[2018] KEHC 7329 (KLR)
The court found that the applicant and Ivana Cherotich Martin were indeed gifted the subject property under the will of the deceased. However, the delay in transmission was justified due to the death of one executor, which required legal steps to remove his name from the grant, causing unavoidable delays. The court...
Source-derived case information.
- Citation
- [2018] KEHC 7329 (KLR)
- Parties
- Applicant: Jasmine Martin; Respondent: Kim Cheruiyot Martin
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1045 of 2013
- Procedural Posture
- Succession Cause / Ruling on Summons for Transmission of Property
- Outcome
- Application deferred pending further evidence.
- Judges
- DN Musyoka
- Legal Topics
- Testate Succession, Grant of Representation, Transmission of Property, Executor Duties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jasmine Martin
Applicant
Kim Cheruiyot Martin
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Transmission of Property
Legal Issues
- 1 Whether the applicant is entitled to transmission of LR No. 209/2/292 Wilma Court Nairobi as a gift under the will of the deceased.
- 2 Whether the delay in effecting the transmission by the executors was justified.
- 3 Whether the property in question is registered in the name of a limited liability company, thereby affecting its transmission.
Ratio Decidendi
The court found that the applicant and Ivana Cherotich Martin were indeed gifted the subject property under the will of the deceased. However, the delay in transmission was justified due to the death of one executor, which required legal steps to remove his name from the grant, causing unavoidable delays. The court also noted that there was no proof provided that the property was registered in the name of a company, and such proof was necessary before any transmission could be ordered. The court thus required the executors to provide evidence of the property’s registration status before making further orders on the transmission.
Court Disposition
Application deferred pending further evidence.
Orders
- The executors are required to provide proof by affidavit within fourteen (14) days that LR No. 209/2/292 Wilma Court Nairobi is registered in the name of Sesaat Limited.
- The matter shall be mentioned thereafter for compliance and further directions.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 1045 OF 2013
IN THE MATTER OF THE ESTATE OF WILLIAM KIMUTAI MARTIN (DECEASED)
RULING
1. The summons dated 7th March 2016 is brought at the instance of Jasmine Martin. She seeks orders with respect to a property known as LR No. 209/2/292 Wilma Court Nairobi. She would like the Deputy Registrar for the Family Division ordered to execute transfer documents in respect of the said property in her favour and that of Ivana Cherotich Martin. She would also want orders that the Registrar of Titles be ordered to register the said duly executed transfer upon payment of the applicable charges by the applicant.
2. In her affidavit in support of the application, she avers that the deceased herein died testate on 29th February 2012 having made a will on 20th July 2011. Representation to his estate was obtained on 19th July 2013 and the grant confirmed on 10th June 2014. She complains that the respondent personal representatives have failed since then to cause the gift made to her transmitted to her name, yet they have had bequests in their favour transferred to their respective names.
3. The response to that application is in the replying affidavit of Kim Cheruiyot Martin, sworn on 4th February 2017. The reply raises two issues. Firstly, it is said that one of the executors of the will, Ian Kipkoech Martin, who was the husband of the applicant, died on 17th June 2015. He was one of the personal representatives to who representation had been granted on 19th July 2013. Upon his demise the other personal representatives had to move the court to have his name removed from the grant. This was done on 20th July 2016. The demise of the said executor is said to have stalled operations with regard to administration as no transfer or transmission could be undertaken while the name of a dead executor was still on the face of the grant. The other issue is that the property the subject of the gift, that is to say the flat located on LR No. 209/2/292 Wilma Court Nairobi, is actually standing on land belonging to a limited liability company. This would mean it belongs to the said company, said to be known as Sesaat Limited, owned by the deceased and his late wife. The executors indicate that they are in the process of sorting out the matters relating to the said company as between the two estates.
4. I have scrupulously perused through the will of 20th July 2011 and confirm that there was a gift of the subject property to the applicant, jointly with Ivana Cherotich Martin. That being the case there would be justification in the applicant agitating for transmission of the gift to her and the other beneficiary.
5. I have carefully considered the reasons given by the respondents to explain the delay in effecting the transmission. I am convinced that they are fairly genuine. The applicant’s late husband was one of the executors of the subject will. His demise no doubt threw a spanner into the works and the process of removing his name from the grant must have caused inconveniences and delays. I do not think it would be fair to accuse the respondents of malice, noting that no proof has been provided that the executors had caused transfers of the gifts made to them while discriminating against the applicant.
6. Regarding the other reason, there is no proof that the property in question was registered in the name of a limited liability company. It behooved the executors to provide proof thereof, even though the applicant has not contested the allegation. If indeed the property is registered in the name of a company, then the same cannot be transferred to the name of the applicant, and the other beneficiary as sought in the application.
7. I am prepared to give the executors the benefit of the doubt. I shall, however, require them to provide proof first that the property LR No. 209/2/292 Wilma Court Nairobi is registered in the name of Sesaat Limited as alleged. Such proof to be provided by way of affidavit to be filed within fourteen (14) days. The matter shall be mentioned thereafter for compliance and further directions.
DATED, SIGNED and DELIVERED at NAIROBI this 20TH DAY OF APRIL, 2018.
W. MUSYOKA
JUDGE