[2022] KEHC 1306 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 62 OF 2012

MURIUKI MUSA HASSAN ............................................ PETITIONER/PROTESTOR

VERSUS

ROSE KANYUA MUSA...............................................................................1ST OBJECTOR

SARAH GAUKU MUSA ................................................. 2ND OBJECTOR/RESPONDENT

AND

NAOMI KAGURI THURANIRA......................................1ST INTERESTED/APPLICANT

CAROLINE KATHURE KIRIGIA....................2ND INTERESTED PARTY /APPLICANT

JEREMIAH KIAMBATI MAJAU ................................... 3RD INTERESTED /APPLICANT

RULING

Background.

1. By an order dated 05th March, 2014, Makau J revoked the Grant issued to the Petitioner on the ground that it was obtained fraudulently by the making of a false statement and/or by concealment from the court the existence of Rose Kanyua Musa and Sarah Gauku Musa who are niece and sister-in-law of the deceased.

2. By another ruling dated 15th November, 2018, Onginjo J directed that deceased’s estate be distributed to Sarah Gauku the mother of the Petitioner equally. The court further found that the Interested Parties purchasers have their remedy in suits for refund of purchase price if the portion due to Petitioner is not enough for them to share and also directed that 2nd Objector and the Petitioner’s children be given vacant possession to portions due to them.

3. It would appear that the court orders have not been complied with. As a result, Applicants by summons dated 21st June, 2021 seek the following order:

a. The sub-division of the estate property herein to wit L.R. NO. NTIMA/NTAKIRA/769 into 4 portions namely NTIMA/NTAKIRA/7400, 7401, 7402 and 7403 be cancelled.

b. The 2nd Objector/Administratix/Respondent one SARAH GAUKO MUSA, be compelled to distribute/share the estate property herein to wit, L.R. NO. NTIMA/NTAKIRA/769 in terms of the amended certificate of confirmation of grant issued to her herein and dated 01/02/2019 and the ruling delivered herein by Hon Justice A. Ong’injo Judge dated 15/11/2018 with the effect that the 3 Interested Parties be entitled to a quarter of an acre each from the share of the Petitioner as ordered by Hon Justice A. Ong’injo Judge in the ruling dated 15/11/2018 and in default the Deputy Registrar of this court be empowered, authorized and directed to sign all the relevant documents including RL. 19 and RL. 7 in place of the 2nd Objector/Administratix/Respondent one SARAH GAUKO MUSA.

c. The Government surveyor in charge of Imenti North Sub-county be empowered, authorized and directed to visit the estate property herein to wit, L.R. NO. NTIMA/NTAKIRA/769 and sub-divide it in terms of the amended certificate of confirmation of grant issued herein in the name of the 2nd Objector/Administratix/Respondent one SARAH GAUKO MUSA

d. Costs of this application be borne by the 2nd Objector/Respondent.

4. The application is supported by the supporting affidavit sworn by the all 3 Interested Parties on 21st June, 2021 on the grounds that they each bought ¼ acre out of the estate property from the Petitioner which have not been distributed to them since the 2nd Objector in contravention of the court order caused the estate to be subdivided into 4 portions transmitting 3 of them to herself and the 4th one to strangers to the exclusion of the Petitioner so as to deprive them of their ¼ acre each.

5. By a replying affidavit sworn on 27th January 2022, 2nd Objector Sarah Gauki Musa averred that the grant dated 15/11/ 2018 distributed the estate properly to her and her son Muriuki Gauku Musa (Petitioner). She further avers that Applicants are strangers to the deceased’s estate having bought portions from the Petitioner which sale was declared illegal. She explains that NTIMA/NTAKIRA/7400 registered in the name of Zippy Kendi and Teresia Karimi came from her portion, that NTIMA/NTAKIRA/7403 is Petitioner’s share which she will transfer to him when he gets home and NTIMA/NTAKIRA/7402 is for her son’s children which is registered in her name to hold in trust for them.

Analysis & Determination

6. I have considered the summons in the light of the affidavits on record, the submissions by the Applicants. I have also considered the previous rulings and in particular the ruling dated 15th November, and I do not find it difficult to agree with the Applicants that their remedy to suits for refund of purchase price would only arise if the portion due to Petitioner is not enough for them to share.

7. The deceased’s estate comprised in L.R. NO. NTIMA/NTAKIRA/769measured 1. 516 Ha which translates to 3. 746 acres. Petitioner’s entitlement to the estate is half of 3. 746 acres which is 1. 873 acres. The calculations clearly reveal that the share in favour of the Petitioner is not only enough for each of the Applicants to get ¼ each but that the Petitioner and his children shall as ordered by the court remain with a substantial portion of 1. 123 acres.

7. The Certificate of Confirmation of Grant dated 01st February, 2019 does not tally with the order of 15th November, 2018. The Respondent who is the administrator had a duty to comply with the court order but she instead caused the estate to be subdivided in complete disobedience of the court order dated 15th November, 2018.

8. In Central Bank of Kenya & Another vs. Ratilal Automobiles Limited & Others Civil Application No. Nai. 247 of 2006, the Court of Appeal held that Judicial power in Kenya vests in the Courts and other tribunals established under the Constitution and that it is a fundamental tenet of the rule of law that court orders must be obeyed and it is not open to any person or persons to choose whether or not to comply with or to ignore such orders as directed to him or them by a Court of law.

9. Court orders are not made in vain. If for any reason the Respondent had difficulty in complying with the court orders, the honourable thing to do was to come back to court and explain the difficulties faced by the need to comply with the order for the reason that once a Court order is made in a suit the same is valid unless set aside on review or on appeal.

10. The court order of 15th November, 2018 has not been set aside on review or on appeal and the Respondent had a duty to comply and distribute the estate as ordered. (See In reEstate of Gitere Kahura(Deceased) [2019] eKLR),

11. As a result, the orders that commend to this court and which I hereby are that the summons dated 21st June, 2021 has merit and is allowed in the following terms:

1) The sub-division of the estate property herein to wit L.R. NO. NTIMA/NTAKIRA/769 into 4 portions namely NTIMA/NTAKIRA/7400, 7401, 7402 and 7403 is cancelled.

2) Flowing from the orders of 15th November, 2018, the amended certificate of confirmation of grant dated 01/02/2019 shall be amended distributing the estate in the following terms:

L.R. NO. NTIMA/NTAKIRA/769

a) ½ share to SARAH GAUKU MUSA

b) ½ to MURIUKI MUSA HASSAN be shared out as follows;

i. ¼ acre to NAOMI KAGURI THURANIRA

ii. ¼ acre to CAROLINE KATHURE KIRIGIA

iii. ¼ acre to JEREMIAH KIAMBATI MAJAU

iv. 1. 123 acres shall be shared equally between MURIUKI MUSA HASSAN and his children. The share for his children to be held by SARAH GAUKU MUSA and the mother of children in trust.

3) Respondent shall bear the costs of this summons

4) Mention on 04th May, 2022 to confirm compliance with orders (a) and (b) above and for further orders

DELIVERED IN MERU THIS 17TH DAY OF MARCH 2022

WAMAE. T. W. CHERERE

JUDGE

Appearances

Court Assistant -Morris Kinoti

For Applicant - Mr. Mutisya for Carlpeters Mbaabu & Co. Advocates

For Respondent -Mr. Kariuki for Mithega & Kariuki Advocates