1. Before this court for determination are two applications. The first application is a Notice of Motion filed by the Applicant dated 20th September 2024 seeking orders that the Deputy Registrar signs all the mutation forms, all applications for the Land Control Board consent for the sub-division, partition and all other relevant documents for sub-division and registration of Land Parcel No. Muputi/Kiima- Kiimwe/2348 pursuant to the court orders issued on 23rd October 2023.
2. The application is based on the grounds set out on the face of the application and the applicant’s supporting affidavit dated xxx. The gist of the application is that Land Parcel No. Muputi/Kiima-Kiimwe/2348 was jointly owned by the deceased and the Applicant. Pursuant to court orders issued on 23rd October 2024, which have not been challenged, the Machakos County Land Registrar was directed to remove the caution placed on the subject land unconditionally and the County Land Surveyor ordered to sub-divide the parcel into two equal portions, which has since been done. Further, the Machakos County Land Registrar was ordered to register the Applicant’s ½ share. However, the Land Registrar declined to proceed, citing the absence of a party authorized to sign the necessary documents on behalf of the deceased. The Applicant asserts that all the requisite mutation forms have been prepared and signed by her, but that there is no one authorized to sign on behalf of the deceased, since a Certificate of Confirmation of Grant has not been issued in this cause. She states that she is 84 years old, is seriously ill and urgently requires the title deed to sell her portion of the land in order to raise funds for her medical treatment. She therefore seeks that the Deputy Registrar be authorized to sign all the mutation forms and other relevant documents on behalf of the deceased, pending the completion of the succession process.
3. In opposition to the said application, the Protestors filed a Preliminary Objection and a Replying Affidavit, both dated 4th October 2024. objecting to the hearing and determination of the application by this Court.
4. They contended that the court lacked jurisdiction to hear the application as it had been filed by a person who was not a beneficiary of the estate of the deceased. They further argued that the Applicant was seeking orders relating to ownership of land, rather than inheritance of a share of the estate, and that such orders could only be issued by the Environment and Land Court, which has exclusive jurisdiction over land matters.
5. The Protestors also alleged that the Applicant is an intermeddler seeking to unlawfully acquire the Protestor’s land through the back door, and that the Protestors’ right to a specific portion of the land, as well as issues relating to occupation on the ground, could only be determined by the Environment and Land Court. Additionally, the Protestors averred that, pursuant to the orders issued on 18th October 2023, they were never summoned to attend the survey exercise. That according to the surveyor’s report dated 15th May 2024, the entire home of their mother was hived off and allocated to the Applicant, thereby disregarding the Protestors’ existing residence and beneficial rights in the suit property.
6. The Applicant filed a Supplementary Affidavit dated 14th October 2024, in which she asserted that she is not an intermeddler in the deceased’s estate and she is only interested in a ½ share of the subject land to which she is legally entitled. She further asserted that the Protestors, being children of a beneficiary of the estate, were adequately represented by the three administrators of the estate and other beneficiaries who were present during the relevant proceedings.
7. The Applicant contended that the Protestors were aware of the survey exercise through the administrators of the estate, and that the exercise was conducted on two occasions, namely, 23rd February 2024 and 6th May 2024. She further deponed that there was no building or structure that would be affected by the boundary between the two equal portions, and that if any such structure existed, it would have been the subject of protest by the administrators of the estate. The Applicant also stated that she solely bore the costs of engaging the surveyor and providing security for the two survey exercises.
8. The second application, dated 4th October 2024, was filed by the Protestors seeking, among other orders, an order prohibiting the Respondents and their agents from implementing the survey report dated 15th May 2024 pending the determination of the succession cause; an order that a fresh survey be conducted on the subject property in the presence of all relevant parties and supervised by the Deputy Registrar; and an order directing the County Surveyor, the administrators and the Respondents to ensure that the Protestors’ share is reserved at the location where their mother’s house stands in the subdivision plan and the resultant title deed.
9. In opposition to the application dated 4th October 2024, the Applicant, Justina Mbeneka Kilongosi, stated that the Protestors have no claim over the ½ share of the subject land, which belongs to her and has never been challenged by the Protestors or any other beneficiary of the estate. She further asserted that the Protestors were adequately represented by the three administrators of the estate and the other beneficiaries who were present. The Applicant contended that any further delay in the issuance of two separate title deeds for the subject land would occasion injustice to all parties involved without any justifiable cause.
