[2015] KEHC 1443 (KLR)
The court found that the applicant, as administrator of the estate, had provided credible and unopposed evidence that the restriction or caution on land reference No. Kyeni/Kigumo/1485 was lodged by the respondent without legal justification. The respondent had not objected to the grant or protested its...
Source-derived case information.
- Citation
- [2015] KEHC 1443 (KLR)
- Parties
- Applicant: Jimkassim Mugo Gakiavu; Respondent: Peter Murithi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 497 of 2014
- Procedural Posture
- Succession Cause / Chamber Summons Ruling
- Outcome
- application allowed
- Legal Topics
- Removal of Caution, Probate and Administration, Confirmed Grant, Land Restrictions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jimkassim Mugo Gakiavu
Applicant
Peter Murithi
Respondent
Procedural Posture
Succession Cause / Chamber Summons Ruling
Legal Issues
- 1 Whether the restriction or caution lodged by the respondent on land reference No. Kyeni/Kigumo/1485 should be lifted.
- 2 Whether the respondent had any legal justification for lodging the caution or restriction.
Ratio Decidendi
The court found that the applicant, as administrator of the estate, had provided credible and unopposed evidence that the restriction or caution on land reference No. Kyeni/Kigumo/1485 was lodged by the respondent without legal justification. The respondent had not objected to the grant or protested its confirmation, and failed to appear or respond to the application despite proper service. The court concluded that there was no legal basis for the caution or restriction and ordered its removal, thereby allowing the application as prayed.
Court Disposition
application allowed
Orders
- The restriction and/or caution lodged in respect of land reference No. Kyeni/Kigumo/1485 is hereby removed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCCESSION CAUSE NO. 497 OF 2014
IN THE MATTER OF THE ESTATE OF IRERI GAKIAVU (DECEASED)
JIMKASSIM MUGO GAKIAVU.......................................................................................APPLICANT
VERSUS
PETER MURITHI .........................................................................................................RESPONDENT
RULING
By their chamber summons dated 14th August, 2015 brought under Rules 49, 59 (3) of the Probate and Administration Rules, counsel for the applicant have applied for an order to direct the lifting of a restriction and/or caution lodged in respect of land reference No. Kyeni/Kigumo/1485. The applicant has annexed a supporting affidavit.
The Respondent did not appear nor did he file a replying affidavit, notwithstanding that he was served with a notice of hearing. I have perused the affidavit of service and I am satisfied that he was properly served and had adequate notice of the hearing of this application.
According to the Applicant's affidavit, the said land parcel was granted to Ceaser Murithi Gakiavi through a confirmed grant dated 15th June, 2015. The Respondent never lodged any objection to the petition for letters of administration intestate nor did he file a protest to the confirmation of the grant.
Furthermore, the applicant was shocked to learn that the land had been cautioned by the respondent and for this reason, he was unable to pay stamp duty.
I have considered the affidavit evidence of the applicant who is the administrator of the estate of the deceased. I find that the said evidence is credible and is unopposed.
In the circumstances, I find no legal justification for the lodging of the caution or restriction. I hereby order for its removal.
The application is therefore allowed in terms of prayer (a) of the chamber summons.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 1stday of SEPTEMBER, 2015
In the presence of the applicant and in the absence of the Respondent
Court clerk. R Njue
J.M. BWONWONGA
JUDGE
01. 09. 15