1. This suit was instituted through the Originating Summons dated 20th November 2015, which seeks the following orders:
1. THAT the administration of the estate of GICHU GACHAGU (DECEASED) in respect of the original parcels of land L.R. NO. IRIAINI/KAIRIA/44 and NYERI/MAGUTU/22 (both since subdivided) created a trust in favour of the Applicant in respect of the resultant parcels of land L.R. NO. IRIAINI/KAIRIA/1996, L.R. NO. IRIAINI/KAIRIA/2002 and L.R. NO. NYERI/MAGUTU/96 (hereinafter referred to as the “suit properties”)
2. THAT the respondent, LEAH GATHONI GICHU, do transfer to the Applicant the suit properties.
3. THAT the registers to the suit properties be rectified by registration of the Applicant as the proprietor thereof in place of the Respondent.
4. Costs and interest.
2. The originating summons is supported by the affidavit of the applicant, sworn on 20th November 2015. The Respondent herein, Leah Gathoni Gichu (now deceased), was the mother of the Applicant. At the same time, the original parcels of land Iriaini/Kairia/44 (the 1st original suit land) and LR No Nyeri/Magutu/22 (the 2nd original suit land) were owned by the Applicant's father, Gichu Gachagua (deceased).
3. The Applicant states that the Respondent registered herself as the proprietor of land parcel Nyeri/Magutu/22 by rectifying the records of the Settlement Funds Trustees immediately upon his father’s death. He claimed that the said land was acquired by exchange with 6 acres out of the parcel LR Iriaini/Kairia/44, which the Government compulsorily acquired for the construction of a public health institution. Upon acquisition of the said 6 acres out of LR Iriaini/Kairia/44, there remained 1.4 acres, which was registered as LR No.Iriani/Kairia/1664 in his deceased father's name, while parcels, L.R. No.Iriani/Kairia/1663 was registered in the name of the government.
4. It is claimed that LR No. Nyeri/Magutu/22 was after completion of the said exchange and transfer by the Settlement Fund Trustee, registered in the name of the Respondent as per the attached certificate of official search.
5. Vide Karatina Magistrate’s Court Succession Cause No.15 of 1998, the Respondent petitioned to administer the estate of his late father, and a grant was duly confirmed to her on 30.9.1998. Upon confirmation, the second original suit land was distributed to the Respondent as per the grant. After this, the Respondent registered herself as the proprietor of the subject piece of land.
6. The Applicant states that the deceased’s wishes prior to his demise were that the suit parcels of land were to be shared between his five children and the Respondent. The Applicant accuses the Respondent of subdividing land parcel LR Iriaini/Kairia/44 contrary to the wishes of the deceased by subdividing it into seven parcels as per the mutation form exhibited. The Applicant further stated that the Respondent registered the resultant titles contrary to the wishes of the deceased in that the subdivision numbers L.R. Iriaini/Kairia/1996, 1998, 1999 and 2002 are registered in the Respondent’s name, L.R. Iriaini/Kairia/2000 and 2001 are in the name of the Applicant’s brother John Muriuki Gichu, and L.R. Iriaini/Kairia/1996 is in the name of the Applicant’s sister Eunice Wairimu Gichu.
7. Further, in an attempt to determine the pleaded trust in respect of the second original suit, LR No. Nyeri/Magutu/22, the Applicant accuses the Respondent of subdividing the same into twelve titles, LR Nos Nyeri/Magutu/95-108. The said resultant titles were registered in the names of: Nyeri/Magutu/95, 96, 97 and 100 in the Respondent’s name, Nyeri/Magutu/98 in the name of the Applicant’s sister Eunice Wairimu Gichu, Nyeri/Magutu/99 and 101 in the name of the Applicant’s brother John Muriuki Gichu. The other parcel numbers, Nyeri/Magutu/102-108, were registered in the names of strangers.
8. The Applicant claims that the Respondent did not transfer any of the resultant parcels of land to him as his entitlement as a beneficiary, and retains the same in her name. That the deceased put him in possession of his approximate shares of the two original parcels of land in his lifetime, which he has possessed and greatly developed. He claims that the shares fall under the resultant parcels of land LR NO.Nyeri/Magutu/96 and LR.NO Iriani/Kairia/1996.
