[2012] KEHC 5652 (KLR)
The court found that the Respondents, having been served with the application and failing to file any response or attend the hearing, did not oppose the application. The Certificate of Confirmation of Grant issued on 15th October, 2003, remains valid and has not been stayed or set aside. The Respondents' refusal to...
Source-derived case information.
- Citation
- [2012] KEHC 5652 (KLR)
- Parties
- Applicant: Lawrence Kimani Nyanjui; Applicant: Margaret Mungai Nyanjui; Respondent: Njau Nyanjui Thitu; Respondent: Joel Mungai Nyanjui
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 48 of 1993
- Procedural Posture
- Succession Cause / Ruling on Application for Execution of Transfer Forms Post Confirmation of Grant
- Outcome
- application granted as prayed; orders issued for execution of transfer forms and costs awarded to Applicants
- Judges
- CM Njagi
- Legal Topics
- Probate and Administration, Confirmation of Grant, Execution of Transfer, Estate Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence Kimani Nyanjui
Applicant
Margaret Mungai Nyanjui
Applicant
Njau Nyanjui Thitu
Respondent
Joel Mungai Nyanjui
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Execution of Transfer Forms Post Confirmation of Grant
Legal Issues
- 1 Whether the Respondents should be compelled to execute transfer forms to effectuate the distribution of the deceased's estate as per the Certificate of Confirmation of Grant.
- 2 Whether the Deputy Registrar and District Land Registrars should be authorized to execute and register transfers in default of the Respondents' cooperation.
- 3 Whether the Respondents should bear the costs of the application.
Ratio Decidendi
The court found that the Respondents, having been served with the application and failing to file any response or attend the hearing, did not oppose the application. The Certificate of Confirmation of Grant issued on 15th October, 2003, remains valid and has not been stayed or set aside. The Respondents' refusal to execute the transfer forms is unreasonable and has delayed the finalization of the estate. To give effect to the confirmed grant and prevent further frustration of the court's orders, the court granted the Applicants' request to compel the Respondents to execute the necessary documents within 21 days, failing which the Deputy Registrar and District Land Registrars are...
Court Disposition
application granted as prayed; orders issued for execution of transfer forms and costs awarded to Applicants
Orders
- Respondents to execute the transfer forms and all relevant documents to effectuate the transfer of the estate properties as per the Certificate of Confirmation of Grant within 21 days of service.
- If Respondents fail to comply, the Deputy Registrar (Family Division) is authorized to sign the transfer forms and all relevant documents on behalf of the Respondents.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
Succession Cause 48 of 1993
LAWRENCEKIMANI NYANJUI
MARGARET MUNGAI NYANJUI ………….....………. APPLICANTS
VERSUS
NJAU NYANJUI THITU
JOEL MUNGAI NYANJUI ……………...…………… RESPONDENTS
R U L I N G
This application is brought by Summons dated 20th June, 2011 and taken out under Rules 49and73of theProbate and Administration Rules. The Applicants thereby seek orders –
1. That this Honourable Court be pleased to order the Respondents to execute the transfer forms and all other relevant documents and instruments to effect and facilitate the transfer of all the properties comprised in the estate of the deceased in terms of the Certificate of Confirmation of Grant on 15th October, 2003.
ALTERNATIVELY
(i)That this Honourable Court be pleased to order the Deputy Registrar (Family Division) to sign the said transfer forms and all other relevant documents and instruments on behalf of the said Applicants so as to effectuate and/or facilitate the transfer of all the properties comprised in the estate of the deceased in terms of the Certificate of Grant of Confirmation issued herein on 15th October, 2003.
(ii)That this Honourable Court do authorize District Land Registrars in the respective districts to register the transfers of parcels of land to the respective beneficiaries in the respective districts without requiring the production of the Respondents PIN Certificates, ID Copies and their passport sized photographs.
2. That costs of this application be borne by the Respondents herein in any event.
The application is supported by the annexed affidavit of Lawrence
Kimani Kinyanjui and is based on the following grounds –
(a)That the said Respondents have deliberately and unreasonably refused to sign the said transfer forms so as to facilitate the transfer and/or transmission of the said properties of the deceased despite this Honourable Court having issued a Certificate of Confirmation of Grant way back on 15th October, 2003 thus denying the Applicants the fruits of this long and winding litigation.
(b)Instead the Respondents filed Appeal against the orders confirming the grant herein but which has been dismissed and they have not taken any (sic) to prosecute thus further delaying the finalization of the matter herein.
(c)That the Respondents have never sought any orders of stay of the said orders confirm the grant herein and/or suspension of the said Certificate of Confirmation of Grant issued on 15th October, 2003.
(d)That in order to give effect of the said Certificate of Confirmation of Grant and bring to a final conclusion of this old matter it is only fair, just and expedient that this Honourable Court directs the Respondents to sign the said transfer forms and all other relevant documents and/or instruments or alternatively it directs its Deputy Registrar, Family Division, to do so on their behalf.
At the hearing of this application, Mr. Gakaria appeared for the
Applicants who are the 3rd and 4th Administrators. He told the Court that the Applicants were seeking orders for the Respondents to execute the transfer forms to facilitate the transfer of property in terms of the order made on 15th October, 2003. Should the Respondents fail to do so, then the Deputy Registrar of the Family Division be authorized to execute the transfers.
For record purposes, the Respondents did not attend Court for the hearing of this matter. I note that the application was served on them on 2nd April, 2012. This gave them sufficient notice both to file and serve any replying affidavit or grounds of opposition but they filed neither of them. On the designated hearing date, they did not attend Court. In the circumstances, I find that the application is unopposed and that the Applicants are entitled to the orders sought.
I accordingly make the following orders –
1. Order 1 is hereby granted as prayed. The Respondents to
comply with the said order within 21 days of service.
2. Failure to comply will automatically activate orders 1 (i)
and (ii) for the Deputy Registrar and Land Registrars to act
appropriately as directed therein.
3. The Respondents will bear the costs of this application in
any event.
DATED and DELIVERED at NAIROBI this 3rd day of May, 2012.
L. NJAGI
JUDGE