[2022] KEHC 587 (KLR)

Kanga v Njeru (Succession Cause 3 of 2017) [2022] KEHC 587 (KLR) (17 March 2022) (Ruling)

Neutral citation: [2022] KEHC 587 (KLR)

Republic of Kenya

In the High Court at Chuka

Succession Cause 3 of 2017

LW Gitari, J

March 17, 2022

(FORMERLY SPM CHUKA SUCC. CAUSE NO. 376 OF 2011) IN THE MATTER OF THE ESTATE OF THE LATE KANGA MURANG’A (DECEASED)

Between

Damaris Ciakuthi Kanga

Applicant

and

M’Nairobi Njeru

Respondent

Ruling

1. Before this court is the summons application dated 27th August 2021 and filed on 30th August 2021. It seeks for the following orders:a.THAT the deputy registrar of this honourable court be ordered and/or directed to sign all documents to effect the subdivision and transfer of land parcel L.R. KARINGANI/GITARENE/162; LR/KARINGANI/GITARENE/1067; and LR/KARINGANI/GITARENE/1762 for and on behalf of the Petitioner/Respondent who has adamantly refused to execute the said documents.b.THAT the district surveyor Meru South/Maara Sub Counties be ordered and/or directed to carry out the survey works for subdivision of land parcel L.R. KARINGANI/GITARENE/162; LR/KARINGANI/GITARENE/1067; and LR/KARINGANI/GITARENE/1762. c.That the O.C.S. Chuka Police Station do provide security during the survey exercise.d.That the O.C.S. Chuka Police Station be served with these orders for compliance.e.Cost of this application be provided for.

2. The application is supported by affidavit sworn by the Applicant on 27th August 2021 and premised on the following grounds:a.That the grant in this matter was initially onfirmed vide formerly S.P.M. (Chuka) Succession Cause No. 376 of 2011. b.That the Petitioner.Respondent feeling aggrieved by the said court order and especially the confirmation of grant appealed to this court.c.That after the appeal was heard and determined a certificate of confirmation of grant was issued on 17th December 2018. d.That after the said grant was issued the Petitioner/Respondent has adamantly refused to sign the necessary documents to subdivide and distribute the estate of the deceased to the rightful beneficiaries.e.That the beneficiaries of the deceased and especially the Applicant Damaris Ciakuthii Kanga, Mbuba Kanga, Margaret Ciandeke Mutegi and Sena Kaari Nkoroi are suffering at the hands and behest of the Petitioner/Respondent for his ill will actions.f.That it is in the best interest of justice and fairness tat the deputy registrar be authorized to sign the said documents to effect the subdivision and transfer of the subdivisions to the rightful beneficiaries.g.That the survey of Kenya is the best personnel to carry out the survey exercise for they are not partisan to the estate of the deceased herein.h.That since the applicant and other beneficiaries of the estate of the deceased are apprehensive of security lapse during the exercise it is just and fair that the O.C.S. Chuka Police Station be ordered and directed to provide security during the said exercise.i.That no party stands to suffer any prejudice in the event the ordered sough are granted otherwise they will meet ends of justice for each beneficiary will get their respectful and rightful share of the deceased.j.The orders sought are the best and most apt in the circumstances.

3. In his affidavit in support of the application, the Applicant reiterates the grounds on the face of the application and depones that the Respondent swore that he would not sign the said documents unless he receives a sum of Kshs. 800,000/=.

4. The Application is opposed by the Replying Affidavit sworn by the Petitioner/Respondent on 1st December 2021. He deponed that he is the administrator of the deceased’s estate and denies that he has refused to sign the necessary documents to subdivide and distribute the subject estate to the rightful beneficiaries as per the confirmed grant. According to him, it is the beneficiaries who have been uncooperative by failing and refusing to pay costs of transfer to the surveyor and other incidental costs. He further depones that there was an agreement between him and all other beneficiaries to share the costs of transfer equally for transmission to each beneficiary.

5. The Petitioner/Respondent deponed that the beneficiaries undertook to pay the costs of transfer which amounted to Kshs. 210,000/= with the condition that the beneficiaries would sit down again and split the costs equally for each beneficiary to get a certificate of title. He had attached a copy of the receipt issued by Boma Surveyors and dated 15th February 2020 for an amount of Kshs. 210,000/= the same indicated to be payment of survey and title deed. The Respondent further alleges that he has carried out sub-divisions of the various parcels and that the only thing remaining is for the beneficiaries to repay him his costs so that they can get their certificate of titles.