9. The Applicant further states that the extra share of the first parcel of land LR. No. Iriaini/Kairia/2002 should be shared by all six beneficiaries of the deceased's land, and that he is entitled to a sixth share thereof.
10. The Respondent has resisted his demands to have his shares of the pleaded trust, hence the necessity to file this suit.
The Respondent’s Replying Affidavit.
11. The Respondent filed a replying affidavit in which she admitted to some of the contents of the supporting affidavit, in particular paragraphs 2,3,5,6,7 and. In response to paragraph 9, the Respondent states that L.R. Nyeri/Magutu/94 was subdivided into two portions, Nyeri/Magutu/100 and 101, and given to Millicent Wanjiru and John Muriuki Gichu because they took care of her late husband before his death and herself. However, Millicent Wanjiru had not been legally registered on her portion due to reasons known to her.
12. That Iriani/Kairia/1663 was subdivided into seven portions. One portion, which is parcel Iriani/Kairia/2001, was to be left to the deceased. The said parcel was later given to Millicent Wanjiru and John Muriuki Gichu for taking care of her and her late husband, and is now registered in the name of John Muriuki Gichu because Millicent failed to contribute transfer fees like the others, thus her name does not appear on the title deed.
13. The Respondent deposed that she carried out the wishes of the deceased. She denied that land parcel numbers Nyeri/Magutu/102-108 are part of the deceased properties, which the Applicant claims are in the names of strangers.
14. Further, the respondent averred that she requested the Applicant to pay the required fees to facilitate the transfer of LR Nyeri/Magutu/96 to himself, but the Applicant only paid Ksh 13,000/=, which was not enough for the transaction.
15. The Respondent agreed that the Applicant has been benefitting from his resultant shares, and stated that the Applicant ought to have the land parcels Nyeri Magutu/96 and Iriani/Kairia/2002 after having paid the transfer fees and any other charges arising, but that he is not entitled to Iriani/Kairia/1996 as he alleges. She therefore prayed that the Applicant’s claim be dismissed with costs.
Hearing of the Suit
16. The hearing of the Originating Summons proceeded by way of viva voce evidence commencing on 20th November 2017. PW 1, the Plaintiff, adopted his supporting affidavit and the attached documents as his evidence in chief. He denied the defendant’s averment that he did not pay money for survey fees; he stated that he gave an equal amount as the other siblings.
17. PW 1 stated that his mother, the respondent herein, did not subdivide LR 1663 into 6 portions, as there are 5 children, but subdivided the land into 7 portions. He stated that on the ground, he has settled into his 5 acres of Nyeri/ Magutu/96, and the other siblings have also settled on their portions as given by their father. He, however, claims that there are strangers who bought portions of the same land.
18. Further, PW 1 stated that all the other siblings have titles, but he is yet to be issued with any title because his mother demanded a further 75,000/= after he paid the survey fees, and that the amount was not demanded from the other siblings.
19. Upon cross-examination by the defendant, the Plaintiff acknowledged that the Defendant paid survey fees but that he refunded the same to her. PW 1 also stated that he did not know the strangers to whom the defendant sold the land. He further stated that he had no documents in his name to prove that he had land. That the way the land is subdivided, he may not be able to get his 5 acres and 0.03 of the 2 portions, and he asked that the survey be done properly.
20. DW 1 Leah Gathoni Gichu, the defendant, testified, adopting her replying affidavit sworn and filed on 25th January 2016 as her evidence in chief.
21. Upon cross-examination, she stated that her husband had subdivided his estate and shared it out to the deceased. She stated that the Iriani land was to be shared equally in 6 portions, but since one of the children is deceased, it was to be divided into 5 equal portions.
22. She denied knowing how many parcels of land are a result of the subdivisions, and she was not aware that 4 titles are requested that are in her name. She stated that the Plaintiff does not have a title because he refused to pay the survey fee. She stated that there is a title deed in the Plaintiff's name, which she cannot give to him because he refused to refund her money for survey fees.
