In Re Estate of Nderitu Kariuki Koigi (Deceased) [2010] KEHC 2246 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU

Succession Cause 294 of 1993

IN THE MATTERSS OF THE ESTATE OF NDERITU KARIUKI KOIGI – (DECEASED)

THEURI KAHONYA GITUNE...................................................APPLICANT/RESPONDENT

VERSUS

MARGARET G. NDERITU................................................1ST RESPONDENT/APPLICANT

DANSON MWAURA MWANGI........................................2ND RESPONDENT/APPLICANT

RULING

Theuri Kahoya Gitune has sought the revocation of the grant issued to the 1st respondent on the ground that he (the applicant) was entitled to three acres instead of 2. 2 acres of L.R. NYANDARUA/SOUTH KINANGOP/7 (the suit land) having purchased the same from the deceased, Nderitu Kariuki Koigi. It was also common ground that the 2nd respondent (the applicant also herein) had purchased five (5) acres of the suit land during the lifetime of the deceased.

The court (Mugo, J.) after hearing evidence found no grounds to revoke the grant and instead ordered that the grant-

“be rectified to the effect that the 2nd respondent be and is hereby awarded 5 acres of L.R. NO.NYANDARUA/SOUTH KINANGOP/7 while the applicant gets the remainder thereof.”

By his application of 16th December, 2009, the 2nd respondent is seeking that the 1st respondent be compelled by an order of this court to execute all the transfer documents within 10 days and in default that the Deputy Registrar of this court be directed to sign the documents on his behalf.

The 1st respondent’s advocate was served with the application and the hearing notice but failed to respond or attend when the matter came up for hearing.

The court made a specific order that the applicant was entitled to five (5) acres of the suit land. Pursuant to that order, a Certificate of Confirmation of a grant was issued on 18th September, 2009. It has been averred without being controverted that the 1st respondent’s advocate has refused to execute the transfer documents.

In the absence of any evidence to the contrary, I find no justification for the 1st respondent’s failure to comply. Indeed I have seen on record a Notice of Appeal dated 24th September, 2009 expressing the 1st respondent’s intention to challenge the judgment. Without any orders to stay those orders, a notice of appeal alone is not enough.

For these reasons, the application is allowed and the respondent in this application is ordered to sign within ten days from the date of this ruling all the transfer documents in favour of the applicant failing which the Deputy Registrar is hereby ordered to sign the said transfer documents on the respondent’s behalf. The respondent shall bear the costs of this application.

Dated, Signed and Delivered at Nakuru this 7th day of May, 2010.

W. OUKO

JUDGE