[2009] KEHC 2126 (KLR)
The court found that the late Peter Kabuu had purchased one acre of Kabete/Kabete/82, which was consolidated with the deceased's land by agreement and confirmed by prior court decisions. These judgments are binding and must be given effect in the distribution of the estate. The court rejected the Administrator's...
Source-derived case information.
- Citation
- [2009] KEHC 2126 (KLR)
- Parties
- Applicant: Administrator (name not specified); Respondent: Objector (representing late Peter Kabuu)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 1580 of 1995
- Procedural Posture
- Succession Cause / Ruling on Distribution of Estate
- Outcome
- Estate distributed in accordance with prior judgments and parties' proposals; certificate of confirmation to issue; no order as to costs.
- Judges
- KH Rawal
- Legal Topics
- Succession of Estates, Distribution of Land, Customary Law Land Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Administrator (name not specified)
Applicant
Objector (representing late Peter Kabuu)
Respondent
Procedural Posture
Succession Cause / Ruling on Distribution of Estate
Legal Issues
- 1 Whether the property Kabete/Kabete/82 was wholly owned by the deceased or partly by the late Peter Kabuu.
- 2 How the disputed properties of the deceased should be distributed among the beneficiaries.
- 3 Whether prior court decisions regarding ownership and division of the land are binding in this succession cause.
Ratio Decidendi
The court found that the late Peter Kabuu had purchased one acre of Kabete/Kabete/82, which was consolidated with the deceased's land by agreement and confirmed by prior court decisions. These judgments are binding and must be given effect in the distribution of the estate. The court rejected the Administrator's attempt to introduce new reasons for eviction or to disregard the objector's claim, holding that such arguments were not pleaded or considered in previous proceedings and are therefore inadmissible. The court ordered that Kabete/Kabete/82 be divided as proposed by the objector, with the remaining portion split equally among the three houses. The distribution of Kabete/Kabete/T156...
Court Disposition
Estate distributed in accordance with prior judgments and parties' proposals; certificate of confirmation to issue; no order as to costs.
Orders
- Kabete/Kabete/82 to be divided as proposed by the objector: one acre to the family of the late Peter Kabuu, remainder to be divided equally among the three houses.
- Kabete/Kabete/T156 to be divided equally: half to the objector's family, half to Edward Ngugi Thairu.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
SUCCESSION CAUSE 1580 OF 1995
IN THE MATTERT OF THE ESTATE OF THAIRU NJURANGA – (DECEASED)
RULING
The deceased herein was the father of the Administrator and the grand father of the Objector who represented his late father Peter Kabuu who was a son of the deceased.
Three properties registered in his names were in dispute namely;
1. Kabete/Kabete/82
2. Kabete/Kabete/T.156
3. Kabete/Kabete/80
It is the case of the objector that the first property i.e. Kabete/Kabete/82, although registered in the name of the deceased, was not wholly owned by him. It is averred that a portion thereof was purchased by the late Peter Kabuu and he agreed to the portion bought by the deceased and also agreed to amalgamate his portion register in the name of the deceased who was his father and he was his eldest son.
His claim has been accepted by the two courts namely: African court in the case No.111 of 1966 and by Kiambu Resident Magistrate’s court in Appeal No.54 of 1966.
The certified copy of judgment of the of the African court dated 13. 3.1966 as well as the copy of judgment of the Appeal dated 12th January, 1967 in the said case were produced by the Objector.
In the first judgment it is especially observed that:
“This court believes that when the said land was demarcated Peter Kabuu (defendant) had bought a land from one Jonah Wairobi and it was consolidated together with the Plaintiff’s land.”
It was further observed that the deceased accordingly divided the land amongst three houses and late Peter Kabuu started developing it. Then the dispute arose and the deceased sought to evict him.
The Appeal court agreed with the decision of the African court and rejected the appeal by the deceased. The panel of elders, on 30th March, 1981 had also decided similarly
The Petitioner stressed that the late Peter then filed a case in High Court for declaration of his right over the land but later withdrew it. That fact itself shall have not effect on the aforesaid two decisions. Moreover, the objector has produced letters written by the said Peter in the year 1981 and 82 to Mr. Njonjo MP for Kikuyu Constituency and to the District Officer wherein he had mentioned the reason of his agreeing to the deceased being registered as proprietor of the amalgamated parcels of land.
I also tend to agree with submissions from the learned counsel of the objector that the reason for the deceased to evict the late Peter Kabuu, which was his refusal to share other piece of land, cannot be considered by this court. Neither before any of the two courts which heard and determined the dispute between the father (the deceased herein) and son (the late Peter Kabuu) nor before this court the said fact is pleaded. Placing the same during submissions is not only irregular but is improper and prejudicial to the objector. I shall thus refuse to take that submissions into my consideration.
The late Peter Kabuu, as per the records, had bought one acre and thus the parcel of land Kabete/Kabete/82 shall be divided as proposed by the objector, i.e. the remaining portion of the parcel of land be divided in three equal portions amongst three houses. A plan attached to the bundle of documents (page marked ‘b’) produced can be a guideline of its distribution.
As regards 2nd property namely Kabete/Kabete/T156. It is agreed by both parties that half thereof be given to the objector’s family and half to be given to Edward Ngugi Thairu as proposed by the Administrator.
It is also not opposed that L.R. Kabete/Kabete/80 be given to the third house.
The other remaining properties Kabete/Kabete.161, Kabete/Kabete/81 be devolved as proposed by the Administrator in summons for confirmation dated 30th January, 2001 and filed on 16th February, 2001.
No order as to costs. Certificate of confirmation be issued accordingly.
Dated, SignedandDelivered at Nairobi, this 21st day of July, 2009.
K.H. RAWAL
JUDGE
21. 7.09