23. She denied selling any land to Grace Wamuyu, Patrick and Peter and stated that she was not aware that she had a parcel of land carved out of their original land.
24. The Court noted that due to advanced age, the Defendant is not very coherent. The defendant sought leave to file witness statements, which the Court granted, noting that she may not be fully aware of what had happened to the parcels of land.
25. DW 2 Gladys Wanjiku Ndirangu filed a witness statement dated 2nd November 2017 that was adopted as her evidence in chief. She stated therein that the Applicant is her elder brother, and the Respondent is her mother. She stated that when her father died, their mother filed a Succession cause and was issued with a confirmation of grant. She stated that the subdivision known as Nyeri/Magutu/1664 was given to the present Karatina sub-county Hospital, and they were compensated with Nyeri/Magutu/22.
26. She stated that in 2015, their mother called for a family meeting, but the Applicant did not show up; however, he attended a second meeting in 2017. That their mother stated that the Applicant wanted to be given the whole of Nyeri/Magutu/22 and that he had refused to pay the transfer fees and only paid Kshs 13,000/=, leaving a balance of Kshs.47,000/=. She stated that the Applicant threatened them with this court case, despite the chief settling the dispute in the respondent’s favour. She concluded that the respondent did as per her deceased father’s wish before he passed away.
27. DW 3 John Muriuki Gichu adopted his witness statement dated 2nd November 2017. He stated that their father left an oral will that the land parcel Iriaini/Kairia/1663 was to be subdivided among his five children, and the remainder thereof was to be a portion for himself and their mother, the Respondent. That the portion which belonged to his deceased father was given to himself and Millicent Wanjiru jointly, though he is the one registered as the proprietor of the same, since she had no money for transfer and stamp duty.
28. Regarding LR Iriaini/Kairia/1996, he stated that the same was given to their sister, DW 4, Millicent Wanjiru, though the Applicant is the one on the Lands Registry's records.
29. He stated that the Applicant’s land is actually Iriaini/Kairia/2002 and Nyeri/Magutu/96, but the same is still in the Respondent’s name because the Applicant failed to refund the money their mother used. That this distribution was according to their deceased father’s wishes.
30. He further stated that Nyeri/Magutu 102, 103, 107 and 108, belonging to Grace Wamuyu Machuga, Patrick Githinji, Peter Kiama Kinyua and John Francis Mathai, respectively, are not related to the original deceased land and originated from the previous owner, one John Mathai Gakungu.
31. DW 4, Millicent Wanjiru, also adopted her witness statement dated 2nd November 2017, in which she stated that she was given a portion of about 4 acres of Nyeri/Magutu/22 by her father, as well as a portion of Iriaini/Kairia/1663. That they agreed as a family to pay survey fees of Ksh 12, 000/= each for plot Nyeri/Magutu/22 and Ksh.4000/=, but the Applicant did not pay anything, and also refused to attend the Land Control Board. In the year 2007, the Land Control Board gave consent to subdivide the land, but the Applicant objected to the same. They forwarded the case to the chief's office and to the D.O., where the applicant's claim was defeated in both cases.
32. Regarding LR Nyeri/Magutu/94, she stated that the same is for her and John Muriuki for helping their parents, and that the 2 subdivisions LR Nyeri/Magutu/100 and LR Nyeri/Magutu/101 can only be utilised when their mother is unable to use them, following their deceased father's wish.
33. On cross-examination, she stated that once she gets money, she will transfer her land that is in DW 3’s name, and that she is not claiming any other land.
Plaintiff’s Written Submissions
34. Counsel for the Plaintiff submitted that the Plaintiff’s claim is for a declaration that the defendant holds two parcels of land for his benefit and trust. It was highlighted that during the course of the trial, the Defendant admitted that she is holding his parcels, and that the only objection to surrendering the suit lands is that the Plaintiff “refused” to contribute his share of money to transmit the original land. It was also highlighted that the Plaintiff's siblings, who gave evidence as defence witnesses, did not object to the land being distributed to him.
35. It is therefore Counsel’s submission that the suit properties comprise the Plaintiff’s share of that estate, save that they were not transmitted to him as intended.
