[2024] KEHC 7099 (KLR)

In re Estate of Ruriga M’ikiara (Deceased) (Succession Cause 752 of 2015) [2024] KEHC 7099 (KLR) (13 June 2024) (Ruling)

Neutral citation: [2024] KEHC 7099 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 752 of 2015

TW Cherere, J

June 13, 2024

Between

Paulina Nkawa M’muketha

1st Petitioner

Douglas Kaimenyi

2nd Petitioner

and

Charles Marete Buuri

1st Applicant

Rufus Kiriga M’Ikirigia

2nd Applicant

and

Rael Karegi M’rukaria

Interested Party

Ruling

1. By Certificate of Confirmation dated 13th March, 2017, deceased’s estate comprised in LR. Abothuguchi/Ruiga/228 was distributed to the 2nd Petitioner and the Applicants.

2. Subsequently, LR. Abothuguchi/Ruiga/228 was portioned into LR. Abothuguchi/Ruiga/3276, 3277 and 3278 and titles issued in the names of Douglas Kaimenyi, Rufus Kiriga M’Ikirigia and Charles Marete Buuri respectively as evidenced by the green card and search certificates in respect thereof. Additional search certificates reveal that Douglas Kaimenyi may have portioned LR. Abothuguchi/Ruiga/3276 into LR. Abothuguchi/Ruiga/3966 and 3967 and obtained title deeds in his name.

3. By summons dated 08th June, 2022, Petitioners sought to cancel all titles arising out of LR. Abothuguchi/Ruiga/228 and went ahead to record a consent dated 24th April, 2023 (yet to be adopted as an order of the court) and purported to cancel titles by consent.

4. By summons dated 18th April, 2023, Applicants seek leave to defend the summons dated 05th June, 2022.

5. Rael Karegi M’Rukaria (Interested Party) opposed the application vide a replying affidavit sworn on 27th February, 2023 and stated that 2nd Petitioner and the 2nd Applicant are strangers to the estate. She did not make any response concerning the 1st Applicant.

6. Paulina Nkawa M’Muketha (1st Petitioner) opposed the application vide an undated response in which she averred that the Applicants who are her sons are not entitled to her father’s estate.

Analysis and Determination 7. I have considered the summons dated 18th April, 2023 in the light of affidavits and annexures filed by the parties.

8. The crux of the matter really is whether Applicants ought to be afforded an opportunity to defend their titles before they are cancelled.

9. In the case of Sceneries Limited v National Land Commission (2017) eKLR, the Court held that;“the right to a fair hearing under Article 50(1) of the Constitution encompasses several aspects. these includes, the individual being informed of the case against her/him, the individual being given an opportunity to present/her/his side of the story or challenge the case against her/him and the individual having the benefit of a public hearing before a court or other independent and impartial body.’’

10. The rules of natural justice “audi alteram partem”were elucidated in the case of Msagha vs. Chief Justice & 7 Others Nairobi HCMCA no. 1062 of 2004 (Lessit, Wendo & Emukule, JJ on 3/11/06) (HCK) [2006] 2 KLR 553) where eth court held that:“The Court observes firstly that the rules of natural justice “audi alteram partem” hear the other party, and no man/woman may be condemned unheard are deeply rooted in the English common law and have been transplanted by reason of colonialization of the globe during the hey-days we of the British Empire. An essential requirement for the performance of any judicial or quasi-judicial function is that the decision makers observe the principles of natural justice. A decision is unfair if the decision-maker deprives himself of the views of the person who will be affected by the decision. If indeed the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principle of justice. The decision must be declared to be no decision…It is paramount at this juncture that this court establishes the ingredients and/or components of natural justice. The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process. The ingredients of fairness or natural justice that must guide all administrative decisions are, firstly, that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker; secondly, that no one ought to be judge in his or her case and this is the requirement that the deciding authority must be unbiased when according the hearing or making the decision; and thirdly, that an administrative decision must be based upon logical proof or evidence material.

11. The Applicants being holders of the titles are entitled to the application of the Rules of natural justice which requires that no person should be condemned unheard.

12. From the foregoing analysis, the summons dated 18th April, 2023 is determined in the following terms:1. The consent dated 24th April, 2023 purporting to cancel the Applicants title deeds for LR. Abothuguchi/Ruiga/3277 and 3278 respectively without giving the Applicants a hearing is hereby declared a nullity.2. Applicants are granted leave to oppose the summons dated 08th June, 20223. Applicants have 14 days from today’s date to file and serve their responses4. This cause will be mentioned on 22nd July, 2024 to confirm compliance with these orders and for direction as to the hearing of the summons dated 08th June, 2022

DELIVERED AT MERU THIS 13TH DAY OF JUNE 2024WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneFor Applicants - Mr. Nyaga for Kiautha Arithi & Co. Advocates1st Petitioner - Present in person2nd Petitioner - Present in personFor Interested Party - Ms. Kerubo for Kiogora Mugambi & Co. Advocates