[2013] KEHC 4926 (KLR)
The court found that the portion of land originally claimed by the protester had already been lawfully transferred to Erastus Njuguna Kamau by a valid court decree, and that an appeal against that decree had been abandoned. As a result, the estate of the deceased no longer included the disputed land, and the...
Source-derived case information.
- Citation
- [2013] KEHC 4926 (KLR)
- Parties
- Applicant: Simon Gichuhi Njuguna; Respondent: John Njuguna Mwaura
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1317 of 2001
- Procedural Posture
- Succession Cause / Ruling on Protest to Confirmation of Grant
- Outcome
- protest dismissed with monetary remedy granted
- Judges
- I Lenaola
- Legal Topics
- Succession Estates, Land Transfer Disputes, Refund of Purchase Price
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Simon Gichuhi Njuguna
Applicant
John Njuguna Mwaura
Respondent
Procedural Posture
Succession Cause / Ruling on Protest to Confirmation of Grant
Legal Issues
- 1 Whether the protester, John Njuguna Mwaura, is entitled to a portion of land parcel Ngenda/Kahunguini/895 from the estate of the deceased.
- 2 Whether the protester is entitled to any remedy following the transfer of the disputed land to a third party by court decree.
- 3 Whether the protester is entitled to a refund of the purchase price and interest from the estate.
Ratio Decidendi
The court found that the portion of land originally claimed by the protester had already been lawfully transferred to Erastus Njuguna Kamau by a valid court decree, and that an appeal against that decree had been abandoned. As a result, the estate of the deceased no longer included the disputed land, and the protester could not be granted a remedy in the form of land. However, the court recognized that the protester had paid a purchase price for the land and, in the absence of the ability to transfer the land, was entitled to a refund of the purchase price plus interest at 10% per annum from the date of the sale agreement, pursuant to Section 26 of the Civil Procedure Act. The refund was...
Court Disposition
protest dismissed with monetary remedy granted
Orders
- The protester, John Njuguna Mwaura, shall be paid Kshs.100 plus interest at 10% per annum from 12th February 1964 by the petitioner from the estate of the deceased.
- The protester shall have costs of the protest.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO.1317 OF 2001
[if gte mso 9]><xml>
Normal 0
false false false
EN-GB X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]
IN THE MATTER OF THE ESTATE OF MWAURA NJUGUNA (DECEASED)
SIMON GICHUHI NJUGUNA …...............................................PETITIONER
VERSUS
JOHN NJUGUNA MWAURA.....................................................OBJECTOR
RULING
1. On 10th February 2012, I ordered parties herein to serve one, Erastus Njuguna Kamau, with Notice to appear and state his interest in the estate of the deceased herein. He was indeed served and in an Affidavit sworn on 21st November 2012, he gave a detailed account of his involvement and interest in Land parcel number Ngenga/Kahunguini/895 which was registered in the names of the deceased, Titus Mwaura Njuguna.
2. In a nutshell what he stated was that pursuant to a decree in Gatundu RMCC No.52 of 1986, a portion of Land parcel number 895 aforesaid was excised and transferred to him. Further, that, one Simon Gichuhi Njuguna, who was occupying the said portion land was evicted and that the “portion that remained … belongs to TITUS MWAURA NJUGUNA(now deceased).”
3. With that background, it follows that Erastus Njuguna Kamau has no further interest in the deceased's estate and as I stated on 10th February 2012, I must now make a decision on the Protest filed By John Mwaura Njuguna on 6th May 2008.
4. In doing so, I must advert to my Ruling of 10th February 2012 in which I set out the facts relating to the Petition. Having now read and set out the position taken by Erastus Njuguna, my findings as regards the Protest by John Mwaura Njuguna are as follows;
5. Firstly, on 18th June 1991, Bosire J. (as he then was) agreed with a panel of Elders who had arbitrated in the dispute between the parties and in a Ruling made within HCCC No.2421/1985, found as a fact that the Protester had purchased a portion of Land parcel number 895 aforesaid but the said order could not be enforced as the land had since been sub-divided into land parcels Nos.Ngenda/Kahunguini/1022 and 1027 and one of them transferred to Erastus Njuguna Kamau.
6. Secondly, it would seem from the evidence on record that the portion claimed by the Protester is the same portion that was by a Court decree transferred to Erastus Njuguna Kamau and so there is really no remedy against the said Erastus Njuguna unless the decree in his favour is overturned and I note that an appeal against that decree has been abandoned.
7. Thirdly, the Protester seems to be pursuing an interest in both Land parcels numbers 1022 and 1027 but it is obvious that not all belong to the deceased and it is unclear to me what actually is left in the estate and in the name of the deceased.
8. Fourthly, it is obvious to me that the only remedy available to the Protester is a refund of the purchase price of Kshs.100/- plus interest at the rate of 10% per annum pursuant to Section 26 of the Civil Procedure Act, such interest to be calculated from 12th February 1964 when the Sale Agreement was executed.
9. The above monies shall be paid by the Petitioner, Simon Gichuhi Njuguna from the estate of the deceased.
10. The Protester shall also have costs of the Protest which is determined in the terms above.
11. I hope that this Ruling will bring this long running dispute to an end.
12. Orders accordingly.
DATED, DELIVERED AND SIGNED AT NAIROBI THIS 22ND DAY OF FEBRUARY, 2013
ISAAC LENAOLA
JUDGE
In the presence of:
Irene – Court clerk
Mr. Gachuhi for Petitioner
No appearance for objector
Order
Ruling duly delivered.
ISAAC LENAOLA
JUDGE
Further Order
A copy of the Ruling to be delivered to the Parties.
ISAAC LENAOLA
JUDGE
22/2/2013