https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10637

In re Estate of Mbui alias Samson Mbui (Deceased) (Succession Cause 14 of 2012) [2026] KEHC 10637 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 10637 (KLR) Republic of Kenya In the High Court at Kerugoya Succession Cause 14 of 2012 EM Muriithi, J May 14, 2026 IN THE MATTER OF THE ESTATE OF GITUMU SAMSON MBUI ALIAS SAMSON MBUI (DECEASED) Between Eric Samson Mbui Gatimu 1st Respondent Jeremiah Muchiri Gatimu 2nd Respondent and Samson Mbui Gatimu Applicant Ruling 1.By Summons dated 7/5/2025 (hereinafter called the 1st Application), under Rules 49 and 73 of the Probate and Administration Rules, the Applicant herein, Samson Mbui Gatimu seeks that; 1.The Honourable Court be pleased to declare that the partition of L.R.Kabare/Mutige/242 to give rise to L.R Kabare/Mutige/1317, 1318, 1319, 1320, 1321, 1322, 1323 and 1324 was and is unlawful, null and void. 2.The Honourable Court be pleased to order the cancellation of the title deeds to L.R.Kabare/Mutige/1317, 1318, 1319, 1320, 1321, 1322, 1323 and 1324 forthwith. 3.The Court be pleased to give such further orders as it may deem fit and just to. 4.The costs of this application be provided for. 2.The application is premised on the grounds on the face of it and supporting affidavit of Samson Mbui Gatimu, the Applicant herein sworn on even date. He avers that the grant in this matter was confirmed on 7/2/2019 and a certificate of confirmation of grant issued. While all parties were satisfied with the mode of sharing the property, they could not agree on the manner of partition on the ground owing to their respective developments. On 2/6/2020, the court directed that a surveyor’s report be filed capturing the location of the dwelling houses for all beneficiaries. 2 surveyors’ plans were duly filed and the matter was subsequently referred to mediation for parties to agree on subdivision. During the pendency of the mediation, the Respondents indicated that they had already partitioned the land and acquired title deeds thereto, without his participation. The resultant sub-divisions of Kabare/Mutige/242 into Kabare/Mutige/1317, 1318, 1319, 1320, 1321, 1322, 1323 and 1324 were unlawful, irregular and estopped by the principle of Lis Pendens. The partitions were not done on the ground and they unlawfully alienate the Applicant’s 3 dwelling houses and others developments. 3.The Respondents swore a Replying Affidavit on 25/6/2025 in opposition to the application. They aver that sometimes in December, 2019, they instructed M/S Earth Scope Surveyor’s Mapping to sub-divide and/or partition L.R No. Kabare/Mutige/242 as set out in the certificate of grant of 7/2/2019. Their instructions to M/S Earth Scope Surveyor’s Mapping were to the effect that regard would be to the actual occupation and/or possession of the individual beneficiaries and/or heirs and the nature and character of the developments undertaken thereon. On 22/6/2022, the County Surveyor-Kirinyaga conducted a site visit and picked the houses as constructed on title No. Kabare/Mutige/242. On 24/5/2025, the matter was referred to mediation in regard to the sub-division and/or partition of the suit land, wherein the beneficiaries agreed to complete the administration of the estate by processing the title deeds. The title deeds were issued upon the approval of the partition sketch plan by the relevant authorities and compliance with the substantive law and the statutory rules. The beneficiaries and/or heirs took possession of the respective shares without dispute with fixed clear physical boundaries. From the foregoing, the application is an afterthought and motivated by greed as the Applicant has a title deed in regard to L.R No. Kabare/Mutige/1324 whose approximate area is 0.34Ha. The Applicant should move to L.R No. Kabare/Mutige/1324 which he occupies and/or cultivates, and allow the lawful owners in regard to L.R Nos. Kabare/Mutige/1317-1323 to enjoy the interest, rights and privileges arising out of lawful registration as set out under Sections 24 and 25 of Land Registration Act. This court is functus officio as the administrators have performed their duties as set out under Sections 82 and 83 of the Law of Succession Act, and any claim by the Applicant over L.R Nos. Kabare/Mutige/1317-1324 should be filed in the Environment and Land Court. 4.The 2nd application is summons for Confirmation of Grant dated 27/5/2020 by the Respondents, under Section 71 of the Law of Succession Act and Rules 40 (1) and 41 of the Probate and Administration Rules, seeking that: 1.This honourable court do order the execution officer of this honorable court to execute all necessary documents required, on behalf of Samson Mbui Gatimu for purposes of executing the grant herein. 2.This honorable court do order the land registrar Kirinyaga to dispense with production of all documents relating to samson mbui gatimu required for purposes of executing the grant herein. 