[2017] KEHC 7108 (KLR)
The court held that the application was incompetent as it sought to transfer property of a deceased person through a miscellaneous application without following the mandatory process of succession. The applicant could not seek orders against the respondent, who was not a personal representative of the deceased, and...
Source-derived case information.
- Citation
- [2017] KEHC 7108 (KLR)
- Parties
- Applicant: John Kariuki Maina; Respondent: Mrs. Ann Wanjiru Ngatia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 313 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application dismissed
- Legal Topics
- Transfer of Land, Succession Procedure, Miscellaneous Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kariuki Maina
Applicant
Mrs. Ann Wanjiru Ngatia
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the applicant can obtain transfer of land registered in the name of a deceased person through a miscellaneous application.
- 2 Whether the respondent, not being a personal representative, can be subject to such a claim without a grant of letters of administration.
- 3 Whether property of a deceased person can be dealt with outside the process of succession.
Ratio Decidendi
The court held that the application was incompetent as it sought to transfer property of a deceased person through a miscellaneous application without following the mandatory process of succession. The applicant could not seek orders against the respondent, who was not a personal representative of the deceased, and no property of a deceased person can be transferred or dealt with unless a grant of letters of administration has been issued and confirmed. The application was therefore misconceived and dismissed.
Court Disposition
application dismissed
Orders
- The applicant's application is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
IN THE MATTER OF TRANSFER OF NAIROBI COUNTY NJIRU AGERIA
DEVELOPMENT CO.LTD L.R NO.13468/306 IR NO.56880 FROM TRANSFER FOR PETER MWAURA NJOROGE ( DECEASED) TO THE TRANSFEREE JOHN K MAINA
MISC. APP.ELC NO. 313 OF 2016
JOHN KARIUKI MAINA………………………………………...…..APPLICANT
VERSUS
MRS.ANN WANJIRU NGATIA………………………………..…RESPONDENT
RULING
1. The applicant in this matter is acting in person. He filed a chamber summons dated 17th November 2016, in which he seeks orders that LR No. 13468/306 registered in the name of Peter Mwaura Njoroge be transferred into his name.
2. The applicant contends that he had been assaulted by Peter Mwaura Njoroge on 6th July 2012. The case was reported to police and while the same was undergoing investigations, the applicant and the said Peter Mwaura Njoroge signed a memorandum of commitment in which the said Peter Mwaura Njoroge agreed to give him general damages of Kshs.100,000/= in compensation for the injuries he sustained.
3. The memorandum of commitment was signed before an advocate on 30th July 2012, wherein the said Peter Mwaura Njoroge acknowledged receipt of Kshs.25,000/=on execution of the commitment. The balance of Kshs.75,000/= was to be paid by monthly instalments of Kshs.5,000/=. In default the applicant was to have the land owned by Peter Mwaura Njoroge transferred to him.
4. Peter Mwaura Njoroge (deceased) died on 21st August 2013. The applicant has now brought a miscellaneous application in which he has named the wife of the deceased as the Respondent.
5. I have gone through the applicant’s application and must say at the outset that the same is incompetent and cannot be allowed. Firstly, the commitment was between the applicant and the deceased and no such orders can be given on a miscellaneous application. Secondly a property of a deceased person cannot be dealt with unless there is a process of succession which is carried out, a grant issued and the same is confirmed.
6. The Respondent herein is not a personal representative of the deceased and no claim can be brought against her until after she obtains grant of letter of administration or she is cited in accordance with the law of Succession Act. I therefore find that the applicant’s application is misconceived. The same is hereby dismissed with no order as to costs.
It is so ordered.
Dated, Signed and Delivered at Nairobithis 20thday of March 2017
E.O .OBAGA
JUDGE
In the presence of ;-
The Applicant
No appearance on the part of the Respondent
Court Assistant :Kevin
E.O .OBAGA
JUDGE