[2017] KEHC 1060 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

Succession Cause No. 289 Of 2012

In the Matter of the Estate of Jacob Gichunge Muchiri (Deceased)

Regina Mukiri Gichunge

Fridah Kanini Gichunge……………………… Petitioners

-And-

Faith Mukami…………………………….…….Interested Party/Applicant

-Versus-

Susan Nkirote Jacob………………………….…………..RESPONDENT

RULING

[1] By a Summons dated 14th February 2017 and brought pursuant to Section 47 of the Law of Succession Act CAP 160 of the Laws of Kenya, Rule 73 of the Probate and Administration Rules, the Applicant is seeking the following orders:

a). ……………………………………………spent

b). ………………………………………………spent

c) THAT this Honourable Court be pleased to order the Respondent to transfer land parcel LR NO. URINGU II/702 to the Interested Party Applicant as the rightful heir in accordance with the deceased’s will and the Confirmed Grant.

d) THAT the cost for and incidental to this application be borne by the Respondent.

[2] The Application is premised on the grounds inter alia that the Respondent used dubious and fraudulent means to have land parcel LR NO. URINGU/II 702 transferred and registered in her name when the deceased herein was already dead. Therefore, the registration of the Respondent as the absolute proprietor of land parcel LR NO. URINGU II/702 was illegal and against the wishes of the deceased as per his will. The Respondent circumvented the will of the deceased and defeated its very essence.

[3] Briefly the Applicant’s case was that in a will dated 26th June 2011, the deceased bequeathed to her land parcel LR NO. 702 in the then URINGU Adjudication Section and that the Respondent manipulated the system and had the suit property registered in her name. The Applicant contends that when she discovered, she wrote to her asking her to transfer the land to her but she declined. Consequently, she urged the court to compel the Respondent to transfer the suit property to her as per the wishes of the deceased.

[4] The Application was opposed via Replying Affidavit filed in court on 21st March 2017, by the Respondent where she deposed inter alia that that she was the owner of the suit property having been given to her by his father in the year 2010. The Respondent further contended that the suit property was awarded to her in Tigania District Uringu II Adjudication Section Objection No. 1932 between his late father and one M’ Ikunyua M’ Ithibitu and that the Adjudication Officers allowed the objection and granted her father’s wish to transfer the suit property to her. She further contended that she had never used any fraudulent means as alleged to have the suit property transferred to her and that her father had already given her the suit property even before the purported will was written.

DETERMINATION

[5] I have carefully considered this Application and the rival contentions by the parties. The Applicant has contended that in a will dated 26th June 2011 the deceased had bequeathed to her the suit property, but the Respondent subsequently manipulated the system and had the land registered in her name. although the property was registered in the name of the Respondent, there was no evidence adduced by the Applicant to show that the Respondent had manipulated the system to have the suit property so registered. Similarly, there is no evidence that the suit property had been given to the Respondent by her deceased father prior to his demise. Likewise, no evidence was tendered to the effect that the Respondent had objected to the alleged will.

[6] There is no dispute that a will for this estate exist and a Grant of probate was issued to the Executors of the will of the deceased on 30th July 2012. The said Grant was subsequently confirmed on 31st March 2014. This Grant has never been revoked and remains in force to date.

[7] According to schedule for distribution attached to the said Grant and specifically paragraph 20 thereof, the suit property was to be wholly inherited by the Applicant. It is therefore unclear how the said property was subsequently transferred to the Respondent on 24th August 2015. The transfer cannot even be based on the principle of relation back by the executors as the suit property was not bequeathed to the Respondent. Therefrom, the only logical and lawful inference is that the transfer was fraudulent and contrary to the grant of representation herein. I find no evidence that the Respondent was given the suit property by her deceased father in the year 2010. One really wonders why she took a period of 5 years to have the suit property registered in her name, that is to say, in the year 2015.

[8] Taking into totality all the circumstances in this case, I find the instant Application to be merited and I accordingly allow it. This being a succession matter, there will be no order as to costs. It is so ordered.

Dated, signed and delivered in open court at Meru this 5th day of December

2017

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F. GIKONYO

JUDGE

In the presence of:

Mr. Kithinji advocate for Interested party/applicant

Mr.Muriuki advocate for Samuel Mutwiri (beneficiary/applicant)

Mr. Nyenyiro advocate for respondent

Mr. Nyamu Nyaga advocate for beneficiary called Damaris

Mr. Arithi advocate for petitioner – absent

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F. GIKONYO

JUDGE