ANNAH WAMUYU MUHINGO v JOSEPH MURIUKI MUHINGO [2009] KEHC 889 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

Succession Cause 112 of 1989

ESTATE OF GAICHUHIA MUHINGO -  DECEASED

ANNAH WAMUYU MUHINGO ………………APPLICANT

VERSUS

JOSEPH MURIUKI MUHINGO…………..RESPONDENT

RULING

Pursuant to the Provisions of Section 71 (1) and (3) of the Law of Succession the grant of Letter of Administration Intestate of the Estate of Gaichuhia Muhingo, deceased issued to Annah Wamuyu Muhingo and Joseph Muriuki Muhingo  (hereinafter referred to as the Applicant & Respondent  respectively) was confirmed on 22nd April 2009.  The certificate  of confirmation indicated that L.R. No. Konyu/Baricho/91 would be shared equally.

Annah Wamuyu Muhingo is now before this court seeking for the following  orders in the summons  dated 7th May 2009:

1. That the Honourable Court be pleased to order and/or authorize its Deputy Registrar/officer to sign all the necessary documents of sub-divisions and transfer of land parcel No. KONYU/BARICHO/91 instead of the Respondent herein JOSEPH MURIUKI MUHINGO.

2. That the production of the original title Deed in respect of Land Parcel No. KONYU/BARICHO/91 be dispensed with at the time of transfer herein.

The Summons is supported by the affidavit sworn on 7th May 2009.  Joseph Muriuki Muhingo opposed the application by filing a replying affidavit he swore on 2nd September 2009.

It is the submission of the applicant that the Respondent has refused to have the terms of the certificate  of confirmation of grant executed.  The Respondent on his part denied having been to this court.  He alleged that the Applicant has not served him with any documents save for the current application.  The Respondent claimed that the Applicant was only entitled to only 0. 53 hectares and not half of L.R. No. Konyu/Baricho/91.  He denied  having refused to sign the  necessary documents.

I have carefully considered the grounds set out on the face of the summons plus the facts deponed in the affidavits for and against  the application.  It is obvious that the Respondent has refused to sign the necessary documents to have half of L.R. Konyu/Baricho/91 transferred to the Applicant.  He has annexed to his  replying affidavit documents showing that the Respondent  is only entitled to L.R. Konyu/Baricho/91 yet the certificate of confirmation of grant indicates that the applicant and the Respondent should share equally the aforesaid  parcel of land. The Respondent has not applied for the grant to be revoked and or altered.

I am convinced the applicant was entitled to bring up these proceedings.  In exercise  of this court’s  inherent power under Rule 73 of the Probate and Administration Rules I hereby grant the applicant the orders sought in the summons dated 7th May 2009.  Costs of the application to be met by the estate.

Dated and delivered this 13th day of October 2009.

J.K. SERGON

JUDGE

In open court in the presence of the applicant and the Respondent.

J.K. SERGON

JUDGE