[2016] KEHC 3561 (KLR)
The court found that the disputed parcels of land had, after a long series of court cases, been decreed to be the property of individuals and not the Nditi clan. The Court of Appeal judgment in Civil Appeal No. 110 of 2011 was conclusive in determining that the land belonged to the individuals who were parties to...
Source-derived case information.
- Citation
- [2016] KEHC 3561 (KLR)
- Parties
- Applicant: Jamlick Njiru; Applicant: Thomas Njeru Nthuni; Respondent: Erasmus Ireri Njeru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 19 of 2014
- Procedural Posture
- Succession Cause / Ruling on Protest to Distribution of Estate
- Outcome
- protest dismissed
- Legal Topics
- Succession of Land, Clan Land Disputes, Trusteeship of Land, Beneficiary Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jamlick Njiru
Applicant
Thomas Njeru Nthuni
Applicant
Erasmus Ireri Njeru
Respondent
Procedural Posture
Succession Cause / Ruling on Protest to Distribution of Estate
Legal Issues
- 1 Whether the disputed parcels of land form part of the deceased's estate or belong to the Nditi clan as alleged by the protestor.
- 2 Whether the protestor/objector is a beneficiary or relative entitled to a share of the estate.
Ratio Decidendi
The court found that the disputed parcels of land had, after a long series of court cases, been decreed to be the property of individuals and not the Nditi clan. The Court of Appeal judgment in Civil Appeal No. 110 of 2011 was conclusive in determining that the land belonged to the individuals who were parties to that appeal. The protestor/objector failed to establish any legal or beneficial entitlement to the estate, either as a relative or as a beneficiary. The administrators' evidence, supported by search certificates and the appellate judgment, established that the land formed part of the deceased's estate and was not held in trust for the clan. Accordingly, the protest lacked merit...
Court Disposition
protest dismissed
Orders
- The protest is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION CAUSE NO. 19 OF 2014
IN THE MATTER OF THE ESTATE OF ESBON NTHUNI alias HESBONE NTHUNI alias HESPHON THUNI CIATHATHI alias HESPHON NJERU (DECEASED)
JAMLICK NJIRU
THOMAS NJERU NTHUNI...............................................ADMINISTRATORS
VERSUS
ERASMUS IRERI NJERU......................................PROTESTOR/OBJECTOR
RULING
1. This is an application brought by the protestor in respect of the distribution of the estate of the deceased. The protestor has filed a supporting affidavit dated 11th November 2015. According to him, the deceased was his step father and was the former chairman of the Nditi clan. He has also deponed that the deceased registered many parcels of land in his name as a trustee for the Nditi clan members (para. 3). He has further stated that the entire court proceedings which started in 1964 in Mbeere African Court were between the Nditi clan versus Mukera clan. It is his affidavit evidence that no one claimed personal interest in those proceedings.
2. Finally, it is the protestor's affidavit evidence that the land was shared out on the basis of the clans and not on an individual basis. That is in a nutshell the gist of his affidavit evidence.
3. Counsel for the protestor filed written submissions in support of the protestor's case. According to counsel, all parcels of land belonged to Nditi clan and all court cases were litigated by the clan through their representatives. Counsel submitted that the parcel of land claimed by the two administrators belonged to the clan and not to the deceased. Counsel has further submitted that the High Court and the Court of Appeal judgements gave the parcels of land to individuals instead of giving it to the clan.
4. The administrator/ respondents through Jamlick Njiru Nthuni filed a replying affidavit dated 17th March 2015 in opposition to the protest. He deponed that the estate in question belonged to his late father and further deponed that the objector is not a beneficiary or a relative of his deceased father. He annexed the Court of Appeal judgement in Nicholas Njeru v TheHonourable the Attorney General and 8 others, being Civil Appeal No. 110 of 2011,as annex JNN 1. He further deponed that the search certificates in respect of the suit parcels of land do indicate that the deceased and others were registered as owners of the suit parcels of land (paras. 8,9 and 10).
5. Counsel for the two administrators filed written submissions in opposition to the protest. According to her, the protest is without merit. She has pointed out that the Court of Appeal judgement in Civil Appeal No 110 of 2011 is very clear. It is to the effect that the Court of Appeal decreed that the land parcels belonged to the individuals who were parties to that appeal. She has also submitted that the certificates of search annexed to the replying affidavit of the administrators clearly indicate that the parcels of land belong to the individuals and not to the Nditi clan members.
6. I have considered the affidavit evidence of both parties. I have also considered the submissions of both counsel and the authorities cited. I find that the lands in dispute were decreed after a long series of court cases to be the property of individuals and not that of the Nditi clan. The Court of Appeal judgement in Civil Appeal No. 110 of 2011 is conclusive in this this regard.
7. In the light of the foregoing, I hereby find that the protest is without merit and is dismissed with no orders as to costs.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 6thday of JULY 2016
In the presence of both administrators and in the presence of the protestor and in the absence of their counsel.
Court clerk Njue
J.M. BWONWONGA
JUDGE
06. 07. 16