Kaai v Mwita; Mwaromo & 2 others (Protestor) [2022] KEHC 16306 (KLR)

Kaai v Mwita; Mwaromo & 2 others (Protestor) (Succession Cause 26 of 2019) [2022] KEHC 16306 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16306 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 26 of 2019

TW Cherere, J

December 15, 2022

IN THE MATTER OF THE ESTATE OF TOMAS KAAI M’MWAJA (DECEASED)

Between

Celina Ngoto Kaai

Applicant

and

Wilson Mwita

Respondent

and

Harriet Mwaromo

Protestor

Damaris Gaceri

Protestor

Fridah Karegi

Protestor

Ruling

1. Tomas Kaai M’Mwaja (Deceased) died on March 4, 2005. His estate comprised of LR No Abothuguchi/Igane/1730.

2. By summons dated September 8, 2022, 2nd administrator/ applicant seeks cancellation of titles LR No Abothuguchi/Igane/2744 – 2747. The summons is supported by applicant’s affidavit sworn on September 8, 2022 in which she faults the 1st administrator for acting contrary to express court orders.

3. By his replying affidavit sworn on October 31, 2022, deposes that he distributed the estate according to the court ruling and that omission of applicant’s name as an administrator does not render the grant defective.

4. On March 6, 2018, Wilson Mwita and Celina Ngoto Kaai were appointed administrators of deceased’s estate and letters of administration in respect thereof were issued on March 12, 2018.

5. Subsequently on March 4, 2021, this court directed that LR No Abothuguchi/Igane/1730 be distributed as follows:i.1/6 to Wilson Mwitaii.1/6 to Jotham Mwirigi Kaaiiii.1/6 to Celina Ngoto Kaaiiv.1/6 to Harriet Mwaromov.1/6 to Fridah Karegivi.1/6 to Damaris Gacherib.Out of the shares for Wilson Mwita and Jotham Mwirigi Kaai, ½ acre from each share shall be apportioned to Jamlick Murangiri.c.Each party shall bear its own costs

6. Contrary to the court orders, 1st administrator:i.Caused extraction of the certificate of confirmation of grant dated June 3, 2021 in which the 2nd administrator/applicant’s name was omitted.ii.Caused LR No Abothuguchi/Igane/1730 to be partitioned into four parts namely LR No Abothuguchi/Igane/2744-2747 instead of seven as ordered by the court on March 4, 2021

7. It should be remembered that court orders are not made in vain. If for any reason the 1st administrator had difficulty in complying with the court orders, the honourable thing to do was to come back to court and explain the difficulties faced by the need to comply with the order for the reason that once a court order is made in a suit, the same is valid unless set aside on review or on appeal.

8. In Central Bank of Kenya & another v Ratilal Automobiles Limited & 10 others [2018] eKLR, the Court of Appeal held that judicial power in Kenya vests in the courts and other tribunals established under the Constitution and that it is a fundamental tenet of the rule of law that court orders must be obeyed and it is not open to any person or persons to choose whether or not to comply with or to ignore such orders as directed to him or them by a court of law.

9. Contrary to 1st administrator’s assertion that omission of applicant’s name as an administrator does not render the grant defective, my finding is that any action taken in contravention of a court order as happened in this case not only rendered the certificate of confirmation of grant dated June 3, 2021 invalid but the said certificate and all resultant actions thereto are null and void.

10. I am surprised that 1st administrator has the courage to claim that the estate was distributed in terms of the court order whereas the annexed certificates of search demonstrate that the estate was distributed into four parts namely LR No Abothuguchi/Igane/2744 – 2747 instead of seven as ordered by the court on March 4, 2021

11. 1st administrator has shown by his actions that he cannot be trusted to fairly administer deceased’s estate.

12. In the end, the orders that commend to this court and which I hereby issue are that the summons dated September 8, 2022 has merit and is allowed in the following terms:1. Celina Ngoto Kaai is appointed as the sole administrator of deceased’s estate2. The Land Registrar Meru is directed to cancel titles LR No Abothuguchi/Igane/2744 – 2747 which arose from subdivision of LR No Abothuguchi/Igane/1730 and revert them to LR No Abothuguchi/Igane/1730 in the name of the deceased3. Letters of Administration shall issue Celina Ngoto Kaai4. Certificate of Confirmation of Grant dated June 3, 2021 shall be amended and issued in the name of Celina Ngoto Kaai5. Celina Ngoto Kaai shall ensure distribution of the estate into seven parts as ordered by the court on March 4, 20216. Mention on March 21, 2023 to confirm compliance with orders (1) to (5) above and for further orders

DELIVERED IN MERU THIS 15 TH DAY OF DECEMBER 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Applicant - Mr. Gitonga for Basilio Gitonga, Muriithi & AssocatesFor Respondent - Ms. Mutegi for Njiru Kithaka & Co. Advocates