In re Estate of M'Kwenga Gicune [2022] KEHC 14712 (KLR)

In re Estate of M'Kwenga Gicune (Succession Cause 220 of 1992) [2022] KEHC 14712 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14712 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 220 of 1992

TW Cherere, J

November 3, 2022

IN THE MATTER OF THE ESTATE OF M’KWENGA GICUNE

Between

Bernard Gitonga Kanyuru

Administrator

and

Julius Mirico Githinji

Applicant

Ruling

Background 1. By an Amended Certificate of Conformation dated 31st January, 2017, deceased’s estate was distributed as follows:a.LR. South Tharaka/tunyai A/534i.Julius Mirico Githinji 4 acresii.Gaterina Gatumi Mwenda 6 acresiii.Bernard Gitonga Kanyuru Balance for the estate of Endelina K. Kwengab.LR. South Tharaka/tunyai A/535i.Daniel Githinji Nyamu 5 acresii.Samuel K. Kaunga Balance

Summons 2. By summons dated 18th July, 2022, Applicant complains that partitioning of LR. South Tharaka/tunyai A/534 into LR. South Tharaka/tunyai A/4089, 4090 and 4091 did not take into consideration and has resulted in him being evicted.

3. The summons is summons is supported by Applicant’s affidavit sworn on 18th July, 2022 in which he urges that the sub division be cancelled and a fresh one that takes into account his developments be conducted.

4. Respondent did not file any response although his advocate was served with the summons.

Analysis and determination 5. I have considered the summons in the light of the supporting affidavit. Transmission of land often involves subdivision or partition of land for sharing between several individuals, and that has something to do with boundaries, transfers, registrations, among others.

6. The Law of Succession Act and the probate and Administration Rules do not deal with such processes. These are, instead, regulated and governed by the land Registration Act and the Land Act. So subdivision. partition, survey, boundaries, maps, transfers, registrations, etc., are dealt with in the context of land legislation, and not succession legislation. The Land Registration Act deals with these at Parts II, III and IX. The Land Act, on the other hand, deals with them at Part V. (See In re Estate of Daniel Khasievera Anusu (Deceased) [2022] eKLR)

7. The two pieces of land legislation, that is to say the Land Registration Act and the Land Act, are specific, that any disputes, actions or suits relating to matters governed or regulated by the two, are to be resolved by the Environment and Land Court. Indeed, the Land Registration Act and the Land Act provide that “court,” for the purposes of the two Acts or within their contexts, means the Environment and Land Court.

8. By placing a dispute, before the probate court, relating to transmission of property, as per the certificate of confirmation of grant, and about survey and partition, the Applicant is asking the court to engage this court in matters that are beyond its jurisdiction.

9. In any event, not every conceivable dispute should be rushed to court. Under the land legislation, the Land Registrar has broad quasi-judicial roles and powers, and can address some of the issues raised by the Applicant, before they are escalated to the Environment and Land Court.

10. In the end, I find that the summons dated 18th July, 2022 has no merit and it is dismissed.

DATED AT MERU THIS 03RD DAY OF NOVEMBER 2022T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Administrator/Respondent - N/A Mwrigi Kaburu & Co AdvocatesFor Applicant - Mr. Kirimi for Waklaw Advocates