[2017] KEHC 2290 (KLR)
The court declined to grant the order dispensing with the production of the original title deed for the estate property, LR. NYERI/GATARAKWA/1066, at this stage. The judge found that, although the applicants had demonstrated the loss of the original title deed and the need for the order to facilitate transmission,...
Source-derived case information.
- Citation
- [2017] KEHC 2290 (KLR)
- Parties
- Applicant: Priscilla Wanjiru Githinji; Applicant: Patrick Kabengi Kiura
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 3 of 2015
- Procedural Posture
- Succession Cause / Ruling on Summons General for Dispensation of Original Title Deed
- Outcome
- Application for dispensation with production of original title deed suspended pending regularization of minors' interests.
- Judges
- NA Matheka
- Legal Topics
- Administration of Estates, Transmission of Land, Interests of Minors, Trusteeship, Title Deeds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Priscilla Wanjiru Githinji
Applicant
Patrick Kabengi Kiura
Applicant
Procedural Posture
Succession Cause / Ruling on Summons General for Dispensation of Original Title Deed
Legal Issues
- 1 Whether the court should dispense with the production of the original title deed for LR. NYERI/GATARAKWA/1066 during registration of transmission documents.
- 2 Whether the interests of minor beneficiaries have been adequately protected in the administration of the estate.
Ratio Decidendi
The court declined to grant the order dispensing with the production of the original title deed for the estate property, LR. NYERI/GATARAKWA/1066, at this stage. The judge found that, although the applicants had demonstrated the loss of the original title deed and the need for the order to facilitate transmission, the interests of minor beneficiaries had not been adequately secured in the confirmed grant. Specifically, there was no indication that the administrators would hold the estate in trust for the minors, exposing them to the risk of disinheritance. Exercising its inherent jurisdiction under Rule 73 of the Probate and Administration Rules and guided by Article 53 of the...
Court Disposition
Application for dispensation with production of original title deed suspended pending regularization of minors' interests.
Orders
- The issue of the untraceable title deed is suspended.
- Administrators are directed to regularize the position regarding the interests of minor beneficiaries and comply with the law before the application can be considered further.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CAUSE NUMBER 3 OF 2015
IN THE MATTER OF THE ESTATE OF CHARLES MAINA NDEGWA (DECEASED)
PRISCILLA WANJIRU GITHINJI
PATRICK KABENGI KIURA ………....………PETITIONERS /APPLICANTS
RULING
The Summons General dated 20th June 2016 is brought under Rule 73 of the Probate and Administration Rules. It is supported by the joint affidavit od the applicants. It seeks the order that this honorable court be pleased to order the County Land Registrar Nyeri to dispense with the production of the original title deed for the land reference number NYERI/GATARAKWA/1066 during registration of the transmission documents.
According to the affidavit of the two deponents are administrators of the Estate of Charles Maina Ndegwa (Deceased). Grant of letters of administration intestate was made on the 19th April 2015 and confirmed on the 2nd of February 2016.
The deceased had only one asset LR. NYERI/GATARAKWA/1066 according to the official search dated 13th June 2016.
The original title deed cannot be traced for purposes of the transmission documents.
Mr. Kebuka Wachira for the respondents submitted on behalf of the applicants.
The grant of letters of administration intestate was confirmed on the 2nd of February 2016.
I have perused the record. I have noted that the letter from the chief Gatarakwa Location dated 17th November 2014 described the property as belonging to the deceased.
However, the record also revealed something of concern to this court. That the three of the beneficiaries of the estate were minors at the time the petition was filed, and at the confirmation of the grant. However, when the grant was confirmed there was no indication as to whether the administrators would hold the estate in trust for the minors.
By virtue of rule 73 of the P&A rules which provides for the unlimited inherent powers of the court make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court, I find that omission places the minors at the risk of being disinherited at the time they will have attained age of majority.
I am empowered by the law to make orders to ensure that the ends of justice are met. I am also enjoined by Article 53 of the Constitution to take into consideration the best interests on the child. My view is that before the issue of transmission is dealt with, the issue of interests of the child be secured.
Hence, I will suspend the issue of the untraceable title deed and give the administrators the time to regularize the issue and comply with the law.
Dated, Signed and delivered this 25th May 2017 at Nyeri
Teresia Matheka
Judge