[2016] KEHC 1950 (KLR)
The court found that the restrictions on the subject land parcels were imposed due to the death of the registered proprietor and pending succession proceedings. Since all relevant proceedings have been concluded, the issues leading to the restrictions have been resolved, and the beneficiaries have been provided for...
Source-derived case information.
- Citation
- [2016] KEHC 1950 (KLR)
- Parties
- Applicant: Jacinta Wayua Mutua; Respondent: Ann Syokau Mutua
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 637 of 2009
- Procedural Posture
- Succession Cause / Ruling on Summons to Lift Land Restrictions
- Outcome
- application allowed
- Judges
- DO Ogembo
- Legal Topics
- Administration of Estates, Removal of Land Restrictions, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacinta Wayua Mutua
Applicant
Ann Syokau Mutua
Respondent
Procedural Posture
Succession Cause / Ruling on Summons to Lift Land Restrictions
Legal Issues
- 1 Whether the restrictions placed on land parcels Masii/Mithini/384 and Masii/Mithini/387 should be lifted to enable distribution of the estate.
- 2 Whether the lifting of restrictions would prejudice the respondent or other beneficiaries.
Ratio Decidendi
The court found that the restrictions on the subject land parcels were imposed due to the death of the registered proprietor and pending succession proceedings. Since all relevant proceedings have been concluded, the issues leading to the restrictions have been resolved, and the beneficiaries have been provided for in the confirmed grant, there is no longer any justification for maintaining the restrictions. Lifting the restrictions is necessary to enable the administratrix to distribute the estate in accordance with the rectified Certificate of Confirmation of Grant. The respondent was served but did not oppose the application, and there is no evidence that lifting the restrictions would...
Court Disposition
application allowed
Orders
- The restrictions placed on land parcels Masii/Mithini/384 and Masii/Mithini/387 are hereby lifted or removed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 637 OF 2009
IN THE MATTER OF THE ESTATE OF LATE ZABETH WANZA MUTUA – DECEASED
JACINTA WAYUA MUTUA ………………………………….APPLICANT
VERSUS
ANN SYOKAU MUTUA………………………………………RESPONDENT
RULING OF THE COURT
1. The Summons before the court is dated 18th August, 2016 pursuant to Rule 49 and 73of the Probate and Administration Rules. The Summons seeks as the main prayers an order that the restriction placed on land parcels No. Masii/Mithini/384and Masii/Mithini/387 be lifted or removed.
2. The application is premised on the grounds set out therein and is supported by affidavit of Jacinta Wayua Mutua sworn on 18th August, 2016.
3. The applicant’s case is that on 4th October, 2001,restrictions were placed on land parcel No. Masii/Mithini/384 and land parcels No. Masii/Mithini/387 on grounds that the registered proprietor was since deceased. Again on 18th January, 2011,another restriction was placed on land parcel No. Masii/Mithini/384pending finalization of Misc. application No. 97 of 2002 and H.C. Succession Cause No. 637 of 2009. The registered proprietor of the parcels of land in question one WanzaMutua died on23rd August, 1991 and vide HC. Succession Cause No. 667 of 2009(present cause), the applicant herein was appointed as the Administratix of the estate of the deceased vide rectified Certificate of Confirmation of grant issued on 19th October, 2010. The person or person(s) who were involved in lodging the restrictions pending the court proceedings have actively participated in the said proceedings and have been provided for in the succession proceedings as beneficiaries of the deceased. Misc. Application No. 97 of 2002 has since been heard and determined vide decree issued on 29th Octoer, 2009 and its findings have already been incorporated in HC. Succ. Cause No. 637 of 2009. The Appellant’s case is that there is dire need to lift the said restrictions so that the Administratix/Applicant may lodge the necessary forms with the Land’s Registry, Machakos, and thereafter embark on the process of transferring the various portions to the intended beneficiaries as envisaged in the rectified Certificate of Confirmation of Grant issued on 19th October, 2010. The orders sought herein are necessary to vest the portions of land to the rightful beneficiaries of the deceased. It is alleged that this application is necessary for the ends of justice to be met and it will not prejudice the respondent and other beneficiaries of the estate of the deceased.
4. The application was served upon the respondent together with a hearing Notice for 20th September, 2016. However, the respondent did not attend the court.
5. I have considered the application. I have also noted that the issues which initially led to Protest have since been resolved, and that there is need to lift the said restrictions so that the estate can be distributed as proposed in the Confirmed Grant.
6. The upshot is that the application before the court is allowed as prayed.
Orders accordingly.
DATED AND DELIVERED AT MACHAKOS THIS1STDAY OF NOVEMBER, 2016.
....................
E. OGOLA
JUDGE
In the presence of;
Mr. Kamanda holding brief for M/s Mutinda Kimeu for applicant
Court Assistant – Mr. Munyao