[2016] KEHC 3630 (KLR)
The court found that the application to remove the restriction was unopposed and that there was no pending application or challenge to the confirmed grant. The restriction placed by the objectors on land parcel Kyeni/Kigumo/367 was not justified, as the succession matter had been concluded and the confirmed grant...
Source-derived case information.
- Citation
- [2016] KEHC 3630 (KLR)
- Parties
- Applicant: Jesica Muthoni; Respondent: Wilson Nyaga Mutaku; Respondent: Samuel Njeru; Respondent: Nancy Mutitu; Respondent: Mary Marigu; Respondent: Jane Wanja; Respondent: Beatrice Murugi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 878 of 2002
- Procedural Posture
- Succession Cause / Ruling on Application to Remove Restriction
- Outcome
- application granted
- Legal Topics
- Administration of Estates, Confirmation of Grant, Removal of Land Restriction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jesica Muthoni
Applicant
Wilson Nyaga Mutaku
Respondent
Samuel Njeru
Respondent
Nancy Mutitu
Respondent
Mary Marigu
Respondent
Jane Wanja
Respondent
Beatrice Murugi
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Remove Restriction
Legal Issues
- 1 Whether the restriction placed on land parcel Kyeni/Kigumo/367 by the objectors should be removed.
- 2 Whether there are any pending applications or challenges to the confirmed grant.
- 3 Whether the confirmed grant should be implemented to distribute the estate to rightful beneficiaries.
Ratio Decidendi
The court found that the application to remove the restriction was unopposed and that there was no pending application or challenge to the confirmed grant. The restriction placed by the objectors on land parcel Kyeni/Kigumo/367 was not justified, as the succession matter had been concluded and the confirmed grant had not been challenged. Therefore, the restriction was set aside to enable the implementation of the grant and distribution of the estate to the rightful beneficiaries.
Court Disposition
application granted
Orders
- The restriction placed against land parcel Kyeni/Kigumo/367 is set aside.
- The applicant's application is granted in terms of prayer No. 1 of the ex parte summons.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION CAUSE NO. 878 OF 2002
IN THE MATTER OF THE ESTATE OF MATAKU MURUAMIU alias MUTUKU MURIAMIU
JESICA MUTHONI.................................................APPLICANT/PETITONER
VERSUS
WILSON NYAGA MUTAKU
SAMUEL NJERU
NANCY MUTITU
MARY MARIGU.................................................................RESPONDENTS
JANE WANJA
BEATRICE MURUGI
RULING
1. This application which was brought by summons proceeded in the absence of the respondents/objectors after I was satisfied that they were properly served and had adequate notice.
2. In support of her application to remove the restriction placed against land parcel No. Kyeni/Kigumo/367 on 1st February 2011 by the objectors, the applicant has relied on the following grounds. Firstly, she states that the matter was concluded way back on 12th April 2016 and that there is nothing pending in court. Secondly, the objectors placed the restriction against the suit land during the pendency of this suit. And finally she states that the confirmed grant needs to be implemented so that the rightful beneficiaries can be given their shares to the estate.
3. The applicant's application is grounded on her supporting affidavit. In that affidavit, she has deponed that there is no application pending in this matter, since the ruling dismissed the respondents' application for revocation of grant on 12th April 2016. She also deponed that the respondents through their advocate placed a restriction in respect of the suit land which restriction is still in force. She has further deponed that this restriction should be removed to enable her to fully implement the grant.
4. I have considered the application and I find that it is unopposed. I find that the confirmed grant has not been challenged. I also find that the placing of the restriction in respect of the suit land is not justified.
5. In the circumstances, I hereby set aside the restriction. I hereby grant the applicant's application in terms of prayer No. 1 of the ex parte summons.
6. There will be no orders as to costs.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 5th day of JULY 2016
In the presence of Ms Muthoni holding brierf for Mr. E K. Njagiand in the absence of the respondents
Court clerk Njue
J.M. BWONWONGA
JUDGE
05. 07. 16