[2018] KEHC 9765 (KLR)
The court found that there was no substantive dispute regarding the confirmed grant except for the issue of the extra ½ acre in Limuru/Bibirioni/39. Given the ongoing lack of cooperation and the potential for further delay, the court exercised its discretion to amend the grant to allocate 2 acres to Gikebe Gitembei,...
Source-derived case information.
- Citation
- [2018] KEHC 9765 (KLR)
- Parties
- Applicant: Paul Mburu Njoroge; Respondent: Joseph Waweru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 409 of 1987
- Procedural Posture
- Succession Cause / Ruling on Post Confirmation Distribution Application
- Outcome
- Application allowed with modifications and operative orders issued.
- Judges
- A Ali-Aroni
- Legal Topics
- Succession of Estates, Grant Confirmation, Land Distribution, Title Cancellation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Mburu Njoroge
Applicant
Joseph Waweru
Respondent
Procedural Posture
Succession Cause / Ruling on Post Confirmation Distribution Application
Legal Issues
- 1 Whether the Registrar should execute documents to facilitate distribution of the estate as per the confirmed grant.
- 2 Whether the titles issued for L.R. No. Limuru/Bibirioni/39 should be cancelled and the original title restored for redistribution.
- 3 Whether the government District Surveyor and OCS Tigoni Police Station should oversee subdivision and enforcement of the orders.
Ratio Decidendi
The court found that there was no substantive dispute regarding the confirmed grant except for the issue of the extra ½ acre in Limuru/Bibirioni/39. Given the ongoing lack of cooperation and the potential for further delay, the court exercised its discretion to amend the grant to allocate 2 acres to Gikebe Gitembei, ordered the Land Registrar to cancel any titles issued from Limuru/Bibirioni/39 and restore the original title, and directed the Registrar of the High Court to execute all necessary documents to facilitate the transfers. The Government District Surveyor was tasked with overseeing the subdivision in accordance with the confirmed grant, and the OCS Tigoni Police Station was...
Court Disposition
Application allowed with modifications and operative orders issued.
Orders
- The Grant be amended to the extent that Gikebe Gitembei gets 2 acres of Limuru/Bibirioni/39.
- The Land Registrar Kiambu cancels titles if any issued from L.R. No. Limuru/Bibirioni/39 and restores the original title.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
SUCCESSION CAUSE NO. 409 OF 1987
IN THE ESTATE OF JOHANA GITEMBEI ALIAS GITEMBEI GIKEBE
PAUL MBURU NJOROGE..............................................................APPLICANT
VERSUS
JOSEPH WAWERU...................................ADMINISTRATOR/RESPONDENT
R U L I N G
1. Before court is an application dated 13th July 2017 seeking for orders that:
(1) The Registrar do execute all the relevant documents to facilitate the distribution of the estate.
(2) The Registrar cancels the titles issued for L.R. No. Limuru/Bibirioni/39, the original title be restored and the property be re-distributed as per the ruling of 14th January, 2011.
(3) That the government District Surveyor oversees the subdivision of parcel No. Limuru/Bibirioni/39 as per the ruling of 11th January, 2011.
(4) The OCS Tigoni Police Station oversees the enforcement of these orders.
(5) That the costs of the application and consequential distribution (sic) be shared equally amongst the houses of the deceased.
2. The application is based on the affidavit of the applicant Joseph Waweru and on grounds that, the parties were directed on how the estate was to be shared in the ruling of 11th January 2011 was likely to have the registrar execute the transfer, and the co-administrator has passed away.
3. In the supporting affidavit of even date, the applicant contends that beneficiaries have failed to co-operate in order to have the estate distributed, the deceased administrator leased out land distributed to other beneficiaries, and there is need to restore the title No. Limuru/Bibirioni/39 to its original form to allow re-distribution.
4. In a replying affidavit by one Gikebe Gitembei he states that the 1st house has always been willing to cooperate, that the widow of co-administrator relocated and the property has not leased out as alleged, that Limuru/Bibirioni/39 is 13. 6 acres and not 12. 5 acres and after distribution ½ acre remains, which the applicant wants to keep to himself, and there is need to see the title for the Subukia farm.
5. In a rejoinder the applicant states that he is not interested in the ½ acre in the Limuru/Bibirioni/39 property and that title for the Subukia has not issued.
6. Having considered the application there appears to be no contention with the Grant as issued save for the extra ½ acre in the Limuru land. However the bad blood between the beneficiaries is likely to delay this old matter. Consequently I order and direct as follows:
a. The Grant be amended to the extent that Gikebe Gitembei gets 2 acres of Limuru/Bibirioni/39.
b. The land Registrar Kiambu cancels titles if any issued from L. R. No. Limuru/Bibirioni/39, restores the original title.
c. The Registrar High Court executes all relevant documents to facilitate transfers in line with the amended confirmed grant.
d. The Government District Surveyor oversees the subdivision of Parcel No. Limuru/Bibirioni/39 in accordance with the confirmed Grant.
e. The O.C.S Tigoni Police Station do oversee the enforcement of the order.
f. Costs of subdivision and/or related expenses be shared equally by the two houses of the deceases.
DATED, SIGNEDandDELIVEREDat NAIROBI this 15th DAY OF November, 2018.
…………………………………….
ALI-ARONI
JUDGE