[2021] KEHC 3708 (KLR)
The court found that the 1st Respondent/Administrator had failed to comply with previous court orders requiring him to complete the administration of the estate and to surrender the original title deeds necessary for the distribution of the estate. The evidence, including bank documents and discharge of charge...
Source-derived case information.
- Citation
- [2021] KEHC 3708 (KLR)
- Parties
- Applicant: Miriam Kendi Muthui; Applicant: Catherine Kinya Muthui; Respondent: James Kimathi Muthui; Respondent: Lincoln Muthui Muita
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 398 of 2012
- Procedural Posture
- Succession Cause / Ruling on Application for Dispensation With Production of Original Title Deeds and Compliance With Distribution Orders
- Outcome
- Application allowed. Orders granted as prayed.
- Judges
- TW Cherere
- Legal Topics
- Administration of Estates, Confirmation of Grant, Compliance With Court Orders, Distribution of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Miriam Kendi Muthui
Applicant
Catherine Kinya Muthui
Applicant
James Kimathi Muthui
Respondent
Lincoln Muthui Muita
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Dispensation With Production of Original Title Deeds and Compliance With Distribution Orders
Legal Issues
- 1 Whether the District Land Registrar Meru should be directed to dispense with production of original title deeds for the listed properties in the distribution of the deceased's estate.
- 2 Whether the 1st Administrator/Respondent has failed to comply with court orders and his duties under the Law of Succession Act.
- 3 Whether costs should be borne by the 1st Administrator for non-compliance.
Ratio Decidendi
The court found that the 1st Respondent/Administrator had failed to comply with previous court orders requiring him to complete the administration of the estate and to surrender the original title deeds necessary for the distribution of the estate. The evidence, including bank documents and discharge of charge certificates, demonstrated that the alleged encumbrances on the properties had been resolved and that the titles were available to the 1st Administrator. The court held that the 1st Administrator's actions and omissions amounted to a deliberate disregard of court orders and a failure to fulfill his statutory duties under the Law of Succession Act. Consequently, the court exercised...
Court Disposition
Application allowed. Orders granted as prayed.
Orders
- The District Land Registrar Meru shall dispense with production of the original titles for NYAKI/KITHOKA/1450, NYAKI/KITHOKA/1449, NYAKI/KITHOKA/1495, NYAKI/KITHOKA/1842, NYAKI/KITHOKA/2279, NYAKI/IGOKI/949, NYAKI/IGOKI/5454, and KIANJAI/MITUNTU/273 in the distribution of the deceased's estate.
- The orders be served upon District Land Registrar Meru for compliance.
Full Case Text
Judgment text and source record
58 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
SUCCESSION CAUSE NO. 398 OF 2012
IN THE MATTER OF THE ESTATE OF EUTYCUS MUTHUI (DECEASED)
BETWEEN
MIRIAM KENDI MUTHUI................................................................1ST APPLICANT
CATHERINE KINYA MUTHUI........................................................2ND APPLICANT
AND
JAMES KIMATHI MUTHUI.........................................................1ST RESPONDENT
LINCOLN MUTHUI MUITA........................................................2ND RESPONDENT
RULING
1. By a ruling dated 18th March, 2021, this court made the following orders:
a)TheAdministrator/1st Respondent is hereby granted 30 days from today’s date to complete the administration of the deceased’s estate in terms of Amended Certificate of Confirmation of Grant dated 27th April, 2020
b)In default of compliance with order (1) above, theDeputy Registrar of this court is hereby empowered to sign the transfer forms on behalf of the Administrator.
2. Having failed to comply with the court orders, the Applicants by chambers summons dated and filed on 20th May, 2021 seek orders THAT:
1)The court directs that the District Land Registrar Meru dispenses with production of the following original titles
(a) NYAKI/KITHOKA/1449
(b) NYAKI/KITHOKA/1450
(c) NYAKI/KITHOKA/1495
(d) NYAKI/KITHOKA/1842
(e) NYAKI/KITHOKA/2279
(f) NYAKI/IGOKI/949
(g) NYAKI/IGOKI/5454
(h) KIANJAI/MITUNTU/273
2) The orders be served uponDistrict Land Registrar Meru for compliance
3) Costs be provided for
3. The Applicants contend that the 1st Petitioner/Respondent has refused to cooperate and surrender the titles which are in his possession to the Land Registrar thus rendering distribution unattainable.
