Being aggrieved by the said judgment the appellant herein filled his appeal and listed the following grounds in her memorandum of appeal.

1. The learned Senior Resident Magistrate erred in law in finding that the respondent was a heir/survivor of the original owner of the suit land number parcel number LOC.7/KAHARO/332 within the meaning of section 29 of the law of succession Act whereas he was not.

2. The learned Senior Resident Magistrate erred in finding that the father of the petitioner/respondent KARIUKI KIMANI KARIRIA fraudulently transferred the suit land LOC. 7/KAHARO/332 to his own name.

3. The learned Senior Resident Magistrate erred in law and fact in finding that the appellant was not entitled to the suit land in the presence of uncontroverted evidence that the original owner of the suit land had neither blood relations nor contractual relations with the petitioner who is the respondent herein.

4. The learned Senior Resident Magistrate erred in law and fact in disregarding evidence from another legally established forum that found that the appellant was the rightful owner of the suit land.

5. The learned Senior Resident Magistrate erred in law and fact in finding that the respondent was the heir to the suit land whereas there was cogent and unchallenged evidence that he was a stranger to the original owner of the land NJUGUNA NDEGWA who was the registered as such during land demarcation and consolidation.

6. The learned Senior Resident Magistrate erred in law and fact in reaching a decision, which was against the weight of evidence adduced.

She therefore urged the court to set aside the judgment of the lower court and make an order confirming the title of the suit land to the appellant with cost.

The parties to this appeal by consent agreed that the same be disposed off by way of written submissions which have been filed before me.

This being a first appeal the court is required to assess the evidence tendered before the trial court which I hereby do.

The Respondent herein filed an application for grant of letters of administration in respect of the estate of one KARIUKI KIMANI KARIRIA and listed the suit property as an asset of the deceased among others and in response to the same the appellant filed an objection stating that the suit property belonged to her uncle Njuguna Ndegwa and was transferred to the deceased KARIUKI KIMANI KARIRIA.

The objection proceeded for the hearing by way of oral evidence wherein the appellant testified that parcel Loc.7/Kaharo/332 belonged to Njuguna Ndegwa who was her uncle and he died in 1982 and that she was not aware of the succession of the said estate whereas she is the proper beneficiary.

The witness number 2 testified that the mother of Njuguna Ndegwa was mother in law to the protestor and that the said Njuguna was not married. The witness number 3 also testified that the land belonged to Njuguna Ndegwa who left his sister Wanjiku who was the mother of the protestor and that when the dispute went before the D.O it was decided that the land be give to the protestor.

The petitioner testified that the land was inherited by his father who was a step brother to Njuguna Ndegwa and that in LDT 98/1981 it was held that the land be shared between him and his brothers.

It is upon the above evidence that the trial court dismissed the objection.

The appellant in her written submissions has submitted that the appellant used to till the suit land until 1985 when the respondent chased her away and that the respondent fraudulently caused the land to be registered in his name when he was not a defendant of the original owner of the land.

The respondent has submitted that the suit land Loc7/KAHARO/332 was registered in the names of the deceased and that the appellant did not challenge the succession cause that transmitted the suit land to the deceased and that the land tribunal did not give the appellant any land since it realized that it did not have jurisdiction. He therefore urges the court to dismiss the appeal.

From the above submission I am of the considered opinion that the issue for the court to determine is whether the appellant had made a case before the trial court and whether the succession cause before trial magistrate was the best forum for the same.

It is not in dispute that the subject matter of this appeal was inherited by the respondent father through a succession cause which was registered in the title on 4th October 1982. To my mind the appellant should have challenged the said grant and have it revoked as submitted by the respondent. Since the said grant has not been challenged I find no fault with the trial magistrate’s judgment herein since the suit land belongs to the father of the respondent by an act of law.

I therefore find no merit on the appellants appeal herein but all is not lost she can still challenge the grant to who transferred the land from her uncle to the father of the respondent.

I shall not order the appellant to pay cost as to my mind she has some right to this property it is only that she did not follow the right forum in asserting her rights.

Dated and delivered at Nyeri this 16th day of July 2012.

J. WAKIAGA

JUDGE

In open court

Mr. Muchir for Mwangi Ben

N/A for T.M. Njoroge

J. WAKIAGA

JUDGE