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In re Estate of Joseph M’ithili Kaira (Deceased) (Succession Cause 39 of 1998) [2023] KEHC 310 (KLR) (26 January 2023) (Ruling)
Neutral citation:
[2023] KEHC 310 (KLR)
Republic of Kenya
Succession Cause 39 of 1998
TW Cherere, J
January 26, 2023
Between
Florence Makena Muchiri
Applicant
and
Arin Nkatha
Respondent
and
Florence Makena Muchiri
Interested Party
Ruling
1.Joseph M’Ithili Kaira (Deceased) died on 20th July 1996. His son Stanley Mugambi M’Ithili applied for letters of administration which was issued on 11th August, 1998 and is support thereof listed the estate of deceased as comprised in the following assets.i.Antubetwe/Njoune/648ii.Antubetwe/Njoune/1607iii.Antubetwe/Njoune/1980
2.He also listed the deceased’s beneficiaries as follows:1.Stanley Mugambi M’Ithili2.Isaiah Kalawa M’Ithili3.Isaac Kaberia M’Ithili4.Elizabeth Nkatha5.Esther Karamana6.Florence Makena7.Maria Nkirote
3.By a certificate of confirmation of grant dated 19th April, 1999 and the estate comprised in the three land parcels was distributed wholly to Stanley Mugambi M’Ithili.
4.Subsequently, Stanley Mugambi M’Ithili died on 20th June, 2007 and Florence Makena Muchiri (Applicant) petitioned for letters of administration for his estate comprised in Antubetwe/Njoune/648. Arin Nkatha (Respondent) successfully applied for revocation of the letters of administration issued to the Applicant and the court by a ruling dated 08th May, 2019 ruled that Stanley’s estate comprising in Antubetwe/Njoune/648 belonged to Arin Nkatha (Respondent) and her two children.
5.By summons dated 16th February, 2021, Florence Makena Muchiri (Applicant) seeks the following orders:1.Stay of confirmation of grant and all consequential orders issued to Arin Nkatha (Respondent) in Meru High Court Succession N0. 113 of 20082.Revocation of certificate of confirmation of grant issued to Stanley Mugambi M’Ithili on 19th April, 2019 in this cause3.Revocation of certificate of confirmation of grant issued to Arin Nkatha (Respondent) in Meru High Court Succession N0. 113 of 20084.Cancellation of titles emanating from Antubetwe/Njoune/1980 i.e 3551 and 3552 and Antubetwe/Njoune/648 and Antubetwe/Njoune/1607 and restore them to the name of Joseph M’Ithili Kaira (Deceased)
Applicant’s case
6.Protestor stated that his brother Stanley Mugambi M’Ithili (deceased) who was Petitioner’s husband filed this cause secretly and disinherit her and 6 others of her siblings of their father’s estate comprised in Antubetwe/Njoune/648, Antubetwe/Njoune/1607 and Antubetwe/Njoune/1980. She faulted the Petitioner of complicating the matter by subsequently transferring Antubetwe/Njoune/648 to herself after the death of her husband Stanley Mugambi M’Ithili (deceased) and threatening to evict the family from therefrom.
Respondent’s case
7.Respondent conceded that she was widow to Stanley Mugambi M’Ithili (deceased) who was deceased’s son and Applicant’s brother and that she had no objection to distribution of deceased’s estate equally to his children.
Analysis and Determination
8.I have considered the evidence on record. It on record that the court on the dispute concerning Antubetwe/Njoune/648 was determined in a judgment dated 08th May, 2019 rendered In re Estate of Stanley Mugambi M’ithili (Deceased) (Meru Succession Cause No. 113 Of 2008) and the land subsequently distributed to the beneficiaries of Stanley Mugambi M’Ithili by a Certificate of Confirmation of Grant dated 0th March, 2020.
9.There is no evidence that the judgment In re Estate of Stanley Mugambi M’ithili (Deceased) (Meru Succession Cause No. 113 Of 2008) was appealed tom or set aside and its remains valid and binding on the parties herein. By asking the court to revoke the grant in In re Estate of Stanley Mugambi M’ithili (Deceased) (Meru Succession Cause No. 113 Of 2008) and to cancel title emanating therefrom namely Antubetwe/Njoune/3551 and 3552, Applicant is re-ligating on a matter that has already been determined. For the reason that this court cannot sit on appeal in its own judgment, this court declines an invitation to interfere with the court’s decision concerning Antubetwe/Njoune/648.
10.Having so ruled, what remains for determination is distribution of Antubetwe/Njoune/1607 and Antubetwe/Njoune/1980. Section 38 of the Law of Succession Act provides:
11.By distributing the said assets to himself to the exclusion of his siblings, Stanley Mugambi M’Ithili (deceased) acted fraudulently and the grant dated 19th April, 1999 as far as it relates to Antubetwe/Njoune/1607 and Antubetwe/Njoune/1980 cannot be allowed to stand.
12.From the foregoing, this court makes the following orders:1.Matters relating to LR. NO. Antubetwe/Njoune/648 have already been determined In re Estate of Stanley Mugambi M’ithili (Deceased) (Meru Succession Cause No. 113 Of 2008) and are therefore resjudicata2.The land Registrar Meru is directed to cancel titles emanating from subdivision of Antubetwe/Njoune/1980 i.e Antubetwe/Njoune/3551 and Antubetwe/Njoune /3552 and revert them to the name of the deceased Joseph M’ithili Kaira3.Florence Makena Muchiri is hereby appointed as Administrator of deceased’s estate in place of Stanley Mugambi M’Ithili (deceased)4.Letters of administration shall issue forthwith5.Certificate of Confirmation of Grant issued to Stanley Mugambi M’Ithili on 19th April, 2019 in so far as it relates to Antubetwe/Njoune/1607 and Antubetwe/Njoune/1980 is hereby revoked6.Florence Makena Muchiri is directed to within 30 days of this order apply for distribution of Antubetwe/Njoune/1607 and Antubetwe/Njoune/1980 after identifying the beneficiaries and their respective shares7.Mention on 30th March, 2023 to confirm compliance with the orders herein and for further orders
DATED AT MERU THIS 26th DAY OF January 2023T. W. CHEREREJUDGEAppearanceCourt assistant - Morris KinotiFor Applicant - Mr. Arimi for Mutwiri Arimi & Co. AdvocatesFor Respondent - N/A for Mutembei & Kimathi Advocates
