[2022] KEHC 16242 (KLR)

In re Estate of Marete Kiunga alias Marete S/O Kiunga (Deceased) (Succession Cause 3 of 1978) [2022] KEHC 16242 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16242 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 3 of 1978

TW Cherere, J

December 15, 2022

Between

Judith Karoki Marete

1st Administrator

Julius Muthuri Marete

2nd Administrator

and

Salome Karuki

Applicant

and

Land Registrar- Meru Central

Interested Party

Ruling

1. By a judgment dated February 12, 2019, Gikonyo J made the following orders:1. The register of land in respect to registration in LR No Abothuguchi Kithiruine/2907 which is a subdivision of land registration No Abothuguchi/ Kithirune/177 be cancelled and the land shall revert back into the name of the deceased herein Marete S/o Kiunga2. The said property ought to be divided equally among the beneficiaries of the estate and in line with section 38 of the Law of Succession Act.3. I issue a grant of letters of administration to the petitioner and Judith Karoki Marete.4. I also direct that the estate in LR Abothuguchi/Kithiruine/177 shall be divided equally amongst the beneficiaries herein i.e Judith Karoki Marete, Gladys Nchece Kathurima Julius Muthuri Marete & Estate of Charity Regeria [deceased]

2. By summons dated September 19, 2022, Salome Karuki (applicant) seek the following orders:1. The court interpret its judgment delivered on February 12, 2019 on whether there was a dispute in respect to LR Abothuguchi/Kithiruine/2906 and whether it was subject to cancellation2. The court do order the interested party to rectify/amend the records deleting the entry dated May 12, 2021 and reinstate particulars as was prior to the afore referenced date

2. Application was supported by applicant on September 18, 2022 in which she avers as follows:1. She is administrator of the estate of Jeremiah M’Rukaria M’Imanyara the registered owner of LR Abothuguchi/Kithiruine/2906 which is a subdivision of LR Abothuguchi/Kithiruine/1772. That the judgment dated February 12, 2019 ordered the cancellation of LR No Abothuguchi Kithiruine/2907 which is also a subdivision of LR No Abothuguchi/ Kithirune/177 and the same revert to the name of the deceased3. That out of inadvertence or execusable error, the Land Registrar cancelled the registration of LR No Abothuguchi Kithiruine/2906

2. Application was supported by the applicant sworn on September 19, 2022 in which she reiterates the grounds on the face of the application. Annexed to the affidavit is a titled deed for LR Abothuguchi/Kithiruine/2906 in the name of her deceased husband Jeremiah M’Rukaria M’Imanyara and a certificate of confirmation of grant in HC Succession Cause No 163 OF 2013 in the estate of Jeremiah M’Rukaria M’Imanyara in which LR Abothuguchi/Kithiruine/2906 was distributed.

2. Application is opposed by the Judith Karoki Marete (2nd administrator/respondent) who by his replying affidavit sworn on October 20, 2022 avers that the judge directed that LR No Abothuguchi/ Kithirune/177 be reverted to the name of the deceased and that although LR No Abothuguchi/ Kithirune/2906 was not subject to the judgment it was affected by implication for the reason that is a subdivision of LR No Abothuguchi/ Kithirune/177.

2. I have considered the summons in the light of affidavits on record and annexures thereto, the judgment of the court dated February 12, 2019 and submission of the applicant filed on October 27, 2022.

2. The evidence on record discloses that after the death of the deceased, Julius Muthuri Marete (2nd administrator/respondent) caused deceased’s estate in LR Abothuguchi/Kithiruine/177 to be subdivided into two portions LR No Abothuguchi/ Kithirune/2906 and LR No Abothuguchi/ Kithirune/2907.

3. There is no dispute and applicant indeed confirms that LR No Abothuguchi/ Kithirune/2906 was sold to her late husband Jeremiah M’Rukaria M’Imanyara and it is currently registered in his name.

2. The court directed that LR Abothuguchi/Kithiruine/177 be reverted to the name of the deceased. Whereas I agree with the applicant that LR No Abothuguchi/ Kithirune/2906 was not specifically mentioned in the court’s judgment; I do not find it hard to agree with the 2nd administrator/respondent that LR No Abothuguchi/ Kithirune/177 cannot be successfully be reverted to the name of the deceased but for cancellation of all its subdivisions.

2. Consequently, I hereby find That:1. LR Abothuguchi/Kithiruine/2906 as a subdivision of LR Abothuguchi/Kithiruine/177 was subject to cancellation2. The land registrar acted lawfully when he cancelled titles to LR No Abothuguchi/ Kithirune/2906 and LR No Abothuguchi/ Kithirune/2907 and reverted them to LR Abothuguchi/Kithiruine/177 in the name of the deceased for purposes of distribution in compliance with the court order dated February 12, 2019

DATED AT MERU THIS 15th DAY OF December 2022TW CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Applicant - Mr Kaumbi for Kaumbi & Co AdvocatesFor 1st Administrator - Mr Karatu for Kuria Karatu & Co AdvocatesFor 2nd Administrator - Mr Kaimenyi for Kaimenyi Kithinji & Co AdvocatesFor Interested Party - N/A