[2015] KEHC 1944 (KLR)
The court found that the applicants had complied with previous court orders by depositing the balance of the purchase price for the suit property, while the respondent had failed to comply, failed to attend court, and had attempted to use the title deed for purposes contrary to the court's orders. The court...
Source-derived case information.
- Citation
- [2015] KEHC 1944 (KLR)
- Parties
- Applicant: James Mwanganu Mwangi; Applicant: Judith Wanjiru Mwanganu; Respondent: Peter Kamunyu Muchendu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 863 of 2008
- Procedural Posture
- Succession Cause / Ruling on Application to Amend Previous Orders and for Enforcement of Succession Orders
- Outcome
- Application allowed; previous orders amended and enforced in favour of the applicants.
- Judges
- MW Muigai
- Legal Topics
- Succession of Estates, Administration of Estates, Land Transfer, Title Deeds, Court Orders Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mwanganu Mwangi
Applicant
Judith Wanjiru Mwanganu
Applicant
Peter Kamunyu Muchendu
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Amend Previous Orders and for Enforcement of Succession Orders
Legal Issues
- 1 Whether the applicants are entitled to enforcement and amendment of previous court orders regarding the suit property.
- 2 Whether the respondent's actions in using the title deed to secure a bank loan are lawful given the pending succession proceedings.
- 3 Whether the applicants should be allowed to build on and access the suit property pending final transfer.
Ratio Decidendi
The court found that the applicants had complied with previous court orders by depositing the balance of the purchase price for the suit property, while the respondent had failed to comply, failed to attend court, and had attempted to use the title deed for purposes contrary to the court's orders. The court determined that the applicants were entitled to enforcement and amendment of the orders to allow them to build a semi-permanent house and to proceed with the transfer of the property. The court further ordered the revocation of any title deed issued in the respondent's name for purposes of securing a loan, and directed the Land Registrar to recognize the valid title as previously...
Court Disposition
Application allowed; previous orders amended and enforced in favour of the applicants.
Orders
- The applicant is allowed to build a semi-permanent house on the purchased land for the family to settle in.
- The respondent to come to court for an order to collect the balance of the purchase price deposited by the applicants as per the court order of 30th April 2015 and to allow the applicants free use and access to the suit property.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 863 OF 2008
IN THE MATTER OF THE ESTATE OF MUCHENDU BONGWE (DECEASED)
JAMES MWANGANU MWANGI
JUDITH WANJIRU MWANGANU.....................................................APPLICANT
VERSUS
PETER KAMUNYU MUCHENDU..................................................RESPONDENT
RULING
Counsel for the Applicant in this case asked the Court for orders based on the application filed on 30th July, 2015 and despite service to the Respondent he has not attended Court or filed a Replying Affidavit. Counsel for the Applicant informed Court that the Applicants continue to be harassed on the suit property by the Respondent.
The Respondent has resorted to using the Title deed to obtain a loan from the bank. Surveyors and valuers have been to the scene/suit property and the land will be charged to the bank. The title deed will be surrendered to the bank.
The Applicants will be left destitute. The Applicants have complied with the Court order and deposited the balance of the purchase price of the land in Court. The Respondent has not indicated to Court the position with regard to the seller, Samuel Nyutu, his brother, who allegedly disappeared from home and cannot be found. He was to lodge a report with police. The Respondent has declined to comply with the Court orders of this Court or apply for review or appeal or offer any explanation for his absence in court or challenges in complying with the court orders. The Respondent’s Counsel informed this court that he was not able to file a Replying Affidavit as he could not reach his client for instructions. He sought an adjournment.
The matter is not adjourned today, the Respondent is deliberately avoiding coming to Court. The Court orders further that the application of 8th July, 2015 is allowed and the Ruling of 30th April 2015 is amended in the following terms;
1. The Applicant is allowed to build a semi permanent house on the purchased land for the family to settle in.
2. The Respondent to come to Court for an order to collect the balance of the Purchase Price that was deposited by the applicants as per the Court Order of 30th Apil 2015 and he allows the Applicants free use and access to the suit property.
3. The Title deed Muguga/Jet Scheme/152 in the names of;
Paul Kimani Muchendu,
Teresiah Wanjiru Ngethe,
Martin Kamunye Muchendu,
John Njoroge Muchendu,
Jacinta Wairimu Ndungu, remains valid.
4. The Land Registrar Kiambu Lands Office to revoke the Title deed for Muguga/Jet Scheme/152 in the name of;
Peter Kamonyo Muchendu
John Njoroge Muchendu holding in trust for Samuel Nyutu. The said Title is not subject to security for any loan in any bank with regard to the suit property 0. 75 acres for Sammy Nyutu held by John Njoroge and Peter Kamunyo.
5. The applicant to proceed with the transfer of the property MUGUGA/JETSCHEME/152 of ¾ acre and the Deputy Registrar Family Division to sign transfer documents.
6. Any party is at liberty to apply.
READ AND SIGNED IN OPEN COURT AT NAIROBI THIS 7TH DAY OF OCTOBER, 2015
M. MUIGAI
JUDGE
In the presence of: