[2019] KEHC 7481 (KLR)
The court found that the issue of whether the objectors were bona fide purchasers for value without notice had already been conclusively determined in Meru CMC CC No. 231 of 2005, and no appeal had been preferred against that decision. Therefore, the court could not revisit or overturn that finding. Although Joseph...
Source-derived case information.
- Citation
- [2019] KEHC 7481 (KLR)
- Parties
- Applicant: Peter Mukaria; Respondent: Ibrahim M’Ikiao; Respondent: Ibrahim Kangentu
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 368 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application to Set Aside Revocation of Grant and for Redistribution of Estate
- Outcome
- Application to set aside revocation of grant allowed in part; grant reinstated; application to revert titles to deceased's name denied; estate distributed as ordered.
- Legal Topics
- Intestate Succession, Revocation of Grant, Bona Fide Purchaser, Fraudulent Transfer of Land, Distribution of Estate, Trust for Children
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mukaria
Applicant
Ibrahim M’Ikiao
Respondent
Ibrahim Kangentu
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Set Aside Revocation of Grant and for Redistribution of Estate
Legal Issues
- 1 Whether the order revoking the grant should be set aside and the grant reinstated.
- 2 Whether the court can cancel subdivisions and revert titles to the deceased's name.
- 3 How the estate should be distributed in light of prior fraudulent sales and the rights of innocent purchasers.
Ratio Decidendi
The court found that the issue of whether the objectors were bona fide purchasers for value without notice had already been conclusively determined in Meru CMC CC No. 231 of 2005, and no appeal had been preferred against that decision. Therefore, the court could not revisit or overturn that finding. Although Joseph Meeme had no capacity to sell the land, the purchasers' titles were protected. The court reinstated the grant to the applicant but ordered that the family of Joseph Meeme would be entitled to a share of the estate, less the portions fraudulently sold. The application to revert the titles to the deceased's name was denied, and the estate was to be distributed as per the court's...
Court Disposition
Application to set aside revocation of grant allowed in part; grant reinstated; application to revert titles to deceased's name denied; estate distributed as ordered.
Orders
- The grant is reinstated to the applicant.
- The application to revert titles to the deceased person’s name is denied.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE 368 OF 2011
IN THE MATTER OF THE ESTATE OF M’LIMBIINE M’MAUTA ALIAS M’LIMBINE M’MAUTA (DECEASED)
PETER MUKARIA...............................APPLICANT/PETITIONER
VERSUS
IBRAHIM M’IKIAO.................................................1ST OBJECTOR
IBRAHIM KANGENTU..........................................2ND OBJECTOR
RULING
The deceased herein M’Limbine M’Mauta died intestate on 14th September 1989 and left behind a son Peter Mukaria Limbine and Joseph Meeme M’Limbine, now deceased and survived by the wife Julia Gateti M’Mauta. The assets listed as forming part of the estate are:
1. Ithima/Antuambui/219 which was subdivided into 7135,7136,7137,7138 and 7139
2. Ithima/Antuambui/2707
From the judgment in Meru CMC CC No. 231 of 2005 delivered on 1st December 2017 it appears that Joseph Meeme Limbine the son of the deceased fraudulently subdivided LR No. Ithima/Antuambui/219 before obtaining Letters of Administration and sold out the resultant subdivisions LR. Ithima/Antuambui/ 7137- 0. 08 Ha to Ibrahim Mungatha and LR. Ithima/Antuambui/7138 – 0. 121 ha to Ibrahim Kangentu. The court in Meru CMC CC No. 231 of 2005 determined that because Joseph Meeme who sold the 2 pieces of land used the deceased person’s identification to sell the 2 properties, the 2 were innocent purchasers without notice and that their titles could not be cancelled.
The applicant’s is application dated 29. 10. 2018 seeks among others that order made on 18th July 2018 revoking grant be set aside and grant be reinstated. He also sought that this court cancels the subdivisions arising out Ithima/Antuambui/219.
The issue as to whether Ibrahim Mungathia and Ibrahim Kangentu were bonafide purchasers was determined in Meru CMC CC NO. 231 of 2005 and this court has not been shown that any appeal was preferred against such determination and it would be pre-emptive to make a second find on an issue already litigated upon without the court being properly moved.
It is true Joseph Meeme had no capacity to transact on the deceased persons land but now he is also dead and as it is this court doesn’t have anyone to punish or direct the 2 purchasers to for a refund of the purchase price.
This court will reinstate the grant to applicant but find that Joseph Meeme now deceased (His family) will be entitled to a share of the estate subject to portions sold i.e
1. LR Ithima/antuambui/219 was originally approx. 0. 60 Ha but the remaining resultants subdivisions in the name of the deceased M’Limbine M’Mauta
a) No. 7135 – 0. 202 – M’Limbine M’Mauta
b) No. 7136 – 0. 202- M’Limbine M’Mauta
c) No. 7139 – 0. 036 – M’Limbine M’Mauta
2. LR. Ithima/Antuambui/2707 approx. 0. 17 Ha – to be shared equally between applicants and family of the late Joseph Meeme. Julia Gateti to hold in trust for the children of Joseph Meeme 0. 085 ha.
Since Joseph Meeme sold 0. 20 ha out of 0. 60 ha from LR. Ithima/Antuambui/219, he will get less by 0. 20 ha which he
sold to the 2 objectors. Therefore, Joseph Meeme will get: -
0. 60/2= 0. 30 - 0. 20 = 0. 10 Ha.
The balance to go to the applicant .
The application to revert titles to the deceased person’s name is therefore not allowed. The estate shall be distributed as ordered above.
No orders as to costs.
HON A. ONG’INJO
JUDGE
RULING DELIVERED, DATED AND SIGNED IN COURT ON 2. 5.2019
In the presence of:-
Ms Soi holding brief for Marete Advocate for objector
Ms Joshua Mwiti Advocate for Petitioner – N/A
Interested parties – present in person.
HON A. ONG’INJO
JUDGE