In re Estate of Mungai Njuguna alias Ignitius Mungai Njuguna [2017] KEHC 7965 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

SUCCESSION CAUSE NO. 5 OF 1998

IN THE MATTER OF THE ESTATE OF MUNGAI NJUGUNA ALIAS IGNITIUS MUNGAI NJUGUNA

RULING

1. The administrator applicant has filed an application dated the 20th of March 2012, it is brought under Order 37 rule ( e ) and ( g) Order 1 rule 10 and 17 of the Civil Procedure Rules Cap. 21 Laws of Kenya and Section 143 of Cap. 300  seeking the following orders;

a. That the court be pleased to join the Chief Land Registrar as a party in this Succession Cause.

b. That the Chief Land Registrar  or his officials be restrained from registering or issuing out Title deeds to plot numbers, 5833,5835. 5934,5655,5243,4999,5836,5636,5247,5683,5635. 5241,5244,5240 and 5242 or any plot carved up from 1081 all appearing on Registry Information  (R.I. M) sheet number 20 of Masinga  Adjudication Section Machakos and which have been carved up from parcel No. 1081 of the said Adjudication section , which matter is the subject matter in Succession cause no. 5 of 1998 Civil Appeal No. 92 of 2011 which is pending in Court.

c. Plot No. 1079 on R.I.M 20 of the said Adjudication section because a portion has been carved up from 1081 and illegally adjoined to the said 1079.

d. Plot Numbers, 5837,5245,1312,5248,5246,5000,5249, on R.I.M No. 26 of the said Adjudication section because the original Parcel No. 1312 is the subject matter in Succession Cause No. 5 of 1998 Civil Appeal no. 92 of 2011 which is still pending in court.

e. Plot No. 1102 on R.I.M 20 of the said Adjudication section because it is registered in the names of Kasolo Kitee which contradicts orders in the certificate of confirmation of a grant dated 25th June 2007 which said be registered in the names of Sammy  Kariuki Mungai

2. The application is supported by the affidavit of Sammy Karuiki  Mungai the administrator/Petitioner . He avers that the estate of the deceased was distributed as per the confirmed grant dated  the 25th  June 2007 and most of the assets of the estate  are situated in Musinga Location of Machakos District which is an adjudication section. That consent to challenge the adjudication process was granted by the District Land Adjudication  and settlement office in Yatta District on  10th December 2009. That an appeal was filed in the Court of appeal  , appeal No. 92 of 2011 which is still pending. That he is not satisfied with the process of implementation of the adjudication officer and he made his complaint to the Commissioner of Land vide letter dated the 20th of January 2012. That to date   nothing has been done to address his complaint and he fears that the Title deed to the lands parcels whose details he has given may issue and that it will cause irreparable harm to him and other deserving beneficiaries of the estate, hence this application.

3. I have carefully gone through the court file. Justice Onyancha gave a Ruling after considering an objection dated the 25th of June 2007. On the 16th of February 2009 a stay of execution was granted against the ruling delivered on the 27th June 2007 pending the hearing and determination of the applicant’s/ objectors appeal. I have seen a certificate of delay dated the 1st April 2011. There is no information whether the appeal has been heard , the applicants affidavit indicates it is still pending.  On the application the subject of this ruling I note that, the ruling given by Justice Onyancha clearly stated how the estate was to be determined. The court dealt with the issue of distribution of the property and in my view any issue related to adjudication process of the titles of the property that relate to the deceased estate need to be determined in the Environmental and Land Court which deals with dispute and the environmental use and occupation of, and title to, land, see Article 162 (2) (b). The application before this court should be filed in the said court as this court lacks jurisdiction to deal with matters of adjudication and/or registration or issuing of title deeds. I therefore decline to grant the orders sought. No orders as to costs .

Dated, signed and delivered this 2ndDay of February 2017

R. E. OUGO

JUDGE

In the presence of:

…………………..For the Applicant/Administrator

…………………..For the Respondent

Ms. Charity     Court  Clerk.