[2005] KEHC 2074 (KLR)
The court found that the parties had entered into binding consent orders on 13.11.2000 regarding the subdivision and transfer of the deceased's estate and guardianship of minors. The respondent had failed to comply with the terms of the consent without justification, thereby obstructing the course of justice. The...
Source-derived case information.
- Citation
- [2005] KEHC 2074 (KLR)
- Parties
- Respondent: Henry Gitonga Mugambi; Applicant: Jeremiah Mbobua Mugambi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 295 of 1997
- Procedural Posture
- Succession Cause / Ruling on Summons Application for Execution of Consent Orders
- Outcome
- application allowed
- Judges
- AT Sitati
- Legal Topics
- Probate and Administration, Consent Orders, Execution of Judgments, Land Transfer, Guardianship
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Gitonga Mugambi
Respondent
Jeremiah Mbobua Mugambi
Applicant
Procedural Posture
Succession Cause / Ruling on Summons Application for Execution of Consent Orders
Legal Issues
- 1 Whether the applicant is entitled to enforcement of the consent orders recorded on 13.11.2000 regarding distribution of the deceased's estate.
- 2 Whether the respondent's failure to execute transfer documents justifies court intervention.
Ratio Decidendi
The court found that the parties had entered into binding consent orders on 13.11.2000 regarding the subdivision and transfer of the deceased's estate and guardianship of minors. The respondent had failed to comply with the terms of the consent without justification, thereby obstructing the course of justice. The court held that it was empowered to enforce its orders and facilitate the transfer of the relevant land parcels by authorizing the Executive Officer to execute the necessary documents. The application was allowed as prayed in terms of execution and costs, to ensure the consent orders were implemented and the estate distributed as agreed.
Court Disposition
application allowed
Orders
- The Executive Officer of the court shall execute all documents necessary to facilitate the effective transfer of title in parcel NTIMA/IGOKI/6422 and two acres of KIIRUA/KIIRUA/824 to the applicant.
- The costs of these proceedings shall be borne by the respondent/petitioner.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Succession Cause 295 of 1997
IN THE MATTER OF THE ESTATE OF MUGAMBI TIMOTHY (DECEASED)
BETWEEN
HENRY GITONGA MUGAMBI ……………… PETITIONER/RESPONDENT
Versus
JEREMIAH MBOBUA MUGAMBI …………..….... APPLICANT/OBJECTOR
RULING OF THE COURT
What is before me is a summons application dated 6. 10. 2004 in which the objector/applicant seeks the following orders:-
(a) That the Executive Officer of the Honourable Court do execute all documents necessary to facilitate the effective transfer of the title in the parcel of land known as NTIMA/IGOKI/6422 formerly part and sub division of NTIMA/IGOKI/2843 and in a portion measuring 2 acres part of the parcel known as Land Reference number KIIRUA/KIIRUA/824.
(b) That the Honourable Court do issue such orders as will meet the ends of justice in this cause.
(c) That the costs of these proceedings be borne by the respondent/petitioner herein.
The application is brought under rules 49 and 73 of the Probate and Administration Rules and is supported by the applicant’s affidavit made and sworn on 13. 10. 2004. The applicant states that following the filing of his objection proceedings to the filing of the petition by the petitioner/respondent herein, the parties negotiated an out of court settlement which was recorded in court on the 13. 11. 2000. That consent of 13. 11. 2000 was recorded in the following terms.
1. The respondent shall sub divide the parcel of land comprised in title No. NTIMA/IGOKI/2843 into two equal portions and transfer one portion.
2. The respondent shall sub-divide two acres of land from parcel comprised in title No. KIIRUA/KIIRUA/824 and transfer the said two acres to the applicant.
3. The applicant shall be the legal guardian of Miss Gloria Kawira who is the daughter of his deceases sister.
4. The respondent shall be the legal guardian of Master Desmond Asibwe Gakure who is the son of his deceased sister.
5. Each party shall pay his own costs.
The applicant contends that inspite of these consent orders, and inspite of the fact that the respondent has given possession of half of the portion comprised in land parcel No. NTIMA/IGOKI/2843 and further that though the respondent has caused the applicant no sign relevant applications for Land Control board consent in respect of NTIMA/IGOKI/2843 the respondent has failed to execute the necessary transfer forms to effect the transfers in the applicant’s names. Though the applicant indicated in his affidavit that he had annexed thereto copies of the Land Control Board consents in respect of the transfer of NTIMA/IGOKI/2843 and NTIMA/IGOKI 6422, those annextures were not attached.
The application was not opposed. Since there was ample evidence that Mrs. Ndorongo for the respondent was served on 22. 2.2005, a last minute application for adjournment and or leave to cease from acting for the respondent was refused on the ground that the application for adjournment was being used by the petitioner/respondent as a mere delaying tactic to have the matter finalized.
The only issue for determination of the court is whether the applicant is entitled to the orders sought. I have considered the application in detail, the affidavit in support thereof and the submissions by Mr. Karuti advocate for the applicant. It is not in dispute that the warring parties herein consented to the distribution of the deceased’s estate as per the consent orders recorded in court on 13. 11. 2000. That fact is not controverted by the respondent. The respondent was and is still under a duty to do all that is necessary to put into effect those consent orders entered into on 13. 11. 2000. The respondent has shown no reason why he has not done so and why he cannot do so. My view therefore is that the respondent is obstructing the course of justice.
In the result, the applicant’s application dated 6. 10. 2004 is allowed in terms of prayers (a) and (c) thereof. I further order that the Executive Officer shall comply with the said orders within twenty one (21) days from the date of this ruling.
Orders accordingly.
Dated and delivered at Meru this 16th day of May 2005.
RUTH N. SITATI
JUDGE
16. 5.2005