36. Referring to Section 51 of the Land Act, 2012, Counsel submitted that the personal representative shall hold the land subject to those rights, liabilities or interests that are unregistered but enforceable. Counsel also referred to Halsbury's Laws of England, which states that a beneficiary has a right to put an end to a trust and discharge a trustee. That the Respondent became a trustee in favour of the Plaintiff by holding his share of the estate of his father.
37. Regarding the contention that the Plaintiff has a duty to contribute to the administration of the deceased proprietor’s estate and subsequent transmission, the Plaintiff negates this based on the provisions of Section 83(c) of the Law of Succession Act. The Section provides that one of the duties of a personal representative is to pay out of the estate of the deceased, all expenses for obtaining a grant of representation and all expenses of administration, and that they should not be borne by the beneficiaries.
The Respondent’s Submissions
38. Counsel for the Respondent submitted and reiterated the contents of her replying affidavit, submitting that the Applicant has no right under the Kikuyu custom and the constitution to have a claim of trust on the deceased properties, stating that the deceased had more children who would have raised a claim of trust on the deceased properties.
39. That the estate was subdivided as per the wish and the will of the deceased, that his children be given some parcels as was stated in the Respondent’s replying affidavit.
40. The Respondent highlighted that there are cautions that have been registered in the Lands Registry at Nyeri by the Applicant on 2nd June 2010, only to defraud the Respondent of the ownership of parcels Iriaini/Kairia/1996-2001 and Nyeri/Magutu/95-108.
41. It was submitted that the Applicant reported this same dispute to the Chief Magutu Location, and all the children and the respondent deliberated and agreed on how the Applicant and other children would contribute to the Transfer, Stamp Duty and any other necessary fees, but the Applicant had a balance of Ksh 47,000/=, which he has not cleared. She submitted that the Applicant should pay the balance of Ksh 47,000/=/=, then she shall transfer the land parcel Nyeri/Magutu/96 and Iriaini/Kairia/2002 to the Applicant and prayed that the Applicant bear her costs in this suit.
42. In an unfortunate turn of events, the Respondent became deceased, and her personal representative, Gladys Wanjiku Ndirangu, who was DW 2, took out letters of administration ad litem to represent her in this suit.
Analysis and Determination
43. The Applicant claims that the administration of the estate of Gichu Gachagua (Deceased) in respect of the original parcels of land L.R. NO.IRIAINI/KAIRIA/44 and NYERI/MAGUTU/22 (both since subdivided) created a trust in his favour in respect of the resultant parcels of land L.R. NO.IRIAINI/KAIRIA/1996, L.R. NO.IRIAINI/KAIRIA/2002 and L.R. NO.NYERI/MAGUT//96, which were his inheritance from his father.
44. The Respondent’s case is that only L.R. NO.IRIAINI/KAIRIA/2002 and L.R. NO.NYERI/MAGUTU//96 belong to the Applicant, and that the only reason that they are still in her name is that the Applicant refused to pay the balance for survey fees, transfer fees and stamp duty to facilitate the transfer of land to himself.
45. The Court has considered the pleadings, evidence adduced in court, documents produced and the submissions by Counsels for the parties. The following issues arise for determination;
A) Whether the administration of the estate of Gichu Gachagua created a trust in favour of the Plaintiff over portions of land parcels Iriaini/Kairia/44 and Nyeri/Magutu/22 and the resultant titles.
B) Whether the Administrator of the estate of the Respondent LEAH GATHONI GICHU (deceased) should be directed to transfer to the Applicant the suit properties.
C) Who will bear the costs of this suit?
A) Whether the administration of the estate of Gichu Gachagua created a trust in favour of the Plaintiff over portions of land parcels Iriaini/Kairia/44 and Nyeri/Magutu/22 and the resultant titles.
