Joseph Maina Kairu & Nancy Wajiku Kairu v Mwangi Kairu [2017] KEHC 2355 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

SUCC. NO.449 OF 2011

IN THE MATTER OF THE ESTATE OF LATE GATHINGARI NJOGU ALIAS MURAGE NJOGU – (DECEASED)

JOSEPH MAINA KAIRU & NANCY WAJIKU KAIRU....APPLICANTS/PETITIONERS

-V E R S U S -

MWANGI KAIRU ………………….………………..................………...RESPONDENT

R U L I N G

On 19/7/2016 Hon. Justice John M. Mativo made the following orders:

that;

a. That land title number Konyu/Gachuku/1073 measuring approximately 0. 721Ha be shared equally as follows:

i. Nancy Wanjiku Kairu …….. 0. 240Ha. approximately

ii.  Mwangi Kairu………………..0. 240Ha. approximately

iii. Joseph Maina Kairu ……….0. 240Ha.approximately

Joseph Maina Kairu and Nancy Wanjiku Kairu have brought this summons under certificate of urgency because Mwangi Kairu, the other beneficiary has refused to sign and execute the requisite documents to enable the transmission of the estate.

They seek the following orders:

1. That the court be pleased to order the respondent to sign and execute all the requisite documents to facilitate the conclusion of this cause to wit RL 7, RL 19, Partition forms, mutation forms and all the other application forms and to surrender his passport size photos, photocopy of the ID card and PIN certificate.

2. That failure to do the above the court to authorize its deputy registrar to execute the said documents on his behalf and also to order the land registrar Nyeri County to dispense with the production of the passport size photos, photocopies of the ID and PIN certificate

3. That the costs of this application be borne by the respondent.

I have perused the application and the affidavit of Joseph Maina Kairu.  The applicant has established the urgency of the matter.

Mwangi Kairu and the applicant had wanted to inherit their grandfather’s land to the exclusion of their mother, but the court found for the mother, who was the sole beneficiary of her father’s estate, but who nevertheless was willing to share her inheritance with her two sons.

Mwangi appears to have been disappointed by this finding hence his refusal/failure to execute the necessary documents to facilitate the transmission of the estate.

Rule 73 of the Probate and Administration Rules provides for the courts inherent power to do justice and to prevent the abuse of the process of court. The refusal/negligent by one of the beneficiaries to exercise the requisite documents stands in the attainment of justice for the other parties.

The unnecessary delay caused by one party’s refusal to follow the due process and do what is required to bring the cause to a close amount to an abuse of the court process.

I allow the application and order that: -

1. The respondent to sign and execute all the requisite documents to facilitate the conclusion of this cause to wit RL 7, RL 19, Partition forms, mutation forms and all the other application forms and to surrender his passport size photos, photocopy of the ID card and PIN certificate within 7 days of service of this order upon him.

2. That failure to do the above the Deputy Registrar to execute the said documents on his behalf.

3.  The land registrar Nyeri County to dispense with the production of the respondent’s passport size photos, photocopies of the ID and PIN certificate

4. The costs of this application be borne by the respondent.

Dated and signed at Nyeri this 2nd October 2017.

Teresia Matheka

Judge

Court Assistant Harriet