Benedict Mutiso Kasango & Philip Nzuma Kasango v Paul Muli Nzioki [2016] KEHC 1883 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 398 OF 2003

IN THE MATTER OF THE ESTATE OF PHYLLIS KASANGO NZUMA – DECEASED

AND

IN THE MATTER OF;

BENEDICT MUTISO KASANGO

PHILIP NZUMA KASANGO........ADMINISTRATORS/RESPONDENTS

AND

PAUL MULI NZIOKI .…………………….…………………..APPLICANT

RULING OF THE COURT

1. The Summons before the Court is brought under Section 47 of the Law of Succession Act, Rule 73 of the Probate and Administration Rules.It seeks the orders;

a. That, the Deputy Registrar do sign all the relevant documents on behalf of the Administrators/Respondents including transfers and mutation forms to enforce amended certificate of confirmation dated 4th June, 2008and enable full administration of the estate.

b. That, the costs of this application be borne by Respondent.

2. The application is premised on the grounds that the deceased herein passed on 26th December, 2002 (annexed is a copy of the death certificate marked as PMN1).That prior to her death, the deceased sold to the Applicant a parcel of land Machakos/Mua Hills/184 measuring 10 acres but passed on before she alienated and transferred the same. Upon her demise, a grant of probate to the estate of the deceased was issued to the Administrators/Respondents jointly and the said grant was subsequently confirmed on the 4th June, 2008 (annexed is a copy of the certificate of confirmation of grant marked as PMN2).Since confirmation about seven (7) years the said Administrators/Respondents have become elusive, non committal, have neglected and refused to alienate and transfer the parcel of land to the Applicant as per the express terms of the grant and to date, the land is still registered in the deceased’s name (annexed is a copy of the certificate of search marked as PMN 3).Several times without number, the Applicant has pleaded in vain for the Respondents to alienate and transfer the said parcel of land to the Applicant.  The Applicant’s case is that the distant and evasive conduct of the Administrators/Respondents has frustrated and/or rendered it impossible to transfer the parcel of land to the Applicant’s favour as envisaged in the grant and as such the Applicant’s interests are adversely affected, hence she is seeking the intervention that the Deputy Registrar sign the relevant documents to enable lawful and expeditious transfer of portion of the parcel of land being Machakos/Mua Hills/184 measuring 10 acres to the Applicant. The Applicant’s case is that it will be in the interest of justice that the orders sought are granted, and that no prejudice will be suffered by the Administrators/Respondents if the orders sought are granted.

3. The application was served together with the hearing notice upon the Respondent on 17th May, 2016but they did not turn up in court.   (See Affidavit of Service filed herein on 29th June, 2016. )

4. I have considered the application. It is based on good grounds, and the cause of action is established in the Supporting  Affidavit ofPaul Muli Nzioki filed herein on 23rd November, 2015

5. The Petitioners were served with the hearing notice but failed to turn up.

6. The Applicant is part of the beneficiary of the estate.  He cannot wait forever for the Petitioners to give him his due.

7. This application is merited and I allow it as prayed.

DATED AND DELIVERED AT MACHAKOS THIS26THDAY OF OCTOBER, 2016.

E. OGOLA

JUDGE

In the presence of;

Mr. Nthiwa for Applicant

Court Assistant – Mr. Munyao