[2008] KEHC 3643 (KLR)
The court determined that the most equitable solution was to subdivide the property Kirimukuyu/Ngandu/144 according to the beneficiaries' current occupation and development, as this reflects the longstanding arrangement since 1977. The court also held that each beneficiary must be ensured access to the road. This...
Source-derived case information.
- Citation
- [2008] KEHC 3643 (KLR)
- Parties
- Applicant: Gatuiku Githuku; Respondent: Johnson Waweru Gatuiku
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 28 of 1996
- Procedural Posture
- Succession Cause / Ruling on Summons for Subdivision of Property
- Outcome
- application allowed in part
- Judges
- MM Kasango
- Legal Topics
- Distribution of Estate, Confirmed Grant, Beneficiary Rights, Land Subdivision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gatuiku Githuku
Applicant
Johnson Waweru Gatuiku
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Subdivision of Property
Legal Issues
- 1 Whether the property Kirimukuyu/Ngandu/144 should be subdivided according to the current occupation by beneficiaries.
- 2 Whether the confirmed grant terms require equal sharing or occupation-based division.
- 3 Whether each beneficiary should have access to the road.
Ratio Decidendi
The court determined that the most equitable solution was to subdivide the property Kirimukuyu/Ngandu/144 according to the beneficiaries' current occupation and development, as this reflects the longstanding arrangement since 1977. The court also held that each beneficiary must be ensured access to the road. This approach aligns with the terms of the confirmed grant and respects both the legal entitlement and practical realities of the parties' occupation. The District Surveyor is to effect the subdivision accordingly, and parties retain liberty to apply to court for further directions if necessary.
Court Disposition
application allowed in part
Orders
- The District Surveyor Nyeri shall subdivide Kirimukuyu/Ngandu/144 according to the terms of the confirmed grant dated 10th June 1999, with each beneficiary getting the area they presently occupy and have developed, ensuring each has access to the road.
- Each party is granted liberty to further apply to court in respect of such subdivision.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Succession Cause 28 of 1996
GATUIKU GITHUKU …………………………….………………. APPLICANT
VERSUS
JOHNSON WAWERU GATUIKU ………..…….…………… RESPONDENT
RULING
Summons dated 15th January 2008 seeks that property Kirimukuyu/Ngandu/144 be divided according to the occupation on the ground by the beneficiaries. It was argued that the beneficiaries have remained in the same occupation on that property since 1977. The grant in this matter was confirmed on 10th June 1999. By that confirmed grant the beneficiaries were to get equal shares of that property. The applicant argued that the respondent that is Muriuki Gatuiku had refused and frustrated attempts to sub-divide according to each person’s occupation of that property. In response the respondent accepted that each of them has been living on that land in a particular manner and that they had lived there from the date of the deceased’s death. He however prayed that each would get access to the road.
I have considered the application and the submissions made before me. I am of the view that the order that commends itself is that each of the beneficiaries do get the area that they are already occupying. Accordingly the orders of this court are that the District Surveyor Nyeri do sub-divide Kirimukuyu/Ngandu/144 according to the terms of the confirmed grant dated 10th June 1999 with each beneficiary getting the area they presently occupy and have developed but ensuring that each has access to the road. Each party is granted liberty to further apply to court in respect of such sub-division. There shall be no orders for costs in respect of the summons dated 15th January 2008.
Dated and delivered at Nyeri this 19th day of March 2008.
MARY KASANGO
JUDGE