[2022] KEHC 27016 (KLR)
The court found that the variation in the subdivision of the estate land was necessitated by the discrepancy between the acreage in the sketch plan and the actual acreage in the title deed. The surveyor's adjustments were made to ensure that the distribution was as close as possible to the Will and the consent...
Source-derived case information.
- Citation
- [2022] KEHC 27016 (KLR)
- Parties
- Applicant: Samuel Karuru Mwaura; Respondent: Henry Gitachu Mwaura; Respondent: Dr. Joshua 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 / Ruling on Application to Restrict Survey to Consented Plan
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Testate Succession, Estate Distribution, Will Execution, Land Subdivision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Karuru Mwaura
Applicant
Henry Gitachu Mwaura
Respondent
Dr. Joshua Gitachu Mwaura
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Restrict Survey to Consented Plan
Legal Issues
- 1 Whether the subdivision of LR No. Loc. 1/Mugumoini/338 was conducted in accordance with the consent order and the Will of the deceased.
- 2 Whether the variation in the subdivision by the surveyors constituted contempt of court or breach of consent.
- 3 Whether the applicant's rights or interests were prejudiced by the variation in the subdivision.
Ratio Decidendi
The court found that the variation in the subdivision of the estate land was necessitated by the discrepancy between the acreage in the sketch plan and the actual acreage in the title deed. The surveyor's adjustments were made to ensure that the distribution was as close as possible to the Will and the consent order, while also avoiding waste and unnecessary public access. The court held that the variation affected all beneficiaries equally and was not targeted at the applicant. Since the rest of the family had accepted the revised distribution and the changes were justified by practical considerations, the court concluded that there was no merit in the applicant's claim that the...
Court Disposition
application dismissed with costs
Orders
- The application dated 12th February 2021 is dismissed with costs.
Full Case Text
Judgment text and source record
22 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
HENRY GITACHU MWAURA.........................................1ST RESPONDENT/EXECUTOR
DR. JOSHUA GITACHU MWAURA..............................2ND RESPONDENT/EXECUTOR
RULING
1. The application dated 12th February 2021 by the applicant Samuel Karuru Mwaura complains that LR No. Loc. 1/Mugumoini/338 that belonged to his late father Mwaura Gitachu (the deceased herein) was subdivided by M/s Spartial Design Solutions Surveyors but not in accordance with the sketch plan of his brother Hezekiah Njuguna Mwaura and which was consented to by the family of the deceased and adopted by the court on 15th December 2020. The respondents Dr. Joshua Gitachu Mwaura and Henry Gitachu Mwaura admit that there was variation during the subdivision by the surveyors but state that the valuation was necessary to be able to implement the consent. The respondents are also brothers of the applicant.
2. The deceased had three houses and left a written Will in which he appointed the 1st and 2nd respondents and Hezekiah Njuguna Mwaura and as the joint executors. Each executor represented a house. The actual sharing on the ground of Loc.1/Mugumoini/338 has been quite contentious and is the subject of this application.
3. Stephen Njenga of the surveying firm swore an affidavit to explain that they implemented the subdivision as per the consent recorded and as per the Will of the deceased. He stated that the total acreage on the sketch plan that was consented to exceeded the acreage in the title deed. He stated that the sketch plan by Hezekiah Njuguna Mwaura was not as per scale when juxtaposed with his sketch plan; that what was consented to had distributed 23. 264 acres bearing only 0. 76 acres for the graveyard and roads. Yet, the road acreage totaled 1. 008 acres. His evidence was that the road directing to a dried well was agreed by the beneficiaries to be unnecessary and wasteful; and that every house got its bequest as per the Will and the distribution avoided waste, opening the land to public by creating roads which would have given public access and avoided undue fragmentation of the land. He swore that the subdivision followed best practice and sought, as much as possible, to accord with the Will and the consent.
4. The applicant, in his affidavit and further affidavit in response to the surveyor queried the distribution and claimed that it was in contempt of the consent and order of the court. He complained that his consent was not sought during the variation.
5. Teresiah Wangumo Mwaura is a sister to the applicant. She stated in her replying affidavit that the survey followed the family meeting of 2nd November 2019 at the applicant’s home which left minutes that both the applicant and his wife had signed.
6. It is material that the rest of the family have accepted the sharing by the surveyor.
7. The explanation by the surveyor Stephen Njenga shows why it became necessary for them to vary the sketch that the parties had agreed on. The sketch plan had, in terms of acreage, exceeded what was in the title deed, and therefore on the ground. The sketch plan had provided 0. 76 acres only for the roads, grave and well. Yet the roads only have taken 1. 008 acres. Adjustments had to be done and had to affect all the beneficiaries. The alignment of the road and the subdivision that gave each beneficiary a frontage on the road meant that each beneficiary be affected. Yes, the variation affected the applicant. But it also affected all the other beneficiaries.
8. These are the reasons why I do not find merit in the application dated 12th February 2021 that sought that surveyors do restrict their survey to the consent that was recorded. The application is dismissed with costs.
DATED AND DELIVERED IN NAIROBI THIS 27TH DAY OF APRIL 2022.
A.O. MUCHELULE
JUDGE