Henry Njeru Kithaka v Naomi Muthoni Njuki [2017] KEHC 3152 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

MISC. SUCCESSION CAUSE NO. 138 OF 2016

In the matter of the Estate of  NJUKI THOME (Deceased)

HENRY NJERU KITHAKA…………………..............……………APPLICANT

VERSUS

NAOMI MUTHONI NJUKI.……….……. ADMINISTRATOR/RESPONDENT

R U L I N G

1. This is an application dated 31/08/2017 seeking for orders of inhibition prohibiting any dealings with LR. Nos. Mbeere/Kiambere/435 and 2985 pending hearing and determination of the summons for revocation.

2. The applicant relies on the grounds that he purchased the two parcels of land from the deceased and has been in occupation since then.  The respondent filed succession proceedings whereas the grant was confirmed in favour of the petitioner and other beneficiaries in respect of L.R. Mbeere/Kiambere/2985.

3. The applicant claims that the petitioner sold L.R. Mbeere/Kiambere/435 to one Obadiah Mbogo whose name appears in the grant as the beneficiary of the parcel.

4. The applicant thereafter cautioned the respective parcels of land to protect his interests.

5. The applicant has annexed a handwritten agreement between him and the deceased Njuki Nthome witnessed by the petitioner/respondent Naomi Muthoni Njuki among others dated 14/10/1995.

6. The respondent/petitioner opposed the application terming the annexed agreement a forgery.  She said she did not know how to read and write for which reason she only thumb prints.  She therefore denies the signature against her name on the agreement.  She claims that the claim is time barred even assuming there was such an agreement.

7. It is further contended that the applicant has never taken possession of the land but her sister one Daisy Muthoni has been allowed to cultivate part of the land namely L.R. Mbeere/Kiambere/2985.

8. I have perused the annexed documents.  The agreement is denied by the respondent who was a witness according to the applicant.  It is dated 4/10/1995 which is beyond the period allowed by the law of twelve (12) years to file a suit for recovery.  The summons for revocation under Section 76 of the Succession Act is not limited in way of time by the law.  That is the application pending before this court.

9. The issue herein is whether the applicant has a sound claim for revocation of grant to warrant issuing the orders of inhibition sought herein.

10. Firstly, the applicant claims to have bought two parcels of land from the deceased.  He has only produced an  agreement for one parcel L.R. 435.  He has not  explained why he failed to attach the second agreement, if he has any.  The mount of money paid as  per the agreement was Shs.3,000/= but it is not shown whether the balance was ever paid.

11. Secondly, the applicant is not a relative of the deceased and the grant herein was issued to his widow the respondent.He cannot claim that the respondent was not the right person to be appointed administrator and to distribute her husband's estate.  He is not related to  the deceased.

12. I find that the applicant has failed to showprima facie  case to justify grant of the orders of inhibition against     the respondent.

13. I therefore dismiss the application with no order as to  costs.

14. I direct that the application for summons for revocation  be heard before Siakago court which is possessed of jurisdiction.

15. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 4TH  DAY OF OCTOBER, 2017.

F. MUCHEMI

J U D G E

In the presence of:-

Mr. Njiru Mbogo for R. Njeru for Applicant

Mr. Mugo Kamau for Mbwiria for Respondent