[2017] KEHC 2210 (KLR)

REPUBLIC OF KENYA

IN THE HIGHCOURT OF KENYA

AT MERU

SUCCESSION CAUSE NO. 3 OF 1978

IN THE MATTER OF THE ESTATE OF MARETE KIUNGA ALIAS IKIUGU KIUNGA (DECEASED)

JUDITH KAROKI MARETE.........................................1ST RESPONDENT

GLADYS CHEGE.........................................................2ND RESPONDENT

- Versus -

JULIUS MUTHURI MARETE..........................PETITIONER/APPLICANT

RULING

[1] By way of Chamber Summons Application dated 17th August 2017, the Petitioner/Applicant seeks the following orders:

1. THAT this application be certified as very urgent and the same he heard as a matter of priority.

2. THAT this honourable court be pleased to discharge, set aside and/or lift the orders of inhibition issued by this honourable court on 12th October 2015 inhibiting any dealings with land parcel LR NO ABOTHUGUCHI/.KITHIRUNE/2907.

3. THAT this honourable court be pleased t remove, lift and/or vacate the orders of caution placed by the respondents over land parcel LR NO ABOTHUGUCHI/KITHIRUNE/2907 on 12th March 2015.

4. THAT this honourable court be pleased to exercise its inherent jurisdiction and allow the petitioner/applicant to excise and dispose a portion of land measuring 1 acre from his land parcel LR NO ABOTHUGUCHI/KITHIRUNE/2907 measuring 16 acres so as to cater for his grandchildren education expenses.

5. THAT the costs for and incidental to this application be in the cause.

The Application is expressed to be brought under Section 47 of the Law of Succession Act, Section 70 (d) and 73 (1) of the Land Registration Act2012 and Rule 49 and 73 of the Probate and Administration Rules.

[2] The Petitioner/Applicant states that he is the absolute registered owner of land parcel LR NO. ABOTHUGUCHI/KITHIRUNE/2907 measuring 16 acres or thereabout. Upon the demise of his daughter who was a single mother on 7th December 2011, he was bestowed with the parental responsibility of the deceased’s children. Those children have now been locked out and are unable to continue with their education at Jomo Kenyatta University and Nkabune Technical Training Institute. He stated that the Respondents would not suffer any prejudice if the orders sought were granted since the Petitioner would be left with an expansive land measuring 15 acres to which the Respondent may lay a claim on. The Applicant claim that the Respondents were deceased’s biological sisters and that on 12th October 2015, they obtained orders of inhibition inhibiting any dealings with his parcel of land pending the hearing and determination of their application dated 16th September 2015. He was therefore making this application so that he can be allowed to dispose off a portion of land measuring 1 acre from LR NO. ABOTHUGUCHI/KITHIRUNE/2907 to cater for his grandchildren’s education and medical expenses.

[3] The Applicant in his submissions reiterated the grounds in the body of his application. But added that section 47 of the Law of Succession Act provides that the High Court shall have jurisdiction to entertain any application and determine any dispute under the Act and pronounce such decree and make such orders therein as may be expedient. And that the application is merited since the Respondents had never built any house in the Petitioners parcel of land and that the allegations that the Petitioner had demolished their houses were false.

[4] The application was opposed via a Replying Affidavit filed in court by the 1st Respondent where it was deposed inter alia that the application was made in bad faith since their application dated 16th September 2015 was pending hearing and determination before court. The Respondents are seeking a share of their late father’s estate (the suit property herein) and so, it would be unfair/unjust for the Applicant to seek to lift the orders of inhibition on the suit property or allow the Applicant to sell a portion thereof. They claimed that the Applicant chased them from the suit land and this application is only intended to derive benefit to the Applicant from chasing them from the land to their detriment. It was further contended that the Applicant was capable of paying school fees of his grand children since after chasing them from the land; he had been cultivating the land alone.

[5] The Respondents also filed submissions and argued that the Petitioner was their elder brother and that he had for his own benefit, singularly and without the interested parties knowledge, consent or participation disposed off various portions of the deceased land parcels in excess of 5 acres and did not share the proceeds thereof with the interested parties. And upon discovery of these facts, the Respondents moved to court vide an application dated 16th September 2015, upon which this court issued inhibition orders on the suit property inhibiting the registration of any transaction or dealings by way of sub division, sale, lease, charge or otherwise pending the hearing and determination of the said application. The Respondents further contended that their said application was still pending for determination before this court and that the court gave direction son on 7th March 2016, that the application shall be heard by way of viva voce evidence and parties to file their statements. The Respondents stated that they had filed their statement but the Petitioner was yet to comply with the direction of court. He has instead filed the instant application seeking the court to vacate its own orders and lift the inhibition so that the Petitioner could sell a portion of the deceased estate for his own use. It was further submitted that the children named by the Petitioner were not dependant on the Petitioner as no proof had been adduced to that effect and that they had a father who was alive.

DETERMINATION

[6] Upon careful consideration of this application and the rival submissions by the parties, I take the following view of the matter. The following matters are not in dispute. The Petitioner and the Respondents are brother and sisters respectively. On 12th October 2015, this court issued an inhibition order inhibiting the registration of any dealings, either by way of subdivision, sale, lease, and charge or otherwise over land parcel NO. ABOTHUGUCHI/KITHIRUNE/2907 pending the hearing and determination of the application by the Respondents. The said application by the Respondents is yet to be determined. And the court has already given directions that the application by the Respondents shall be disposed of by way of viva voce evidence upon filing of parties’ witness statements.

[7] I also note the Respondents contended that the Petitioner has already disposed of other properties belonging to the deceased namely: Land Parcel Numbers, ABOTHUGUCHI/KITHIRUNE/2906, 2907 and a parcel of land in NTURUKUMA in Nanyuki measuring approximately 2. 6 acres, 0. 79 acres and 2 acres respectively. The Respondents stated that the Petitioner had transferred all these properties without their knowledge, consent or participation and he never shared the proceeds thereof with them; he kept all for his benefit. All these allegations by the Respondents remained uncontroverted.

[8] I should also find that the contention by the Petitioner that his grandchildren were dependent on him was not supported by any evidence. In light of the foregoing, it is important to underscore that the Petitioner is seeking to vacate inhibition orders issued by this court on 12th October 2015 yet: (1) the application filled by the Respondents on 16th September 2015 and pursuant to which the inhibition was issued is yet to be heard; and (2) the Petitioner has not complied with the directions given on 7th March 2016 especially on filing of statements. Looking at the entire circumstances of this case, the Petitioner has not exhibited good faith at all especially given that he has not complied with the directions given by the court. But of greater significance is that, one of the court’s primary obligations is to preserve the estate from dissipation. Thus, in the absence of resounding conviction, it would be a negation of that duty to lift the inhibition herein. Accordingly, I find that the Petitioner has not made out a sufficient case to warrant this court to vacate its orders issued on 12th October 2015. The Petitioner’s application is therefore dismissed in its entirety with no orders as to costs.

Dated, signed and delivered in open court at Meru this 12th day of October 2017

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F. GIKONYO

JUDGE

In the presence of:

Mr. Kithinji advocate for petitioner

Mr. Kaimenyi advocate for interested parties – absent

Interested parties – present

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F. GIKONYO

JUDGE