10. Pursuant to the directions issued by this Court, the applications were canvassed by way of written submissions. The Applicant filed submissions dated 14th October 2024, while the Protestors’ submissions are dated 3rd December 2024.
11. For the purposes of the disposition of the two applications, the term "Applicant" shall refer to Justina Mbeneka Kilongosi, and the term "Protestors" shall refer to the representatives of the estate of Jacinta Loko Wambua.
Applicant’s submissions
12. The Applicant only submitted on the application dated 20th September 2024, and in respect of the application dated 4th October 2024, the Applicant’s counsel indicated she would rely solely on the Replying Affidavit.
13. The Applicant’s counsel submitted that on 12Th February 2009, the court issued orders which were never challenged by any party on the issue of jurisdiction or otherwise. Counsel further submitted that the orders issued on 23rd October 2024 similarly remain unchallenged. It was submitted that the present application merely seeks to execute the orders issued on 23rd October 2023, and therefore, it cannot now be argued that the court lacks jurisdiction to ensure the proper execution of its orders.
14. Counsel submitted that although the Protestors opposed the Applicant’s applications for enforcement of the said orders, they have never alleged that the Applicant is an intermeddler.
15. The Applicant further submitted that ownership of the ½ share of the subject land has never been disputed by any party and is therefore not an issue. Additionally, the Applicant relied on annexture JMK3 in the Supplementary Affidavit, which is an affidavit by the government surveyor confirming that the Protestors’ allegation that their mother’s house was hived off and given to the Applicant is baseless and unfounded.
16. The Applicant concluded by submitting that the application dated 20th September 2024 be considered and allowed as prayed for justice to prevail.
Protestors’ submissions
17. The Protestors submitted on both applications and the Preliminary Objection.
18. The Protestors submitted on three issues. On the first issue, namely whether the Preliminary Objection meets the legal threshold, the Protestors, while relying on the cases of Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited and Re Estate of Joseph Mutiso Kithome, submitted that they filed the Preliminary Objection at the earliest opportunity, immediately upon being served with the Applicant’s application. With reference to the cases of Ibrahim v Hassan & Charles Kimenyi [2019] eKLR and Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] eKLR, the Protestors submitted that issues of locus standi are critical, and that the Applicant, though an interested party in the instant cause, is neither an administrator nor a beneficiary of the estate of the deceased, and therefore lacks locus standi to file the application dated 20th September 2024. The Protestors also referred to the case of Joseph Ojwang’ Oundo v National Environment Management Authority & 8 Others [2015] eKLR, and submitted that the orders sought by the Applicant relate to ownership of land rather than inheritance of a share of the estate, and that such orders can only be issued by the Environment and Land Court, which has exclusive jurisdiction over land matters. The Protestors therefore concluded that the Applicant’s application dated 20th September 2024 ought to be dismissed.
19. On the second issue, namely whether the Deputy Registrar should be directed to sign documents on behalf of the administrators of the estate of the deceased, the Protestors submitted that although they do not dispute the orders issued by the court on 23rd October 2023, they were not invited to participate in the survey exercise, despite being respondents to the Applicant’s earlier application dated 24thAugust 2022. They contended that their homestead risks being hived off and allocated to the Applicant.
20. The Protestors further submitted that, contrary to the assertion that the administrators represented them during the survey exercise, they were not in fact represented, as it is clear that they were not summoned to attend the survey exercise as evidenced by the letter dated 1st February 2024. The Protestors argued that the orders sought by the Applicant to have the Deputy Registrar execute documents without the participation of all beneficiaries amount to administrative overreach. In support of this argument, the Protestors relied on the case of Re Estate of Gikonyo Koinange (Deceased) [2015] eKLR, in underscoring the principle that the role of the Deputy Registrar is to facilitate court orders and cannot replace the substantive rights of beneficiaries and administrators.
