[2009] KEHC 769 (KLR)
The court found that although a previous order for distribution had been made, the Certificate of Confirmation of Grant did not name the applicants as beneficiaries, and the entire estate was to vest in the respondent. The applicants failed to establish a sufficient nexus between themselves and the suit property...
Source-derived case information.
- Citation
- [2009] KEHC 769 (KLR)
- Parties
- Applicant: John Wachira; Applicant: Susan W. Muchiri; Applicant: David M. Muchiri; Applicant: Joseph Muthika Muchiri; Respondent: Joseph Muriuki Muchiri
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 207 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Execution of Distribution Order
- Outcome
- application dismissed
- Judges
- SP Ouko
- Legal Topics
- Succession Disputes, Execution of Court Orders, Beneficiary Entitlement, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Wachira
Applicant
Susan W. Muchiri
Applicant
David M. Muchiri
Applicant
Joseph Muthika Muchiri
Applicant
Joseph Muriuki Muchiri
Respondent
Procedural Posture
Civil Case / Ruling on Application for Execution of Distribution Order
Legal Issues
- 1 Whether the respondent should be compelled to execute documents to facilitate the survey, subdivision, and distribution of the suit property to the applicants.
- 2 Whether the Deputy Registrar should be directed to execute the documents in default of the respondent.
- 3 Whether the restrictions on the suit property should be removed.
Ratio Decidendi
The court found that although a previous order for distribution had been made, the Certificate of Confirmation of Grant did not name the applicants as beneficiaries, and the entire estate was to vest in the respondent. The applicants failed to establish a sufficient nexus between themselves and the suit property based on the available evidence from the succession cause. In the absence of such a nexus and with insufficient supporting documentation, the court was unable to grant the orders sought for execution of documents or removal of restrictions. The application was therefore dismissed.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Case 207 of 2005
JOHN WACHIRA ……………………………………………. 1ST APPLICANT
SUSAN W. MUCHIRI ………………………………………. 2ND APPLICANT
DAVID M. MUCHIRI ………………………………………… 3RD APPLICANT
JOSEPH MUTHIKA MUCHIRI ……………………....……….. 4TH APPLICANT
VERSUS
JOSEPH MURIUKI MUCHIRI …………………….....…………. RESPONDENT
RULING
The applicants are seeking in the instant application that the respondent be ordered to execute all relevant documents to facilitate the survey, subdivision and distribution of parcel of land No.NYANDARUA/NGORIKA/
87 to all the beneficiaries. In default, they are praying that the court directs the Deputy Registrar of this court to execute the said documents. Finally they would like the court to order the removal of the restrictions placed against the suit property.
It is the applicants’ contention that the suit property was registered in the name of the respondent as the administrator of the estate of the late Muchira Gatika in Nakuru High Court Succession Cause No.445 of 1994. That they are entitled to share the suit property as the sons and widow ofHCCC.NO.207 OF 2005 (O.S.)the deceased, respectively. That the respondent has failed and/or refused to cause the suit property to be distributed to the beneficiaries.
On 1st August, 2005 the applicants brought an originating summons to compel the respondent to distribute the suit property to them. They also sought a further order that the court determines their respective shares.
The court (Koome, J) in a ruling dated 6th July, 2007 granted the application and ordered that each of the applicants, except Susan Muchiri (the widow) and the respondent to get 15 acres of the suit property. The widow and Alice Njoki (described as sister) were to get 17 and 3 acres respectively.
The applicants have now brought the present application arguing that the respondent has failed and/or refused to comply with the distribution as ordered by the court.
The application and the hearing notice were duly served upon the respondent but failed to reply to the application or attend court during the hearing of this application. Although the application proceeded exparte, it remains the duty of the applicants to prove their claim on a balance of HCCC.NO.207 OF 2005 (O.S.)probabilities. They have alleged that the respondent was ordered to distribute the suit property but has refused or ignored the order.
There is no doubt that such an order was made. I can observe that the Certificate of Confirmation of a Grant issued on 20th March, 1995 in respect of the deceased person does not name the applicants as beneficiaries. The entire estate was to vest in the respondent. A part from a faded copy of certificate of confirmation, I do not have the benefit of the other details in the succession cause. The respondent by staying away from these proceedings has not helped the matter. In the absence of any nexus between the suit property and the applicants, I find it difficult to grant the orders sought herein.
I dismiss the application and make no orders as to costs.
Dated and delivered at Nakuru this 2nd day of October, 2009.
W. OUKO
JUDGE