REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI SUCCESSION CAUSE NO.1013 OF 2011 IN THE MATTER OF THE ESTATE OF KIAGO MWANIKI alias KIAGO s/o MWANIKI (DECEASED) AND WATURI KIAGO MWANIKI.........................................APPLICANT VERSUS ELIZABETH NYAGUTHII KIAGO ESTHER WAITIEGENI MUCHEMI JOSHUA KIAGO KIMURI GLADYS WANGECHI KIAGO JOHN GACHUCHA KIAGO MICHAEL KARIUKI KIAGO JANE WAGUTHII KAHORO ANDERSON MUCHUCHE KIAGO WARO KIAGO........................................................RESPONDENTS RULING The matter was coming for hearing of the Summons General of 3 rd January 2019 brought under Rule 49 and 73 of the Probate and Administration Rules. It seeks the following orders: 1. THAT the Respondents be ordered to sign Forms RL 7 and RL 19 and all the requisite Land Control Board Applications, Mutations and any other necessary documents and avail their passports size photos, photocopies of ID Cards and the Pin Number Certificates to facilitate conclusion of this matter. 2. THAT in the alternative the court do authorize the Deputy Registrar to sign all the above documents and do order the Land Registrar to dispense with the production of original Title Deed of LR NO. AGUTHI/GAKI/303, the production of the passport size photos and photocopies of ID Cards, Pin Number Certificates of the Respondents to effect the registrations. 3. THAT the costs of this application be borne by the Respondent. The application is based on the grounds herein below set forth and supported by the annexed affidavit of WATURI KIAGO MWANIKI. During the call over Anderson Muchuche Kiago one of the respondents brought it to the attention of the court that the certificate of confirmation of grant as made distributed the estate to parties who were already deceased, and whom the application as filed indicated had refused to execute the requisite documents to ensure the completion of the transmission process.
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I have perused the record. I delivered a ruling on 6th September 2017 in which the estate AGUTHI/GAKI/303 was shared among the three houses of the deceased. 1st House (8.4 acres) Elizabeth Kiago – daughter Esther Waithiegeni- daughter in law Joshua Kiago Kimuri- grandson 2nd House (8.4 acres) John Gachuche Kiago- son Michael Kariuki Kiago-Son Jane Waguthii Kahoro-daughter in law 3rd House (4.2 acres) Anderson Muchuche Kiago –son Muthinga plot: - to be shared among the three houses in the same ration of 4:4:2 However, the certificate of confirmation of grant dated 17 th December 2018 does not reflect the said orders. It contains names that were not in the judgment as delivered on 6th September 2017. In the 1st house, the widow is deceased, and similarly in the 3rd house. In the 2nd house she is still alive and is the applicant. It is therefore necessary that the certificate of confirmation of grant reflects the judgment. In the exercise of powers under s.76(e )of Laws of Succession Act the grant as issued on 17 th December 2018 is and is hereby revoked and a fresh one to issue Waturi Kiago Mwaniki and Anderson Muchuche Kiago. Consequently, a certificate of confirmation of the grant to issue as per the judgment of 6 th September 2017 and Aguthi/Gaki/303 be shared as follows: 1st House: - 8.4 acres in equal shares 1) Elizabeth Nyaguthii Kiago 2) Esther Waithiegeni Muchemi 3) Joshua Kiago Kimuri 2nd House 8.4 acres in equal shares:1) Waturi Kiago 2) John Gachuche Kiago 3) Michael Kariuki Kiago 4) Jane Waguthii Kahoro 3rd House 4.2 acres absolutely Anderson Muchuche Kiago MUMBUA T. MATHEKA JUDGE It was stated in court that John Gachuche Kiago is deceased, having died in 2017. It is upon the Administrators to provide a suitable representative of his house to be registered in trust for John’s family’s share.
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The application dated 3rd January 2019 is allowed subject to all those who are supposed to sign the documents failing to do so within 14 days of the date of these orders in default of which Deputy Registrar to do so as sought in prayer no. 2 above. Dated, delivered and signed at Nyeri this 20th day of February 2019. MUMBUA T. MATHEKA JUDGE In the presence of: Court assistant: Juliet No appearance for parties who were aware of the date. MUMBUA T. MATHEKA JUDGE
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