21. Regarding the third issue of whether the court should grant the orders sought by the protestors in the summons dated 4th October 2024, the protestors submitted that the survey exercise had been conducted and a report prepared, which resulted in the entire home of the protestors' deceased mother being hived off and allocated to the Applicant herein. Consequently, the protestors seek an order for a fresh survey to be conducted in their presence to ensure they are not disinherited from their share of the estate. In support of this request, the protestors cited the case of Re Estate of Stephen Nzau Koka (Deceased) (Succession Cause 582 of 2008) [2024] KEHC 1873 (KLR) (27 February 2024) eKLR and Re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR, arguing that they have a legitimate expectation to be involved in the survey exercise, as directed by the court in its ruling of 23rd October 2023. Further, the protestors emphasized that their homestead is at risk of alienation, highlighting the importance of their direct participation, which aligns with the provisions of Article 50 of the Constitution of Kenya.
22. In conclusion, the protestors submitted that their case raises fundamental issues of jurisdiction, procedural justice, and the protection of property rights. They further submitted that the application by the Applicant must be dismissed for lack of locus standi and improper jurisdiction, and that the court should uphold the summons dated 4th October 2024, ensuring a fair and inclusive resurvey process.
Analysis and Determination
23. I have carefully considered both applications herein, the affidavits by parties and submissions filed as well as the authorities relied upon and it is my considered view that three issues arise for determination as follows: -
a. Whether the Applicant has locus standi to file and prosecute the Application dated 20th September 2024.
b. Whether the orders sought in the protestors’ application dated 4th October 2024 should be granted.
c. Whether the Deputy Registrar should be directed to execute the documents necessary for the sub division and registration.
Whether the Applicant has locus standi to file and prosecute the Application dated 20th September 2024
24. The protestors in their response to the Application dated 20th September 2024 and the Preliminary Objection have taken the position that the Applicant lacks locus standi to file the application dated 20th September 2024.
25. To determine this issue, it is essential to consider the Applicant’s interest in the matter by reviewing a brief background of the case. By an application dated 24th August 2022, the Applicant sought an order from the court directing the Machakos Land Registrar to register the Applicant's ½ share in the suit parcel, Muputi/Kiima-Kimwe 2348, as an absolute proprietor. The Respondents opposed the application, raising the issue of the court’s jurisdiction to hear the matter, a point that has similarly been raised by the protestors in the present applications.
26. In determining the application dated 24th August 2022, the court (Hon. Francis Rayola Olel J) addressed the issue of jurisdiction and whether the Applicant, who allegedly lacked locus standi, was entitled to file the application. The court stated at Paragraph 10 & 11 that:-
“10. In light of the above court order, the Respondent’s contention that the court has no jurisdiction to deal with this matter on basis that it is a land ownership dispute, has no foundation as it is an issue already determined………
11. I am persuaded by the applicant’s contention that there is need to partition the suit parcel into two portions to enable each party administer and deal with their portion. Article 40 of the Constitution of Kenya 2010 also guarantees the applicant her right to own and enjoy peaceful use of he land….”
27. The foregoing confirms that any application filed by the Applicant in relation to the ½ share of Land Parcel No. Muputi/Kiima-Kiimwe/2348, which she asserts she jointly owned with the deceased prior to his death, and not a claim through the estate, is properly before this court. I have also noted that her interest arises from her personal ownership rights, which have been acknowledged by prior court orders dated 3rd November 2008 and the ruling of 18th October 2023, rather than from the succession process.
28. Accordingly, I find that the Applicant has sufficient locus standi to prosecute the application insofar as her independent proprietary rights are concerned, but not necessarily as a beneficiary of the estate.
Whether the orders sought in the protestor’s application dated 4th October 2024 should be granted
29. The protestors herein seek that a fresh survey be conducted, as the previous survey was carried out without their presence. They have therefore sought prohibitory orders to prevent the implementation of the survey report.
30. I note that there is no objection from the Respondents regarding the protestors' status as beneficiaries of the estate of the deceased. After the determination of the Applicant’s application dated 24th August 2022, despite the opposition and defense of the application, no appeal was filed by any beneficiary aggrieved by the decision of the court delivered on 18th October 2023. Consequently, all beneficiaries were aware that the ½ share of the suit parcel was to be registered under the Applicant’s name and a Title Deed was to be issued in her name. The protestors claim that they were not notified of the dates for the survey exercise; however, from the affidavit filed by the government surveyor, marked as JMK3, the protestors were represented by the petitioners. Nevertheless, I have also noted that the specific protestors herein were not notified, despite the assumption that the Respondents were acting as their representatives.
