[2019] KEHC 9708 (KLR)
The court found that the certificate of confirmation of grant dated 17th December 2018 did not reflect the orders made in the judgment delivered on 6th September 2017, as it included names not in the original judgment and failed to distribute the estate as previously ordered. The court exercised its powers under...
Source-derived case information.
- Citation
- [2019] KEHC 9708 (KLR)
- Parties
- Applicant: Waturi Kiago Mwaniki; Respondent: Elizabeth Nyaguthii Kiago; Respondent: Esther Waithiegeni Muchemi; Respondent: Joshua Kiago Kimuri; Respondent: Gladys Wangechi Kiago; Respondent: John Gachuche Kiago; Respondent: Michael Kariuki Kiago; Respondent: Jane Waguthii Kahoro; Respondent: Anderson Muchuche Kiago; Respondent: Waro Kiago
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1013 of 2011
- Procedural Posture
- Succession Cause / Ruling on Summons General for Execution of Transmission Documents and Revocation of Grant
- Outcome
- Application allowed; grant revoked and fresh grant to issue as per judgment.
- Judges
- NA Matheka
- Legal Topics
- Succession of Estates, Confirmation of Grant, Revocation of Grant, Distribution of Land, Administration of Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Waturi Kiago Mwaniki
Applicant
Elizabeth Nyaguthii Kiago
Respondent
Esther Waithiegeni Muchemi
Respondent
Joshua Kiago Kimuri
Respondent
Gladys Wangechi Kiago
Respondent
John Gachuche Kiago
Respondent
Michael Kariuki Kiago
Respondent
Jane Waguthii Kahoro
Respondent
Anderson Muchuche Kiago
Respondent
Waro Kiago
Respondent
Procedural Posture
Succession Cause / Ruling on Summons General for Execution of Transmission Documents and Revocation of Grant
Legal Issues
- 1 Whether the certificate of confirmation of grant dated 17th December 2018 accurately reflected the court's judgment of 6th September 2017.
- 2 Whether the grant issued on 17th December 2018 should be revoked for non-compliance with the court's orders.
- 3 Whether the court should authorize the Deputy Registrar to execute documents if the respondents fail to do so.
Ratio Decidendi
The court found that the certificate of confirmation of grant dated 17th December 2018 did not reflect the orders made in the judgment delivered on 6th September 2017, as it included names not in the original judgment and failed to distribute the estate as previously ordered. The court exercised its powers under section 76(e) of the Law of Succession Act to revoke the grant issued on 17th December 2018 and directed that a fresh grant issue to Waturi Kiago Mwaniki and Anderson Muchuche Kiago. The court further ordered that the certificate of confirmation of grant be issued in accordance with the judgment of 6th September 2017, specifying the distribution of the estate among the three...
Court Disposition
Application allowed; grant revoked and fresh grant to issue as per judgment.
Orders
- The grant issued on 17th December 2018 is revoked.
- A fresh grant to issue to Waturi Kiago Mwaniki and Anderson Muchuche Kiago.
Full Case Text
Judgment text and source record
61 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CAUSE NO.1013 OF 2011
IN THE MATTER OF THE ESTATE OF KIAGO MWANIKI alias KIAGO s/o MWANIKI (DECEASED)
AND
WATURI KIAGO MWANIKI.........................................APPLICANT
VERSUS
ELIZABETH NYAGUTHII KIAGO
ESTHER WAITIEGENI MUCHEMI
JOSHUA KIAGO KIMURI
GLADYS WANGECHI KIAGO
JOHN GACHUCHA KIAGO
MICHAEL KARIUKI KIAGO
JANE WAGUTHII KAHORO
ANDERSON MUCHUCHE KIAGO
WARO KIAGO........................................................RESPONDENTS
RULING
The matter was coming for hearing of the Summons General of 3rd January 2019 brought under Rule 49 and 73 of the Probate and Administration Rules. It seeks the following orders:
1. THAT the Respondents be ordered to sign Forms RL 7 and RL 19 and all the requisite Land Control Board Applications, Mutations and any other necessary documents and avail their passports size photos, photocopies of ID Cards and the Pin Number Certificates to facilitate conclusion of this matter.
2. THATin the alternative the court do authorize the Deputy Registrar to sign all the above documents and do order the Land Registrar to dispense with the production of original Title Deed of LR NO. AGUTHI/GAKI/303, the production of the passport size photos and photocopies of ID Cards, Pin Number Certificates of the Respondents to effect the registrations.
3. THAT the costs of this application be borne by the Respondent.
The application is based on the grounds herein below set forth and supported by the annexed affidavit of WATURI KIAGO MWANIKI.
During the call over Anderson Muchuche Kiago one of the respondents brought it to the attention of the court that the certificate of confirmation of grant as made distributed the estate to parties who were already deceased, and whom the application as filed indicated had refused to execute the requisite documents to ensure the completion of the transmission process.
I have perused the record. I delivered a ruling on 6th September 2017 in which the estate AGUTHI/GAKI/303 was shared among the three houses of the deceased.
1st House (8. 4 acres)
Elizabeth Kiago – daughter
Esther Waithiegeni- daughter in law
Joshua Kiago Kimuri- grandson
2nd House (8. 4 acres)
John Gachuche Kiago- son
Michael Kariuki Kiago-Son
Jane Waguthii Kahoro-daughter in law
3rd House (4. 2 acres)
Anderson Muchuche Kiago –son
Muthinga plot: - to be shared among the three houses in the same ration of 4:4:2
However, the certificate of confirmation of grant dated 17th December 2018 does not reflect the said orders. It contains names that were not in the judgment as delivered on 6th September 2017.
In the 1st house, the widow is deceased, and similarly in the 3rd house. In the 2nd house she is still alive and is the applicant.
It is therefore necessary that the certificate of confirmation of grant reflects the judgment. In the exercise of powers under s.76(e )of Laws of Succession Act the grant as issued on 17th December 2018 is and is hereby revoked and a fresh one to issue Waturi Kiago Mwaniki and Anderson Muchuche Kiago. Consequently, a certificate of confirmation of the grant to issue as per the judgment of 6th September 2017 and Aguthi/Gaki/303 be shared as follows: -
1st House: - 8. 4 acres in equal shares
1) Elizabeth Nyaguthii Kiago
2) Esther Waithiegeni Muchemi
3) Joshua Kiago Kimuri
2nd House 8. 4 acres in equal shares:-
1) Waturi Kiago
2) John Gachuche Kiago
3) Michael Kariuki Kiago
4) Jane Waguthii Kahoro
3rd House 4. 2 acres absolutely
Anderson Muchuche Kiago
MUMBUA T. MATHEKA
JUDGE
It was stated in court that John Gachuche Kiago is deceased, having died in 2017. It is upon the Administrators to provide a suitable representative of his house to be registered in trust for John’s family’s share.
The application dated 3rd January 2019 is allowed subject to all those who are supposed to sign the documents failing to do so within 14 days of the date of these orders in default of which Deputy Registrar to do so as sought in prayer no. 2 above.
Dated, delivered and signed at Nyeri this 20th day of February 2019.
MUMBUA T. MATHEKA
JUDGE
In the presence of:
Court assistant: Juliet
No appearance for parties who were aware of the date.
MUMBUA T. MATHEKA
JUDGE