[2017] KEHC 1763 (KLR)
The court found that the 1st respondent's interest in the land had ceased upon confirmation of the grant and distribution of the estate. His only remaining claim was for a refund of the purchase price paid to the deceased, which must be pursued through a separate suit. The restriction placed on the land was...
Source-derived case information.
- Citation
- [2017] KEHC 1763 (KLR)
- Parties
- Applicant: Mary Wawira Kanyakiri; Respondent: Nicasio Njue Kariuki; Respondent: Mutitu Hitira
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 221 of 2010
- Procedural Posture
- Succession Cause / Ruling on Summons for Removal of Restriction
- Outcome
- application allowed
- Legal Topics
- Removal of Restriction, Execution of Grant, Refund of Purchase Price
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mary Wawira Kanyakiri
Applicant
Nicasio Njue Kariuki
Respondent
Mutitu Hitira
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Removal of Restriction
Legal Issues
- 1 Whether the restriction placed by the 1st respondent on parcel Ngandori/Kirigi/4014 should be removed to allow execution of the confirmed grant.
- 2 Whether the 1st respondent is entitled to retain the restriction pending refund of the purchase price paid to the deceased.
Ratio Decidendi
The court found that the 1st respondent's interest in the land had ceased upon confirmation of the grant and distribution of the estate. His only remaining claim was for a refund of the purchase price paid to the deceased, which must be pursued through a separate suit. The restriction placed on the land was therefore unjustified and served only to frustrate the applicant in executing her duties as administrator. The court held that the restriction should be removed forthwith to allow the applicant to execute the confirmed grant.
Court Disposition
application allowed
Orders
- The restriction placed on L.R. Ngandori/Kiriari/4014 is hereby ordered to be removed forthwith.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION CAUSE NO. 221 OF 2010
IN THE MATTER OF THE ESTATE OF KANYAKIRI NGONGO (DECEASED)
MARY WAWIRA KANYAKIRI.........CO-PETITIONER/ APPLICANT
V E R S U S
NICASIO NJUE KARIUKI..................................1ST RESPONDENT
MUTITU HITIRA.................................................2ND RESPONDENT
R U L I N G
1. This is a ruling on the summons dated 19/11/2014 seeking for removal of restriction lodged against parcel No. Ngandori/Kirigi/4014 by the respondents.
2. The application is supported by the affidavit of the applicant Mary Wawira Kanyariki. She deposes that restriction has become an impediment to the execution of grant. Despite demand by the applicant, the respondents have been adamant to retain the restriction.
3. The 1st respondent in his replying affidavit admits placing the restriction. He says he was buying ¼ acre of the land Ngandori/Kirigi/4014 from the deceased. Out of the agreed consideration of Kshs.120,000/= the 1st respondent paid a total of Kshs.110,000/= leaving a balance of Kshs.10,000/=.
4. The 1st respondent states that he wants the applicant who is the administrator of the deceased's estate to refund the consideration he paid to the deceased. Removing the caution would mean that the 1st respondent will lose both the land and the money he paid to the deceased. The applicant is well aware of the 1st respondent's interest. A copy of the agreement is attached to the application. There was no response from the 2nd respondent to this application.
5. The applicant was being represented by R. Njeru advocate but she filed a notice to act in person on 27/06/2017.
6. On 30/10/2017 the applicant filed an amended summons intended to correct the first application dated 19/11/2014. The only tangible addition was that the grant was confirmed on 23/04/2014. The summons also named the respondents as Nicasio Njue Karaiuki and Hitira Mutitu.
7. The record shows that the grant was confirmed on 23/04/2014 whereas the estate of the deceased consisting of the only asset Ngandori/Kiriari/4014 was distributed. The 1st respondent is not claiming the portion on ¼ of an acre which he alleges to have bought from the deceased. He claims for refund of Kshs.110,000/= paid as deposit of the agreed consideration.
8. Although the applicant did not file a reply to the 1st respondent's claim, it is noted that the 1st respondent does not say that he has filed a suit for recovery of the deposit paid. He has a right to pursue the funds paid to the deceased from the administrator provided he can prove his case. In the absence of any suit filed, this court is at a loss on how the 1st respondent intends to recover his money.
9. The grant was confirmed on 23/4/2014 which is more than three years ago. The applicant cannot move to execute the grant because of the existing restriction. The 1st respondent has no interest in the land but in the refund. He has not given any justification why the restriction should remain against the title of the land.
10. As I have said earlier, the 1st respondent has a legal right to pursue his interest but cannot continue frustrating the applicant in carrying out her legal duty of executing the grant.
11. I find the application merited and allow it as prayed. The restriction placed on L.R. Ngandori/Kiriari/4014 is hereby ordered to be removed forthwith.
DELIVERED, DATED AND SIGNED AT EMBU THIS 30TH DAY OF NOVEMBER, 2017.
F. MUCHEMI
J U D G E
In the presence of:-
Applicant present