[2014] KEHC 1067 (KLR)
The court found that the respondent had not filed any application for revocation of the grant in the 15 years since confirmation, nor provided any valid reason for refusing to execute the documents necessary for distribution. The respondent's mere opposition, without formal legal challenge, does not justify...
Source-derived case information.
- Citation
- [2014] KEHC 1067 (KLR)
- Parties
- Applicant: Simon Mbogo Gakenge; Respondent: Gakono Gakenge
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 423 of 2002
- Procedural Posture
- Succession Cause / Ruling on Application for Execution of Documents by Deputy Registrar
- Outcome
- application allowed
- Legal Topics
- Succession, Grant Confirmation, Estate Distribution, Administrator Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Mbogo Gakenge
Applicant
Gakono Gakenge
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Execution of Documents by Deputy Registrar
Legal Issues
- 1 Whether the Deputy Registrar should be authorized to execute documents to effect distribution of the estate as per the confirmed grant.
- 2 Whether the respondent's failure to execute the documents or file for revocation justifies withholding distribution.
Ratio Decidendi
The court found that the respondent had not filed any application for revocation of the grant in the 15 years since confirmation, nor provided any valid reason for refusing to execute the documents necessary for distribution. The respondent's mere opposition, without formal legal challenge, does not justify withholding the applicant's share as awarded in the confirmed grant. The court emphasized that the estate must be distributed to benefit the beneficiaries as per the confirmed grant, and the respondent's inaction cannot be allowed to frustrate the process. Accordingly, the court allowed the application and authorized the Deputy Registrar to execute the relevant documents to effectuate...
Court Disposition
application allowed
Orders
- The Deputy Registrar is authorized to execute all relevant legal documents to enable the applicant to be registered as the absolute owner of 1½ acres as per the certificate of confirmation of grant dated 23rd August, 1999 in Embu Succession Cause No. 202 of 1996.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION CAUSE NO. 423 OF 2002
In the matter of the Estate of NYAGA KIRUMA (Deceased)
SIMON MBOGO GAKENGE........................................APPLICANT
VERSUS
GAKONO GAKENGE ................................................RESPONDENT
R U L I N G
The applicant Simon Mbogo Gakenge in his application dated 26th June, 2013 seeks for the following orders:-
That this honourable court do authorize its Deputy Registrar to execute all the relevant legal documents to enable the applicant be registered as the absolute owner of 1½ acres as per the certificate of confirmation of grant of 23rd day of August, 1999 in Embu Succession Cause No. 202 of 1996.
In his supporting affidavit, the applicant depones that vide SPM Succession Cause No. 201 of 1996 the grant in the deceased's estate was confirmed awarding him 1½ acres out of the estate. The petitioner died before the requisite documents for distribution of the estate were executed. It is for this reason that the applicant seeks to have the Deputy Registrar of this Court execute the documents in place of the deceased administrator.
The respondent Gakono Gakenge in his replying affidavit sworn on the 10th September 2014 opposed the application. He admits that the grant in this case was confirmed on 23/8/1999 whereas the applicant and other beneficiaries were given shares out of the estate. However, the applicant was given a share on LR. No. NGANDORI/KIRIGI/10 while he owns another parcel of land elsewhere. The respondent was opposed to the decision giving the applicant a share in LR. No. NGANDORI/KIRIGI/10. He instructed his advocate E.M. Mutahi & Co. to apply for revocation of grant who has not taken any steps to file the summons.
Mr. Ithiga for the applicant submits that when the respondent's mother died, the respondent replaced her as the administrator but has refused to execute documents to facilitate distribution of the estate. His application to revoke the grant was dismissed on 16/5/2013.
The respondent admits that he has no application pending in this file which is likely to affect the grant if it is dealt with. The fact that he instructed his advocate many years ago who never filed the application, does not justify holding the distribution of the estate in abeyance. If his advocate failed to act, he ought to have appointed another one or act in person. An application for revocation by one Danson Kariuki a beneficiary was dismissed on 16/5/2013 but he did not appeal against the decision. The reasons advanced in that application are that the applicant was given a bigger share. This is the same argument the respondent herein has.
The respondent has never filed any summons for revocation of grant and he has no good reason for not executing the document in favour of the beneficiaries. The distribution was done in 1999 which about 15 years ago. The respondent cannot be serious that he intends to act in applying for revocation of grant if he has not done it for the last 15 years.
I find no merit in the replying affidavit. The estate of the deceased requires to be distributed to benefit the beneficiaries who were given shares.
The application is therefore allowed and orders sought granted. There will be no order as to costs.
DELIVERED, DATED AND SIGNED AT EMBU THIS 10TH DAY OF DECEMBER, 2014.
F. MUCHEMI
J U D G E
In the presence of:-
Mr. Njeru for Applicant
Respondent present
F. MUCHEMI
J U D G E