[2023] KEHC 19672 (KLR)
The court found that the applicant failed to make adequate efforts to trace the heirs of the deceased co-owners of the property in question. The absence of evidence showing attempts to involve the local Chief or to notify the families of the other deceased co-owners was fatal to the application. The court held that,...
Source-derived case information.
- Citation
- [2023] KEHC 19672 (KLR)
- Parties
- Applicant: Francis Kimani Wainaina; Respondent: Land Registrar Kiambu; Respondent: Land County Surveyor Kiambu; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 830 of 1997
- Procedural Posture
- Succession Cause / Ruling on Notice of Motion
- Outcome
- application dismissed
- Judges
- MA Odero
- Legal Topics
- Succession of Estates, Co Ownership of Land, Missing Title Deed
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Kimani Wainaina
Applicant
Land Registrar Kiambu
Respondent
Land County Surveyor Kiambu
Respondent
Attorney General
Respondent
Procedural Posture
Succession Cause / Ruling on Notice of Motion
Legal Issues
- 1 Whether the applicant is entitled to a 1/3rd share in LR No Karai/Karai/77 as claimed.
- 2 Whether the applicant has made sufficient efforts to trace the heirs of the deceased co-owners.
- 3 Whether the application can succeed in the absence of objections or input from the heirs of the other co-owners.
Ratio Decidendi
The court found that the applicant failed to make adequate efforts to trace the heirs of the deceased co-owners of the property in question. The absence of evidence showing attempts to involve the local Chief or to notify the families of the other deceased co-owners was fatal to the application. The court held that, in succession matters involving jointly owned property, all interested parties or their representatives must be given an opportunity to be heard. The applicant's failure to fulfill this procedural requirement rendered the application without merit, leading to its dismissal.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated August 24, 2021 is dismissed in its entirety.
- No orders as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
In re Estate of Elizabeth Wambui Wainaina (Deceased) (Succession Cause 830 of 1997) [2023] KEHC 19672 (KLR) (Family) (23 June 2023) (Ruling)
Neutral citation: [2023] KEHC 19672 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Succession Cause 830 of 1997
MA Odero, J
June 23, 2023
IN THE MATTER OF THE ESTATE OF ELIZABETH WAMBUI WAINAINA (DECEASED)
Between
Francis Kimani Wainaina
Applicant
and
Land Registrar Kiambu
1st Respondent
Land County Surveyor Kiambu
2nd Respondent
Attorney General
3rd Respondent
Ruling
1. I have considered the Notice of Motion dated August 24, 2021, I note that the Applicant is claiming a 1/3rd share in LR No Karai/Karai/77. This parcel of land was jointly owned by the Deceased and the following persons:-(1)Mwaura Wanaina A(2)Mwaura Wanaina B(3)Gathoni Wanaina(4)Elizabeth Wambui Wanaina (the Deceased in this Succession Cause)
2. The Applicant claims that the original Title Deed is missing and he is unable to trace the Co-owners who are Deceased. Even if that is the case the Applicant ought to be able to trace the heirs of the estates of the Co-owners who should come to court to indicate whether they have any objection to the application. The local Chief has not been contacted to tell the court what efforts if any have been made to trace the family of the three (3) deceased Co-owners.
3. Finally, I find no merit in the application dated August 24, 2021. The same is hereby dismissed in its entirety. No orders on costs.
RULING DELIVERED VIRTUALLY IN NAIROBI THIS 23RD DAY OF JUNE, 2023. ………………………………MAUREEN A. ODEROJUDGEIn the presence of:Mr. Maina for Applicants