46. The Originating Summons herein is filed under Order 37 Rule 1 and 2 of the Civil Procedure Rules. Rule 1 provides a list of who may take out originating summons and in respect of what matters and states as follows;
1. The executors or administrators of a deceased person, or any of them, and the trustees under any deed or instrument, or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, heir, or legal representative of a deceased person, or as cestui que trust under the terms of any deed or instrument, or as claiming by assignment, or otherwise, under any such creditor or other person as aforesaid, may take out as of course, an originating summons, returnable before a judge sitting in chambers for such relief of the nature or kind following, as may by the summons be specified, and as circumstances of the case may require, that is to say, the determination, without the administration of the estate or trust, of any of the following questions-
(a) any question affecting the rights or interest of the person claiming to be creditor, devisee, legatee, heir or cestui que trust;
b) the ascertainment of any class of creditors, devisees, legatees, heirs, or others;
(c) the furnishing of any particular accounts by the executors, administrators or trustees, and the vouching, when necessary, of such accounts;
(d) the payment into court of any money in the hands of the executors, administrators or trustees;
(e) directing the executors, administrators or trustees to do, or abstain from doing, any particular act in their character as executors, administrators or trustees;
(f) the approval of a sale, purchase, compromise or other transaction;
(g) the determination of any question arising directly out of the administration of the estate or trust.
Order 37, rule 2 provides for the order for the administration of an estate or trust and states that.
2. Any of the persons named in rule 1 may in like manner apply for and obtain an order for—
(a) the administration of the personal estate of the deceased;
(b) the administration of the real estate of the deceased;
(c) the administration of the trust.
47. It is common knowledge that the administration of the estate of Gichu Gachagua culminated in the grant of letters of administration issued to the Respondent being confirmed and a certificate of confirmation of grant being issued to her on 18th November 1998 in Succession Cause No.15 of 1998. The Family Court confirmed the grant and bequeathed the entire estate to the Respondent. The said estate comprised the property L. R. Iriaini/Kairia/44.
48. All the parties to this suit and the witnesses called by the Respondent agree that the suit parcels of land initially belonged to the deceased Gichu Gachagua. The original parcel was L. R. Iriaini/Kairia/44. Part of this land was acquired compulsorily by the government, and the deceased was compensated by an award of land parcel Nyeri/Magutu/22. The remainder of the land was given the number Iriaini/Kairia/1664, and the two parcels of land were subsequently registered in the name of the Respondent herein, Leah Gathoni Guchu.
49. The evidence adduced shows that the two parcels of land were registered in the name of the Respondent on the strength of the Certificate of Confirmation of grant and the correspondence between the District Land Adjudication and Settlement Officer and the Director Land Adjudication & Settlement dated 16th and 18th February 1999. According to the confirmed grant, the Respondent was to get the whole land absolutely, while the other beneficiaries, including the Plaintiff herein, were to get nil.
50. On the question of confirmation of grant, the proviso to Section 71 of the Law of Succession Act CAP 160 provides that in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed the grant shall specify all such persons and their respective shares.
60. In the present case, the court is of the view and finds that as far as the distribution of the estate of the deceased was concerned, the matter was heard and determined within the succession case where the court was satisfied as to the respective identities and shares of all persons beneficially entitled. Further, it is the finding of this court that the confirmed grant specified all the persons entitled to inherit the deceased's estate and their respective shares.
61. It is however noted, that notwithstanding the above quoted legal position, the Applicant, the Respondent and the Defence witnesses, who are the children of the Respondent and the brother and sisters of the Plaintiff, all agree that Respondent herein held portions of the original parcels of land L. R. Iriaini/Kairia/44 and Nyeri/Magutu/22 in trust for the Plaintiff and his siblings. From the evidence adduced in court, there is agreement between the parties and the witnesses that the deceased expressed his desire on the manner in which his land was to be distributed. The Court, however, notes that there is no consensus between the Plaintiffs on the one hand and the Respondent and her witnesses on the other hand on some of the details of the wishes of the deceased and whether the Respondent fulfilled the said wishes while subdividing and distributing the suit parcels of land. It appears that the said wishes were not written, and none of the parties state when, where and under what circumstances the said wishes were expressed. The other issue is that none of the parties states categorically that they were present when the said wishes were expressed.
51. On the face of the certificate of confirmation of grant, the interest conferred by registration of the Respondent was absolute as provided under Sections 24 and 25 of the Land Registration Act, CAP 300 Laws of Kenya. Section 24 (a) states that;
Subject to this Act—
(a) The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto;
57. Section 25 provides for the rights of a proprietor and states that ;
(1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—
(a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and
(b)to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register.
