[2008] KEHC 1759 (KLR)
The court found that the applicant was not authorized by law or by a grant of representation to subdivide or sell the deceased's property. All transactions, including the sale and transfer of Kabare/Kiritiri/1794 to the interested party, were conducted before confirmation of grant and thus contravened Sections 45...
Source-derived case information.
- Citation
- [2008] KEHC 1759 (KLR)
- Parties
- Applicant: Madrina Muthoni Mwaniki; Respondent: Peter Kariuki Nguru; Interested Party: Mathew Justus Gachoki Mbogo
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 758 of 2002
- Procedural Posture
- Succession Application / Ruling on Summons to Cancel Subdivision and Sale of Estate Property
- Outcome
- application allowed
- Legal Topics
- Intermeddling With Estate, Sale of Estate Property, Confirmation of Grant, Invalid Land Transactions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Madrina Muthoni Mwaniki
Applicant
Peter Kariuki Nguru
Respondent
Mathew Justus Gachoki Mbogo
Interested Party
Procedural Posture
Succession Application / Ruling on Summons to Cancel Subdivision and Sale of Estate Property
Legal Issues
- 1 Whether the applicant was authorized to subdivide and sell the deceased's property before confirmation of grant.
- 2 Whether the sale and transfer of Kabare/Kiritiri/1794 to the interested party was lawful.
- 3 Whether the court should cancel the subdivisions and sale effected prior to grant confirmation.
Ratio Decidendi
The court found that the applicant was not authorized by law or by a grant of representation to subdivide or sell the deceased's property. All transactions, including the sale and transfer of Kabare/Kiritiri/1794 to the interested party, were conducted before confirmation of grant and thus contravened Sections 45 and 82(b)(ii) of the Succession Act. The court held that such actions amounted to intermeddling with the estate and were illegal. The court cannot sanction or uphold illegal acts, regardless of the circumstances or the parties' intentions. Therefore, the application to cancel the subdivisions and sale was allowed, and the orders sought were granted.
Court Disposition
application allowed
Orders
- The application is allowed as prayed.
- The subdivisions and sale of Kabare/Kiritiri/1794, 1795, 1796, and 1797 are cancelled.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Succession Case 758 of 2002
IN THE MATTER OF THE ESTATE OF NGURU KIMANI………..DECEASED
AND
MADRINA MUTHONI MWANIKI…………………………………….PETITIONER
VERSUS
PETER KARIUKI NGURU……………………....……OBJECTOR/PROTESTER
AND
MATHEW JUSTUS GACHOKI MBOGO…….….....……...INTERESTED PARTY
RULING
There is before court summons dated 6/12/2007 under rule 49 and 73 of P& A Rules Succession Act. The applicant seeks orders to cancel certain deeds namely Kabare/Kiritiri/1794, 1795, 1796 and 1797 which are subdivision of original No. Kabare/Kiritiri/627. And that the Registrar do dispense with production of Title No. 1794. This application is not opposed by Peter Kariuki Njiru the objector. But it is opposed by Mathew Justus Gachoki Mbogo the interested party who has filed affidavit saying his land plot No. Kabare/Kiritiri/1794 should not be interfered with. He says he purchased the land from the Applicant for Shs.150,000/=. He has exhibited agreement and other documents which shows that he entered into agreement of purchase of that plot on 4/7/2005 and even in June 1999 and August 1999 that purchase was in progress. Mutation Forms were completed on 5/9/2003 and the interested party was registered as proprietor of land on 31/10/2003 and on 12/1/2007 a restriction was registered at the request of D.O. Gichugu Division.
Upon an examination of affidavits there are no other persons complaining because the other plots are still registered in the name of the Applicant. The deceased passed away in 1967. Therefore these transactions were before the grant. Looking at Succession Act Cap 160 Section 45 it is provided that unless expressly authorized by the Act or by any other written law or by a grant of representation under this Act no person shall for any purpose take possession or dispose of or otherwise intermeddle with any free property of a deceased person.
In this case the applicant was not authorized by any law or a grant of representation to carry on the transaction of subdividing the land or of offering land for sale to the interested party. She was committing a criminal offence. So also the persons who were assisting her. Section 82 (b) (ii) it is provided that no immovable property shall be sold before confirmation of the grant. The applicant has breached this provision of law in purporting to sell and transfer the deceased part of the property before the grant was confirmed. The court cannot countenance actions of illegality for whatever reason.
The application is therefore allowed and orders granted as prayed. No order as to costs.
Dated this 22nd May, 2008.
J. N. KHAMINWA
JUDGE
22/5/2008
Khaminwa – Judge
Njue – Clerk
Ms. Thungu HB for Mr. Ndana for protester
Objector present in person
Interester Party present in person.
Read in open court.
J. N. KHAMINWA
JUDGE