[2021] KEHC 13432 (KLR)

REPUBLIC OF KENYA

IN THE HIGH OF KENYA AT MERU

SUCCESSION CASUE NO.2 OF 2019

IN THE MATTER OF THE ESTATE OF M’IBUTU M’IMAITA(DECEASED)

JAPHETH GUANTAI F IBUTU.......................................1ST ADMINISTRATOR

ISMAIL KABURU M’IBUTU.........................................2ND ADMINISTRATOR

VERSUS

STEPHEN KIMONYE....................................................................PETITIONER

RULING

1. By summons under certificate of urgency dated 21/7/ 2020 pursuant to Section 47 of the Law of Succession Act, the 1st administrator seeks an order that the petitioner does vacate land parcel No. ABOTHUGUCHI/GITHONGO/4639 and occupy his land parcel No.ABOTHUGUCHI/GITHONGO/4641,and in default he be forcefully evicted.

2. The application is premised on the grounds that the 3 beneficiaries had built their homes on ABOTHUGUCHI/GITHONGO/476, which was subdivided equally into ABOTHUGUCHI/GITHONGO/4639, 4640and 4641. In his supporting affidavit sworn on even date, the 1st administrator avers that they all agreed to move into their respective parcels, save for the petitioner who continues to be adamant, despite persistent talks to do so. He goes on to state that the said subdivision was influenced by the way each had built their houses on the ground. He now wishes to have the petitioner forcefully evicted from his land. He has exhibited a title deed to prove that he is the registered owner of ABOTHUGUCHI/GITHONGO/4639.

3. The 1st administrator swore a further supporting affidavit on 16/9/2020 reiterating his averments in his application. The 2nd administrator equally swore a further supporting affidavit on even date in full support of the 1st administrator’s application.

4. The petitioner vehemently opposed the application through his replying and a 1st further replying and a 2nd further affidavits sworn on 1/9/2020 and 24/9/2020. He still laments thatABOTHUGUCHI/GITHONGO/476 was his bequest from the deceased herein and faults the trial court for making a finding to the contrary. In his view, the deceased had during his lifetime given the 1st and 2nd administrators land elsewhere. He urges the court to allow him to stay on the land as he has built his matrimonial home there. In fact, he faults the court for having denied him his bequest a fact which aggrieved him as a consequence of which he challenged the decision Nyeri Court of Appeal No 103 of 2019. He further faults the court for having dispensed with the production of his title over the land at the point of subdivision without recourse to him and in failing to appreciate the wishes of the deceased which gave to him the land. In essence, the petitioner resists the title of the two administrators and rubbishes their titles issued pursuant to the judgment of the court dated29. 06. 2019.

5. Directions were taken on 17/9/2020 that the application be canvassed by way of written submissions, which were respectively filed on 23/2/2021 and 22/10/2020. In the submissions, the 1st administrator accused the petitioner of utilizing both ABOTHUGUCHI/GITHONGO/4639and4641,to his detriment. He submitted that it was just that the application be allowed to ensure that justice is done to him. He cited the case of Martha Wanjiku Waweru v Mary Wambui Waweru (2007) eKLR to fortify his submissions that the wishes of an individual in his lifetime need be respected.

6. The petitioner in reiterating his position that the application ought to be dismissed cited the case of Samuel Maina Mwangi & 2 others v Muthoni Kagiri (2013) eKLR in for the proposition of the law that the court should take into account gifts and settlement made during the life of the deceased. Essentially, the petitioner re-urges the application that revoked his grant and ordered the equal sharing of the land between the three siblings. The submissions say very little why the registered proprietary rights of the administrators needs to be sidestepped.

7. The application is premised on the provisions of Section 47 of the Law of Succession Act which reserves the inherent powers of the court. These provisions give wide discretion to the court as to the orders it can make, including eviction orders if the circumstances of the case warrant it.

8. I find no dispute that this matter has already been finalized and administration completed by final transmissions. Evidence has been adduced that after subdivision ofABOTHUGUCHI/GITHONGO/476into ABOTHUGUCHI/GITHONGO/4639, 4640and4641,the 1st and 2nd administrators were issued with their respective title deeds with that the 1st administrator being issued with title to ABOTHUGUCHI/GITHONGO/4639. The record also reveals that ABOTHUGUCHI/GITHONGO/4640is registered in the name of the 2nd administrator. The petitioner does not deny but admits that he is occupying both parcels, as he wrongly believes that he was bequeathed ABOTHUGUCHI/GITHONGO/476by the deceased. He seems insistent on the rights acquired to the title pursuant to the revoked grant. Having acquire registration by a process the court found wanting, the petitioner must be prepared to accept due process that court orders need obedience even as one pursues a challenge against such orders. His right is not in disregard to the orders of this court. May be he may seek advise on how to pursue protection in the appeal. For now, the property he occupies is vested upon the administrator and there is no plausible reason to keep the administrator away from the fruits of his litigation and right to property thereby acquired. I therefore find that the petitioner is in unlawful and tortious occupation of ABOTHUGUCHI/GITHONGO/4639.

9. Being in such unlawful occupation, I direct that he moves out peacefully and gives vacant possession thereof to the registered owner within 60 days from today. For avoidance of doubt, if he shall not have vacated by the 16/12/2021, he shall be forcefully evicted by a court bailiff in the presence of the area Officer Commanding the local police station who shall ensure that public order is maintained.

10. I find the application is meritorious and allow the same with an order that each party bears own costs.

DATED SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 15TH DAY OF OCTOBER, 2021

PATRICK J.O OTIENO

JUDGE

IN PRESENCE OF

MS. MURITHI FOR MUTEGI FOR APPLICANT

PETITIONER IS IN PERSON

PATRICK J.O OTIENO JUDGE