[2014] KEHC 1224 (KLR)
The court held that although Section 79 of the Law of Succession Act vests all property of the deceased in the personal representatives, such representatives have no power to distribute or transfer title to estate property until the grant is confirmed under Section 71(1). Any title obtained by the...
Source-derived case information.
- Citation
- [2014] KEHC 1224 (KLR)
- Parties
- Respondent: Regina Wairimu Gatore; Applicant: Peter Mwangi Gatore
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 276 of 2009
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application
- Outcome
- Application allowed as prayed, with orders restraining issuance of title and dealings with estate land pending determination.
- Judges
- MJA Emukule
- Legal Topics
- Succession of Estates, Grant Confirmation, Trusteeship of Estate Property, Land Title Nullification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Regina Wairimu Gatore
Respondent
Peter Mwangi Gatore
Applicant
Procedural Posture
Succession Cause / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the petitioner is entitled to be issued with title to estate property before confirmation of grant.
- 2 Whether the District Land Registrar should be restrained from issuing title deeds to the petitioner or any other person pending confirmation of grant.
Ratio Decidendi
The court held that although Section 79 of the Law of Succession Act vests all property of the deceased in the personal representatives, such representatives have no power to distribute or transfer title to estate property until the grant is confirmed under Section 71(1). Any title obtained by the petitioner/respondent prior to confirmation is held in trust for the beneficiaries and cannot be perfected or transferred absolutely. Since the application was unopposed and the respondent failed to appear or respond, the court found merit in the applicant's request and granted orders restraining the District Land Registrar from issuing any title to the petitioner/respondent or permitting any...
Court Disposition
Application allowed as prayed, with orders restraining issuance of title and dealings with estate land pending determination.
Orders
- The District Land Registrar is restrained from issuing any title to Regina Wairimu Gatore pending hearing and determination of the cause.
- A prohibition is issued against any dealing with any part of the estate land pending hearing and determination of the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
SUCCESSION CAUSE NO. 276 OF 2009
IN THE MATTER OF THE ESTATE OF GATORE KIONGO ALIAS GATORE KIONGE (DECEASED)
REGINA WAIRIMU GATORE......................................PETITIONER/RESPONDENT
VERSUS
PETER MWANGI GATORE..............................................OBJECTOR/APPLICANT
RULING
1. This Ruling relates to an application by way of a Notice of Motion dated 11th November 2013 in which the Applicant/Objector seeks the following orders -
(a) a Certificate of Urgency(already spent),
(b) an order to the District Land Registrar, Laikipia nullifying the title deeds already issued to the Petitioner Respondent, illegally on the estate of the deceased
(c)an order restraining the District Land Registrar from issuing any new title deeds on the estate of the deceased to the Petitioner or any other person pending the outcome of the Petition,
(d) the costs of the application be provided for.
2. Though the application was served upon counsel for the Petitioner/Respondent, they neither filed a Replying Affidavit nor Grounds of Opposition, nor did they appear at the hearing. The Affidavit of Service sworn on 4th December 2013 and filed on 5th December 2013 shows service. In addition a Hearing Notice dated 17th June 2014 and served on 24th June 2014 upon counsel for the Petitioner, but again, counsel for the Petitioner never appeared, and the matter proceeded ex parte at 10. 15 a.m. when only counsel for the Applicant appeared.
3. According to counsel for the Applicant/Objector the only issue for determination is whether a Petitioner is entitled to be issued with Title to estate property or lands while the Petition is pending confirmation.
4. Though Section 79 of the Law of Succession Act vests all the property of the deceased in the personal representatives, such personal representatives have no power of distribution until the Grant is confirmed under Section 71(1) of the Law of Succession Act. Such personal representative hold such property as trustee only pending confirmation of the Grant and distribution.
5. It is thus clear to me that if the Petitioner/Respondent has had transferred to himself/herself any of the estate lands, the same can only be held in trust pending confirmation of the Grant. As the Petitioner/Respondent declined to respond thereto the Application here is therefore unopposed. I therefore allow the application in terms following -
The District Land Registrar is hereby restrained from issuing any title to Regina Wairimu Gatore the Petitioner/Respondent herein pending the hearing and determination of the cause herein, and
a prohibition against any dealing with any part of the estate land pending the hearing and determination of the cause herein,
the costs herein shall be in the cause.
6. Having granted the above orders, I wish to add that I have done so in the interests of justice. I wish to remind counsel that the Law of Succession Act is almost a complete code in itself. Applications to court are made under Section 47 of the Act, and rule 63 of the Probate and Administration Rules. The Civil Procedure Act (Cap. 21, Laws of Kenya) and the Civil Procedure Rules only have application to the extent so provided.
7. Save as above stated, the application is allowed in terms of the orders stated in paragraph 5 above.
8. There shall therefore orders in terms thereof.
Dated, signed and delivered at Nakuru this 31st day of October, 2014
M. J. ANYARA EMUKULE
JUDGE