[2016] KEHC 7482 (KLR)
The court found that the subdivision of L.R. No. Ngong/Ngong/905 into six portions, excluding the applicant, was a blatant disregard of its earlier order rectifying the grant to include the applicant as a beneficiary entitled to an equal share. The respondent's admission and the evidence showed non-compliance with...
Source-derived case information.
- Citation
- [2016] KEHC 7482 (KLR)
- Parties
- Applicant: Mary Njeri Njau; Respondent: George Njunge Thairu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 747 of 1997
- Procedural Posture
- Succession Cause / Ruling on Application for Cancellation of Titles and Enforcement of Rectified Grant
- Outcome
- Application allowed. Titles cancelled. Fresh subdivision ordered in compliance with rectified grant.
- Judges
- AO Muchelule
- Legal Topics
- Succession of Estates, Rectification of Grant, Beneficiary Entitlement, Land Subdivision, Title Cancellation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Njeri Njau
Applicant
George Njunge Thairu
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Cancellation of Titles and Enforcement of Rectified Grant
Legal Issues
- 1 Whether the applicant, as widow of a deceased son, was entitled to a share of the estate under the rectified grant.
- 2 Whether the subdivision of L.R. No. Ngong/Ngong/905 into six portions instead of seven contravened the court's order.
- 3 Whether the titles issued pursuant to the unlawful subdivision should be cancelled and the land redistributed in compliance with the court's order.
Ratio Decidendi
The court found that the subdivision of L.R. No. Ngong/Ngong/905 into six portions, excluding the applicant, was a blatant disregard of its earlier order rectifying the grant to include the applicant as a beneficiary entitled to an equal share. The respondent's admission and the evidence showed non-compliance with the rectified grant. The court held that the only remedy was to cancel all titles issued from the unlawful subdivision and order a fresh subdivision into seven equal portions, as previously directed. The court further empowered the Deputy Registrar to execute necessary documents should the administrators fail to comply within 60 days, ensuring the applicant's entitlement is...
Court Disposition
Application allowed. Titles cancelled. Fresh subdivision ordered in compliance with rectified grant.
Orders
- All title deeds issued as a result of the unlawful subdivision of L.R No. Ngong/Ngong/905 (Ngong/Ngong/58392, 58393, 58394, 58395, 58396, 58397) are cancelled.
- The land shall revert to the name of the deceased.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO.747 OF 1997
IN THE MATTER OF THE ESTATE OF THAIRU MUKIRAI alias PAUL THAIRU MUKIRAI (DECEASED)
MARY NJERI NJAU.....................................................APPLICANT
VERSUS
GEORGE NJUNGE THAIRU.......................................RESPONDENT
RULING
Thairu Mukirai alias Paul Thairu Mukirai died on 25th July 1987. He was survived by a wife Serah Wanjira and five children who included the respondent. James Kariuki Thairu, George Njunge Thairu and Loise Wanjiku Thairu, three of the other children of the deceased, petitioned this court for a grant of letters of administration intestate with the consent of the other beneficiaries. The grant was issued to them jointly on 2nd June 1997 and subsequently confirmed on 17th February 1998. In the schedule of distribution the only property of the estate of the deceased L.R No. Ngong/Ngong/905 was shared equally amongst the 6 beneficiaries.
The applicant Mary Njeri Njau is the widow of the late Benson Njau who died in March 1988 and who was a son of the deceased. She applied for the revocation of the grant issued to the respondent herein and his two co-administrators on the ground that she as well as her children with the late Benson Njau were entitled to benefit from his share of the estate of the deceased but were left out as beneficiaries. In a ruling dated 30th June 1999 Justice Etyang ordered that instead of the revocation of the grant there be rectification by the inclusion of Mary Njeri Njau as a beneficiary and that she gets an equal share out of L.R. No. Ngong/Ngong/905. It was categorically stated in the ruling that there would be seven heirs or beneficiaries who were to share the estate equally.
The respondent appealed this ruling but later on withdrew the same on 27th January 2012. The applicant filed the current application dated 17th June 2014 seeking orders for cancellation of all the six titles issued as a result of sub-division of L.R. No. Ngong/Ngong/905, and that the Deputy Registrar of this Court be allowed to sign all necessary forms to cause the land to be sub-divided afresh into seven equal portions as per this court's order dated 30th June 1999. The application was premised on the grounds that the respondent, after the withdrawal of his appeal, caused the subdivision of L.R. No. Ngong/Ngong/905 into 6 portions instead of 7 as ordered by this court, leaving the applicant out. Further, that the respondent had completely refused to sign transfer forms so as to effect the applicant’s share to her despite several requests. It is for these reasons that she prayed that the titles effected as a result of the transfer be cancelled and the Deputy Registrar be allowed to sign the necessary transfer forms.
The respondent in his replying affidavit dated 17th March 2015 agreed that he indeed withdrew his appeal against this court's ruling directing that the estate be shared into 7 equal portions to include the applicant as a beneficiary. He blamed his co-administrators, James Kariuki Thairu and Loise Wanjiku Thairu, for contravening the said ruling and instead sharing the estate among only 6 beneficiaries and leaving out the applicant.
The Court’s ruling of 30th June 1999 was clear and stated that:-
“The proper thing to do is not to revoke the confirmed grant but to rectify it so that the applicant is listed as one of the beneficiaries in equal shares, as she is entitled to Benson Njau’s share.
The grant confirmed on 17th February, 1998 is hereby rectified by the inclusion of MARY NJERI NJAU as beneficiary who is to get an equal share out of L.R. No. Ngong/Ngong/905. There will now be seven heirs or beneficiaries who are to share that estate equally.”
It was thus blatant disregard of this Court’s ruling to distribute the estate among 6 beneficiaries to the exclusion of the applicant herein. I therefore allow this application and order the cancellation of all title deeds issued as a result of this unlawful subdivision of L.R No. Ngong/Ngong/905. These are:- Ngong/Ngong/58392, 58393, 58394, 58395, 58396 and 58397. The land shall revert to the name of the deceased. The respondent and his co-administrators are hereby given 60 days to effect a fresh sub-division in accordance with the court order of 30th June 1999, failing which the Deputy Registrar Family Division shall be at liberty to sign all the necessary forms to cause a fresh sub-division of the land as per the said court order. The applicant shall have the costs of this application.
DATEDandDELIVEREDatNAIROBIthis9THday ofFEBRUARY 2016
A.O. MUCHELULE
JUDGE