In re Estate of Tangushi Oloo Nkerient (Deceased) [2024] KEHC 2155 (KLR)

In re Estate of Tangushi Oloo Nkerient (Deceased) (Succession Cause E001 of 2021) [2024] KEHC 2155 (KLR) (4 March 2024) (Ruling)

Neutral citation: [2024] KEHC 2155 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Succession Cause E001 of 2021

F Gikonyo, J

March 4, 2024

Between

Christine Narikulmuran Kantai

Applicant

and

Ezekiel Olemoi Tampushi

Respondent

Ruling

1. In the chamber summons dated 25. 01. 2024, the applicant is seeking for an order that parcel LR No. Transmara/oloontare/58 be transferred and registered in the name of the applicant herein, Christine Narikulmuran Kantai, before the conclusion of the succession cause. The applicant also sought that the cost of the application be in the cause.

2. The application is based on the grounds set out in the application and the supporting affidavit of Christine Narikulmuran Kantai, the legal administrator of the estate of Paul Kantai Kisaka(deceased) sworn on 25. 01. 2024.

3. The said Paul Kantai Kisaka while alive, purchased parcel number LR. No. Transmara/oloontare/58 a portion of a property from one Tangushi Oloo Nkeriet, whose estate is subject of the instant petition.

4. The said Paul Kantai Kisaka bought the said property from the deceased herein sometime in the year 2002. However, by the time of the death of the said Tangushi Oloo Nkeriet, the same had not transferred the property to the said Paul Kantai Kisaka.

5. The said parcel did not form part of the properties listed for distribution to beneficiaries as required to appear in form number P&A 5.

6. There are several applications by other objectors which have been filed against the petition concerning the other properties forming part of the estate of the deceased and there is a likelihood that the cause may take a long time before the grant is confirmed. This will be detrimental to the interest of the applicant herein who has no interest in the other parcels. At any rate, the petitioner and the other objectors have no issue against the property being transferred to the applicant herein in the premises, it is fit and proper that the application is allowed.

7. The respondent has not filed any replies.

8. On 06. 11. 2023, this court directed that Mireri’s application be allowed specifically on joinder only.

9. The parties have intimated to the court that they have no objection to the property in issue being transferred to the applicant because it had been sold to the late Paul Kantai Kisaka whose personal representative is the applicant.

Analysis and determination 10. In law, the legal representative of the estate of the deceased may be called upon or compelled by the court to perform lawful transactions which the deceased was obliged to perform but for the death. Such transactions should, ordinarily, be settled between the legal representative and the purchaser. But, as the land still stands in the name of the deceased, a court order is necessary to ground the transmission in law and also avoid any mischief. This is one of the areas where the High Court and the ELC may have concurrent jurisdiction depending on the circumstances of the case.

11. Accordingly, as the property is not contested to be estate property, the application by Mireri is allowed. The administrators to transfer parcel LR No. Transmara/oloontare/58- being the property that was sold to the late Paul Kantai Kisaka- to the applicant, the personal representative of the late Paul Kantai Kisaka.

12. No orders as to costs.

DATED, SIGNED, AND DELIVERED AT KILGORIS THROUGH TEAMS APPLICATION, THIS 4TH DAY OF MARCH, 2024…………………………….HON. F. GIKONYO M.JUDGEIn the presence of:C/A – Mr. LekenM/s Mireri for the Applicant – PresentMr. Tampushi (Petitioner) - PresentMr. Chepkemoi for 2nd & 3rd objectors – Present