(2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.
52. The Court is of the view that the rights that the Plaintiff seeks to enforce are to be found at the above cited Section 25 (2) of the Land Registration Act by claiming that the Respondent held part of the suit parcels of land in trust for himself and by asserting that registration of the proprietor does not relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.
53. The Court of Appeal in the case of Twalib Hatayan & another v Said Saggar Ahmed Al-Heidy & 5 others [2015] eKLR aptly summarised the different types of trust as follows:
“….according to the Black’s Law Dictionary, 9th Edition; a trust is defined as;
“ The right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary).”
Under the Trustee Act, "…the expressions 'trust' and 'trustee' extend to implied and constructive trust, and cases where the trustee has a beneficial interest in the trust property……..
Trusts are created either expressly (by the parties) or by operation of law. An express trust arises where the trust property, its purpose and beneficiaries have been clearly identified (see Halsbury’s Laws of England vol 16 Butterworths 1976 at para 1452). In this case, we have a definite property and beneficiary. The purpose/intent for which the property was bought remains in dispute. This negates the existence of an express trust herein. In the absence of an express trust, we have trusts created by operation of the law. These fall within two categories: constructive and resulting trusts. Given that the two are closely interlinked, it is perhaps pertinent to look at each of them in relation to the matter at hand. A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrongdoing. (see Black’s Law Dictionary) (Supra). It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such as would demand that equity treats the legal owner as a trustee, the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit (see Halsbury's Laws of England supra at para1453)…... A resulting trust is a remedy imposed by equity where property is transferred under circumstances which suggest that the transferor did not intend to confer a beneficial interest upon the transferee (see Black’s Law Dictionary) (supra). This trust may arise either upon the unexpressed but presumed intention of the settlor or upon his informally expressed intention. (See Snell's Equity, 29th Edn, Sweet & Maxwell p.175).”
54. In the case of Cosmas Cherono & 2 others v Veronica Cherono [2021] eKLR, the court stated as follows;
“In Juletabi African Adventure Limited & Another v Christopher Michael Lockley [2017] eKLR, the Court also held that …. It is settled that the onus lies on a party relying on the existence of a trust to prove it through evidence. That is because: -The law never implies, the Court never presumes, a trust, but in case of absolute necessity. The Courts will not imply a trust save in order to give effect to the intentions of the parties. The intention of the parties to create a trust must be clearly determined before a trust will be implied.”
That in the instant case, the import of the foregoing precedents is that it is upon the plaintiffs to lead evidence proving that indeed a constructive trust existed. It was incumbent on the plaintiffs to demonstrate that the suit property was ancestral land and that it was vested in Joseph Rutto Cherono to hold for the family. Importantly, the court is not obligated to imply the existence of a trust outside the express and clear intention of the parties.”
62. In the present case, and as observed earlier, there is no dispute that the Respondent came to be registered as proprietor of the initial parcel of land number Iriaini/Kairia/44 as a result of Succession Cause number 15 of 1998. There is no indication that the Plaintiff objected to the confirmation of the grant and the distribution of the then-only asset of the deceased. The Court is thus satisfied that the Respondent's acquisition of the initial parcel of land was not illegal, but as a result of the legal process of administration of the estate of the deceased Gichu Gachagua.
63. The Plaintiff’s claim is that the distribution of the property of his deceased father by the Respondent was contrary to the wishes of the deceased. He complains that the wishes of the deceased were that the two parcels of land Iriaini/Kiria/1664 and Nyeri/Magutu/22 were to be distributed to the deceased's five children and the Respondent.
64. The Plaintiff states that the Respondent subdivided land parcel Iriaini/Kairia/1664 into seven portions with LR numbers Iriaini/Kairia/1996, 1998, 1999 and 2002 being registered in her name, land parcels Iriaini/Kairia/2000 and 2001 were registered in the name of John Muriuki and Iriaini/Kairia/1997 was registered in the name of Eunice Wairimu. He further states that the Respondent partly settled the beneficiaries, but that she did not transfer any of the parcels of land to him as per the wishes of the deceased.
