[2016] KEHC 4255 (KLR)
The court found that the applicant was the confirmed administrator of the estate and that the restriction on the suit land was placed by the respondent, who was neither a petitioner nor a beneficiary. The respondent was properly served with notice of the hearing but failed to appear or oppose the application. The...
Source-derived case information.
- Citation
- [2016] KEHC 4255 (KLR)
- Parties
- Applicant: Rafu Njura Mbogo; Respondent: Mary Igoki Mbogo
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 4 of 2014
- Procedural Posture
- Succession Cause / Ruling on Application for Removal of Restriction
- Outcome
- Application allowed. Restriction on land parcel Kyeni/Mufu/6250 to be removed. No order as to costs.
- Legal Topics
- Removal of Land Restriction, Administration of Estates, Confirmed Grant, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rafu Njura Mbogo
Applicant
Mary Igoki Mbogo
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Removal of Restriction
Legal Issues
- 1 Whether the restriction registered on land parcel Kyeni/Mufu/6250 should be removed.
- 2 Whether the respondent was properly served and given adequate notice of the application.
- 3 Whether the applicant is entitled to the orders sought given the unchallenged confirmed grant.
Ratio Decidendi
The court found that the applicant was the confirmed administrator of the estate and that the restriction on the suit land was placed by the respondent, who was neither a petitioner nor a beneficiary. The respondent was properly served with notice of the hearing but failed to appear or oppose the application. The confirmed grant had not been challenged or revoked. In these circumstances, the restriction was unjustified and its removal was warranted to allow the administrator to deal with the estate property as authorized by the grant.
Court Disposition
Application allowed. Restriction on land parcel Kyeni/Mufu/6250 to be removed. No order as to costs.
Orders
- The restriction entered in respect of land parcel Kyeni/Mufu/6250 is hereby removed.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION CAUSE NO. 4 OF 2014
IN THE MATTER OF THE ESTATE OF MBOGO M'FUNDI (DECEASED)
RAFU NJURA MBOGO.......................APPLICANT
VERSUS
MARY IGOKI MBOGO.................. RESPONDENT
RULING
1. The applicant seeks the removal of a restriction lodge in respect of land parcel No. Kyeni/Mufu/6250. He also seeks that the costs of this application be provided for. He has stated that the restriction was registered on the suit land during the pendency of this suit.
2. The applicant's application is anchored in his supporting affidavit dated 22nd December 2015. In his affidavit he has stated that letters of administration intestate in this matter were issued to the applicant on 10th March 2014 and were confirmed on 12th March 2015. After confirmation, he realized that Margery Igoki Mbogo had placed a restriction on the suit land. He has further stated that Margery Igoki Mbogo is neither a petitioner nor a beneficiary to the estate of the deceased. After being requested to remove it, she refused to do so. It is for these reasons that he now seeks the removal of that restriction.
3. The application was heard in the absence of the respondent. The respondent was served with the hearing notice of this matter. I found that the respondent was properly served and had adequate notice. It is for this reason that the proceedings were conducted in the absence of the respondent.
4. I find that this application is unopposed. I believe the affidavit evidence of the applicant that he was issued with a confirmed grant dated 12th March 2015. The confirmed grant has not been challenged to date. In the circumstances, I hereby grant his application that the restriction entered in respect of the suit land reference No. Kyeni/Mufu/6250 should be removed.
5. I make no orders to costs.
RULING DATED, SIGNED and DELIVERED in open court at EMBU this 9th day of June 2016
In the absence of both the applicant and respondent
Court clerk Njue
J.M. BWONWONGA
JUDGE
09/06/2016.