Grace Catherine Ntinyari, Lilian Karimi Stephen & Roseline Makena Mutwiri v Murithi RMW Stephen; Shadrack Koome M’Nchebere (Interested Party/Applicant) [2021] KEHC 3566 (KLR)

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 18 OF 2001

(CORAM: CHERERE-J)

IN THE MATTER OF THE ESTATE OF STEPHEN KIRIMA SILAS (DECEASED)

IN THE MATTER OF APPLICATION FOR REVOCATION OF THE GRANT

BETWEEN

GRACE CATHERINE NTINYARI.................................................1ST OBJECTOR

LILIAN KARIMI STEPHEN.........................................................2ND OBJECTOR

ROSELINE MAKENA MUTWIRI...............................................3RD OBJECTOR

AND

MURITHI R.M.W. STEPHEN..............................PETITIONER/RESPONDENT

AND IN AN RESPONSE BY

SHADRACK KOOME M’NCHEBERE...INTERESTED PARTY/APPLICANT

RULING

1. By a ruling dated 17th October, 2019, this court revoked/annulled the Certificate of Confirmation of Grant issued to the Petitioner on 03rd July, 2002 on grounds among others that it was obtained fraudulently and that the Petitioner did not provide for his sisters (Objectors).

2.  Subsequently, this court by an order dated 29th April, 2021 granted the Applicant an opportunity to be heard on the application dated  11th March, 2019 seeking for revocation of the grant mainly on the ground that adverse orders had been made affecting him without affording him an opportunity to be heard.

3. By his replying affidavit sworn on 18th May, 2021 and filed on 20th May, 2021, the Applicant avers that the Petitioner had sold land parcels LR. NYAKI/GIAKI/2663 and LR. NYAKI/GIAKI/2648which were subdivision ofLR. NYAKI/GIAKI/1759to the 3rd Objector who had in turn sold the same to the Applicant. Annexed to his affidavit is a title deed for LR. NYAKI/GIAKI/2663in his name.

Analysis and Determination

4.  I have considered the application in the light of the affidavits on record.

5. As rightly pointed hereinabove, this court by its ruling dated 17th October, 2019 revoked/annulled the Certificate of Confirmation issued to the Petitioner on 03rd July, 2002 on grounds among others that it was obtained fraudulently and that the Petitioner did not provide for his sisters (Objectors).

6. The grant having been annulled, any action taken on the said grant and more particularly the subdivision of deceased’s land parcel LR. NYAKI/GIAKI/1759into NYAKI/GIAKI/2663andLR. NYAKI/GIAKI/2648and any subsequent sale are a nullity and cannot be protected under the law of succession.

7.  In re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR , the court in considering a claim by a purchaser stated as follows:

“Such claims to ownership of alleged estate property, as between the estate and a third party, should be resolved through the civil process in a civil suit properly brought before a civil court in accordance with the provisions of the Civil Procedure Act and the Civil Procedure Rules. This could mean filing suit at the magistrates’ courts, or at the Civil or Commercial Divisions of the High Court, or at the Environment and Land Court. If a decree is obtained in such suit in favour of the claimant, then such decree should be presented to the probate court in the succession cause so that that court can give effect to it.”

8.  Applying the above legal test, I find that the claim by the Interested Party/Applicant has no merit and cannot be sustained.

9.  I reiterate the orders issued by this court on 17th October, 2019 as follows:

1)The grant made to Petitioner/ Respondent stands revoked and all consequential transactions arising from the void grant stand annulled

2)Title deeds for land parcels LR. NYAKI/GIAKI/2663 and LR. NYAKI/GIAKI/2648 stand revoked

3)The assets previously registered in the name of the deceased to revert to his name forthwith and be distributed to his rightful heirs.

4)Interested Party/Applicant shall bear the costs of this application

DATED AT MERU THIS 30H DAY OF SEPTEMBER 2021

WAMAE. T. W. CHERERE

JUDGE

Court Assistant            -Morris Kinoti

For Petitioner               -N/A for Okatch & Partners

For Interested Party     -Mr. Kaaria for Muchomba Law Advocates

For Objectors                - N/A for Kuria Karatu & Co. Advocates