In re Estate of M'Ngeretha M'Munyua (Deceased) [2022] KEHC 12317 (KLR)

In re Estate of M'Ngeretha M'Munyua (Deceased) (Succession Cause 60 of 2016) [2022] KEHC 12317 (KLR) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12317 (KLR)

Republic of Kenya

In the High Court at Chuka

Succession Cause 60 of 2016

LW Gitari, J

July 21, 2022

Between

Henry Migwi Ngere Alias Henry Joseph

Applicant

and

Juliesta Kanini Njeru

1st Administratrix

Ciambuba Ngere Munyua

2nd Administratrix

Ruling

1. The application dated August 18, 2021 was brought under certificate of urgency by Henry Migwi Ngere alias Henery Joseph Ngere who is seeking the following orders:a.Spent.b.That this Honourable Court be pleased to direct the District Land Registrar Meru South to lift all the inhibitions registered on the deceased’s estates L.R. NO.s Karingani/Ndagani/5372 and 5374 and further dispens with the production of original title deeds issued thereof, so as to facilitate the registration of confirmation orders issued by this Honourable Court on 15th February 2019. c.That this Honourable Court be pleased to empower the Deputy Registrar of this Honourable Court to execute all necessary documents to facilitate the transmission of the deceased’s estates as per the confirmation of grant issued on 1February 5, 2019. d.That this Honourable Court be pleased to issue the Applicant/Interested Party and the District Surveyor with the necessary security during the survey works to be conducted on L.R. Karingani/Ndagani/5372 and 5374 as per the Certificate of Confirmation of grant issued on 15th February 2019. e.That the costs of this application be in cause.

2. The application is based on the grounds on the face of it and supported by the applicant’s affidavit sworn on 1August 8, 2021. In summary, the applicant deposes that:a.He is one of the beneficiaries in respect of the deceased’s estate.b.On February 28, 2014, the 1st and 2nd respondents caused orders of inhibitions to be registered on the deceased’s estate L.R. Karingani/Ndagani/5372 and 5374 pending the hearing and final determination of the instant succession cause.c.The instant succession cause has already been finalized and a Certificate of Grant was issued on February 15, 2019. d.It is in the interest of justice that the inhibition orders registered on the deceased’s estate L.R. Karingani/Ndagani/5372 and 5374 be lifted.e.The beneficiaries stand to suffer irreparable loss and damage unless the orders sought herein are granted.

3. The application is opposed by the replying affidavit sworn by the 1st Administratrix/Respondent Juliesta Kanini Njeru on November 4, 2021. The 1st respondent concedes that there are inhibition orders that were registered against L.R. Karingani/Ndagani/5372 and 5374. She however contends that it is not in the interest of justice that the said orders of inhibition be lifted while there is still a pending summons application dated September 14, 2021 that was filed by one Mbaka Ngere Munyua for rectification of grant.

4. The applicant filed a supplementary affidavit that he swore on November 18, 2021. He deposes that the pending application dated September 14, 2021 is not one that warrants the continued placement of the inhibitions on L.R. Karingani/Ndagani/5372 and 5374. The Applicant of further contends that since the 1st Respondent is not a beneficiary the two aforementioned land parcels, she has no locus standi to oppose the instant application.The 2nd respondent does not oppose the application.

Issues for determination 5. Having considered the application dated August 18, 2021, the affidavits on record and the applicant’s submission, the main issues for determination are:a.Whether the 1st respondent had the locus standi to oppose the instant application.b.Whether the inhibitions registered on L.R. Karingani/Ndagani/5372 and 5374 should be lifted.

Analysis 6. The instant application is expressed to be brought under the provisions of section 47 of the Law of Succession Act as read with Rules 49, 59 (1), and 73 of the Probate and Administration Rules section 70 (d) of the Land Registration Act (2012), article 159 (2)(a), (b), (d), and (e) of the Constitution of Kenya (2010), and all other enabling provisions of the law.

i. Locus standi‘Locus Standi’ connotes the right of a party to appear in court and be heard. It is the principle which gives a party the right to bring an action in court. In the case of Priscilla Nyiokabi Kanyua-v- Attorney General & Interim Independent Electoral CommissionHCCP1/2020 the Court of Appeal that-….” In Kenya the courts has emphatically stated that what gives locus standi is a minimal personal interest and such interest gives a person standing even though it is quite clear that he would not be more affected than any other member of the population.”It therefore follows that for a party to have locus standi he/she must have some legal interest in the subject dispute which interest is unique from any other member of the public. 7. The 1st respondent is a co-administratrix of the deceased’s estate. Her duties and responsibilities are explicit and outlined in sections 79, 82, and 83 of the Law of Succession Act (hereinafter referred to as the “Act”). According to these provisions, it is the legal mandate of the 1st Respondent, as a co-administrator to account for all dealings in respect to the estate of the deceased. As such, it was well in order for the 1st Respondent to respond to the present application notwithstanding that she is not one of the beneficiaries of the two land parcels in question.

ii. Lifting of the inhibitory orders 8. Section 47 of the Act empowers this court to entertain any application and determine any dispute under the Act, and to pronounce such decrees and make such orders therein as may be expedient and fit in the circumstances. section 47 provides:“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient: Provided that the High Court may for the purpose of this section be represented by resident magistrates appointed by the Chief Justice.”

9. It is not in dispute that there are inhibition orders registered on L.R. Karingani/Ndagani/5372 and 5374. The 1st Respondent concedes that the orders were issued to preserve the suit properties pending the hearing and determination of the succession cause.

10. It is also not in dispute that this cause has been heard and determined by this Court. The grant issued to the administratrixes was confirmed. From the court record, this honourable court pronounced itself vide the judgment delivered on February 13, 2012. The said decision has not been appealed against and therefore stands in law.

11. The 1st respondent has taken issue with the fact that the application dated September 14, 2021 for rectification of grant is pending.

12. The law on rectification of grants is anchored under section 74 of the Act and Rule 43 of the Probate and Administration Rules. These provisions mean that errors may be rectified by this court. Only errors that relate to names or descriptions or setting out of the time or place of the deceased’s death may be rectified. The effect of this is that an order of rectification is limited by law and should not affect the purpose for which the grant was made. Rectification is allowed to correct errors which are not likely to change the substance of the grant.

13. In the circumstances, the outcome of the application dated September 14, 2021 will not affect the purpose or the subject certificate of confirmation grant. As such, I opine that the said inhibition orders should be lifted as the condition for issuing them has now lapsed. The inhibition orders on the two properties do not serve any purpose of the stage of proceedings.

ConclusionI find the application has merits. I order that:a_ The inhibition orders on Land Parcels No. L.R Karingani/Ndagani/5372 & Karingani/Ndagani/5374 be lifted forthwith.b) The Land Registrar Meru South to dispense with the production of the origianl title deeds for the two Land parcels.c) The Deputy Registrar to execute all the documents to facilitate transmission of the estate in line with the grant issued by this court.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 21ST DAY OF JULY 2022. L.W. GITARIJUDGE