4. The 1st Respondent by his replying affidavit sworn and filed on 02nd June, 2021 avers that no request to surrender the title deeds has been made and that this application is a ploy to deny him his costs incurred in the administration of the estate. He additionally states that NYAKI/KITHOKA/1449 and NYAKI/KITHOKA/1450 are charged in favour of Standard Chartered Bank, NYAKI/KITHOKA/1573is charge in favour of Kenya Commercial Bank and NYAKI/IGOKI/1166in favour of Consolidated Bank of Kenya.
5. JOEL KITHINJI MUTHUI, a beneficiary in his replying affidavit sworn on 14th June, 2021 avers that Standard Chartered Bank granted him and the deceased facilities over NYAKI/KITHOKA/1449 and NYAKI/KITHOKA/1450. He states that the facilities were settled in full before deceased’s demise and that titles were subsequently collected by the deceased’s widow and the 1st Administrator. In support thereof, he has tendered annexures marked JKM2 which are a note from the bank and a bank slip by which the 1st Administrator paid Kshs. 1,000/- to Standard Chartered Bank on 01st December, 2018 for discharge of NYAKI/KITHOKA/1449 and NYAKI/KITHOKA/1450.
6. Concerning NYAKI/IGOKI/1166,the 1st Applicant in her replying affidavit sworn on 14th June, 2021 has tendered annexure marked MKM 2 which is a discharge of charge by Consolidated Bank of Kenya over the said asset. A copy of official search for NYAKI/KITHOKA/1448 marked MKM 2 confirms the asset was transferred to the 1st Administrator on 29. 10,2020 and that the title is free from any encumbrances.
Analysis and determination
7. I have considered the application in the light of the supporting affidavit, the replying affidavits and submission on behalf of the parties.
8. In my ruling in this matter rendered on 18th March, 2021, I reiterated the provisions of Section 83 of the Law of Succession Act more particularly subsection (g) which requires the personal representative to complete the administration of the estate within six months from the date of confirmation of the grant, or such longer period as the court may allow.
9. It has been borne from affidavits evidence that the 1st Respondent is neither desirous nor prepared to comply with court orders requiring him to complete the administration of the estate.
10. The material presented before the court creates a doubt as to the 1st administrator’s assertion that he has been unable to complete the administration for the reason that some assets are encumbered. This is clearly borne from the fact that NYAKI/KITHOKA/1448 which he claims is encumbered has been transferred to him. He has similarly not controverted evidence in the form of discharge of charge and bank documents confirming the release of titles to him and this court therefore makes a finding that the 1st Administrator is being economical with the truth.
11. And even if the assets are encumbered as alleged, Section 83 (d) of the Law of Succession Act requires administrators to ascertain and pay, out of the estate of the deceased, all his debts. The 1st Administrator has not offered any explanation why he has failed in his duties and he should be warned that the court has powers to revoke the grant of representation on account of his failure to proceed diligently with the administration of the estate.
12. The orders of 18th March, 2021 empowering the Deputy Registrar of this court to sign the transfer forms on behalf of the 1st Administrator cannot be attained without the original title deeds whose whereabouts are in doubt
13. From the totality of the material presented before the court, I find that the 1st Respondent has by his actions and omissions made a mockery of this court orders thus exposing the court to ridicule and this court will not deliberately ignore such blatant contempt of its orders.
14. This court has a moral and constitutional duty to protect its integrity from abuse and will not shy away from making orders that ensure that realization. Having considered the chambers summons dated and filed on 20th May, 2021, I make orders that in distributing the deceased’s estate as ordered by this court:
1) The District Land Registrar Meru shall dispense with production of the following original titles:
(a) NYAKI/KITHOKA/1450
(b) NYAKI/KITHOKA/1449
(c) NYAKI/KITHOKA/1495
(d) NYAKI/KITHOKA/1842
(e) NYAKI/KITHOKA/2279
(f) NYAKI/IGOKI/949
(g) NYAKI/IGOKI/5454
(h) KIANJAI/MITUNTU/273
2)The orders be served uponDistrict Land Registrar Meru for compliance
3)Costs shall be borne by the 1st Administrator.
DATED AT MERU THIS 23RD DAY OF SEPTEMBER 2021
WAMAE. T. W. CHERERE
JUDGE
Court Assistant -Morris Kinoti
For Applicants - M/s. Kevin Nyenyire & Co. Advocates
For 1st Respondent - N/A for M/s. Thangichia M.David Advocates
For 2nd Respondent - N/A