Naita M’imaana Baimanene (DCD) Thro’ Edward Miriti M’imaana (Legal Representative) v Elizabeth Kareachiiwa [2017] KEHC 1969 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 190 OF 2002

In The Matter of the Estate of M’Imaana M’Itabari alias Imaana Baimanene (Deceased)

NAITA M’IMAANA BAIMANENE (DCD) THRO’ EDWARD MIRITI M’IMAANA

(LEGAL REPRESENTATIVE) ……….……...................................... PETITIONER

Versus

ELIZABETH KAREACHIIWA..........................................................PROTESTOR

RULING

Hearing viva voce evidence

[1] On 26th September 2007, the court (Lenaola J. (as he then was) revoked the grant herein. The good judge also ordered that the resultant titles subdivided from Land Title No. Tigania/Kirima-Nchuma/20 to be cancelled and to revert to the original Land Title No. Tigania/Kirima-Nchuma/20. But, it seems that the latter order has not been complied with. Parties should therefore inform this court whether the subdivisions herein were amalgamated into the original title.

[2] More troubling is the nature of this protest.Matters of civil case No 414 of 1992 have been alluded to in a prominent manner. Again, a claim for gift inter vivos to one LAWI MUTUA LIRIA and or the Protestor has also been made by the Protestor. See the Affidavit of Protest filed on 16th June 2014. Now, whereas the Petitioner has argued that matters being raised should be made in civil case No 414 of 1992, the latter claim of gift inter vivos is squarely within the jurisdiction of a probate court. Ordinarily, and given the allegations in this matter, such claims are not capable of being disposed of through written submissions as they require quite intense interrogation by the court in order to establish the intention of the deceased. For that reason, I will not delve into the substance of the protest. Instead, I direct that the protest shall be canvassed by way of viva voce evidence which shall be taken on such date and time as shall be specified by the court. As the case is old, I will assign it a hearing date on the basis of priority. Accordingly, the hearing of the protest and confirmation of grant through the medium I have directed is adjourned. It is so ordered.

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

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F. GIKONYO

JUDGE

In the presence of:

M/s. Kiome advocate for Mr. Kioga advocate for objector

B.G. Kariuki advocate for Petitioner –absent

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F. GIKONYO

JUDGE