[2022] KEHC 11345 (KLR)

In re Estate of Ishmael Muchiri Kinyangi (Deceased) (Succession Cause 15 of 2018) [2022] KEHC 11345 (KLR) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11345 (KLR)

Republic of Kenya

In the High Court at Chuka

Succession Cause 15 of 2018

LW Gitari, J

July 21, 2022

IN THE MATTER OF THE ESTATE OF ISHMAEL MUCHIRI KINYANGI (DECEASED)

Between

Mercy Kambura Muchiri

1st Applicant

Fridah Nkirote Muchiri

2nd Applicant

Purity Igoji Mugendi

3rd Applicant

Everlyn Mukwanyaga Ishmael

4th Applicant

Catherine Kaimuri Ishmael

5th Applicant

and

James Nyaga Muchiri

1st Respondent

Agusta Gatwiri Mugambi

2nd Respondent

Isaack Gitari Ishmael

3rd Respondent

Julian Wambeti Mugambi

4th Respondent

Fenkinson Mbae Muchiri

5th Respondent

Ruling

1. Before this court is the applicants’ application dated June 14, 2021. The application seeks for the following orders:a.That an order do issue restraining the respondents whether by themselves or through their agents or assigns from engaging the intervention and/or services of any persons inclusive of the County Commissioner, Tharaka Nithi County, County Surveyor, Tharaka Nithi County, District Surveyor or private surveyor for purposes of surveying L.R. No. Mwimbi/Murugi/253 and any of its subsequent subdivisions in any manner whose effect would be to alter, vary or revise the surveyor’s report filed herein and adopted by the court on 01/11/2019 or the orders of this court issued on 04/03/2021. b.That The Honourable court do authorize John Mugendi E. Ngai T/A Tacet Auctioneers to act at the court bailiff and evict:-i.James Nyaga Muchiri from L.R. No. Mwimbi/Murugi/5759. ii.Augusta Gatwiri Mugambi from L.R. Nos. Mwimbi/Murugi/5755 & 5756. iii.Julian Wambeti Mugambi from L.R. Nos. Mwimbi/Murugi/5755 & 5756. iv.Isaack Gitari Ishmael from L.R. No. Mwimbi/Murugi/5763. v.Fenikson Mbae Muchiri from L.R. No. Mwimbi/Murugi/5761. c.Thatthe OCS Chogoria Police Station to provide security to the court bailiff in the enforcement of the orders granted by this court.d.That therespondents do bear the costs of this application.

2. The application is premised on the grounds on the face of it and it is supported by the affidavit sworn by Mercy Kambura Muchiri on June 14, 2021.

3. The application is opposed through a replying affidavit filed on 1December 5, 2021and sworn by the 3rd respondent on his own behalf and on behalf of the other respondents herein. It was deponed that the survey report herein is biased and will only result in the displacement and disruption of their lives to their detriment.

4. The application was canvassed by way of written submissions.

Applicants’ Submissions 5. The applicants filed their written submissions on May 9, 2022. The submitted that the ruling of this court delivered on March 4, 2021was to the effect that therespondent were ordered to relocate to their respective parcels of land in order to be in conformity with the distribution of the estate as decreed in the certificate of confirmation of grant. The applicants however allege that the respondents have blatantly declined to obey the said order hence prompting the applicants to move this court to give effect to that order. It was thus their submission that court orders are not made in vain and that this court is vested with the necessary jurisdiction to issue the order sought herein.

Respondents’ Submissions 6. On their part, the respondents filed their written submissions on February 24, 2022. They acknowledged that there was an order of this court directing them to move to their respective parcels of lands. They however contend that the said decision did not take into consideration the developments therein and therefore meant that a lot of people would be displaced, and their homes destroyed rendering them homeless.

7. The respondents further raised issue with the surveyor report that was used by the court. According to them, the report was preferred to a second report that had been availed and this in turn resulted in the applicants having an unfair advantage. They respondents thus submits that the property should be resurveyed by the County Surveyor to ensure that there is as little disruption as possible. They relied on the provisions under Rule 73 of the Probate and Administration Rulesand urged this court to dismiss the application.

Issue for determination 8. I have considered the application dated the June 2021, the affidavit in response to the application as well as the respective submissions by the parties. In my view, the main issue for determination is whether the orders as sought in the said application are merited.

Analysis 9. As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107 (1) of the Evidence Act (chapter 80 of the Law of Kenya), which provides:“107. (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

10. In this case, no evidence was produced by the applicants to substantiate the allegation that the respondents have engaged any person for purposes of resurveying the subject property. The respondents have also denied engaging the County Commissioner and they contend that the said County Commissioner only sought to arbitrate over the matter as he is allegedly aware of the dispute between the parties herein and is aware of the local terrain where the subject property stands.

11. The application is however expressed to be brought pursuant to the provisions of section 47 of the Law of Succession Act and Rules 49 and 73 of the Probate and Administration Rules. Section 47 of the Law of Succession Act vests on this court the power to make such orders with wide discretion to make such orders as may be expedient in the best interest of justice.

12. I note that the Ruling dated March 4, 2021 was also to the effect that if the parties defaulted in moving to their respective portions within 30 days from the saidMarch 4, 2021, the OCS Chogoria was to provide security when the grant was being enforced on the ground. The respondents did not prefer an appeal against this decision. Be that as it may, there is no proof that has been provided by the applicants to show that the parties failed to comply with the order or that the OCS Chogoria has failed to carry out his mandate as ordered in such an event of non-compliance.

13. In light of the foregoing, it is my view that the applicants have not shown that they have taken any steps to give effect to the order that was issued on March 4, 2021. As such, it is my view that the present application lacks merit.

14. On the other hand I have taken note of the issues raised by the respondent. This being a succession matter and involves members of the same family, this dispute should be settled amicably so that even after the matter is concluded by this court there will be peaceful co-existent and family ties be maintained. Although this court has dealt with this matter and what remains is to settle the parties on their respective portions as ordered in the confirmed grant. I would urge the parties that on this contention by the respondent that they stand to be displaced from parcels which they have occupied and developed for twenty years. I would urge the parties to go for mediation so that these issues can be ironed out and settled once and for all. This can still be done despite the stage at which this matter has now reached. Article 159(2) ( c) of the Constitution of Kenya 2010 states that-“In exercising Judicial authority, the courts and Tribunals shall be guided by the following principles-(c)alternative forms of dispute resolution including, reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promotes subject to clause (3).”I direct that this matter shall be referred to mediation by a court appointed mediator on the matters raised by the respondent that is;i.The issue of the survey.ii.The issue of the areas where the parties have developed.The Deputy Registrar to appoint a mediator. The report be filed within 45 days.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 21STDAY OF JULY 2022. L.W. GITARIJUDGE21. 7. 2022Ruling read out in open court .L.W. GITARIJUDGE