[2018] KEHC 6151 (KLR)
The court found that the respondent had failed to cooperate with the administrator and other beneficiaries by refusing to sign the necessary documents and pay the required fees for the implementation of the confirmed grant. There was no evidence of any application for revocation of the grant by the respondent or any...
Source-derived case information.
- Citation
- [2018] KEHC 6151 (KLR)
- Parties
- Applicant: Jane Wanjiku Kinyua; Respondent: Marion Wangari Kinyua
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 134 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Execution and Rectification of Grant
- Outcome
- application allowed as amended with costs to the respondent
- Judges
- FN Muchemi
- Legal Topics
- Probate and Administration, Confirmation of Grant, Execution of Grant, Beneficiary Obligations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Wanjiku Kinyua
Applicant
Marion Wangari Kinyua
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Execution and Rectification of Grant
Legal Issues
- 1 Whether the court should order the deputy registrar to sign documents on behalf of the respondent to execute the certificate of confirmation of grant.
- 2 Whether partial execution of the grant should be allowed in favour of the applicant and other beneficiaries apart from the respondent.
- 3 Whether the applicant should be authorized to pay requisite fees for execution of the grant and recover from the respondent.
Ratio Decidendi
The court found that the respondent had failed to cooperate with the administrator and other beneficiaries by refusing to sign the necessary documents and pay the required fees for the implementation of the confirmed grant. There was no evidence of any application for revocation of the grant by the respondent or any other party, nor any valid reason advanced for her non-cooperation. The court held that all beneficiaries are obligated to facilitate the implementation of the grant by meeting their financial and procedural obligations. The applicant, as administrator, was found ready and willing to proceed with the implementation, including payment of fees, with the right to recover such...
Court Disposition
application allowed as amended with costs to the respondent
Orders
- The deputy registrar is authorized to sign all relevant documents on behalf of Marion Wangari Kinyua to execute the certificate of confirmation of grant issued on 16/08/2017.
- Partial execution of the grant is allowed in favour of the applicant and all beneficiaries apart from Marion Wangari Kinyua.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
MISC. CIVIL APPLICATION NO. 134 OF 2005
IN THE MATTER OF THE ESTATE OF MAGONDU KING'URU - DECEASED
JANE WANJIKU KINYUA......ADMINISTRATOR/ APPLICANT
VERSUS
MARION WANGARI KINYUA...............................RESPONDENT
R U L I N G
1. The applicant filed summons (General Form) dated 27/02/2018 seeking for the following prayers.
(a) That the honourable court be pleased to order its deputy registrar to sign all the relevant documents on behalf of Marion Wangari Kinyua so as to execute the certificate of confirmation of grant issued on 16/08/2017.
(b) There be partial execution of the grant in favour of the applicants and all the beneficiaries apart from Marion Wangari Kinyua.
(c) That the applicant be authorized to pay the requisite fees in the execution of the grant which will be recoverable.
(d) That the honourable court be pleased to rectify the names of Magdalene Wambui Mburi to read Magdalena Wambui Buri in the certificate of confirmation of grant issued on 16/08/2017.
2. During the hearing of the summons, the applicant made an oral application to amend the summons which was allowed. In effect, prayer 2 was abandoned and replaced with the following:-
That there be a partial execution of the grant in favour of the applicant and all the beneficiaries apart from Marion Wangari Kinyua.
3. The grounds supporting the application are that the respondent has been unco-operative by refusing/declining to ensure implementation of the grant.
4. The respondent has not given any reason for refusing to co-operate with the administrator. On her part, the applicant who is the administrator is ready and willing to move and implement the grant including payment of all the fees required thereof.
5. The respondent was served with the application at her home in Kiangai town as shown by the affidavit of service but did not file a replying affidavit on grounds of opposition.
6. The record shows that the grant in this cause was confirmed on 16/08/2017 whereas the only asset the deceased was distributed to the representatives of the two houses of the deceased namely Naomi Wairimu Magondu the applicant and Marion Wangari Kinyua the respondent. There were four (4) other beneficiaries who were to share a portion of 0. 815 acres jointly. This is about one year ago and the grant is yet to be implemented.
7. I have perused the record and I do not find any summons for revocation of grant by the respondent or any other party. There is no good reason advanced by the respondent for failing to co-operate with the administrators and other beneficiaries for purposes of implementing the grant.
8. The allegation is that she has declined to sign the necessary papers and to pay the requisite fees in respect of her portion to facilitate sub-division of the land. The administrator/applicant is ready and willing to meet the fees required and other costs and later recover from the respondent or any other defaulting party.
9. The court takes judicial notice that for sub-division of the land in the transmission process and for registration and issue of new titles, the Lands Office requires that various levies/charges/fees be paid. There are also other costs incurred in the process of the implementation of the grant.
10. It is the duty of every beneficiary receiving a share from the estate to meet their financial and other obligations so as to facilitate the implementation of the grant. Their co-operation and unwavering support to the administrator is required for the smooth running of the whole process. The respondent in this application cannot therefore be an exception.
11. The execution of the transmission documents is key to the process and each beneficiary is required to execute the necessary papers regarding their shares in the grant. The respondent has refused to execute the necessary documents.
12. I find this application merited and I allow it as amended with costs to the respondent.
13. It is hereby so ordered.
DATED, DELIVERED AND SIGNED THIS 18TH DAY OF JUNE, 2018.
F. MUCHEMI
JUDGE
In the presence of:-
Ms. Kimotho for Applicant