6. The parties opted to rely on their respective affidavits in support and opposition to the instant application.

Issue for determination 7. Having considered the application and the affidavits of the parties in support and opposition to the instant application, it is my view that the main issue for determination is:a.Whether this court should allow the present application in order to give effect to the certificate of confirmation of grant dated 19th December 2018.

Analysis 8. The Certificate of Confirmation of Grant in respect to the deceased estate was issued and is dated 19th December 2018. The record shows that the subject estate comprised of land parcels no. L.R. KARINGANI/GITARENE/162; L.R./KARINGANI/GITARENE/1067; and L.R./KARINGANI/GITARENE/1762 were to be shared among the beneficiaries as follows:a.L.R. KARINGANI/GITARENE/162i.Jedidah Kawira Njuki – 1. 42 acres to hold in trust for herself and Irene Kambura and Raymond Munene.ii.Jenesio Mugambi – 1. 42 acresiii.Damaris Ciakuthi Kanga – 1. 42 acres to hold ot for own benefit (life interest) and in trust for Hellen Kaari Thumbi, Dorothy Muthoni Kanga, and elijoy Wanja Kanga.b.L.R./KARINGANI/GITARENE/1067i.Margret Ciandeke Mutegi – 2 acres to old it in trust for herself and for Linus Mwiti, Samuel Munene, Jackin Kirimi, Peninah Kainyu, Morris Muboreri and Peter Murithi.ii.Sean Kaari Nkoroi – 1. 75 acres to hold it for herself and in trust for Keziah Karimi & Liz Makena.c.L.R./KARINGANI/GITARENE/1726i.Mbuba Kanga – 2. 07 acresii.Jedidah Kawira Njuki – 0. 65 acres to hold in trust for herself and Irene Kambura and Raymond Munene.iii.Janesio Mugambi – 0. 65 acresiv.Damaris Ciakuthi Kanga – 0. 7 acresv.Sena Kaari Nkoroi 0. 3 acres to hold it in trust for Keziah Karimi & Liz Makena.d.As per the copies of the green cards attached to the affidavit of the Petitioner/Respondent, land parcels no. L.R. KARINGANI/GITARENE/162 and .R./KARINGANI/GITARENE/1726 were sub-divided on 20th October 2019 and 20th February 2020 respectively.

9. The decision of this court as crystalised in the certificate of confirmation of grant is said to be at a standstill due to the Respondent’s alleged refusal to sign the requisite documents that would effect the subdivision of the estate and its transfer to the beneficiaries.

10. As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (1) of the Evidence Act(Chapter 80 of the Law of Kenya), which provides:“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist…”

11. No documentary evidence was produced to show that land parcel no. L.R./KARINGANI/GITARENE/1067 has been subdivided. This leaves this court with the issue of whether the transmission documents ought to be signed by the Deputy Registrar on the ground that the Respondent has been unwilling to execute the same. In my view, this prayer is merely facilitative toward the finalization of this succession cause. The Respondent has in fact admitted that he has not given the beneficiaries the titles to their rightful shares of the estate alleging that the said beneficiaries have not repaid him the monies he has spent to ensure transmission of their titles. This cannot be used to delay the finalization of the matter as there are legal channels for the respondent to recover the said monies.

12. Section 47 of the Law of Succession Act vests on this court the power to make such orders with wide discretion to make such orders as may be expedient in the best interest of justice. As such, I opine that the Applicant’s application dated 27th August 2021 is merited.

Conclusion 13. In light of the foregoing, it is my view that the Applicant has established a merited case for an order that the Deputy Registrar shall sign all documents as shall be necessary to transmit the subject estate to the rightful beneficiaries as per the Certificate of Confirmation of Grant dated 19th December 2018. As such, I opine that the costs of survey and subdivision be borne by the beneficiaries equally.

14. In addition, I opine that an order should be issued that the OCS Chuka Police Station be present, upon sufficient notice, to provide security and ensure public order is not disturbed when the surveyor visits the subject land parcels for purposed of survey with a view to issue titles in furtherance of the orders on distribution of the estate.

15. Finally, each party herein should bear its own costs.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 17THDAY OF MARCH 2022. L.W. GITARIJUDGE17/3/2022The ruling has been read out in open court.L.W. GITARIJUDGE17/3/2022