[2010] KEHC 1256 (KLR)
The court held that since the judgment and decree awarding the plaintiff 2.20 acres of land were not appealed against, the decree must be executed. The absence of letters of administration by the defendants does not prevent execution of the decree. To ensure the remainder of the land is properly held for the estate...
Source-derived case information.
- Citation
- [2010] KEHC 1256 (KLR)
- Parties
- Plaintiff: Mary Wanjiru Njuguna; Defendant: Kibui Gachoka; Defendant: Kabura Gachoka; Defendant: Mburu Gachoka; Defendant: Kabuu Gachoka; Defendant: Mungai Gachoka
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 3252 of 1978
- Procedural Posture
- Civil Case / Ruling on Execution of Decree and Registration of Land
- Outcome
- Application allowed; orders granted as sought.
- Legal Topics
- Execution of Decree, Registration of Land, Letters of Administration, Trust for Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Wanjiru Njuguna
Plaintiff
Kibui Gachoka
Defendant
Kabura Gachoka
Defendant
Mburu Gachoka
Defendant
Kabuu Gachoka
Defendant
Mungai Gachoka
Defendant
Procedural Posture
Civil Case / Ruling on Execution of Decree and Registration of Land
Legal Issues
- 1 Whether the decree awarding the plaintiff 2.20 acres of land can be executed despite the defendants not having taken out letters of administration for the deceased's estate.
- 2 Whether the remainder of the land can be registered in the name of the Deputy Registrar to hold in trust for the estate beneficiaries.
Ratio Decidendi
The court held that since the judgment and decree awarding the plaintiff 2.20 acres of land were not appealed against, the decree must be executed. The absence of letters of administration by the defendants does not prevent execution of the decree. To ensure the remainder of the land is properly held for the estate beneficiaries, the court directed that the remainder be registered in the name of the Deputy Registrar of the High Court to hold in trust for the estate of the late Gachoka Kinuthia. This ensures the plaintiff receives her entitlement and the estate is preserved for proper administration.
Court Disposition
Application allowed; orders granted as sought.
Orders
- Plaintiff to be registered as proprietor of 2.20 acres of land parcel No. Kiganjo/Kiganjo/65 as provided in the decree.
- The remainder of the land to be registered in the name of the Deputy Registrar High Court to hold in trust for the estate of the late Gachoka Kinuthia.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 3252 of 1978
MARY WANJIRU NJUGUNA ……….PLAINTIFF/RESPONDENT
V E R S U S
KIBUI GACHOKA……….….….1ST DEFENDANT/RESPONDENT
KABURA GACHOKA …….……2ND DEFENDANT/RESPONDENT
MBURU GACHOKA ……....….3RD DEFENDANT/RESPONDENT
KABUU GACHOKA ……….…..4TH DEFENDANT/RESPONDENT
MUNGAI GACHOKA …......…..5TH DEFENDANT/RESPONDENT
..
R U L I N G
This dispute was on28th July, 1980 by consent referred to arbitration by Justice Sachdeva. Arbitration was conducted and the award filed in court. The same was adopted as judgment on 27th May, 1981 by Justice Masime. In the decree that issued on 24th August, 1981 the Plaintiff was entitled to 2. 20 acres of land parcel No. Kiganjo/Kiganjo/65 as measured on 5th December, 1980 by the Surveyor together with all members of the panel. The Surveyor and the arbitrators fixed the boundary line with permanent plants called “MUKUNGUGU” to identify the boundary.
The parcel of land was in the name of the deceased Gachoka Kinuthia. The Defendants are members of his family.
By motion under section 3A of the Civil Procedure Rules, the Plaintiff is alleging that the Land Registrar, Thika, is unable to effect the order because she does not know to whom, after the excision of the 2. 20 acres, the rest of the land shall go. This is because the Defendants have not taken out letters of administration in regard to the estate of the deceased. The Plaintiff requests that the remainder of the land be registered in the name of the Deputy Registrar to hold in trust for the beneficiaries of the estate. The application was served but did not elicit any response.
The judgment and decree of the court were not appealed against. The decree has to be executed as courts do not give orders in vain. I will allow the application and direct that the Plaintiff shall be registered as proprietor of 2. 20 acres of land parcel NO. Kiganjo/Kiganjo/65 as provided in the decree and the remainder shall be registered in the name of the Deputy Registrar High Court to hold in trust for the estate of the late Gachoka Kinuthia.
DATED AND DELIVERED ATNAIROBI
THIS 18TH DAY OF OCTOBER 2010
A.O. MUCHELULE
J U D G E