65. According to the Respondent, the deceased's wish was that land parcel number Iriani/Kairia/1664 was to be subdivided into seven portions, five for her children and one for herself, while one portion, which is parcel Iriani/Kairia/2001, was to be left to the deceased. The said parcel was to be given to Millicent Wanjiru and John Muriuki Gichu for taking care of her and her late husband. She stated that the same is now registered in the name John Muriuki Gichu because Millicent did not contribute transfer fees like the others, thus the said plot is not registered in her name.
66. According to the evidence of the Respondent and her witnesses, out of land parcel number Iriaini/Kairia/1664, the Plaintiff was entitled to land parcel number Iriaini/Kairia/2002. This is one of the parcels the Plaintiff claims in the Originating Summons. However, in the same breath, the Plaintiff claims parcel number Iriaini/Kairia/1996, also a subdivision of land parcel Iriaini/Kairia/1664. The Plaintiff’s claim of two parcels of land out of the same parcel contradicts his assertion in his affidavit that his father's wish was that the sons were to get each a portion of 5 acres and the daughters 3.5 acres each. Further, the court notes a contradiction between the prayers in the Originating Summons, where he claims the entire parcel number Iriaini/Kairia/2002, while he claims at paragraph 16 of the supporting affidavit one-sixth share of the land.
67. In the Court's view, the Plaintiff gives no justification for claiming two parcels of land out of land parcel number Iriaini/Kairia/1664. The Plaintiff stated clearly in his evidence that, according to his understanding of his father's wishes, the said land was to be divided into six portions for the five children and one portion for the Respondent.
68. In the Court's view, the Respondent has explained the reason for subdividing the land into seven portions. The seventh portion was to belong to the deceased and was to be later divided between two of his children, Millicent Wanjiru and John Muriuki, in recognition of their service in taking care of their parents.
69. The Court thus finds that the Plaintiff was only entitled to one parcel of land out of land parcel Iriaini/Kairia/1964, and that is parcel number Iriaini/Kairia/2002 as was distributed by the Respondent.
70. With regard to subdivision and distribution of land parcel Nyeri/Magutu/22, the Plaintiff accused the Respondent of wrongfully subdividing the land into twelve parts, resulting in titles LR Nos Nyeri/Magutu/95-108, with Parcels Nyeri/Magutu/95, 96, 97 and 100 being registered in her name, Nyeri/Magutu/98 in the name of Eunice Wairimu and parcels Nyeri/Magutu/99 and 101 being registered in the name of John Muriuki. He stated that land parcels Nyeri/Magutu/102-108 were registered in the names of strangers.
71. The Respondent denied that land parcel numbers Nyeri/Magutu/102-108, which were said to be registered in the names of strangers, were part of the deceased's properties. The Court is satisfied that the Plaintiff did not produce any proof that the land parcels Nyeri/Magutu/102-108 emanated from the deceased's land. An extract of the Land Registry Record or Property ownership Record (Green Card) would have tracked the history of the initial parcel of land, showing any subdivisions, sales, transfers and issuance of any new titles.
72. The Plaintiff did not produce any evidence of sale or transfer of the said parcels of land to 3rd parties. The evidence of DW 3 John Muriuki supported the Respondent's position that the parcels of land Nyeri/Magutu 102, 103, 107 and 108 registered in the names of Grace Wamuyu Machuga, Patrick Githinji, Peter Kiama Kinyua and John Francis Mathai, respectively, are not related to the original deceased land and originated from the previous owner, one John Mathai Gakungu. This evidence was not controverted.
73. In the absence of any documentary evidence, the Court finds that the Plaintiff has not proved that land parcels Nyeri/Magutu/102-108 were subdivisions of Nyeri/Magutu/22 and that Respondent sold the said parcels of land to strangers.
74. With regard to the Plaintiff’s claim to subdivision number L.R. Nyeri/Magutu/96, the Respondent admits that the Plaintiff was entitled to the said parcel of land as claimed in the Originating Summons and thus there is no dispute on the same.
