In re Estate of M’mucheke Mbogita (Deceased) [2022] KEHC 3310 (KLR)

In re Estate of M’mucheke Mbogita (Deceased) (Succession Cause 615 of 2013) [2022] KEHC 3310 (KLR) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3310 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 615 of 2013

TW Cherere, J

July 7, 2022

IN THE MATTER OF THE ESTATE OF M’MUCHEKE MBOGITA (DECEASED)

Between

Ann Mukuba Ndubi

Applicant

and

Moffat Kimathi Samwel

1st Respondent

James Murungi Maingi

2nd Respondent

Ruling

1. By a ruling dated March 11, 2021 after hearing an application for revocation of the grant in this matters issued the following orders:i.Summons for revocation dated September 8, 2020 and filed on September 9, 2020 has no merit and it is dismissedii.In order to protect the integrity of the court and to give effect to ruling dated 8th day of November 2018 distributing the estate comprising LR. No. Abothiguchi/kariene/1887 equally to Moffat Kimathi Samwel, James Murungi Maingi, Godffrey Kithinji, an order is hereby issued revoking the title deed for the said land issued to Ann Mukuba Ndubi (2nd respondent).iii.The title shall revert to the name of the M’mucheke Mbogita (deceased) subsequent to which it shall be distributed equally to Moffat Kimathi Samwel, James Murungi Maingi, Godffrey Kithinjiiv.Costs shall be in the cause

2. By summons dated July 28, 2021, Applicant seeks for stay and review of this court’s orders dated 11th March, 2021 on the ground that she has already made developments and is in occupation of LR. No. Abothiguchi/kariene/1887 having bought the same in good faith.

3. Application was supported by the 1st respondent in his affidavit sworn on February 28, 2022 in which he avers that he had a valid certificate of confirmation of grant issued on April 3, 2014 when he sold the suit land to applicant. He avers that he is not in a position to refund Applicant the costs of developments on the suit land.

4. Application is opposed by the 2nd respondent who by his replying affidavit sworn on August 3, 2021 in which he avers that applicant has not made out a case for review or setting aside of the orders dated March 11, 2021 and further on the ground that applicant bought the suit land from a person that had no capacity to dispose it off.

5. I have considered the summons dated July 28, 2021 in the light of the affidavits on record and previous court orders issued in this matter on 08th day of November 2018 and on March 11, 2021.

6. I have seen the certificate of confirmation of grant issued to 1st respondent on April 3, 2014 and therefore acknowledge that the finding contained in the ruling dated March 11, 2021 that Moffat Kimathi Samwel (1st respondent) was not a Personal representatives of the deceased when he sold the suit land to the applicant and that applicant’s claim was not protected by the law was made in error.

7. The foregoing notwithstanding, the sale of the suit land to the applicant ceased to have effect when this court by an order dated 08th day of November 2018 rectified the Certificate of Confirmation of Grant dated August 7, 2018 and distributed the estate distributed equally to Moffat Kimathi Samwel, James Murungi Maingi, Godffrey Kithinji.

8. Moffat Kimathi Samwel acknowledges that he sold the suit land to the applicant and avers that he has no means to refund the applicant’s sale amount. Section 93 (1) of the Law of Succession Act protects an innocent purchaser, for value without notice such as the Applicant herein. I however hasten to add that Applicant can only benefit from Moffat Kimathi Samwel’s share and NOT from the whole estate. Any issue that will remain outstanding between the applicant and Moffat Kimathi Samwel ought to be addressed not in this cause but in a suit between applicant and Moffat Kimathi Samwel.

9. In order to ensure that justice is done to the parties, this court reviews its orders dated March 11, 2021 and makes the following orders:1)The Certificate of Confirmation of Grant rectified on April 22, 2021 shall further be rectified and the estate distributed equally to Ann Mukuba Ndubi, James Murungi Maingi, and Godffrey Kithinji,2)Mention on October 19, 2022 to confirm distribution

DATED AT MERU THIS 07 TH DAY OF JULY 2022T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Applicant - Ms. Aketch for Vivian Loice Aketch & Co. AdvocatesFor 1stRespondent - Present in personFor 2ndRespondent - Mr. Maranya for M.D.Maranya & Co. Advocates