[2017] KEHC 2418 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 262 OF 2012

In the Matter of the Estate of Martha Kanyai M’Impwi (Deceased)

JOHN THURANIRA IMPWI …….………………………………........PETITIONER

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RULING

Rectification of grant

[1] The amended summons for rectification of grant dated 31st August 2016. The Petitioner seeks for orders:

1. That this application be set down for hearing on priority basis.

2. That the certificate of confirmation of grant issued to him on 30th August 2012 be rectified on the manner following

LAND PARCEL NYAKI/ KITHOKA/2235

a) John ThuraniraM’Impwi ................................................0. 03 Ha

b) Johnson Muriiki Daniel ...................................................0. 051 Ha

c) Gilbert Kiumbe ................................................................0. 06 Ha

d) Fredrick Daniel Kiraithe ..................................................0. 53 Ha

e) Charity Kagwiria .............................................................0. 081 Ha

f) Jeremiah MberiaKaberia ................................................0. 101 Ha

g) Benson MuriukiGituma ..................................................0. 051 Ha

h) ChritinaNzangiGituma...................................................0. 051 Ha

LAND PARCEL NO. NYAKI/ KITHOKA/2226

Felix Mutethia ............................................................... whole

LAND PARCEL NO. NYAKI/KITHOKA/2228

Diana Ntinyari ................................................................ whole

LAND PARCEL NO. NYAKI/KITHOKA/2233

Diana Ntinyari to be shared

Martin Kimathi Muriungi equally

LAND PARCEL NO. NYAKI/KITHOKA/2227 Gilbert Kiumbe ................... whole

3. That there be no orders to costs.

[2] This application is premised upon the grounds that the shares of heirs as indicated in the grant differ from the amount of land on the ground. A sketch is provided to show this disparity. And for this, the process of distribution has virtually stalled, thus, creating tensing and disharmony amongst the beneficiaries.The Petitioner’s application is supported by affidavits by FREDRICK DANIEL KIRAITHE, CHARITY KAGWIRIA, GILBERT KIUMBE, JOHNSON MURIIKI DANIEL, JOSHUA M. GITUMA M’IMPWI and DIANA NTINYARI which are all dated 28th February 2017.

[3] However, on 12thMay 2017 GILBERT KIUME filed another affidavit where he states that he swears it on behalf of his other brother and sister. He deposes that they appointed their elder brother as the administrator but he has deceived them on the mode of distribution for he has given himself part of the land which is flat and valuable while he has given them on the hilly side where they cannot be able to even build houses. He stated that the Petitioner has disregarded and has hidden the minutes of the family members in which they had agreed on how to share the land equitably. He argued that, since the land is not on a level ground, each beneficiary should get an equal plot in front where the land is flat and the reminder to be shared equally among the six beneficiaries after deducting 0. 202 Ha which the Deceased had given to CHARITY KAGWIRIA and other parcels sold to JEREMIAH KABERIA & CHRISTINE GITUMA who are already settled on the land. His proposal is that the six plots on flat ground should be picked by balloting conducted in a fair manner to enable each one to get a share of the flat land. The distribution in the original grant was done equally only that they had not discovered they will have problems in assessment and building of houses on a hilly place. He averred that he has no problem with L.R.NYAKI/KITHOKA/2226, 2228, 233 being given to the rightful beneficiaries as in the original grant.

DETERMINATION

[4] According to the certificate of confirmation of grant the estate was shared as follows:

NameDescription of Property Share of Heirs

Joshua M. Gituma NYAKI/KITHOKA/2235 0. 16 Acres

Johnson Muriiki Daniel “ 0. 16 Acres

Gilbert Kiumbe “ 0. 16 Acres

Fredrick Daniel Kiraithe “ 0. 16 Acres

Charity Kagwiria “ 0. 16 Acres

John Thuranira Impwi “ 0. 16 Acres

Jeremiah Mberia Kaberia NYAKI/KITHOKA/2665 Whole

Benson Muriuki Gituma NYAKI/KITHOKA/2666 1/8 Acres

Chritina Nzangi Gituma “ 1/8 Acre

Principle of equality entails equity and fairness

[5] From what has been stated, the original grant and the proposed rectification differ on two aspects: identity of the beneficiaries and their respective shares. It should be noted that the grant has been confirmed and therefore no new beneficiaries can be introduced at this stage as parties attempted to do in this case. I have said it before and I will state it again, that the scope of rectification of grant under section 74 of the Law of Succession Act is quite limited and parties should resist the temptation of making substantive requests in the guise of rectification of grant. The court will resist such attempts. In this case, the only feasible undertaking is the topography of the land as to bring harmonious arrangement of the respective portions of land due to the beneficiaries as a way of attainingequity in the distribution of the estate property namely NYAKI/KITHOKA/2235. It is claimed that one part of NYAKI/KITHOKA/2235 is flat whilst the other part is hilly. Parties stated that it is difficulty to erect a building on the hilly part unless with exceptional architecture meant for living on the cliff. This complaint is not a triflebut a matter of equity and fairness encapsulated in the principle of equality in distribution of the estate of the deceased; yet it is often not foreseen until much later during real subdivision of the estate property. The Petitioner has been accused of allocating himself the flat land and leaving the other beneficiaries to share the hilly part of the estate land. One thing should be understood here; that an administrator is not in any vantage position or with prior right or preference in the estate; he simply bears statutory and fiduciary obligations to administer the estate in accordance with the grant and the law. As a beneficiary, he is to be treated equal with all other beneficiaries with the same degree of entitlement. Therefore, in sub dividing estate land, the surveyor should take into account the lay out of the property in order to attain equity and fairness. As such. As parties seem to be at logger heads, I direct that a surveyor be appointed by the partieswithin 30 days to provide to the court a scheme of subdivision of NYAKI/KITHOKA/2235 which enables each beneficiary to have the benefit of the flat and the hilly parts of the estate property. This will provide equity and equality in the distribution of the estate land. Upon receipt of the survey report, the court will give further directions on how the beneficiaries shall pick their respective shares. It is so ordered.

Dated, signed and delivered in open court at Meru this 7th day of November 2017

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F. GIKONYO

JUDGE

In the presence of:

Parties – present

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F. GIKONYO

JUDGE