3.This honorable court do lift all orders, cautions, restrictions caveats or Inhibitions placed on land parcels No. Kabare/Mutige/ 242, Mukararano 10, Kutus Plot No. 49a, and kutus plot No 38. 5.The application is premised on the grounds on the face of it and supporting affidavit of Jeremiah Muchiri Gatimu, the 2nd Respondent herein, sworn on even date. He avers that the grant herein was confirmed on 7/2/2019, but the Applicant has refused to sign all the relevant documents to actualize the court orders. He thus prays that the court orders the executive officer to sign those documents on behalf of the Applicant and that the officer in charge of Kianyaga police station do provide security during the subdivision of land parcel Kabare/Mutige/242, Mukarara Plot No. 10, Kutus Plot No. 49a, Kutus Plot No. 38. 6.The Applicant swore a Replying Affidavit on 21/7/2020 in opposition to the application. He accuses the Respondents of being uncooperative in having the grant executed and sidelining him in all the processes they have been undertaking in this cause. He is now apprehensive that the Respondents intend to procure the orders sought in order to bar him from participating in the execution of the grant as well as the survey works. He is willing to execute the relevant documents upon scrutiny by his advocate and prays for the dismissal of the application. 7.The Applicant urges that the 1st application has merit, and should therefore be allowed as prayed. He maintains that the partition of the land was done without his involvement, and before the hearing and determination of the 2nd application. 8.The Respondents urge that this court cannot review or alter its decision, as any challenge thereto must be adjudicated before a higher court, and cite Nderitu & 5 Others v Telcom Kenya Limited & Another (2024) KEHC 229 (KLR). They urge that the owners of L.R Nos. Kabare/Mutige/1317-1324 should be allowed to enjoy the interest, rights and privileges arising out of lawful registration as provided under Sections 24 and 25 of the Land Registration Act. They urge that this court lacks jurisdiction to delve into issues relating to title to land, and cite Estate of Prisca Ong’ayo Nande Deceased (2020) eKLR. Analysis and Determination 9.Having considered the applications, the response thereto, the submissions on record and the authorities relied on, the court finds the issue for determination to be whether they are merited. 10.This court is enjoined by the provisions of section 47 of the Law of Succession Act to issue appropriate orders to ensure the ends of justice are met, including cancellation of illegally issued title deeds and review of its orders. The contention by the Respondents that this court is functus officio or divested of jurisdiction is misconceived. 11.The applications are the 2 sides of the same coin, and consequently, the determination of one will invariably dispose of the other. 12.On the 1st application, the Applicant laments that the subdivisions of L.R No. Kabare/Mutige/242 into L.R Nos. Kabare/Mutige/1317 to 1324 were irregular and unlawful, for failing to consider his developments on the ground. On their part, the Respondents contend that all the beneficiaries are contented with the subdivisions save for the Applicant, who is hell-bent on frustrating the process. 13.According to the survey report filed on 6/7/2022, the Applicant occupies portions B and G. It is stated in that report that portion G is undeveloped and the Applicant only undertakes farming activities thereon, while he has a semi-permanent house on portion B. 14.The court notes that the other beneficiaries have established permanent houses in their respective portions, thereby rendering it more practicable for the Applicant to relocate to the undeveloped portion, particularly given that he only occupies a semi-permanent structure situated on portion B jointly occupied by Grace Kabuci Gatimu and Janet Wagacigi Gatimu. 15.This court finds that the subdivisions on L.R No. Kabare/Mutige/242 took into account the occupations of the beneficiaries on the ground, and were ultimately just. The beneficiaries, including the Applicant signed the mediation attendance sheet, wherein they agreed to proceed with the processing of the title deeds. The contention by the Applicant that he was not involved in the survey process and the subsequent procurement of title deeds is unfounded, and the Court agrees with the respondents that the application of 7/5/2025 was an afterthought. Orders 16.Accordingly, for the reasons st out above, this court finds that the application dated 7/5/2025 is without merit and it is dismissed. 17.Having found that the subdivisions of L.R No. Kabare/Mutige/242 were lawful and in strict compliance with the Certificate of Confirmation of Grant, the application dated 27/5/2020 is moot. 18.There shall be no orders as to costs.Orders accordingly. DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.EDWARD M. MURIITHIJUDGEAPPEARANCES:Mr. Magee for the Applicant.Mr. Munene for Mr. Njagi for the Respondent.