[2021] KEHC 12612 (KLR)
The court found that the subdivision and registration of the estate land into Kakuzi/Gituamba/Block 11/431 and 432 was contrary to the confirmed grant and court orders, as it resulted in an unequal distribution of the estate. Since the orders had not been reviewed or set aside, the court held that the only remedy...
Source-derived case information.
- Citation
- [2021] KEHC 12612 (KLR)
- Parties
- Applicant: Francis Kimani Kariuki; Respondent: Kasole Makau; Respondent: Monica Mutono
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1138 of 2007
- Procedural Posture
- Succession Cause / Ruling on Application for Cancellation of Titles and Redistribution of Estate
- Outcome
- application allowed
- Judges
- AO Muchelule
- Legal Topics
- Succession of Estates, Intestate Distribution, Land Subdivision, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Kimani Kariuki
Applicant
Kasole Makau
Respondent
Monica Mutono
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Cancellation of Titles and Redistribution of Estate
Legal Issues
- 1 Whether the subdivision and registration of Kakuzi/Gituamba/Block 11/177 into two parcels contravened the confirmed grant and court orders.
- 2 Whether the titles Kakuzi/Gituamba/Block 11/431 and 432 should be cancelled to effect the proper distribution of the estate as per the certificate of confirmation.
Ratio Decidendi
The court found that the subdivision and registration of the estate land into Kakuzi/Gituamba/Block 11/431 and 432 was contrary to the confirmed grant and court orders, as it resulted in an unequal distribution of the estate. Since the orders had not been reviewed or set aside, the court held that the only remedy was to cancel the existing titles and direct that the land be redistributed in accordance with the certificate of confirmation and prior orders. The court exercised its powers under section 47 of the Law of Succession Act and rule 73 of the Probate and Administration Rules to enforce compliance with its orders and ensure equitable distribution of the estate to the rightful...
Court Disposition
application allowed
Orders
- Titles Kakuzi/Gituamba/Block 11/431 and Kakuzi/Gituamba/Block 11/432 are cancelled.
- Kakuzi/Gituamba/Block 11/177 shall be shared so that Francis Kimani Kariuki gets 2 acres and Monica Mutono gets 2 acres.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 1138 OF 2007
IN THE MATTER OF THE ESTATE OF MUNYAO NGUKU (DECEASED)
FRANCIS KIMANI KARIUKI...................................APPLICANT
VERSUS
KASOLE MAKAU..........................................1ST RESPONDENT
MONICA MUTONO......................................2ND RESPONDENT
RULING
1. The deceased Munyao Nguku died intestate on 19th May 1995. He was the registered owner of Kakuzi/Gituamba/Block 11/177 measuring about 4 acres. The applicant Francis Kimani Kariuki and the 2nd respondent had each bought two acres from the deceased. The applicant was appointed the administrator of the estate of the deceased. The grant was confirmed on 3rd April 2017 and rectified on 28th May 2018, each of the two being ordered to get two acres.
2. It does appear that the parcel of land was subdivided into Kakuzi/Gituamba/Block 11/431 and Kakuzi/Gituamba/Block 11/ 432 which were 1 acre and 3 acres, respectively. The former was registered in the name of the applicant and the latter was registered in the name of the 2nd respondent. It is evident that this subdivision and registration went against the decision of the court which had neither been reviewed nor set aside. This is the gist of the application dated 21st October 2020 by the applicant which seeks the cancellation of the two titles, and an order that the parcel be shared in accordance with the certificate of confirmation and the orders the court granted on 27th November 2018 and 26th July 2019.
3. The application was served but received no response.
4. I allow the application. Under section 47 of the Law of Succession Act (Cap. 160) and rule 73 of the Probate and Administration Rules, I order the cancellation of titles Kakuzi/Gituamba/Block 11/431 and Kakuzi/Gituamba/Block 11/432. Subsequently, Kakuzi/ Gituamba/Block 11/177 shall be shared so that the applicant Francis Kimani Kariuki gets 2 (two) acres and the 2nd respondent Monica Mutono gets 2 (two) acres. The Deputy Registrar of this court shall sign all necessary documents to bring this order into effect.
5. The costs of the application shall be borne by Monica Mutono.
DATED and DELIVERED NAIROBI this 22ND day of FEBRUARY 2021.
A.O. MUCHELULE
JUDGE