[2021] KEHC 13217 (KLR)
The court determined that before ruling on the merits of the application challenging the subdivision, it was necessary to give the surveyors, M/s Spartial Design Solutions Surveyors, an opportunity to explain why they did not comply with the consent order regarding the subdivision plan. The court emphasized...
Source-derived case information.
- Citation
- [2021] KEHC 13217 (KLR)
- Parties
- Applicant: Samuel Karuru Mwaura; Respondent: Dr. Joshua Gitachu Mwaura; Respondent: Henry Gitachu Mwaura
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 784 of 1990
- Procedural Posture
- Succession Cause / Directions on Interlocutory Application
- Outcome
- Hearing adjourned for further affidavits; no final determination on the application.
- Judges
- AO Muchelule
- Legal Topics
- Succession, Estate Administration, Consent Orders, Land Subdivision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Karuru Mwaura
Applicant
Dr. Joshua Gitachu Mwaura
Respondent
Henry Gitachu Mwaura
Respondent
Procedural Posture
Succession Cause / Directions on Interlocutory Application
Legal Issues
- 1 Whether the subdivision of LR No. Loc 1/Mugumoini/338 complied with the court-adopted consent plan.
- 2 Whether the variation by the surveyors was justified and lawful.
Ratio Decidendi
The court determined that before ruling on the merits of the application challenging the subdivision, it was necessary to give the surveyors, M/s Spartial Design Solutions Surveyors, an opportunity to explain why they did not comply with the consent order regarding the subdivision plan. The court emphasized procedural fairness and the right of all affected parties, including third parties acting under court orders, to be heard. The hearing was adjourned to allow the surveyors to file an affidavit explaining the necessity of the variation, and for the applicant to respond, ensuring that the court's final determination would be based on a complete record and all relevant explanations.
Court Disposition
Hearing adjourned for further affidavits; no final determination on the application.
Orders
- The application to be served on M/s Spartial Designs Solutions Surveyors within 14 days.
- M/s Spartial Designs Solutions Surveyors to file an affidavit within 14 days explaining the variation.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 784 OF 1990
IN THE MATTER OF THE ESTATE OF MWAURA GITACHU(DECEASED)
SAMUEL KARURU MWAURA...................................................APPLICANT
VERSUS
DR. JOSHUA GITACHU MWAURA..................1ST EXECUTOR/RESPONDENT
HENRY GITACHU MWAURA............................2ND EXECUTOR/RESPONDENT
DIRECTIONS
1. I have looked at the application dated 12th February 2021 by the applicant Samuel Karuru Mwaura (who is one of the sons of the deceased by the second house). He complains that LR No. Loc 1/Mugumoini/338 was subdivided by M/s Spartial Design Solutions Surveyors but not in accordance with the plan by Hezekiah Njuguna which was consented to by the parties, and which consent was adopted by the court on 15th December 2020. The respondents Dr. Joshua Gitachu Mwaura (1st respondent) and Henry Gitachu Mwaura (2nd respondent) admit that there was a variation during the subdivision by the surveyors, and that the variation was necessary.
2. Before I determine the application, I ask that the same be served on M/s Spartial Designs Solutions Surveyors who shall within 14 days swear and filed an affidavit to explain why it became necessary not to comply with the order that was the subject of the consent.
3. The affidavit shall be served on the applicant who shall have 14 days to file a further affidavit.
4. Consequently, the hearing of this application is adjourned to 29th September 2021.
DATED and DELIVERED at NAIROBI this 19TH JULY 2021.
A.O. MUCHELULE
JUDGE