[2022] KEHC 10055 (KLR)
The court held that it retains jurisdiction to ensure its orders and decrees are executed, including the enforcement of a confirmed grant and putting the rightful beneficiary into possession of the estate property. The applicant, having been allocated Dagoretti/Riruta/3455 and its subdivisions by a consent confirmed...
Source-derived case information.
- Citation
- [2022] KEHC 10055 (KLR)
- Parties
- Applicant: Rehema Wairimu Ramadhan; Respondent: Regina Waithera Kirui
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1828 of 2010
- Procedural Posture
- Succession Cause / Ruling on Notice of Motion for Police Assistance to Enforce Proprietorship and Eviction
- Outcome
- Application allowed with costs to the applicant.
- Judges
- AO Muchelule
- Legal Topics
- Confirmation of Grant, Eviction Orders, Execution of Court Orders, Proprietorship Rights, Succession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Rehema Wairimu Ramadhan
Applicant
Regina Waithera Kirui
Respondent
Procedural Posture
Succession Cause / Ruling on Notice of Motion for Police Assistance to Enforce Proprietorship and Eviction
Legal Issues
- 1 Whether the succession court has jurisdiction to enforce its orders by granting police assistance for eviction and possession of estate property.
- 2 Whether the application is sub judice or the court is functus officio due to a pending appeal and injunction application in the Court of Appeal.
- 3 Whether the applicant is entitled to enforcement of proprietorship rights over Dagoretti/Riruta/3455 and its subdivisions.
Ratio Decidendi
The court held that it retains jurisdiction to ensure its orders and decrees are executed, including the enforcement of a confirmed grant and putting the rightful beneficiary into possession of the estate property. The applicant, having been allocated Dagoretti/Riruta/3455 and its subdivisions by a consent confirmed by the court, is entitled to possession and enforcement of her proprietorship rights. The respondent's objections based on pending appeal and alleged lack of jurisdiction were rejected, as there was no stay of execution granted by the appellate court. The court found that the application was properly before it and allowed the request for police assistance to enforce the...
Court Disposition
Application allowed with costs to the applicant.
Orders
- The officer commanding Muthangari Police Station is ordered to provide adequate armed police to accompany the applicant in enforcing the court's rulings and orders regarding proprietorship and eviction from Dagoretti/Riruta/3455 and its subdivisions, including Dagoretti/Riruta/6691.
- Costs of the application are awarded to the applicant.
Full Case Text
Judgment text and source record
22 paragraphs
In re Estate of Mary Njoki Zakaria (Deceased) (Succession Cause 1828 of 2010) [2022] KEHC 10055 (KLR) (Family) (25 July 2022) (Ruling)
Neutral citation: [2022] KEHC 10055 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Succession Cause 1828 of 2010
AO Muchelule, J
July 25, 2022
IN THE MATTER OF THE ESTATE OF MARY NJOKI ZAKARIA (DECEASED)
Between
Rehema Wairimu Ramadhan
Applicant
and
Regina Waithera Kirui
Respondent
Ruling
1. The notice of motion dated December 3, 2021 seeks the following orders:-“1)That the application be certified as urgent and the same be heard exparte in the first instance;2)That the officer commanding the Muthangari Police Station be and is hereby ordered to provide an adequate number of armed uniformed policemen and policewomen to accompany Mrs Rehema Wairimu Ramadhan, the applicant herein, as she enforces the rulings of this honourable court dated July 27, 2020 and October 19, 2021 and the ensuing orders upholding her proprietorship rights over property title number Dagoretti/Riruta/3455 (and all its subdivisions including Dagoretti/Riruta/6691) by evicting the respondent by herself, her servants or agents or otherwise howsoever from the stated property, for the purpose of maintaining law and order; and3)That the costs be provided for."
2. The case of the applicant Rehema Wairimu Ramadhan is that pursuant to the confirmation of the grant dated November 13, 2013, she became the lawful registered owner of Dagoretti/Riruta 3455 (and all its subdivisions including Dagoretti/Riruta/6691 and Dagoretti/Riruta/6692). Dagoretti/Riruta/6691 is developed and has paying tenants. She wrote to the tenants advising them that she was the owner of the property following the certificate of confirmation and that she intended to exercise her rights of ownership over the property. She sought that they vacate the premises. However, the respondent Regina Waithera Kirui wrote to them to ignore the notice. When the applicant sought the assistance of the police they asked that she seeks a court order to evict the tenants. Hence the application.
3. The respondent filed a replying affidavit to state that the application was incompetent and an abuse of the process of the court as the court lacked jurisdiction to order the eviction. Her case was that the distribution of the estate of the deceased is the subject of the appeal that was preferred in the Court of Appeal in Civil Appeal No E422 of 2020, and that there is an application for injunction pending before that court. Therefore, she continued, the application is subjudice, and the court is funtus officio.
4. The history of the case is that the deceased Mary Njoki Zacharia died intestate on October 15, 2009. She left several children, among them the applicant and the respondent. A joint grant of letters of administration intestate was issued to the applicant, the respondent and their sibling Peter Kamau. After some dispute among the beneficiaries, on November 13, 2013 a consent was recorded by all the beneficiaries on how the estate of the deceased was to be shared. The applicant was given Dagoretti/Riruta/3455, and she was to share Dagoretti/Riruta/5221 with her sister Esther Nyokabi equally. The property given to the applicant has rental units. They are specifically on the subdivision Dagoretti/Riruta/6691. The respondent has variously claimed that she is the one who put up the rental units which now have her tenants. Her claim has been rejected by this court in previous rulings. As matters stand, the property in question belongs to the applicant. There is no stay granted against the distribution of the estate of the deceased.
5. It is clear to me that this succession court has the jurisdiction to make sure that its orders and decrees are executed. The certificate of confirmation that was issued by the court has to be implemented and the applicant put into possession of Dagoretti/Riruta/3455 (and its subdivisions Dagoretti/6691 and 6692). These are the reasons why I allow the application with costs.
DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF JULY 2022. A.O. MUCHELULEJUDGE