In the Estate of Nason kimina mbandi

RULING

1. I have before me a Notice of Motion dated 18/09/2023 brought under sections 1A, 1B, 3, 3A and 99 of the Civil Procedure Code Order 45, Order 51, Rule 1, 3, 3A and 10 of Civil Procedure Code section 45, and 47 of the Law of Succession Act. It is brought by the 1^st and 3^rd administrators seeking orders:
2. That the application be certified urgent and orders be made ex parte notwithstanding the same has not been served.
3. That the honourable court be pleased to review, correct and amend the ruling delivered on 12/5/2020 No. 43(2) line 2, the name Hasa Isa to indicate Sathu Fatuma Issa. That the honourable court do order that all the six subdivisions of a parcel of land previously described as Unsurveyed 5 acres at Mutongu are illegal, improper and unjust for being in contradiction with the certificate of confirmation of grant amended and issued on 26/5/2022.
4. That the honourable court do order that all the stated herein below resultant title deeds resulting from the illegal, improper and unjust subdivisions of the parcel of land previously described as unsurveyed 5 acres at Mutongu are fraudulent and illegal.
5. Makueni/Nduu/236 registered in the name of Susan Nzisa Mutuku.
6. Makueni/Nduu/237 registered in the name of Samson Kathukya Kimina
7. Makueni/Nduu/238 registered in the name of Nicholas Ndolo Kimina
8. Makueni/Nduu/239 registered in the name of Bernard Kimondiu Kimina
9. Makueni/Nduu/240 registered in the name of Gideon Muia Kimina
10. Makueni/Nduu/1845 registered in the name of Samson Kathukya Kimina.
11. The honourable court do order forthwith revocation of the six illegal and fraudulent title deeds; Makueni/Nduu/236, Makueni/Nduu/237, Makueni/Nduu/238 Makueni/Nduu/239 Makueni/Nduu/240 Makueni/Nduu/1845 herein stated, merging together of the six portions of land and order for re issuance of one title deed of the land previously known as the unsurveyed 5 acres at Mutongu in the name of the deceased; Nason Kimina Mbandi.
12. That the honourable court to uphold the 10 equal portions subdivisions of the land previously described as unsurveyed 5 acres at Mutongu as carried out on 2/11/2020.
13. That the honourable court do issue injunctive orders against the respective registered owners, their relatives, their servants and/or any other person claiming under them from disposing, developing, damaging and/or from dealing in any other way with regard to land parcel No. Makueni/Nduu/236, Makueni/Nduu/237, Makueni/Nduu/238, Makueni/Nduu/239, Makueni/Nduu/240, Makueni/Nduu/1845 until the same are merged, a title deed issues in the name of Nason Kimina Mbandi and subdivided justly to all beneficiaries as per the amended certificate of confirmation of grant issued on 26/5/2022.
14. That costs of this application be in the cause.
15. The application is supported by the grounds on its face and the supporting and further affidavit of Racheal Mumbua Nganga – these are inter alia:-
16. That a ruling was delivered on 12/5/2020 which stated “the sale of agricultural plot No. 312 is revoked. The land reverts back to the estate of the deceased. The title deed issued to Hasa Isa is hereby revoked. Let him seek a refund of his money from Gideon Muia Kimina. The land registrar to re issue a title deed in the name of the deceased’s name”.
17. That an amended certificate of confirmation of grant issued on 26/5/2022 and the same has not been reviewed and/or appealed against.
18. That in the ruling delivered on 12/5/2020 the sale of the land parcel no. Konza South/Konza South Block 5 (Konza) 881 was revoked and the land ordered to revert back to the estate of the deceased Nason Kimina Mbandi.
19. That at the hearing of the objection a search was produced showing the land parcel no. Konza South Block 5 (Konza) 881 had been illegally transferred in to the name of Sathu Fatuma Issa.
20. That the ruling delivered on 12/5/2020 erroneously captured the name of Hassa Isa instead of Sathu Fatuma Issa.
21. That the Makueni county land registrar has totally declined to revert back the title into the deceased’s name Nason Kimina Mbandi due to the error of the name Hasa Isa instead of Sathu Fatuma Issa in the ruling delivered on 12/5/2020.
22. That the property of the deceased previously described as Unsurveyed 5 acres at Mutongu in the certificate of confirmation of grant amended and issued on 26/5/2022 has been illegally, improperly and unjustifiably subdivided into 6 portions instead of 10 portions as hereunder against the certificate of confirmation of grant amended and issued on 26/5/2022 and without the consent of all the ten beneficiaries.:
23. Makueni/Nduu/236 registered in the name of Susan Nzisa Mutuku
24. Makueni/Nduu/237 registered in the name of Samson Kathukya Kimina
25. Makueni/Nduu/238 registered in the name of Nicholas Ndolo Kimina
26. Makueni/Nduu/239 registered in the name of Bernard Kimondiu Kimina
27. Makueni/Nduu/240 registered in the name of Gideon Muia Kimina
28. Makueni/Nduu/1845 registered in the name of Samson Kathukya Kimina
29. That the above stated illegally and fraudulently obtained title deeds should be revoked, the six portions merged together, reverts back to the estate herein and a title deed issues in the name of Nason Kimina Mbandi so that new title deeds issue to each of the ten beneficiaries of the estate herein according to the sub division done on 2/11/2020 as per the amended certificate of grant issued herein on 26/5/2022.
30. That the other five beneficiaries; Racheal Mumbua Nganga, Mathew Kisaulu Kimina, Esther Waiu Kimina, Eunice Nduku Kimina and the late Ruth Nyivu have been illegally, improperly and unjustifiably disinherited of their shares of the land parcel previously described as Unsurveyed 5 acres at Mutongu yet per the amended certificate of confirmation of grant issued on 26/5/2022 they have equal shares of the same with the rest of the beneficiaries.
31. That on 2/11/2020 the land previously described as Unsurveyed 5 acres at Mutongu had been subdivided in to 10 equal portions as per the amended certificate of confirmation of grant issued on 26/5/2022 they have equal shares of the same with the rest of the beneficiaries.
32. That on 2/11/2020 the land previously described as Unsurveyed 5 acres at Mutongu had been subdivided in to 10 equal portions as per the amended certificate of grant issued on 25/6/2022.
33. Annexed to the application is the certificate of confirmation of grant issued on 26/5/2022 showing that the Unsurveyed 5 acres Mutongu is distributed among 10 beneficiaries.
34. Judge Dulu’s ruling of 12/5/2020 which revokes the sale of Agricultural Plot No. 312 to revert to the name of the deceased. There is the evident mis-description of the name of the person in whose name it stands – Hasa Isa instead of Sathu Fatuma Issa.
35. The ruling also states that the property:

• Land parcel no. Konza North Block 1/1221 – 4.5 HA
• Unsurveyed 5 acres at Matangu
• Agricultural Plot No. 312
• Shares Konza Ranching and Farming Co-operative Society Ltd.
• Share in Kilungu Timber & Co Ltd

Be distributed equally among the 10 beneficiaries.

1. The application is also supported by the consent filed on 13/10/2023 by other beneficiaries –
2. Mathew Misaulu Kimina
3. Esther Waiu Kimina
4. Eunice Nduku Kimina
5. Samson Kathukya Kimina
6. Mercy Mueni Wilson
7. The application is opposed by the affidavit of Gideon Muia Kimina – the 2^nd administrator (Respondent) – sworn on 23/10/2023. He depones that the application is mischievous and full of misrepresentations and falsehoods and that if allowed the majority of beneficiaries will be greatly prejudiced.
8. The respondent depones that the deceased had subdivided his property in a meeting held on 21/7/2006 and he attaches minutes. He depones he was given Plot NO. 312 (Konza South/Konza South Block 5 (Konza 881).
9. That titles to land parcel No. Makueni/Nduu/236, Makueni/Nduu/237, Makueni/Nduu/238, Makueni/Nduu/239, Makueni/Nduu/240 and Makueni/Nduu/1845 were issued in the year 2019 and all the applicants were aware of the same as they are neighbours to the said estate.
10. That together with his brothers they reside in the plots itemized above and they have been utilizing the said land long before their father passed on.
11. It is his position that there was an agreement on how to share the property of the deceased at the chief’s office in 2014.
12. A reading through the affidavit reveals that he is reiterating evidence he gave before the Hon. Justice Dulu – which was considered before the Judge delivered his ruling.
13. In the end he seeks that this court revises the ruling of 12/5/2020 on account of alleged new evidence which he says is a will he depones would lead to the change in distribution of the estate.
14. Parties agreed to file written submissions. I only found those of the 1^st and 3^rd administrators which I have considered.
15. The issues for determination are two:
16. Whether there is a will to support the 3^rd administrator’s position,
17. Whether the application of 1^st and 3^rd administrators have merit.
18. I have perused the annexures to the response by the 2^nd administrator. I did not find any will annexed. What I have seen is minutes of an alleged meeting attended by the deceased. However, it is my view that this would not be the place for that – the respondent testified – and gave all his evidence before the ruling was delivered. However, if as he claims he has new evidence, he ought to have filed the necessary application for review and beyond that he could have lodged an appeal against the ruling of Hon Dulu J.
19. As it is, the record shows that the Hon. Dulu J. delivered a ruling revoking the sale of the Plot No. 312 – and directing that it be registered afresh in the name of the deceased and be shared equally among the beneficiaries. The Judge also issued a fresh certificate of confirmation of grant. There is nothing before me to show that if the application is allowed the beneficiaries of this estate will be prejudiced. It is the 2^nd administrator alone who is opposed to the application. There is no evidence that any other beneficiary is opposed to the application, and there is nothing to show that he speaks for any other. The record shows that 5 beneficiaries, 2 administrators – all support the application.
20. In the circumstances, it is evident that it is only the 2^nd administrator respondent who opposes the application.
21. In my considered view the application by the 1^st and 3^rd administrators simply seek to enforce the ruling of Dulu J. and certificate of confirmation of grant made on 26/5/2020.
22. I find that the application is merited – and allow it as prayed in terms of prayers 2, 3 ,4 ,5 and 6.
23. Each party to bear its own costs.

Dated, signed and delivered virtually this 26^th day of July 2024

Mumbua T Matheka

Judge