In re Estate of the Late David Ndibaru Gicheha (Deceased) [2025] KEHC 6640 (KLR)

In re Estate of the Late David Ndibaru Gicheha (Deceased) (Succession Cause 20 of 2014) [2025] KEHC 6640 (KLR) (21 May 2025) (Ruling)

Neutral citation: [2025] KEHC 6640 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 20 of 2014

JM Nang'ea, J

May 21, 2025

ESTATE OF THE LATE DAVID NDIBARU GICHEHA (DECEASED)

Between

Joyce Ndumi Ndambuki

Applicant

and

Mary Njeri Ndibaru

Respondent

Ruling

1. By Chamber Summons dated 6/2/2025 Joyce Ndumi Ndambuki (“the Applicant”) seeks these reliefs:a.Spentb.That the District Land Registrar be ordered to release Title Number Nakuru/Kapsita 2383 to her for subdivision to T. M. Nyaga Private surveyor as per the court’s judgement delivered on 16th March 2022 (sic).c.That the Deputy Registrar to sign the mutation form, Land Board Consent forms and transfers to the various beneficiaries in the place the Administrator Mary Njeri Ndibaru who has refused to co-operate (sic).d.That the OCS Elburgon Police Station to provide security to T. M. Nyaga surveyor while undertaking the sub-division of Parcel Nakuru/Kapsita/2383. e.That costs be provided for.

2. The Applicant avers inter alia in her affidavit in support of the Summons that the said Administratix (Mary Njeri Ndibaru) who is also her co-wife has refused to effect distribution of the deceased’s estate in line with the court’s judgement dated 16th March 2022, hence this application.

3. The Estate’s Administratix (“the Respondent”) opposes the application vide an affidavit in reply sworn on 8th May 2025 and filed on the same date.

4. Firstly, the Respondent avers on advice of her Counsel that an order cannot issue against the Land Registrar who has not been served with the application and heard thereon.

5. Secondly, it is contended that this court sitting as a Succession Court is bereft of jurisdiction for the reason that matters of transmission of landed property of a deceased person is the exclusive jurisdiction of the Environment &Land Court under the Constitution, the Land Act and Land Registration Act inter alia.

6. In support of this averment the court is referred to the judicial determination in Succession Cause No. 847 of 2013 Re Estate of Reuben Mugesani where it was found that this court has no jurisdiction to issue orders of transmission of a deceased’s estate. It is observed in the decision that the duty of a Succession Court ends with confirmation of Grant of Letters of Administration or Grant of Probate in testate cases, as the case may be, and therefore disputes as to transmission of titles to beneficiaries is outside the purview or remit of the High Court.

7. The Applicant was granted leave to file a further affidavit in answer to the Respondent’s affidavit evidence. He maintains that the Land Registrar is in possession of the title in question which he was asked to keep in his custody after there was disagreement among beneficiaries of the estate as to who would keep the original title. It is averred that the title is necessary to complete distribution of the estate in accordance with the court’s judgement of 16th March 2022.

8. Contrary to the Respondent’s position, therefore the, Applicant asserts that the Land Registration Act or other statutes relating to land law referred to by the Respondent are irrelevant in distribution of the estate of a deceased person.

9. Regarding the Respondent’s contention that an order cannot issue against the Land Registrar on the ground that he is not a party hereto and/or he was not served with the application, it is upto that Public Servant to raise any complaint in this regard once served with any such order. It is not open to the Respondent to herself purport defend the officer.

10. Concerning the merits of the application, this court is not persuaded by the decision cited by the Respondent’s advocate supra. In my respectful opinion, the High Court’s jurisdiction in Succession matters does not end with confirmation of Grant of Letters of Administration. As far as landed property of the deceased’s estate is concerned the process ends with issuance of titles to beneficiaries upon which the Administrator(s) render accounts for closure of the file pursuant to Section 83 of the Law of Succession Act. An Administrator (s) who declines to complete the process cannot be allowed to frustrate beneficiaries who crave their share of the estate by holding the position that it is only the Environment and Land Court that can direct it to effect transmission of the estate.

11. It is noteworthy that in his judgment of 16th March 2022 my brother (H. M. Nyaga J) directed that portions of the subject parcel of land No. Nakuru/Kapsita/2383 be excised off and given to identified beneficiaries. To give effect to the judgment, subdivision of the land is necessary otherwise the court’s orders would be in vain. The Respondent has not expressed readiness to facilitate sub division and transfer of shares of the land to beneficiaries as directed by the court.

12. For the stated reasons, the application is allowed as hereunder;-a.The concerned Learned Registrar is ordered to release the original title in respect of the parcel of land known as Nakuru/Kapsita 2383 to the Applicant within 7 days to enable Private Surveyor (T. M. Nyaga) to undertake necessary subdivision of the land in enforcement of the Court’s decision of 16th March 2022. b.The Respondent is directed to execute necessary transfer documents to facilitate transmission of beneficiaries’ entitlements within 14 days of completion of the subdivision exercise, in default of which the Deputy Registrar of this court is hereby authorized to sign the transfer documents.c.The Officer Commanding Elburgon Police Station will provide security during survey/subdivision of the land in question.d.The costs of the survey/subdivision shall be borne equally by the beneficiaries. No order is made as to the costs of this application.

13. Before penning off, I wish to comment on the Respondent’s apparent complaint in her affidavit that the application was erroneously fixed for ruling when the matter came up on 10th March 2025 yet her advocates had not been served with the mention notice. Indeed there is no evidence of service of the mention notice for 10th March 2025. The Respondent, however, avers that she was served with the application on 12/2/2025. She only filed a reply on 8/5/2025, about 3 months later, a period the court considers to be unreasonable in the circumstances there being no explanation for the long delay. Notwithstanding, the court has chosen to dispose of the application on merits, as it has done, in the interest of substantive justice.

14. Ruling accordingly.

RULING DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT THIS 21STDAY OF MAY, 2025 IN THE PRESENCE OF:J. M NANG’EA, JUDGE.The Applicant’s Advocate, Ms NjorogeThe Respondent’s Advocate, Mr. KaranjaThe Court Assistant (Jeniffer)