[2022] KEHC 10488 (KLR)

In re Estate of Francis Manyara (Deceased) (Succession Cause 96 of 1993) [2022] KEHC 10488 (KLR) (23 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10488 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 96 of 1993

TW Cherere, J

June 23, 2022

Between

Lucy Kathure Manyara

Applicant

and

Julia Kanyoni Manyara

1st Respondent

Jane Mwendwa Kimathi

2nd Respondent

Joseph Kinoti

3rd Respondent

and

Susan Nyaguthii Kinoti

Interested Party

Joseph Gacheche Kinoti

Interested Party

Francis Kathurima Kinoti

Interested Party

Michael Manyara Kinoti

Interested Party

Jane Karimi Muthee

Interested Party

Judith Karimi Manyara

Interested Party

Party Capital Sacco Ltd

Interested Party

Ruling

1. By summons dated 28th August, 2020, Lucy Kathure and Caroline Makena sought orders for revocation of the Further Amended Certificate of Confirmation of Grant dated 28th November, 2013 mainly on the ground that the share distributed to the daughters of the deceased was not identifiable the same having been described as balance to be held by Kinoti Manyara in trust for the daughters of the deceased.

2. When the matter came up before me for hearing on 10. 06. 2021, I perused the court file and seeing that the Further Amended Certificate of Confirmation of Grant dated 28th November, 2013 did not adequately provide for the daughters of the deceased granted an order for its revocation and also appointed two daughters of the deceased namely Lucy Kathure and Caroline Makena as co-administrators of the estate.

Summons 3. Subsequently, Lucy Kathure filed summons amended on 01. 12. 2021 seeking:a.That an order do issue directing the Land Registrar Meru County to cancel all the certificates of title on land parcels The sub-division of Ontulili/ontulili Block 1 (katheri) 1270, 1271, 1271, 2432, 2433, 2434 and 2435 previously Katheri Davis Nanyuki No. 534 and revert the title to the name of Francis Manyara (Deceased) notwithstanding that the resultant title deeds may not have ben surrenderedb.That deceased’s estate be distributed redistributed as follows:Abothuguchi/katheri/35¼ share each to- Julia Kanyoni Manyara (Life Interest) Jane Mwendwa Kimathi

Mwendwa Manyara

Tonny Mutuma Manyara

Bula Pesa Plot No. 921 Isiolo½ share developed to Tonny Mutuma Manyara½ share to Kinoti ManyaraMeru Municipality Plot No. B/9 “A½ share to Jane Mwendwa Kimathi½ share to Judithi Karimi ManyaraKibirichia Plot No. 84Kinoti ManyaraOntulili/Ontulili Block 1 (Katheri) formerly Katheri Davis Nanyuki No. 534Caroline Makena Manyara 1. 25 AcresLucy Kathure Manyara 1. 25 AcresJoy Karoki Manyara 1. 25 AcresSusan Kanana Manyara 1. 25 acresMary Mwendwa Manyara 1. 25 AcresJane Karimi Muthee 1. 25 AcresJudith Karimi Manyara 1. 25 AcresMarsabit Plot No 11699/8½ share to Jane Mwendwa Kimathi½ share to Judith Karimi ManyaraPlot No. 83 Likii NanyukiKinoti Manyara

4. The application is supported by the supporting affidavit sworn on 21st May, 2021 by Applicant. She avers that the asset previously known as Katheri Davis Nanyuki No. 534 was now LR. NO. Ontulili/Ontulili Block 1(Katheri)1270 which had been partitioned into 7 portioned 4 of which were registered in the names of his brother Kinoti Manyara’s wife and 3 children.

5. Kinoti Manyara, by his replying affidavit sworn on 29. 09. 2021 opposed the application on the ground that it is not merited for the reason that the estate was distributed with the consent of all the beneficiaries. Annexed to his affidavit is a Rectified Certificate of Confirmation of Grant dated 24. 10. 2019 by which deceased’s estate was distributed with the consent of all beneficiaries having signed a consent as follows:Juliah Kanyoni Manyara 26932 Ordinary Shares Barclays Bank of KenyaTonny Mutuma Manyara 2080 Ordinary Shares EABLAbothuguchi/katheri/35½ Share Tonny Mutuma Manyara½ Share jointly toMary Mwendwa ManyaraSusan Kanana Joy KarokiLucy KathureCaroline MakenaBula Pesa Plot No. 921 Isiolo½ share developed to Tonny Mutuma Manyara½ share to Kinoti ManyaraMeru Municipality Plot No. B/9 “A½ share to Lemmuel Kithinji Manyara½ share to David Kimathi ManyaraKibirichia Plot No. 84Kinoti ManyaraKatheri Davis Nanyuki No. 534Kinoti Manyara 4 AcresLemmuel Kithinji Manyara 3. 5 AcresJane Karimi Muthee 1 AcreKinoti Manyara Balance to hold in trust for deceased’s DaughtersMarsabit Plot No 11699/8½ share to David Kimathi Manyara½ share to Judith Karimi Manyara

6. Francis Kathurima Kinoti, s/o Kinoti Manyara by his replying affidavit sworn on 22. 2.2021 opposed the application on the ground that partitions from LR. NO. Ontulili/Ontulili Block 1(Katheri)1270 had already been disposed off to innocent purchasers for value.

