[2015] KEHC 825 (KLR)
The court determined that before deciding on the removal of the restriction or labeling the acts as intermeddling, it was necessary to clarify why the administrators had not applied for confirmation of grant and to ascertain the status of the estate. The court recognized the competing allegations of hardship by the...
Source-derived case information.
- Citation
- [2015] KEHC 825 (KLR)
- Parties
- Applicant: Silas Muthuri M’Likanya; Respondent: Land Registrar, Meru Central District; Interested Party: Sofia Gakii
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 544 of 2013
- Procedural Posture
- Succession Cause / Interlocutory Application for Removal of Restriction
- Outcome
- Further directions ordered; substantive application deferred.
- Judges
- F Gikonyo
- Legal Topics
- Removal of Restriction, Succession Estate Administration, Intermeddling With Estate, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silas Muthuri M’Likanya
Applicant
Land Registrar, Meru Central District
Respondent
Sofia Gakii
Interested Party
Procedural Posture
Succession Cause / Interlocutory Application for Removal of Restriction
Legal Issues
- 1 Whether the restriction placed on L.R NO. ABOTHUGICHI/MAIENE/1428 should be removed pending confirmation of grant.
- 2 Whether the sale and transfer of the suit property amounted to intermeddling with the estate.
- 3 Whether the administrators' failure to apply for confirmation of grant justifies the applicant's complaint.
Ratio Decidendi
The court determined that before deciding on the removal of the restriction or labeling the acts as intermeddling, it was necessary to clarify why the administrators had not applied for confirmation of grant and to ascertain the status of the estate. The court recognized the competing allegations of hardship by the applicant and intermeddling by the respondent/interested party, but held that the proper administration of the estate and compliance with succession law procedures must take precedence. Accordingly, the court deferred substantive determination and directed parties to appear for further directions, emphasizing the need for answers to the pertinent questions regarding...
Court Disposition
Further directions ordered; substantive application deferred.
Orders
- Substantive counsels to appear before the court on 9th December 2015 for further directions.
- No final determination on removal of restriction until clarification on confirmation of grant and estate status.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
HIGH COURT SUCC.CAUSE NO. 544 OF 2013
(Originally NBI HC Succ. Cause No 2812 of 1995)
In The Matter of the Estate of M’Muga M’Magiri (Deceased)
SILAS MUTHURI M’LIKANYA …..………………………....APPLICANT
Versus
LAND REGISTRAR, MERU CENTRAL DISTRICT ....….……. RESPONDENT
SOFIA GAKII…………………………….....……INTERESTED PARTY
RULING
Removal of restriction
[1] I have been called upon to determine the application dated 9th August 2010. The Applicant complains that he is a purchaser and registered proprietor of the suit property i.e. L.R NO. ABOTHUGICHI/MAIENE/1428 (formerly part of L.R NO.ABOTHIGUCHI/868). He has exhibited a Title Deed to show that. He says that as a proprietor, he has developed the said land extensively yet he cannot use his said land freely due to a restriction that was placed following a court order issued on 19th March 2009. He laments that this restriction has caused him irreparable hardship and damage. He now wants the said order to be set aside for being a source of hardship and injustice to him.
[2] The Interested party/Respondent has alleged collusion between the Applicant and one of the administrators Jerica Kagwira in the sale and transfer of the suit property. It is contended that these are acts of intermeddling and should be condemned. It was also submitted that the land should revert into the name of the deceased as the property of the estate. The Respondent also accuses the administrators of; (1) not being keen on applying for confirmation despite the order of the court; and (2) being ‘’at loggerheads and not working in consultation and performance for the benefit of all beneficiaries but some are pursuing individual interests…’’.
DETERMINATION
[4] I have perused this file and I observe that it is a very old cause. It has seen many court attendances as well as applications. It has also travelled from Nairobi to Meru and it has been dealt with by a number of different judges in Nairobi and in Meru. I must admit that I have agonized over this file, and I think that it is time the cause should be brought to closure. But, what is the best way of achieving justice to the parties herein? I note that Onyancha J ordered the parties to apply for confirmation of the grant within 90 days from 4th December 2008. I have not seen or been shown any such application. In fact the Applicant and the interested party have complained that the administrators have refused to apply and are not keen on applying for confirmation. The Applicant thinks this unwillingness to apply for confirmation is because they are not suffering, for they have sold the other estate property and are not in occupation thereof. He also says that it is curious that they did not place a restriction on the other properties like they did with his property if indeed they were preserving the estate as this matter is finalized. The Interested party thinks the unwillingness to apply is due to selfish reasons and wanton intention to intermeddle with the estate by the administrators. These are substantial matters when they are brought to the attention of the court for which the court must seek to unravel given its role in succession matters and the requirement of the law on sale of estate property. Therefore, before I determine the application dated 9th August 2010, and before I label the acts complained of as intermeddling, I should think that answers to some pertinent questions especially why confirmation has not been applied for and the status of the estate are desirable. Therefore, I direct that the substantive counsels herein shall appear before me on 9th December 2015 for further directions on this matter. It is so ordered.
Dated, signed and delivered in court at Meru this 1st day of December 2015
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F. GIKONYO
JUDGE
In the presence of:
Kimata advocate for interested party
Murithi advocate for M/s Koome for applicant
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F. GIKONYO
JUDGE