[2023] KEHC 25751 (KLR)

In re Estate of Kaidongo Naimuye Passhu (Deceased) (Succession Cause 949 of 1994) [2023] KEHC 25751 (KLR) (Family) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25751 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 949 of 1994

MA Odero, J

November 17, 2023

IN THE ESTATE OF KAIDONGO NAIMUYE PASSHU(DECEASED)

Between

Yiasi Kaidongo Passhu

1st Applicant

Koitutittei Passhu

2nd Applicant

and

The Hon Attorney General

1st Respondent

The District Land Registrar, Kajiado

2nd Respondent

Ruling

1. Before this court for determination is the summons dated 15th July 2022 by which the applicants Yiasi Kaidongo Passhu and Koitu Tiitei Passhu seek the following orders:-1. That an order directed to the District Land Registrar, Kajiado be granted compelling him to register the transfers by way of transmission, submitted/lodged by the Applicants vide their application dated 2nd September, 2021 in respect to property title number Kajiado/Kaputiei North/14282. That costs for this application be provided for.3. That this Honourable court be pleased to grant such further orders as it may deem just and fit in the circumstances of this cause.

2. Summons which were premised upon rule 49 and 73 of the Probate and Administration rules were supported by affidavits of even dates and the further affidavit dated 16th February 2023 both sworn by the 1st applicant.

3. The 2nd Respondent B.K Letich being the District Land Registrar, Kajiado County opposed the application through his replying affidavit dated 6th February 2023.

4. The matter was canvassed by way of written submissions. The Applicants filed their written submissions dated 28th February 2023 whilst the Respondents did not file any submissions.

Background 5. This succession cause relates to the estate of the late Kaidongo Naimuye Passhu who died intestate on 9th July 1991.

6. Following the demise of the deceased Grant of Letters of Administration Intestate were on 1st August 1994 made to the Applicants who are the window and son of the deceased. The Grant was duly confirmed on 24th February 1995 vide the Certificate of Confirmed Grant. The property known as Kajiado/Kaputei/1428 was to devolve to the widow Yiasi Kaidongo Passhu to hold the same in trust for the children of the deceased.

7. The applicants aver that they have been unable to pursue the registration of said Title by transmission as the original Title Deed was missing. The Applicants therefore proceeded with gazettement of the loss in order to secure a fresh Title Deed.

8. However upon approaching the Registrar of Lands Kajiado for transmission of the Title it was noted that one Washington Njoroge had registered a caution against the said Title claiming a purchasers interest.

9. The Applicants objected to the caution on grounds that the said Washington Njoroge was a stranger to the estate. That despite the Registrar writing a letter dated 25th February 2020 notifying the cautioner that the caution would be removed within 21 days which notice has long expired the Registrar has not acted to remove the said caution.

10. The Applicant state that they and their advocates have been pushing to have their documents registered but the Registrar of Lands has illegally refused to act. They now pray that the court compel the Registrar to act.

11. The 2nd Respondent in his replying Affidavit avers that records at the Kajiado Land Registry indicate that LR. No. Kajiado/Kaputei North/1103 was sub-divided giving rise to Kajiado Kaputei North/1428 which is the suit land herein and Kajiado Kaputei North/1429.

12. That Kajiado Kaputei North /1428 was on 9th January 1990 registered. However on 11th March 1996 Washington Karanja registered a caution against the Land claiming a purchasers interest.

13. The 2nd Respondent concedes that the Applicants hold a confirmed grant in respect of the estate of the deceased’s estate. However the Land Registrar states that the applicants have been unable to explain how the deceased came to own Kajiado Kaputei North 4199 and Kajiado Kaputei North/4200, when no records exist regarding any subdivision of Kajiado Kaputei North /1428.

14. That a site visit was arranged but before that visit could take place the Applicants filed this present application.

15. The 2nd respondent states that there are cases pending in the Environment and Land Court relating to the issue being Kajiado ELC No. 47 of 2018. He urges the court to allow the ELC to determine the matter.

Analysis and Determination 16. I have carefully considered the application before this court, the reply filed thereto as well as the written submissions filed by both parties.

17. The 2nd Respondent in his reply stated that Kajiado Kaputei North/4199 and Kajiado Kaputei North/4200 were opened in the names of the Applicants on 4th November 1993. That records and registers in respect of the two parcels of land do not indicate the original sub- division numbers. The Land Registrar challenges the Applicants to provide proof that Plot 1428 was sub- divided to give rise to plots 4199 and 4200.

18. Section 9 of the Land Act 2012 places upon the Land Registrar the duty to keep all records relating to land. Indeed in the date of Esther Kabugi Njuguna –vs Martha Chebet & 3others[2020]eKLR Hon. Justice Mutungi stated that:-“The Lands Registrar is the custodian of all land records and is expected to have custody of all copies of registered instruments and when such are not available questions of complicity on the part of the officer are bound to arise.

19. The 2nd respondent is the legal custodian of all records relating to Land in Kajiado County. He cannot turn around and demand from applicants documents which ought to be in his possession.

20. If the 2nd respondent has reason to believe that Title to plot 1428 was acquired illegally or through fraud then the proper procedure is to file a complaint with the Director Criminal Investigations.

21. The applicants hold a confirmed Grant detailing the manner in which plot 1428 is to be distributed. Any person who has a claim and/or interests in the suit land is at liberty to file suit against the Administrators of the estate in ELC.

22. The 2nd respondent has cited Kajiado ELC case No. 47 of 2018 as a reason for his refusal to registered the transmissions documents. I have perused the Amended plaint dated 6th October 2021 filed in said case. The said suit relates to Kajiado Kaputei North Plots 17281 to 17285 and Kajiado Kaputei North 4614, 4615, 4616 and 4199. No mention is made of plot 1428 which is the subject matter of this estate neither are the applicants or the deceased parties to ELC No. 47 of 2018.

23. If the said Washington Karanja wishes to pursue his claim to plot 1428 then he must file a suit in the ELC against the Administrators. The Land Registrar cannot purport to act for this cautioner.

24. In the premises I find merit in this application. The 2nd respondent is directed to register the transfers by way of submission or use documents lodged by the applicants herein with respect of the property known as Kajiado/Kaputei North/1428 within fourteen (14) days of the date of this ruling.

25. No orders on costs.

DATED IN NAIROBI THIS 17TH DAY OF NOVEMBER, 2023…………………………………MAUREEN ODEROJUDGE