7. Eliezer Kaburu, Chief Executive Officer of Capital Sacco Ltd by his replying affidavit sworn on 12. 10. 2021 deposed that Ontulili/Ontulili Block 1(Katheri)2424 which was a subdivision of Ontulili/Ontulili Block 1(Katheri)1270 had been charged for a loan of Kshs. 15,000,000/- by Susan Nyaguthii Kinoti and the Sacco stands to suffer loss if the title is cancelled.

Analysis & Determination 8. I have considered the summons in the light of the affidavits on record, the submissions by the parties. I have also considered the previous orders of this court and in particular the ruling dated 24. 11. 2019. By that ruling, the court rectified the error contained in the Further Amended Certificate of Confirmation of Grant dated 28th November, 2013 and by a Rectified Certificate of Confirmation of Grant dated 24. 10. 2019 distributed ½ share of Abothuguchi/katheri/35 to the daughters of the deceased namely Mary Mwendwa Manyara, Susan Kanana, Joy Karoki, Lucy Kathure and Caroline Makena.

9. The said Rectified Certificate of Confirmation of Grant dated 24. 10. 2019 reveals that Katheri Davis Nanyuki No. 534 which is now LR. No. Ontulili/Ontulili Block 1(Katheri)1270 was distributed as follows:Kinoti Manyara 4 AcresLemmuel Kithinji Manyara 3. 5 AcresJane Karimi Muthee 1 AcreKinoti Manyara Balance to hold in trust for deceased’s Daughters

10. The court record demonstrates that the application dated 17. 12. 2018 for rectification of the Further Amended Certificate of Confirmation of Grant dated 28th November, 2013 was supported by a consent dated 17. 12. 2018 signed by the widow and all the children of the deceased.

11. From the foregoing, I find that as at 10. 06. 2021 when this court allowed the summons dated 28th August, 2020, and revoked the Further Amended Certificate of Confirmation of Grant dated 28th November, 2013, the said Further Amended Certificate of Confirmation of Grant dated 28th November, 2013 did not exist the same having been rectified and a Rectified Certificate of Confirmation of Grant dated 24. 10. 2019 having been issued.

12. Having said that, I find that the orders dated 10. 06. 2021 revoking the Further Amended Certificate of Confirmation of Grant dated 28th November, 2013 were obtained by Lucy Kathure and Caroline Makena fraudulently and by the making of a false statement and/or by concealment from the court of the existence of The Rectified Certificate of Confirmation of Grant dated 24. 10. 2019 that had been issued with their consent and with the consent of all the other beneficiaries of the deceased.

13. As result, the orders that commend to this court and which I hereby issue are as follows:1)The order issued on 10. 06. 2021 revoking the Further Amended Certificate of Confirmation of Grant dated 28th November, 2013 is set aside in its entirety2)The order issued on 10. 06. 2021 appointing Lucy Kathure and Caroline Makena as co-administrators of deceased’s estate is similarly set aside in its entirety3)The summons amended on 01. 12. 2021 seeking an order to direct the Land Registrar Meru County to cancel all the certificates of title on land parcels The sub-division of Ontulili/ontulili Block 1 (katheri) 1270, 1271, 1271, 2432, 2433, 2434 and 2435 previously Katheri Davis Nanyuki No. 534 and revert the title to the name of Francis Manyara (Deceased) has no merit and it is dismissed4)It is ordered that the balance of Katheri Davis Nanyuki No. 534 which is now LR. No. Ontulili/Ontulili Block 1(Katheri)1270 which was distributed to Kinoti Manyara to hold in trust for deceased’s daughters be transmitted in the joint names of the daughters of the deceased namely Mary Mwendwa Manyara, Susan Kanana, Joy Karoki, Lucy Kathure and Caroline Makena5)Applicant shall bear the costs of this summons6)Mention on 19th October, 2022 to confirm compliance with order (4) above

DATED AT MERU THIS 23rd DAY OF JUNE 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Applicant - John Muthomi & Co. AdvocatesFor 1st Respondent - Leonard Ondari & Co. AdvocatesFor 2nd & 3rd Respondents - Mwirigi Kaburu & Co. AdvocatesFor the 3rd to 6th I.Parties - Kaberia Arimba & Co. AdvocatesFor 7th I.Party - Mwenda, Mwarania,Akwalu & Co. Advocates