[2016] KEHC 4904 (KLR)
The court found that the registration of the disputed property in the respondent's name occurred long after the deceased's death and was a first registration, which could be challenged for fraud or misrepresentation. However, since the property is not registered in the deceased's name, the citation for letters of...
Source-derived case information.
- Citation
- [2016] KEHC 4904 (KLR)
- Parties
- Applicant: SON (Citor); Respondent: Benson Nzioka Ndali (1st Citee); Respondent: 2nd Citee
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 835 of 2011
- Procedural Posture
- Succession Cause / Ruling on Citation to Accept or Refuse Letters of Administration Intestate
- Outcome
- citation declined
- Judges
- EM Muriithi
- Legal Topics
- Succession Disputes, Letters of Administration, Estate Distribution, Land Registration, Gift Inter Vivos
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
SON (Citor)
Applicant
Benson Nzioka Ndali (1st Citee)
Respondent
2nd Citee
Respondent
Procedural Posture
Succession Cause / Ruling on Citation to Accept or Refuse Letters of Administration Intestate
Legal Issues
- 1 Whether the applicant is entitled to letters of administration intestate for the estate of the deceased.
- 2 Whether the suit property forms part of the estate of the deceased or was gifted inter vivos to the respondent.
- 3 Whether the registration of the suit property in the respondent's name bars succession proceedings.
Ratio Decidendi
The court found that the registration of the disputed property in the respondent's name occurred long after the deceased's death and was a first registration, which could be challenged for fraud or misrepresentation. However, since the property is not registered in the deceased's name, the citation for letters of administration would serve no purpose. The appropriate forum for resolving the ownership dispute is the Environment and Land Court, where the applicant may seek limited letters of administration ad litem if so advised. The citation was therefore declined, as the claimed assets were not shown to be part of the deceased's estate at the time of death.
Court Disposition
citation declined
Orders
- The citation to accept or refuse letters of administration intestate is declined.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 835 OF 2011
IN THE MATTER OF THE ESTATE OF THE LATE NDALI MWOLE (DECEASED)
CITATION TO ACCEPT OR REFUSE LETTERS OF ADMINSTRATION INTESTATE.
RULING
1. The applicant SON of the deceased has cited his brothers for purposes of taking out of letters of administration intestate to the estate of his late father and averred in his affidavit in support of the citation sworn on 5th September 2011 that –
‘3. That I am a beneficiary together with the other children of Deceased estate in LR No. Matungulu/Kambusu/131 having been a portion of the same land and having approached Benson Nzioka Ndali to obtain grant of letters to subdivide the portions amongst all the children of the deceased but he has refused and has been using the whole portion for himself.
4. That I approached Benson Nzioka Ndali to release the death certificate via the Assistant Chief for purposes of instituting a succession cause to enable the family divide the portion equally amongst the children of the deceased but the said Benson Nzioka Ndali has failed and insists on using the whole portion for himself depriving the other children of the deceased their share and without Court’s Order in my favour I cannot apply for grant of letters of Adminstration hence the application.’ (sic)
2. In a replying affidavit by Benson Nzioka Ndali of 9th July 2014, the citees denies that the deceased had any free property capable of inheritance through succession proceedings because “before our father’s death all his estate had been distributed to his sons with instigation of the citor herein by the Auwani Clan and therefore there is no estate left to be distributed after his death” and that he ‘was allocated parcels Matungulu/Kambusu/131, 2750 and 2827 and title deeds issued in my names. (annexed and marked BNN-II are copies of title allocated to me).’
3. I have perused the title documents on the suit property Matungulu/Kambusu/131 and considered the submissions filed by the parties on the matter. The same is shown in Titled Deed dated 3rd November 2011as registered in the name of the citee Benson Nzioka Ndali by an entry made on 30/1/2003. The deceased is shown to have died on 20th March 1982 by a letter from the Chief Matungulu Location dated 29th June 2012.
4. Generally, a child cannot force a parent to gift his property in a certain way during his life. The child may however, apply for adequate provision under the law of succession if the inheritance by virtue of testate or intestate succession is such as not to make adequate provision for the child or other dependant.
5. However, in this case it is not clear how the parcel of land subject of the proceedings which was registered on 30/1/2003long after the death of the deceased in 1982could have been considered gift inter vivos so that it ceased to become part of the estate of eh deceased. Moreover, the registration of the citee on 30/1/2003 is shown as a first registration, which in accordance with section 143 of the Registered Land Act, which applies to the parcel of land could be challenged on the grounds of fraud or misrepresentation.
6. The Citor cannot be barred from approaching the court and seeking to demonstrate that the parcel of land the subject of the dispute, although registered in the name of the citee, is truly part of the estate of the deceased. To refuse the citor his constitutional right under Article 50 of the Constitution opportunity is to bar the citor’s right to have a dispute which can be resolved by application of the law, determined by a competent court or tribunal.
7. However, it would appear that in view of the registration of the suit property in the name of the citee, the appropriate tribunal is an Environment and Land Court. The citor may, if so advised, file appropriate proceedings in that court for the determination of the ownership dispute relating to the suit property, for which purpose he only need obtain limited letters of Administration ad litem. For the same reason, I do not think that the citation would serve any purpose in the circumstances of the case, where the claimed assets are not shown to be registered in the name of the deceased.
8. Accordingly, the citation is declined with no order as to costs.
DATED AND DELIVERED THIS 26TH DAY OF APRIL 2016.
EDWARD M. MURIITHI
JUDGE
In the presence of: -
Citor in person
Mr. Kyalo for Mr. P.M. Muinde for 1st Citee
2nd Citee in person
Doreen - Court Assistant.