[2017] KEHC 1389 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 117 OF 2001

IN THE MATTER OF THE ESTATE OF RIMBERIA BAICHU (DECEASED)

FRANCIS MURURU ………………………………………. PETITIONER

Versus

BURIA M’RIMBERIA BAICHU …………………………….. OBJECTOR

R U L I N G

1. RIMBERIA BAICHU (hereinafter “the deceased”) died on 6th December, 1985 leaving behind as his survivors his widow and five sons. These were; Elizabeth Kaguru M’Rimberia (deceased), Batholomew Mwenda (deceased), Joseph Mugambi, Francis Mururu M’Rimberia, Buria M’Rimberia Baichu and Peter Ntutumi with Parcel Nos. Nyaki/Mulankari/170 and Nyaki/Mulankari/807 forming the only assets of the estate. On 16th May, 2001, Francis Mururu M’Rimberia applied for letters of administration intestate for the estate of the deceased which were issued to him on 26th July, 2001.

2. When the petitioner applied for confirmation, the objector protested against the mode of distribution and by a judgment delivered on 16th October, 2014, the court distributed the estate as follows:-

a) Joseph Mugambi - 2. 04 acres

b) Francis Mururu - 2. 52 acres

c) Buria M’Rimberi - 2. 04 acres

d) Peter Ntutumi - 1. 80 acres

e) Road of access - 0. 30 acres

3. Vide an application made on 2nd December, 2014, the grant was rectified whereby the court specified that the share of Peter Ntutumi was to be 1. 10 acres inNyaki/Mulankari/170and the whole of Nyaki/Mulankari/807. A certificate of confirmation was issued to the petitioner on 28th April, 2015 reflecting those changes.

4. Pursuant thereto, on 12th April, 2017, the petitioner once again filed another application for rectification and or amendment of the grant and to adjust the distribution as follows:-

a) Nyaki/Mulathankari/170

i) Philomena Kairiani Mugambi - 1. 25 acres

ii) Francis Mururu Rimberia - 0. 25 acres

iii) Buria Rimberia Baichu - 1. 5 acres

iv) Philomena Kairiani Mugambi - 0. 30 acres

v) Peter Ntutumi M’Rimberia - 1. 0 acre

vi) Francis Mururu Rimberia - 2. 02 acres

vii) Philomena Kairiani Mugambi - 0. 23 acres

viii) Buria Baichu M’Rimberia - 0. 28 acres

b) Nyaki/Mulathankari/807

Philomena Kairiani Mugambi

6. The grounds upon which the application was based were set out in the body of the Summons and in the supporting affidavit of the petitioner. These were that; the two parcels are small on the ground as opposed to how they appear on paper; that one of the beneficiaries passed on and it is fair that his widow Philomena Kairiani Mugambi inherits his share and that the rectification is meant to adjust the acreage as appearson the ground. It was sworn that a qualified surveyor had measured the properties and confirmed that the properties were smaller on the ground. One Patrick Mwendwa, said to be a Land Surveyor swore an affidavit to support the allegations of the petitioner.

7. At the hearing, Ms. Waigwa learned Counsel for the petitioner reiterated what her client had swore in his supporting affidavit and further submitted that each beneficiary was to lose a portion of land previously distributed to him/her. She urged that the application be allowed.

8. The Objector opposed the application on the basis of his Replying Affidavit sworn on 11th October, 2017. He swore that the application was full of falsehood and was an attempt to take away part of his share; that the court should direct the government surveyor for Imenti North district to go and take measurements of the properties on the ground. Mr. Thangicia, Learned Counsel for the objector submitted that the court has no power to adjust the land register; that the court’s power is limited to ascertaining and distributing the estate of a deceased to his beneficiaries.

9. I have considered the affidavits on record and the submissions of learned counsel. This is an application for rectification of aconfirmed grant. Under section 47 of the Law of Succession Act, Cap 160 of the Laws of Kenya,this court has jurisdiction to make all necessary orders for the ends of justice in matters relating to estates of deceased persons. The section provides:-

“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:

Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.”

10. In this regard, it is not correct as submitted by Mr. Thangicia that this court cannot correct or make adjustments to the Land Register where the justice of the case demands. While it is correct that the primary purpose or jurisdiction of a Family Court is to ascertain who the beneficiaries of a deceased are and what his estate is and consequently distribute the same to the beneficiaries, the Family Court has jurisdiction to make such orders as may be necessary to effect that primary purpose, including adjusting the Land Register.

11. In the present case, the court has considered the facts sworn to and the submissions of learned counsel. Although Mr. Patrick Mwendwa said to be a Surveyor swore an affidavit, he never stated the alleged actual area of the properties on the ground. He never annexed any report to show the measurements he may have taken to conclude that the properties are less on the ground than what the search certificates on record show. It should be noted that the estate was distributed based on the acreage contained in the said search certificates which the petitioner had availed to court. That evidence cannot be removed or ignored on the basis of a casual statement that the acreage is incorrect. It will require a scientific explanation to replace that evidence. In this case, that has not been done. The surveyor should have indicated the alleged actual acreage on the ground before jumping into the conclusions made herein.

12. Another issue is the distribution in the proposed rectification. The petitioner seems to have further subdivided the estate into minute portions that were never intended or contained in the original distribution. There was no explanation given for the aforesaid subdivisions. This court cannot be used to undertake subdivision of property, probably with a view to effect sales, which is the jurisdiction of the lands department. This court refuses to be used to sidestep a legal requirement for which the state should be paid its dues in undertaking the exercise.

13. In the premises, I find the application to be without merit and the same is hereby dismissed. I will make no orders as to costs for this was a family matter.

DATED and DELIVERED at Meru this 7th day of December, 2017.

A. MABEYA

JUDGE