[2021] KEHC 8395 (KLR)
The court found that the order made on 29th June 2005 was not a consent order as alleged by the applicant, but rather a directive by the judge regarding the subdivision of the deceased's land according to the confirmed grant. The court further held that the order had no relation to the date of death of the deceased,...
Source-derived case information.
- Citation
- [2021] KEHC 8395 (KLR)
- Parties
- Applicant: Evans Karanja Muniu; Applicant: Esther Wangari Muniu; Applicant: Henry Njau Muniu; Respondent: Francis Muturi Muniu
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 43 of 2017
- Procedural Posture
- Succession Application / Ruling on Notice of Motion to Set Aside/vacate Prior Order
- Outcome
- application dismissed
- Judges
- MM Kasango
- Legal Topics
- Succession of Estates, Grant of Letters of Administration, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Karanja Muniu
Applicant
Esther Wangari Muniu
Applicant
Henry Njau Muniu
Applicant
Francis Muturi Muniu
Respondent
Procedural Posture
Succession Application / Ruling on Notice of Motion to Set Aside/vacate Prior Order
Legal Issues
- 1 Whether the consent order recorded on 29th June 2005 should be vacated and/or set aside.
- 2 Whether the administrator misled the court regarding the date of death, affecting the applicable law.
- 3 Whether all of the deceased's properties were included in the succession proceedings.
Ratio Decidendi
The court found that the order made on 29th June 2005 was not a consent order as alleged by the applicant, but rather a directive by the judge regarding the subdivision of the deceased's land according to the confirmed grant. The court further held that the order had no relation to the date of death of the deceased, and thus the applicant's argument regarding the application of the wrong law was misplaced. The application was deemed incompetent and unmerited, as there was no substantive basis for setting aside the order. Consequently, the Notice of Motion dated 12th April 2019 was dismissed.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 12th April 2019 is dismissed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KIAMBU
SUCCESSION CASE NO 43 OF 2017
IN THE MATTER OF THE ESTATE OF ZAKAYO MUNIU KINDIGA alias MUNIU KINDIGA (DECEASED)
EVANS KARANJA MUNIU...............................................1ST APPLICANT
ESTHER WANGARI MUNIU...........................................2ND APPLICANT
HENRY NJAU MUNIU......................................................3RD APPLICANT
VERSUS
FRANCIS MUTURI MUNIU .............ADMINSTRATOR/RESPONDENT
R U L I N G
1. This succession matter has been pending before court since 1999. The deceased Zakayo Muniu Kindiga alias Muniu Kindiga deceased died 31st January 1983. Against all logic parties have continued to file applications in a matter, a matter that should have long been closed.
2. The Notice of Motion dated 12th April 2019 is such one application which ought not to have been filed. It is filed by Evans Karanja Muniu. Although he deponed in his affidavit that he brings the application on his behalf and on behalf of other applicants, those applicants remain un-named.
3. By that application Evans Karanja Muniu seeks an order as follows:
“The consent order recorded in court on 29TH June 2005 by Honourable Koome Judge be vacated and/or set aside.”
4. That prayer is premised on the ground that the administrator in applying for grant of letters of administration intestate indicated that the deceased died on 1st January 1981 and thereby led the court to apply the wrong law ad not the Law of Succession Act which came into force 1st July 1981. That further not all of the deceased’s properties were included in the succession.
5. The relationship between the order made by Justice Koome (as she then was) and the date allegedly stated when this succession was filed is not entirely clear. The order of Justice Koomeof 29th June 2005 was as follows:
1. THAT the Director Surveyor or Kiambu District do undertake subdivision for the land parcel number Kabete/Kibichiko/450 and 101 according to the confirmed grant.
2. THAT the subdivision should be equitable while ensuring that the parties benefit from the advantage and disadvantages of the land and while taking into consideration to existing developments that should remain with the respective beneficiaries.
3. THAT the parties should share cost of the subdivision and the transfer of the titles.
4. THAT mention be on 4th October, 2005 for further Orders.
6. It is obvious from the above that the said order was not made by consent, as alleged in the application and more importantly the order made on that day had no relation to the date the deceased died.
7. There is nothing more that can be said but that Notice of Motion before me is incompetent and unmerited. Accordingly, the Notice of Motion dated 12th April 2019 is dismissed with no orders as to cost because it was unopposed.
SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF MARCH 2021.
MARY KASANGO
JUDGE
22nd March 2021
Before Justice Mary Kasango
C/A - Kevin
Applicant – Mr. Wandati
For the Respondent - No appearance
COURT
Ruling virtually delivered in their presence.
MARY KASANGO
JUDGE