In re Estate of Simon Mungai Mutiti (Deceased) [2022] KEHC 17223 (KLR)

In re Estate of Simon Mungai Mutiti (Deceased) (Succession Cause 1662 of 1993) [2022] KEHC 17223 (KLR) (Family) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 17223 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1662 of 1993

EKO Ogola, J

November 8, 2022

IN THE MATTER OF THE ESTATE OF SIMON MUNGAI MUTITI (DECEASED)

Between

Sammy Mburu Mungai

Applicant

and

William Mburu Mungai

Respondent

Ruling

1. The subject of this Ruling is Summons dated January 4, 2021 seeking orders that the Land Registrar Murang’a Land Registry be ordered to remove the caution placed by the respondent against parcels of land known as LOCXX/Sabasaba/2832, LOCXX/Sabasaba/2831, and LOCXX/Sabasaba/2833 registered in the name of Betha Wanjiru Mungai.

2. To put matters into context, the deceased, Simon Mungai Mutiti had a brother known as Mungai Mutiti Chege (deceased) who is the father of the respondent herein. In an application dated August 2, 2011, the respondent sought orders to revoke the grant issued on January 11, 1994 and confirmed on July 29, 1994 for the estate of Mutiti. The said estate contained several parcels of land which were ordered to be registered in the name of Betha Wanjiru Mungai, wife of the deceased and mother to the applicant herein and thereafter in equal shares to the children of the deceased.

3. In the respondent’s application dated August 26, 2010, he averred that the deceased (Mutiti) was registered as a trustee of the properties and the said properties through the confirmed grant had gone to the deceased wife and the applicant to the exclusion of the family of the late Chege. This Court in its ruling delivered on October 21, 2010 dismissed the respondent's application for lack of locus standi since the respondent sought to benefit from the estate of Mutiti through his late father without taking out letters of administration.

4. The respondent then filed an application for review of the said ruling dated October 21, 2010. This Court on May 22, 2019 dismissed the application. Its reasons were that the threshold under Order 45 Rule 1 of the Civil Procedure Rules had not been met and also because the respondent’s father (Chege) only acted as a surety in the petition without laying any claim to the estate of the deceased.

5. Back to the Summons at hand. It was supported by the applicant’s affidavit. He deposed that this Court on May 22, 2019 dismissed the respondent’s application where the respondent claimed to be a child of the deceased. He added that there is neither an appeal nor a stay to the said ruling hence, the caution placed on the three named parcels of land should be removed to enable him to execute the Certificate of Confirmation.

6. The applicant annexed to his affidavit, a copy of the Certificate of Official Search for the three parcels of land. It can be noted that on July 14, 2016 a caution was placed on the three parcels of land by the respondent.

7. In the case of Maria Ngangi Gwako vs Charles Mwenzi Ngangi [2014] eKLR the Court held that:-“When a Caution is objected to by a proprietor of land affected thereby, the onus is upon the cautioner to justify the lodging of the said Caution and the need for it to remain in place.”

8. The respondent has a duty to explain why the caution should not be lifted. However, he did not oppose the Summons despite being served with the pleadings and the hearing notice. Either way, the respondent cannot block the distribution of the estate when he has no enforceable interest in the estate. I, therefore, find that the respondent has no valid reason to caution the estate of the deceased. Therefore, the Summons dated January 4, 2021 has merit. I direct that the Caution registered on parcels of land known as LOCXX/Sabasaba/2832, LOCXX/Sabasaba/2831, and LOCXX/Sabasaba/2833 be removed with immediate effect.

9. Costs to the applicant.

10. Orders accordingly

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF NOVEMBER 2022. E.K. OGOLAJUDGEIn the presence of:Applicant in personN/A for the Respondent.Court Assistant Gisiele Muthoni.E.K Ogola J. Page 2 of 2