Jeremiah Kirimi Mutungi v Gideon Kaumbuthu Meenye & Solomon Muthaura [2017] KEHC 1926 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 33 OF 1992

In The Matter of the Estate of M’mutungi M’inoti (Deceased)

JEREMIAH KIRIMI MUTUNGI ................................ PETITIONER/APPLICANT

-Versus-

GIDEON KAUMBUTHU MEENYE .......................... OBJECTOR/RESPONDENT

And

SOLOMON MUTHAURA .................... OBJECTOR’S NOMINEE/INTERESTED

PARTY/ RESPONDENT

RULING

[1] I am considering application dated 13 May 2013 made by way of summons under Rules 63 and 73 of the Probate and Administration Rules, Section 45 (1) of the Law of Succession CAP 160 and Section 68 of the Land Registration Act, 2012. The Applicant seeks the following orders:

1. Review of orders herein dated 12th July 2004 (and not 24th July 2004 as stated by Applicant);.

2. Reference therein to land parcel number Laikipia/Nturukuma/923 be changed to refer to land parcel number Nanyuki/Marura Block 8 (Nturumuka)/66 as currently registered.

3. The said land parcel number Nanyuki/Marura Block 8 (Nturukuma)/66 be deemed part of the estate of the late M’MutungiM’Inoti and the same be administered as such in this succession cause.

4. The registration of one Solomon Muthaura as the proprietor of the said L. R. No Nanyuki/Marura Block 8 (Nturumuka)/66 be cancelled and the same be registered in the name of the Deceased herein M’Mutungi M’Inoti.

5. Production of the Original Title Deed(s) be dispensed with and all restrictions, cautions, inhibitions and/or prohibitions be lifted to facilitate the land in the name of the Deceased.

6. Inhibition orders do issue against L. R. No. Nanyuki/Marura Block 8 (Nturukuma)/66 pending the hearing and determination of this application in the interim and ultimately after compliance with order No. 5 above pending the hearing and determination of the Objection herein.

7. Costs be provided for.

Applicants Claim

[2] Reading the grounds from the application, the Applicant alleges that upon sub-division of Mariara Farmers Co-operative Society Ltd (hereinafter Society) land, the Deceased’s ballot number 923 within Nturukuma Farm was assigned to land parcel number Nanyuki/Marura Block 8 (Nturukuma)/66. The Applicant stated that the Society had already amended the register of members to reflect the Deceased’s next of kin before forwarding it to the Land Registry for registration and issuance of title deeds. One Solomon Muthuara, the current registered owner, ostensibly used the order dated 22nd October 2002 which was subsequently set aside by the orders of 12th July 2004 and nomination letter dated 6th September 2003 to procure registration as proprietor of the suit land.

[3] The Applicant filed supporting affidavit on 14th May 2013; it was sworn on 13thMay 2013. He then filed a supplementary affidavit on 9 May 2014 which is sworn on 24th April 2014. Thereafter, he filed his written submissions on 31st March 2016 which are dated 29th March 2016. The Applicant expounded on his claim in all these documents. He therefore prays for review of order dated 12th July 2004 to correct the Land Reference number from Laikipia/Nturukuma/923 to reference number Nanyuki/Marura Block 8 (Nturukuma)/66 as is currently registered. He alleges these parcels are one and the same land despite in dispute herein.

Respondents Claim

[5] The Respondents opposed the application through a replying affidavit sworn by Solomon Muthaura on 23rd January 2014. They pray for dismissal of the application. However, this affidavit cannot be traced in the court file.Nonetheless, the Respondents filed their submissions on 26th August 2015 and are dated 28th January 2015. They state that the grounds stated by the Applicant are not sufficient for review of the orders made on 12th July 2004. This is because the order was not annexed; there is no sufficient evidence; and that the Applicant has not explained why the application is being presented almost 10 years since the order was made.

DETERMINATION

[6] A review of the order issued on 12th July 2004 has been sought. The said order related to L. R. Laikipia/Nturukuma/923. Now they seek an amendment of the said order so that it will relate to L.R No Nanyuki/Marura Block 8 (Nrturukuma)/66. The reason given is that these two number relate and refer to one and the same piece land, i.e. the suit property. He explained that the number for the suit land changed after it was registered.It is normal that ballot numbers are issued to members of a society and after subdivision of the land, specific land reference and parcel numbers are assigned to the parcels of land identified by the particular ballot number.  But, despite both parties being elaborate in their documents filed in court, there is subtle information to guide the court in ascertaining whether or not the numbers stated refer to one and the same parcel of land. Therefore, one of the primary functions of this court as a Probate and Administration Court is to preserve and protect the estate of the Deceased so as to prevent the estate property from dissipation, and facilitate its proper distribution. For this reason, this court has an obligation to ascertain whether or not L. R. Laikipia/Nturukuma/923 and Nanyuki/Marura Block 8 (Nrturukuma)/66 are one and the same in order to protect the estate of the Deceased.

[6] In light thereof, the inhibition orders issued on 12th July 2004 by Judge R. N. Sitati against Laikipia/Nturukuma/923 and by Judge. J. A. Makau on 16 May 2013 against L. R. No. Nanyuki/Marura Block 8 (Nturukuma)/66will remain in enforce until this court ascertains whether or not these numbers relate to one and the same land. For the avoidance of doubt, there shall be no dealings whatsoever on any of the land reference numbers herein until this court orders otherwise. And, in order to assist the court ascertain the correct position of these reference numbers, I hereby issue the following directions:

a) The Land Registrar shall within 30 days furnish to this court the records of land parcel Laikipia/Nturukuma/923 and Nanyuki/Marura Block 8 (Nturukuma)/66 since inception and shall give details of issuance of the first or subsequent title and current status of the said lands.

b) The MariaraFarmers Co-operative Society Ltd shall within 30 days furnish to this court their records and correspondences relating to both Laikipia/Nturukuma/923 and Nanyuki/Marura Block 8 (Nturukuma)/66.

c) This case shall be mentioned on such date as shall be agreed amongst the parties.

Dated, signed and delivered in open court at Meru this 8th day of November 2017

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F. GIKONYO

JUDGE

In the presence of:

Mr. Mwenda Mwarania  advocate for Petitioner

M/s. Koome advocate  for J.M. Mwangi for objector

M/s. Kiome advocate for Mr. Mitigu advocate for beneficiary

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F. GIKONYO

JUDGE