In re Estate of Zakayo Muniu Kindiga alias Muniu Kindiga (Deceased) [2021] KEHC 8395 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

SUCCESSION CASE NO 43 OF 2017

IN THE MATTER OF THE ESTATE OF ZAKAYO MUNIU KINDIGA alias MUNIU KINDIGA (DECEASED)

EVANS KARANJA MUNIU...............................................1ST APPLICANT

ESTHER WANGARI MUNIU...........................................2ND APPLICANT

HENRY NJAU MUNIU......................................................3RD APPLICANT

VERSUS

FRANCIS MUTURI MUNIU .............ADMINSTRATOR/RESPONDENT

R U L I N G

1. This succession matter has been pending before court since 1999.  The deceased Zakayo Muniu Kindiga alias Muniu Kindiga deceased died 31st January 1983.  Against all logic parties have continued to file applications in a matter, a matter that should have long been closed.

2.  The Notice of Motion dated 12th April 2019 is such one application which ought not to have been filed.  It is filed by Evans Karanja Muniu.  Although he deponed in his affidavit that he brings the application on his behalf and on behalf of other applicants, those applicants remain un-named.

3.  By that application Evans Karanja Muniu seeks an order as follows:

“The  consent order recorded in court on 29TH June 2005 by Honourable Koome Judge be vacated and/or  set aside.”

4.  That prayer is premised on the ground that the administrator in applying for grant of letters of administration intestate indicated that the deceased died on 1st January 1981 and thereby led the court to apply the wrong law ad not the Law of Succession Act which came into force 1st July 1981.  That further not all of the deceased’s properties were included in the succession.

5.  The relationship between the order made by Justice Koome (as she then was) and the date allegedly stated when this succession was filed is not entirely clear.  The order of Justice Koomeof 29th June 2005 was as follows:

1. THAT the Director Surveyor or Kiambu District do undertake subdivision for the land parcel number Kabete/Kibichiko/450 and 101 according to the confirmed grant.

2. THAT the subdivision should be equitable while ensuring   that the parties benefit from the advantage and disadvantages of the land and while taking into consideration to existing developments that should  remain with the respective beneficiaries.

3.  THAT the parties should share cost of the subdivision  and the transfer of the titles.

4.  THAT mention be on 4th October, 2005 for further   Orders.

6. It is obvious from the above that the said order was not made by consent, as alleged in the application and more importantly the order made on that day had no relation to the date the deceased died.

7. There is nothing more that can be said but that Notice of Motion before me is incompetent and unmerited.  Accordingly, the Notice of Motion dated 12th April 2019 is dismissed with no orders as to cost because it was unopposed.

SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF MARCH 2021.

MARY KASANGO

JUDGE

22nd March 2021

Before Justice Mary Kasango

C/A   -  Kevin

Applicant – Mr. Wandati

For the Respondent -  No appearance

COURT

Ruling virtually delivered in their presence.

MARY KASANGO

JUDGE