SABASTIAN MURUNGI BOORE v FELISTER MBIRO [2010] KEHC 3183 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

Succession Cause 99 of 2004

LAW OF SUCCESSION ACT

IN THE MATTER OF THE ESTATE OF SAVERIO NJERU M’ABORE NJIRU (DECEASED)

SABASTIAN MURUNGI BOORE ……………… PETITIONER

VERSUS

FELISTER MBIRO ………………………………. OBJECTOR

RULING

The petition for grant of letters of administration intestate in respect of this estate was filed by Sabastian Murungi Boore as the son of the deceased. Amongst the surviving beneficiaries is the petitioner’s two brothers and five grandsons. Felister Mbiro, a daughter of the deceased, was left out of that list. Felister filed summons for revocation of grounds dated 31st October 2007. By that application, she sought to revoke the grant issued by this court on 19th October 2004 and also sought that an inhibition be issued against parcel number MWIMBI/MURUGI/982. That property is the only asset of this estate. On 29th June 2009, this court granted both of those prayers and ordered that a fresh grant be issued jointly in the names of Felister and Sabastian. That grant was issued on 15th July 2009. By then, unknown to Felister, Sabastian had subdivided the deceased property on 30th August 2007 into parcels number 3215 in the name of Sabastian and 3216 in the name of Gregory Boore, his brother. All of this occurred before the grant was confirmed. That subdivision did not cater for Felister. Felister has filed a chamber summons dated 11th September 2009 where she seeks to restrain Sabastian from interrupting her quiet possession of the suit property and also seeks an order of inhibition over parcel number MWIMBI/MURUGI/3215, 3216 and 3217. Felister deponed that Sabastian begun to cut down mature trees on the estate property and on 3rd September 2009 evicted her from the portion of land she was using. Sabastian, apart from alleging that Felister was married and that she does not live on the suit property, actually admitted having transferred the deceased property before the confirmation of the grant. In his affidavit he stated:-

“The deceased land has already been shared out and       we have obtained our respective title deeds.”

Section 55 (1) and (2) of the Law of Succession Act Cap 160, provides as follows:-

“55 (1) No grant of representation, whether or not  limited in its terms, shall confer power to distribute any           capital assets constituting a net estate, or to make any       division of property, unless and until the grant has been          confirmed as provided by Section 71.

(2)The restriction on distribution under subsection (1) does not apply to the distribution or application before          the grant of representation is confirmed of any income         arising from the estate and received after the date of          death whether the income arise in respect of a period         wholly or partly before or after the date of death.”

Subsection (2) excludes income arising from the estate from the restriction that is to be found in subsection (1). By virtue of S. 55(1) Sabastian had no lawful power to deal with the deceased immovable property. What is not clear, however, is how the land registrar entertained the application for transfer by Sabastian in the absence of a confirm grant. Indeed, I have found, particularly in the Meru High Court, that there are countless number of cases that this court deals with which seem to implicate the office of the land registrar at Meru land office being in complicity with the illegal acts relating to deceased estate. To allow those illegal acts, the land registrar only adds to the work load this court has to deal with, that is, having to undo the illegal transaction. This case is just one of them. Since the action of transferring the deceased land before the grant was confirmed was illegal, I have no hesitation in granting the following orders:-

1. I order that the titles MWIMBI/MURUGI/3215, 3216, and 3217 be henceforth cancelled and the same do revert to the original title MWIMBI/MURUGI/982 registered in the name of Bore Njiru alias M’Bore Njiru (deceased). The costs of such transaction if any, are to be borne by Sabastian Murungi Boore.

2. I order that inhibition order do issue after the transaction number 1 is done and be registered under parcel number MWIMBI/MURUGI/982.

3. I hereby issue restraining orders against Sabastian Murungi Boore restraining him from evicting Felister Mbiro from parcel number MWIMBI/MURUGI/982 until further orders of this court.

4. In respect of order number 3 above, I order Ntumu police Station to ensure the compliance of the order and to ensure that there is no breach of peace.

5. The costs of the Chamber Summons dated 11th September 2009 are awarded to Felister Mbiro as against Sabastian Murungi Boore.

6. At the reading of this ruling, I shall give a mention date on which date a report will be given to the court of the compliance of the orders herein.

Dated and delivered at Meru this 12th day of March 2010.

MARY KASANGO

JUDGE