75. From the evidence on record, it appears that the said land parcel Nyeri/Magutu/22 was divided initially into Nyeri/Magutu/94, 95, 96, 97, 98 and 99. The Respondent stated that L.R. Nyeri/Magutu/94 was subdivided into two portions, Nyeri/Magutu/100 and 101, and given to Millicent Wanjiru and John Muriuki Gichu because they took care of her late husband before his death and herself. However, Millicent Wanjiru had not been legally registered on her portion due to reasons known to her.
76. As stated earlier, the Respondent explained that the reason the title numbers Nyeri/Magutu/96 and Iriaini/Kairia/2002 were not transferred to the Plaintiff was because he refused to pay the balance of the cost of subdivision of the land and also stamp duty and transfer fees to enable her to effect the transfer.
77. The Court notes that all the other beneficiaries were in agreement that the cost of subdivision was to be shared amongst them. It appears that the Respondent paid the money required for subdivision and sought a refund from the beneficiaries. It is also noted that even Millicent Wanjiru did not have the parcels of land she was entitled to registered in her name for the same reason that she did not contribute to the fees for subdivision, and neither had she paid stamp duty and transfer fees.
78. The Plaintiff relies on the provisions of Section 83(c) of the Law of Succession Act in claiming that he ought not to have been required to pay for the subdivision and transfer of the land. The section provides for the duties of personal representatives and states as follows;
“to pay, out of the estate of the deceased, all expenses of obtaining their grant of representation, and all other reasonable expenses of administration (including estate duty, if any);”
79. The Court is of the view that the administration of the estate of the deceased Gichu Gachagua was concluded when the grant of letters of administration was confirmed and the Respondent registered as the absolute proprietor. It appears that indeed to that extent she had borne the costs of administration of the estate. In the court's view, it was not unreasonable for the Respondent to expect all the beneficiaries to bear their own costs of subdivision of the land and transfer to themselves.
80. The Respondent satisfied the court that she requested the Applicant to pay the required fees to facilitate the transfer of LR Nyeri/Magutu/96 and Iriaini/Kairia/2002 to himself, but the Applicant only paid Ksh 13,000/=, which was not enough for the transaction.
81. The Respondent agreed that the Plaintiff has been benefitting from his resultant shares, and he ought to have the land parcels Nyeri Magutu/96 and Iriani/Kairia/2002 after having paid the transfer fees and any other charges arising, but that he is not entitled to Iriani/Kairia/1996 as he alleges. The court agrees with the position taken by the Respondent that it was the Responsibility of the Plaintiff to pay for his portion of the costs of subdivision of the two original parcels of land and the cost of transfer to himself of the portions he was entitled to. It was completely unjust to expect the Respondent to meet the said costs.
B) Whether the Administrator of the estate of the Respondent LEAH GATHONI GICHU (deceased) should be directed to transfer to the Applicant
82. Arising from the findings of the court on the first issue, the court finds that the Respondent was all along willing to transfer the two parcels of land to the Plaintiff. Consequently, the said orders will issue, and the land parcels LR Nyeri/ Magutu/96 and LR Iriaini/Kairia/2002 should not form part of the estate of Leah Gathoni Gichu, since the Respondent is now deceased.
Who will pay the costs of the suit?
B) The court has considered the question of who should bear the costs of this suit and concluded that since this is a family dispute, each party should bear his/her own costs of the suit.
C) The Court makes the following orders;
(1) The administrator of the estate of LEAH GATHONI GICHU (DECEASED) holds land parcel numbers L.R. NO. IRIAINI/KAIRIA/2002 and L.R. NO. NYERI/MAGUTU/96 in trust for the Plaintiff/Applicant.
(2) The administrator of the estate of LEAH GATHONI GICHU (DECEASED) is hereby directed to transfer to the Plaintiff/Applicant the suit properties L.R. NO. IRIAINI/KAIRIA/2002 and L.R. NO. NYERI/MAGUTU/96.
(3) The Plaintiff/Applicant is to pay all costs arising from the transfer of the suit parcels of land.
(4) Each party is to bear his/her own costs of the suit.
Delivered, Dated and Signed at Nyeri on the 1st day of August 2025