https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9084

In re Estate of Ngugi (Deceased) (Succession Cause 51 of 2011) [2026] KEHC 9084 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEHC 9084 (KLR) Republic of Kenya In the High Court at Eldoret Succession Cause 51 of 2011 RN Nyakundi, J June 26, 2026 IN THE MATTER OF THE ESTATE OF FRANCIS MWAURA NGUGI (DECEASED) Between Joseph Maina Applicant and Stephen Ngugi Wathiai Respondent Ruling 1.Before this Court is notice of motion dated 3rd March 2026, expressed to be brought under Article 159 of Constitution of Kenya 2010, Section 3A of Civil Procedure Act, Section 5 of Judicature Act and all other enabling provisions. The Applicant seeks the following orders:a.Spent.b.That this Honorable Court be pleased to cite the Respondent for contempt for non-compliance with the distribution of the Estate as per the Certificate of Confirmation of Grant dated 28th October, 2025.c.That the Respondent be committed to civil jail for blatant disobedience and willful refusal to comply with the distribution as per the Rectified Certificate of Confirmation of Grant dated 28th October,2025.d.That the Respondent be condemned to pay costs of and incidental to this application 2.The application is premised on the following grounds:a.The Petitioner/Applicant and Respondent are beneficiaries in this Estate.b.That the Petitioner was to inherit two portions of 0.202 Ha and 0.16Ha out of the land parcel Nyandarua Mirangine 123 as per the Rectified Grant dated 28th October,2025.c.The Respondent benefited his 1.82Ha portion and is currently in possession of the Petitioner/Applicants' 0.16Ha portion.d.That the Respondent has refused to grant the Petitioner/Applicant access to the 0.16 Ha portion.e.That the Respondent is aware that this 0.16Ha portion was to be inherited by the Petitioner as he signed the Consent dated 13th October 2025 that amended the Grant to include distribution of this portion.f.That the Respondent continues to occupy this 0.16Ha portion without any color of right to the loss and detriment of the Petitioner/Applicant.g.The Respondent's acts of refusal to grant the Petitioner access to his 0.16 Ha portion amount to contempt 3.In support of the application is the supplementary affidavit of Joseph Maina who deponed as follows:a.That I am an adult individual of sound mind and the Petitioner/Applicant herein hence competent and duly authorized to swear this supplementary affidavit.b.That a report was prepared by one Peter Mwangi Surveyor that captured the disparity in acreage of Stephen Wathiai's 1.82Ha land.c.That Stephen Wathiai has vehemently refused to vacate this extra portion measuring 0.101Ha contrary to the Rectified Grant dated 28th October 2025.d.That I thus seek this Honourable Courts' intervention to cite Stephen Wathiai for Contempt of Court. Decision 4.This matter was referred to the County Surveyor for purposes of mapping an alignment of the index map with regard to the original survey and whether there has been any mutation or changes to the survey map as initially registered and further an objective was to establish the acreage of land parcel in question. It is necessary for purpose of this matter to capture the context and text of the survey report.a.This report outlines the findings regarding the misalignment of a land parcel identified as parcel no.123 located at Milangine/Nyandarua county. The purpose of this report is to establish the nature of the misalignment, its possible causes, and recommend corrective measures.b.Background information: The parcel in question was originally surveyed and registered under survey planregistry map. Recently discrepancies were observed between the physical occupation on the ground and the details indicated on the registry index map (RIM)c.Objective of the survey: To verify the parcel boundaries on the ground and to identify the extent and cause of misalignmentd.Methodology: The following procedures were undertaken Retrieval and analysis of the registry index map (RIM)Ground survey using manual method since the ground was fully fenced Measurement of the parcel dimensions and comparison with the official recordse.Findings: The survey revealed the followinga.On 19th/3/2026 I was instructed by Joseph Maina, the administrator to the estate of the late Frances Mwaura Ngugi to survey and subdivide the land parcel NY/MILANGINE 123 measuring 4.16HA as per the rectified certificate of grant dated 28th October 2025. upon survey it was discovered that there was an extra acreage of 0.101ha in Stephen Waithias 1.82ha land, which is marked in red as per the attached map. This misalignment may have resulted from removal of beacons over timeb.The survey work remains incomplete due to this disparity since there is a need for an amendment on the map once the owner agree distribution.f.Possible causes: The misalignment may have resulted from Disturbance or removal of the original beacons over timeg.Implications: Boundary dispute between the neighboring landowners Potentials legal conflicts Challenges in land development and transactions h.Recommendations: To resolve the issue, the following actions are recommended: · Ensure all the affected parties are informed and involved in the correction process Amend the registry index map where necessary i.Conclusion: The misalignment of the parcel no.123 is confirmed and requires urgent correction to prevent further disputes. 5.In Kenya governance structure, correcting survey map misalignment involves statutory provisions under the Survey Act Cap 299 and the Land Registration Act 2012. The Courts emphasize that Registry Index Maps (RIMs) generally show approximate boundaries, meaning correction requires proving ground conditions and securing approval from the Director of Surveys. The guiding principles on this area of law is now well settled. Courts have consistently held that actual physical boundaries and beacons on the ground take precedence over errors in paper maps or Registry Index Maps see the principles in Mbote Gichini v Njihia Mwangi [2018] KEELC 368. The Court further held in this case that when a ground survey reveals the Registry Index Map is misaligned and does not reflect actual land use, the Land Registrar has the mandate to order the rectification of the RIM to tally with the ground. Similarly, the Court in George Hope v Director of Survey and 2 others [2020] KEELC 1550 the Court highlighted that survey errors usually require substantive ordinary suits to challenge the misalignment. 6.Flowing from the evidence adduced by the parties and the report by the surveyor it is evidently clear that there is a necessity the errors which occasioned misalignment to be revisited by the Director of Survey and the Land Registrar with a view to aligning the RIM map which shall also impact on the title deed. Subject matter in this Probate Court as a consequence of which a declaration be and is hereby issued to the Director of Surveys to act on the report of the Surveyor dated 21st March 2026. The status conference be held on 14th of August 2026 before the Deputy Registrar of the High Court to monitor compliance with the orders issued by this Court. DATED AND SIGNED AT ELDORET THIS 26TH DAY OF JUNE, 2026R. NYAKUNDIJUDGE