[2022] KEHC 15116 (KLR)
The court found that the subject land, Nzaui/Matiliku/189, belonged to the deceased and formed part of the estate. There was no evidence that the deceased sold or leased the land to any party, and the arrangements with local groups for tree nurseries and a borehole had ceased. The applicant demonstrated that the...
Source-derived case information.
- Citation
- [2022] KEHC 15116 (KLR)
- Parties
- Applicant: James M. Wambua Mutio
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 317 of 2017
- Procedural Posture
- Succession Cause / Ruling on Chamber Summons for Rectification of Grant and Lifting of Caution
- Outcome
- application allowed
- Judges
- GMA Dulu
- Legal Topics
- Rectification of Grant, Administration of Estate, Caution on Land, Alias in Succession, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James M. Wambua Mutio
Applicant
Procedural Posture
Succession Cause / Ruling on Chamber Summons for Rectification of Grant and Lifting of Caution
Legal Issues
- 1 Whether the confirmed grant of letters of administration should be rectified to include the alias name of the deceased as appearing in the certificate of official search.
- 2 Whether the caution placed on Nzaui/Matiliku/189 by Kwa Kukui Water Project should be lifted.
- 3 Whether a fresh letter and rectified certificate of confirmation of grant should issue.
Ratio Decidendi
The court found that the subject land, Nzaui/Matiliku/189, belonged to the deceased and formed part of the estate. There was no evidence that the deceased sold or leased the land to any party, and the arrangements with local groups for tree nurseries and a borehole had ceased. The applicant demonstrated that the alias 'Wambua Mutio' was used in official records and that the caution placed by Kwa Kukui Water Project had been resolved. No objections were raised by any party. Therefore, the court held that it was just and proper to rectify the confirmed grant to include the alias, lift the caution, and issue a fresh rectified certificate of confirmation of grant to enable the proper...
Court Disposition
application allowed
Orders
- The confirmed grant of letters of administration issued on November 29, 2018 to James M. Wambua Mutio is rectified to include the alias name 'Wambua Mutio' as appearing in the certificate of official search.
- The caution placed on land Nzaui/Matiliku/189 by Kwa Kukui Water Project is lifted.
Full Case Text
Judgment text and source record
25 paragraphs
In re Estate of Paul Wambua Mutio (Deceased) (Succession Cause 317 of 2017) [2022] KEHC 15116 (KLR) (10 November 2022) (Ruling)
Neutral citation: [2022] KEHC 15116 (KLR)
Republic of Kenya
In the High Court at Makueni
Succession Cause 317 of 2017
GMA Dulu, J
November 10, 2022
IN THE MATTER OF THE ESTATE OF PAUL WAMBUA MUTIO (DECEASED)
In the matter of
James M. Wambua Mutio
Petitioner
Ruling
1. Before me is a chamber summons dated July 28, 2020 filed under sections 73 of the Law of Succession Act, and rules 49, 63 and 73 of the Probate & Administration Rules by the petitioner James M. Wambua Mutio.
2. The application seeks the following orders –1. That the confirmed grant of Letters of Administration issued by this Honourable Court on November 29, 2018 to James M. Wambua Mutio be rectified to include an alias name of Paul Wambua Mutio the deceased herein which is Wambua Mutio appearing in the certificate of official search.2. That the caution placed on Nzaui/Matiliku/189 by Kwa Kukui Water Project be lifted.3. That upon grant of order 1 and 2 above, a fresh Letter 41 and certificate of confirmation of grant do issue.4. That costs of the application be provided for.
3. The application has ground on the face of the summons that the deceased Paul Wambua Mutio alias Wambua Mutio died on May 10, 2005, that the petitioner applied for letters of administration which were issued and confirmed on 29/11/2018 and that the petitioner has been unable to administer the estate due to the names of the deceased and the caution placed on the land by Kwa Kakui water project.
4. The application was filed with a supporting affidavit sworn on July 28, 2020 by the petitioner James Wambua Mutio which amplifies the grounds of the application. It is deponed in the said affidavit that the orders sought would serve the best interests of justice for the estate of the deceased and the beneficiaries. Annexed to the affidavit are several documents.
5. The petitioner also filed a supplementary affidavit he swore on August 18, 2020 in which he swore that his late father the deceased also gave Ngulwa Women Group authority to utilize part of the land Nzaui/Matiliku/189 for the purpose of putting up tree nurseries. He denied that his father gave Kwa Kukui Water Project permission to use a portion of the land before he died in 2005.
6. The petitioner also filed a further affidavit he swore on December 6, 2021 in which he deponed that the issue of the caution placed on the land title by Kwa Kukui Water project had been resolved.
7. On May 26, 2022, this court heard virtually a Mr. Moita of the Department of Social Services who stated that his department had registered Ngulwa Women Group on 09/03/2003 as an NGO to plant tree nurseries. He stated that another registered NGO dug a borehole on the land, but the agreement was that if the group disintegrated, then the land reverts to the owner.
8. He stated that the group was no longer utilizing the land.
9. Having considered the application and perusing the documents filed, I find that it is not in doubt that he subject land Nzaui/Matiliku/189 belongs to the deceased herein, and is thus part of the estate.
10. No person has come to this court to say that the deceased either sold it or part of it to him/her or leased the same. The certificate of search shows that the land is 16. 0 hactares.
11. From the evidence and facts on record, I find that the local arrangements made by the deceased and other two groups for planting nursery trees and drilling a borehole have long ceased to be in operation.
12. I thus allow the application and order as follows –1. That the confirmed grant of letters of administration issued by this court on November 29, 2018 to James M. Wambua Mutio be and is hereby rectified to include an alias name of Paul Wambua Mutio the deceased herein which is Wambua Mutio as appearing in the certificate of official search.2. That the caution placed on land Nzaui/Matiliku/189 by Kwa Kukui Water Project be and is hereby lifted.3. That a fresh letter 41 and rectified certificate of confirmed grant of letters of administration do issue.4. The costs of this application will be in the cause.
DELIVERED, SIGNED & DATED THIS 10TH DAY OF NOVEMBER, 2022, VIRTUALLY AT MAKUENI COURT.………………………………….George DuluJudge