[2010] KEHC 2535 (KLR)
The court found that the respondent had refused to surrender the title deeds for the properties listed in the confirmed grant, and that there was no evidence to controvert the applicant's averments. The court held that the actualization of the confirmed grant required the surrender or dispensation of the title...
Source-derived case information.
- Citation
- [2010] KEHC 2535 (KLR)
- Parties
- Applicant: Peter J. Kiama Mwangi; Respondent: Fredrick Wambugu Mwangi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 182 of 1999
- Procedural Posture
- Succession Cause / Ruling on Ex Parte Summons to Dispense With Production of Title Deeds
- Outcome
- application allowed
- Legal Topics
- Administration of Estates, Confirmation of Grant, Transfer of Land Titles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter J. Kiama Mwangi
Applicant
Fredrick Wambugu Mwangi
Respondent
Procedural Posture
Succession Cause / Ruling on Ex Parte Summons to Dispense With Production of Title Deeds
Legal Issues
- 1 Whether the court should dispense with the production of title deeds to effect transfer of properties listed in the confirmed grant.
- 2 Whether the respondent's refusal to surrender the title deeds justifies the court's intervention under Section 33 of the Registered Land Act.
Ratio Decidendi
The court found that the respondent had refused to surrender the title deeds for the properties listed in the confirmed grant, and that there was no evidence to controvert the applicant's averments. The court held that the actualization of the confirmed grant required the surrender or dispensation of the title deeds. In the absence of cooperation from the respondent, and pursuant to Section 33 of the Registered Land Act, the court exercised its discretion to allow the application and ordered that the production of the title deeds be dispensed with to facilitate the transfer of the properties as per the confirmed grant.
Court Disposition
application allowed
Orders
- Production of the title deeds for the properties listed in the confirmed grant is dispensed with for purposes of transfer.
- The Land Registrar is directed to effect the transfer of the properties without requiring the original title deeds.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Succession Cause 182 of 1999
IN THE MATTER OF THE ESTATE OF FRANCIS MWANGI WAIGWA – DECEASED
PETER J. KIAMA MWANGI.............................................................APPLICANT
VERSUS
FREDRICK WAMBUGU MWANGI...........................................RESPONDENT
RULING
PETER J. KIAMA MWANGI, invoked the inherent jurisdiction of the court underrule 73of the Probate and Administration Rules where upon he took out the Summons dated 4th March 2010 praying for an order dispensing with the production of the title deeds to effect the transfer of various properties stated on the certificate of Confirmation of Grant. The Applicant swore an affidavit which he filed in support of the Summons. The application was served upon FREDRICK WAMBUGU MWANGI, hereinafter referred to as the ‘Respondent’, but the same attracted no response hence the Applicant was granted leave to prosecute the applicationexparte.
The main ground advanced in support of the application is that the Respondent has refused to surrender the titles which are in his possession despite the fact that the grant has been confirmed and no one has applied for its nullification. It is said that the Respondent has always been uncooperative and that is why this court issued an order authorizing the Deputy Registrar to execute the transfer documents in place of the Respondent.
I have considered the averments contained in the affidavit of Peter J. Kiama Mwangi. There is no affidavit to controvert the fact that the confirmed grant contains the schedule of the distribution of assets of the Estate. There is also no dispute that Fredrick Wambugu Mwangi has refused to surrender titles in respect of properties stated in the confirmed grant. It is a requirement that the terms of the confirmed grant can only be actualized if the titles are surrendered to the Lands Office or this court issues an order directing the Land Registrar to dispense with their production underSection 33of the Registered Land Act (Cap. 300 Laws of Kenya). I find the application to be with merit. The same is allowed as prayed.
Dated and delivered at Nyeri this 14th day of May 2010.
J. K. SERGON
JUDGE
In open court in the presence of Mr. Ng’ang’a for Applicant and no appearance Respondent.