[2023] KEHC 27180 (KLR)

In re Estate of Samuel Mucheru Kinyua (Deceased) (Succession Cause 373 of 2009) [2023] KEHC 27180 (KLR) (Family) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27180 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 373 of 2009

PM Nyaundi, J

December 8, 2023

IN THE MATTER OF THE ESTATE OF SAMUEL MUCHERU KINYUA (DECEASED)

Between

Margaret Nduta Mucheru

Applicant

and

Jane Njeri Mucheru

Respondent

and

Land Registrar, Ngong Lands Registry

Interested Party

Ruling

1. The applicant/administrator, Margaret Nduta Mucheru filed summons dated 22/11/2022 seeking the following orders;1. Spent.2. That this Honourable Court be pleased to issue orders that the interested party herein to sign the transfer forms being Forms LRA -39 and Forms LRA-42 without the inclusion of the names and signature of the Respondent herein.3. That this Honourable court directs and orders the interested party herein to issue all the interested parties with registration documents to the proposed sub-division of all that parcel of land known as Ngong/Ngong/36469 and Ngong/ Ngong/32610 measuring approximately 1. 02 Hectares and 0. 85 Hectares respectively as per the terms demonstrated in the Mutation Form (Form R.L 29).4. That this Honourable Court be pleased to issue a restraining order on the Respondent/ her agents/ servants to stop her from harassing of the Applicant herein together with other dependants and beneficiaries of the estate of the late Samuel Mucheru Kinyua or otherwise frustrating the completion of the transfer process and enjoyment of the estate.5. That the costs of this application be granted.

2. The summons is brought under Sections 1A, 1B 3 and 3A of the Civil Procedure Act, Order 31& 37 of the Civil Procedure Rules 2010, Section 79,82 & 83 of the Law of Succession Act, Section 49 & 73 of the Probate and Administration Rules and all other enabling provisions of the law and was supported by the affidavit sworn by the applicant on 24th November 2022.

3. The Respondent, Jane Njeri Mucheru opposed the summons through her Replying Affidavit sworn on 28th April 2023.

4. The summons was canvassed by way of written submissions. The Applicant filed undated written submissions whilst the Respondent’s submissions are dated 14th October 2023.

Background 5. This Succession Cause relates to the estate of Samuel Mucheru Kinyua (hereinafter ‘the Deceased’) who died intestate on 17th September 2008. The Grant of Probate with will annexed was issued to the Applicant on 18th December 2009.

6. The Deceased was survived by the following persons;a.Margaret Nduta Mucheru- wife.b.Jane Njeri Mucheru- daughter.c.Lucy Wanjiru Mucheru- daughter.d.Ann Mugure Mucheru – daughter.e.Hilda Wanjiru Mucheru – daughter.f.Charity Muthoni Mucheru –daughter.g.Edith Wairimu Mucheru –daughter.h.Martin Kinyua Mucheru –son.

7. The assets left behind by the Deceased as indicated in the affidavit in support of Petition for Probate for letters of Administration with written will annexed dated 4th February 2009 included the following;a.Title Deed Ngong/Ngong/33610 of 0. 85 Ha.b.Title Deed Ngong/Ngong/32614 of 1. 20 Hac.Ongata Rongai Plot No. 474 (A)d.Ndithini Squatters R.P

8. The Respondent herein then challenged the grant vide Summons for revocation dated 22nd December 2010. On 6th April, the Parties recorded a consent withdrawing the Summons for Revocation and granting leave to the Respondent to file an Affidavit of Protest. Subsequently the Applicant filed Summons for Confirmation of Grant dated 18th July 2019. The Respondent swore an Affidavit on 29th July 2019 challenging the proposed mode of Distribution.

9. The Court then gave opportunity to the parties to agree on mode of Distribution. On 2nd December 2019, the Court noting that the parties had failed to arrive at an agreement proceeded to confirm the grant and ordered all the properties be registered in the name of Margaret Nduta Mucheru as Trustee of all the Beneficiaries in Equal shares.

10. The Court further directed that should there be any change of circumstances the parties to file summons for rectification.

11. The Applicant’s case revolves around the Respondent’s non- cooperation to sign the necessary transfer documents. She contends that all the other beneficiaries have signed the necessary transfer documents. That unless all the beneficiaries sign the forms, the interested party is unable to act on the forms for division of property and therefore, the Respondent can bypass the Respondent’s contribution and allow the subdivision. The Applicant argues that she is old and sickly and may not live long enough to ensure that the estate is administered. That the estate continues to suffer irreparable loss. She urged the court to allow her application.

12. The Respondent in her replying affidavit stated that she was served on 6th April 2023 with the Application and the transfer forms. She deposed that the Applicant is not truthful and has intentions of not transferring all the properties in the Confirmed Grant to all the beneficiaries. That Ngong /Ngong 32614 is missing from the confirmation of grant and there will be need to amend the confirmed grant in future. She stated that she is willing to sign the transfer forms after the applicant has liaised with her lawyer and sent her the forms.

Analysis and Determination 13. I have carefully considered this summons, the Reply filed thereto as well as the written submissions filed and the history of the matter. The issue here is transmission of the assets to the beneficiaries. It is alleged that the Respondent has been non-co-operative and has refused to sign the transfer forms. The Respondent on the other hand denies this allegation.

14. With regard to Ngong/ Ngong/39469 the Administrator as trustee is within her mandate to distribute the asset to the beneficiaries equally as this is in line with the certificate of Grant. The Respondent does not object to this.

15. With regard to Ngong/Ngong 32610 the Applicant seeks to transfer the same to herself in her capacity as the Administrator of the Estate of the Deceased, this is in line Ngong/with the Certificate of Confirmation of Grant. Out of Abundance of Caution however the same to be corrected to mirror the wording in the certificate of confirmation of Grant

16. With regard to Ngong/Ngong/32614, I note that the same is not included within the Certificate of Confirmation of Grant and the Administrator will be required to present an Application for the rectification of the grant to remedy this.

17. In view of the foregoing I will make the following ordersa.The Respondent to sign forms to facilitate transfer of Ngong/ Ngong/39469 within 21 days. In Default the Deputy Registrar High Court- Family Division to execute the same in her place.b.The Applicant to Ngong/Ngong 32610 submit transfer forms that reflect that she holds the parcel of land in Trust. Upon submission of the corrected forms the Respondent to execute the same within 21 days. In Default the Deputy Registrar High Court- Family Division to execute the same in her place.c.With regard to Ngong/Ngong/32614 the Administrator to file summons for rectification of grant within 21 days for its inclusiond.The matter be mentioned on 18th January 2024 to confirm compliance and take directionse.This being a family matter each party will take directionsIt is so ordered

SIGNED, DATED AND DELIVERED VIRTUALLY IN NAIROBI ON 8TH DAY OF DECEMBER, 2023. P. NYAUNDIJUDGEIn the presence of;Sylvia Court Assistant