[2011] KEHC 2050 (KLR)
The court found that the applicant, as administrator, is entitled to effect registration of the deceased's land in accordance with the confirmed grant. The respondent's previous suit against the deceased for the land was dismissed, and although he has appealed, there is no court order restraining the use or disposal...
Source-derived case information.
- Citation
- [2011] KEHC 2050 (KLR)
- Parties
- Applicant: Patricia Gitiri Mugushu; Respondent: Dickson Muriuki Karigi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 23 of 2009
- Procedural Posture
- Succession Cause / Ruling on Application to Effect Registration of Land
- Outcome
- application allowed with costs to the applicant
- Judges
- AO Muchelule
- Legal Topics
- Administration of Estates, Confirmation of Grant, Land Registration, Cautions on Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patricia Gitiri Mugushu
Applicant
Dickson Muriuki Karigi
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Effect Registration of Land
Legal Issues
- 1 Whether the applicant is entitled to effect registration of the deceased's land despite a caution by the respondent.
- 2 Whether the respondent's pending appeal or previous claim creates a legal bar to registration in the succession proceedings.
Ratio Decidendi
The court found that the applicant, as administrator, is entitled to effect registration of the deceased's land in accordance with the confirmed grant. The respondent's previous suit against the deceased for the land was dismissed, and although he has appealed, there is no court order restraining the use or disposal of the land. The respondent did not assert a purchaser's interest in the succession proceedings, and his alternative remedy for refund of the purchase price remains available if he is unsuccessful in the appeal. Therefore, the caution lodged by the respondent does not constitute a legal bar to registration, and the application to effect registration is merited and allowed.
Court Disposition
application allowed with costs to the applicant
Orders
- The application to effect registration of land parcel MBETI/GACHURIRI/346 in the names of the applicant and her children is allowed.
- The respondent's caution does not bar registration under the confirmed grant.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
SUCCESSION CAUSE NO. 23 OF 2009
In the matter of the Estate of Festus Mugushu alias Festus H.N. Mugushu – ( Deceased)
AND
PATRICIA GITIRI MUGUSHU …………..............…. ADMINISTRATOR/APPLICANT
VERSUS
DICKSON MURIUKI KARIGI…..…………….............................……….RESPONDENT
R U L I N G
The deceased Festus H.N. Mugushu died intestate on 2nd March 2008 leaving a parcel of land MBETI/GACHURIRI/346. His widow the (Applicant) successfully petitioned for Letters of Administration which were confirmed. It was ordered that the land parcel be registered in the names of the Applicant and her children. The Applicant is unable to effect the registration because the land has been cautioned by the Respondent.
The Respondent had in CMCC No. 260 of 2008 at Embu sued the deceased claiming this land which he said he had bought from him. The Respondent had alternatively sought a refund of the purchase price together with interest at the rate of 50% per year. The suit was dismissed with costs. The Respondent has appealed to the High Court but has no order barring the use or disposal of theland. His argument is that if the present application is allowed he will lose the land and yet he has a good appeal.
It is not for this court to estimate the chances that the appeal will have. It is, however, important to point out that the Respondent did not claim a purchaser’s interest to the land in this Succession proceedings. It is also material that the Respondent had an alternative prayer for the refund of the purchase price. If he loses the land he could still claim the purchase price.
In short, the application has merit and it is allowed with costs.
DATED, SIGNED AND DELIVERED AT EMBU THIS 28TH DAY OF JULY 2011.
A.O. MUCHELULE
JUDGE