31. It is trite law that beneficiaries have a right to be heard before actions affecting their interests are undertaken, as stated in Re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR. The protestors do not dispute the ½ share that is to be registered in the Applicant’s name as the proprietor their claim is that their mother’s homestead will be affected by the sub-division. In the case of Re Estate of Stephen Nzau Koka (Deceased) [2024] KEHC 1873 (KLR) where the court was faced with a near similar situation it was held that:-
“18.Though the appellant has not laid a good basis for re survey work to be done, according to the current jurisprudential trend the right to fair hearing/administrative action is now not only constitutionally entrenched but it is also the corner stone of the Rule of law; the right to be heard is a valued right; and that the right of a party to be heard before adverse action or decision is taken against such a party is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because, the violation is considered to be a breach of natural justice.
19.I do therefore find that, though the respondent and the Machakos county surveyor cannot be faulted for the work done, it is in the greater interest of justice to allow, the applicant to have a resurvey done in her presence, than to completely lock her out of this process, the prejudice caused to the respondent notwithstanding. This order is made in the greater interest of concluding this long-standing matter and allowing for confirmation of grant.
32. Guided by the above holding and given that the protestors' beneficiary interest has not been disputed by the Respondents, who refrained from participating in the prosecution of the present applications, I am inclined to grant the orders for a resurvey to be conducted under the supervision of the Deputy Registrar and in the presence of the protestors, which resurvey should be carried out expeditiously at the Protestors’ expense.
Whether the Deputy Registrar should be directed to execute the documents necessary for the sub division and registration.
33. The Applicant seeks an order that the Deputy Registrar executes the necessary documents for registration, citing the court's earlier orders, cites the reluctance of the Machakos Land Registrar to register her as the absolute owner of the ½ share of the suit parcel, and her age, which requires her to sell the ½ share to raise funds for her medical needs.
34. It is evident that there is no dispute regarding the ½ share of the Applicant. Given that the objection to the execution of documents by the Deputy Registrar arose from the protestors' non-attendance at the survey exercise, an issue I have already addressed by directing a resurvey, I hereby order that, once the resurvey is completed, the Deputy Registrar is authorized to execute the necessary documents for the expeditious registration of the Applicant as the absolute proprietor of the ½ share of the suit parcel.
35. In conclusion, having found that the Applicant has locus standi and that her proprietary rights over ½ share of Land Parcel No. Muputi/Kiima-Kiimwe/2348 have been conclusively determined, I allow the application dated 20th September 2024 subject to the resurvey herein directed. The Protestors’ application dated 4th October 2024 is partially allowed only to the extent that a fresh survey to be supervised by the Deputy Registrar, shall be conducted at their cost to safeguard their right to a fair hearing.
36. Accordingly, I direct as follows: -
a. A fresh survey to be undertaken and supervised by the Deputy Registrar;
b. The protestors, Rosemary Mumbua Nzuve & Francesca Claire Mutinda (the legal representatives of the Estate of Jacinta Loko Wambua), to meet the costs of recalling the Machakos County Government Land Surveyor to undertake a fresh survey of Land Parcel No. MUPUTI/KIIMA-KIMWE/2348 This will be done on a day to be agreed upon by the parties (the respondents herein and/or their representative and the Protestors herein and/or their representative) before the Deputy Registrar. The said survey work will be undertaken in strict terms of this court’s orders dated 18th October 2023.
c. If the protestors fail to participate in the resurvey exercise upon due notice, the Deputy Registrar shall proceed to execute the necessary documents based on the existing survey report dated 15th May 2024 without further reference to the Protestors.
d. The Deputy Registrar shall file a report detailing the areas of concurrence and/or disagreement noted by the parties;
e. Once the report is filed by the Deputy Registrar the parties shall appear before this court for further directions;
f. In the meantime, the survey report dated 15th May 2024 shall not be implemented until such further survey report is filed after the resurvey exercise.
g. Each party to bear their costs of these applications.
h. Mention before the Deputy Registrar on 16th May 2025
Orders accordingly