[2023] KEHC 26537 (KLR)
The court found that the applicant's application was merited as it sought to enforce the implementation of a confirmed grant, which had already been adjudicated and rectified by previous court orders. The court held that the facilitative orders for survey and provision of security were necessary to give effect to...
Source-derived case information.
- Citation
- [2023] KEHC 26537 (KLR)
- Parties
- Applicant: Tabitha Nyegera; Respondent: Julia Kaguri
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 222 of 1993
- Procedural Posture
- Succession Cause / Ruling on Enforcement Application Post Confirmation of Grant
- Outcome
- application allowed in part
- Judges
- EM Muriithi
- Legal Topics
- Implementation of Confirmed Grant, Eviction Orders in Succession, Survey and Demarcation of Estate Land, Reversion of Subdivided Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tabitha Nyegera
Applicant
Julia Kaguri
Respondent
Procedural Posture
Succession Cause / Ruling on Enforcement Application Post Confirmation of Grant
Legal Issues
- 1 Whether the applicant is entitled to orders for survey and demarcation of the estate land in accordance with the confirmed grant.
- 2 Whether the court should issue eviction orders against persons occupying the estate land after demarcation.
- 3 Whether the orders sought are necessary for the implementation of the confirmed grant.
Ratio Decidendi
The court found that the applicant's application was merited as it sought to enforce the implementation of a confirmed grant, which had already been adjudicated and rectified by previous court orders. The court held that the facilitative orders for survey and provision of security were necessary to give effect to the confirmed grant and ensure proper distribution of the estate. The court further held that, upon demarcation and placement of beacons, any persons occupying the estate land must vacate within thirty days, failing which eviction orders would issue. The respondent, having been served but not contesting the application, provided no basis for refusal. The court exercised its...
Court Disposition
application allowed in part
Orders
- The County Surveyor Meru Central shall visit parcel Abothuguchi/Katheri/1333 and survey it in accordance with the Certificate of Confirmation of Grant dated 29/09/2022.
- The OCS Githongo Police Station shall provide security during the implementation of the grant.
Full Case Text
Judgment text and source record
26 paragraphs
In re Estate of the Late Jeremiah Marete (Deceased) (Succession Cause 222 of 1993) [2023] KEHC 26537 (KLR) (7 December 2023) (Ruling)
Neutral citation: [2023] KEHC 26537 (KLR)
Republic of Kenya
In the High Court at Meru
Succession Cause 222 of 1993
EM Muriithi, J
December 7, 2023
Between
Tabitha Nyegera
Applicant
and
Julia Kaguri
Objector
Ruling
1. By summons under certificate of urgency dated 12/7/2023 brought under Rules 73 of the Probate and Administration Rules, the applicant seeks that:“1. That the application be certified urgent in the first instance.2. That the Honourable Court do issue an order directed to the County Surveyor Meru Central to visit the parcel Abothuguchi/Katheri/1333 and do survey according to the Certificate of Confirmation of Grant dated 29/09/2022. 3.That the Honourable Court do issue an order directed to the OCS Githongo Police Station to provide security during the implementation of the Grant.4. That an order do issue of eviction to any agent, servant and/or anyone who is in the occupation upon surveyor placing the bacons and boundary fixation.5. That cost of the application be borne by the objector/respondent.”
2. The grounds of the application are set out in the application as follows:“1. That the Court confirmed the Grant on 29/09/2022. 2.That there is nothing pending for Court to determine.3. That the order to land to revert back to the deceased was issued on 23/05/2023. 4.That the orders sought are facilitative in nature that the Certificate of Confirmation of Grant is implemented expeditiously.5. That the petitioner/applicant has made the application to ensure expeditious implementation as she is sickly and old.”
3. The Respondent did not attend court for hearing. However, the Affidavit of Service filed by Joel Maitethia M’Rukunga sworn on 20/7/2023 indicated service of the application endorsed with a hearing date of 26/9/2023. The Court, therefore, proceeded to hear the application.
4. Counsel for the applicant urged the court should make an order to survey the land by another surveyor and for the OCS to provided necessary security and further under prayer no. 4 upon survey and demarcations are done.
5. The Court has confirmed that there is a confirmed Grant in the matter dated 11/10/2018 and rectified on 29/9/2022 upon a ruling of the Court delivered on that date as follows:“Orders6. Being satisfied of the Judgment of the Court of 11/10/2018, the certificate of Confirmed Grant of 27/11/2018 issued to the applicant and the deceased as Co-administrators and on the strength of section 81 of the Law of Succession Act, the Court allows the application dated 12/7/2022 in terms of prayers (a) and (b) thereof so that a fresh Grant of Letters of Administration and confirmed Grant are issued to the surviving Administrator who shall administer and distribute the estate in accordance with the Judgment of the Court of 11/10/2018 and the Confirmed Grant to be issued in the same terms save that the share of the deceased shall go to the Estate of Julia Kaguri on behalf of herself and her children asset out in the Confirmed Grant of 27/11/2018. Order accordingly.”
6. There were further orders for its implementation upon an application by the applicant dated 31/3/2023 when the Court order as follows:““Court:Being satisfied of the merits of the application dated 31/3/2023 in view of the Judgment of 11/10/2018 and ruling of 29/9/2022, the Court grants the application in terms of Prayer (a) thereof.”
7. Prayer (a) of the Summons dated 31/3/2023 sought “an order for the reversal/revocation of the subdivisions done to Parcel No. Abothoguchi/Katheri/1333 and be reverted back to its original parcel and name of the deceased Jeremiah Marete.”
8. The application before the court is merely an enforcement procedure in compliance.
Orders 9. Accordingly, the Court finds merit in the applicant’s application dated 12/7/2023 to have the County Surveyor visit the land and survey the same in accordance with the Confirmed Grant of 29/9/2022 and it is allowed as prayed in Prayer Nos. 2 and 3 thereof.
10. Upon demarcation and placement of beacons, any persons on the portions of land making original ABothuguchi/Katheri/1333 shall vacate the land within thirty (30) days, and in default execution by an order for eviction shall issue.
11. There shall be no order as to costs.Order accordingly.
DATED AND DELIVERED ON THIS 7THDAY OF DECEMBER, 2023. EDWARD M. MURIITHIJUDGEAppearances:Mr. Mwiti for the Applicant.