[2017] KEHC 6520 (KLR)
The court held that it has jurisdiction to determine the removal of a caution placed on estate property in the context of a succession cause, as such matters are ancillary to the administration of the estate. The respondent's refusal to remove the caution, despite the confirmation of the grant and dismissal of her...
Source-derived case information.
- Citation
- [2017] KEHC 6520 (KLR)
- Parties
- Applicant: Angelina Kanini Ciatu; Respondent: Vides Marigu Ciatu
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 56 of 2012
- Procedural Posture
- Succession Cause / Ruling on Summons General Seeking Removal of Caution and Completion of Transfer
- Outcome
- application allowed
- Legal Topics
- Grant Confirmation, Removal of Caution, Administration of Estate, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Angelina Kanini Ciatu
Applicant
Vides Marigu Ciatu
Respondent
Procedural Posture
Succession Cause / Ruling on Summons General Seeking Removal of Caution and Completion of Transfer
Legal Issues
- 1 Whether the High Court has jurisdiction to order removal of a caution on land in a succession cause.
- 2 Whether the respondent should be compelled to remove the caution and complete the transfer of the estate property to the applicant.
- 3 Whether the deputy registrar can be ordered to sign transfer documents on behalf of the respondent.
Ratio Decidendi
The court held that it has jurisdiction to determine the removal of a caution placed on estate property in the context of a succession cause, as such matters are ancillary to the administration of the estate. The respondent's refusal to remove the caution, despite the confirmation of the grant and dismissal of her application for stay, unjustifiably hinders the execution of the grant and the applicant's rights as a beneficiary. The caution no longer serves a useful purpose since the succession cause has been determined, and the respondent has not obtained a stay pending appeal from the Court of Appeal. The application is therefore merited and allowed as prayed.
Court Disposition
application allowed
Orders
- The respondent is compelled to remove the restriction/caution placed on land parcel No. KAGAARI/KANJA/350 and/or complete the transfer by signing R17 and RL 19 in favour of Angelina Kanini Ciatu as per the certificate of confirmation.
- Alternatively, the deputy registrar is authorized to sign all transfer documents on behalf of the respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION CAUSE NO. 56 OF 2012
In the matter of the Estate of CIANTU GATUANYAKI (Deceased)
ANGELINA KANINI CIATU..................................................APPLICANT
V E R S U S
VIDES MARIGU CIATU...................RESPONDENT/ADMINISTRATOR
R U L I N G
1. In the Summons General dated 10/10/2016, the applicant seeks for orders that:-
i. The respondent be compelled to remove restriction/ caution placed in the land parcel No. KAGAARI/ KANJA/350 and/or forthwith complete the transfer by signing of R17 and RL 19 in favour of the name Angelina Kanini Ciantu in certificate of confirmation.
ii. That alternatively this court do order the deputy registrar to sign all transfer documents on behalf of the respondent.
2. The grounds in support are contained in the supporting affidavit. It is deponed that the grant was confirmed on 1/08/2016. that the respondent's application for stay was dismissed on 14/09/2016. Further that an appeal was filed by the respondent but has no chances of success. The applicant states that she is of an advanced age and that she wants to execute the grant without delay.
3. The respondent in its replying affidavit opposes the application on grounds that the application raises land issues which this court has no jurisdiction to hear. He therefore urges the court to disqualify itself from hearing the matter and send it to another court.
4. I have perused the application, the grounds in support and in opposition of this application.
5. The position of th is case is as per the contents of the applicant's affidavit that the estate was distributed and certificate of grant issued on 1/08/2016.
6. The respondent was a protester in the confirmation of grant but was unsuccessful. She filed an application for stay pending appeal which was dismissed.
7. The caution on LR. KAGAARI/KANJA/350 was lodged by the respondent to protect her interest in the estate. The land is registered in the name of the deceased. The respondent has now refused to remove it to facilitate the execution of the grant leading to the filing of this application.
8. As concerns the issue of jurisdiction raised by the respondent, it is my considered opinion that this court has jurisdiction to deal with a matter for removal of caution placed to protect the interest of a party in a succession cause. In a succession cause a party seeking a remedy related to the cause does not have to go to the Environment and Land Court to institute proceedings.
9. This is a subsidiary issue arising out of contested succession proceedings. I find that this court is possessed of jurisdiction to her and determine this application.
10. It is not in dispute that this case has been concluded in favour of the applicant and that the respondent's application for stay was dismissed for lack of merit. The respondent has not obtained stay pending appeal from the Court of Appeal. Its not appropriate for the respondent to hold the applicant and the beneficiaries at ransom pending prosecution of his appeal.
11. It is my considered opinion that the caution placed on LR. KAGAARI/KANJA/350 does not serve any useful purpose now that this cause has been determined.
12. I find this application merited and allow it as prayed.
13. Each party to meet its own costs.
DELIVERED, DATED AND SIGNED AT EMBU THIS 22ND DAY OF MARCH, 2017.
F. MUCHEMI
J U D G E
In the presence of:-
Mr. Mutuma for Kamunyori for Respondent
Respondent present