In Re Kagethe Kagia “A” -(Deceased) [2013] KEHC 1210 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

Succession Cause No. 2372 Of 2009

IN THE ESTATE OF KAGETHE KAGIA “A” -(DECEASED)

RULING

The application dated 23rd October 2012 asks that the subdivision of Muguga/Gitaru/54 on an unclear date be declared null and void and that the applicants be involved in the subdivision process.

There is an affidavit sworn by the applicant to support the application.  He basically avers that he and the others were not involved by the respondent in the exercise of demarcation and subdivision. The respondent did not file an affidavit in reply, but he filed grounds of opposition saying that the application was res judicataand an abuse of the process of court.

Karanja J delivered a ruling on 11th July 2011 upholding the injunctive orders made earlier by Nambuye J.  Karanja J ordered the parties to proceed with demarcation and transfer of the three subject portions of land to their respective owners.  The applicants case is that the demarcation and subdivision was indeed done, but it was not satisfactory, and it did not involve them.  The respondents have not responded to these allegations, beyond saying that the application was res-judicata and an abuse of the court process.

I have carefully perused the ruling of Karanja J of 11th July 2011.  The relevant portion read as follows:-

“I order that the parties herein proceed with demarcation and transfer of the 3 portions to the respective owners...”

My reading of this is that the parties – that is the applicants and the respondents in the application dated 22nd February 2010 – were to proceed together on the demarcation.  The order did not direct the respondents to act alone, but jointly with the applicants.  That did not happen, hence this application.

The orders that I am disposed to make in this matter are:-

That the application dated 23rd October 2012 is hereby allowed.

That the parties have 60 days to comply with and implement the order of Karanja J of 11th July 2011.

That the matter shall be mentioned after 60 days for compliance.

That costs of the application shall be borne by the respondents.

DATED, SIGNED and DELIVERED at NAIROBI  this 8th DAY OF November,  2013.

W. M. MUSYOKA

JUDGE