https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8467

In re Estate of Ngengi (Deceased) (Succession Cause 2680 of 2002) [2026] KEHC 8467 (KLR) (Family) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8467 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 2680 of 2002 HK Chemitei, J June 18, 2026 IN THE MATTER OF THE ESTATE OF THE LATE JOSEPH KUNGU NGENGI (DECEASED) Between Alice Murugu 1st Applicant John Kinyanjui Waichari 2nd Applicant Ndungu Njoroge 3rd Applicant Stephen Ndungu Muigai 4th Applicant Caroline Mumbi Wangombe 5th Applicant and Ann Wacera Kungu 1st Respondent Martin Ngengi Kungu 2nd Respondent Eunice Njeri Kungu 3rd Respondent Alice Waithira Gatuku 4th Respondent and Caroline Mumbi Wangombe Interested Party Ruling 1.There are three sets of applications herein which the Court shall make a consolidated ruling for the simple reasons that they are all seeking almost similar orders. 2.The first application dated 17th March 2022 by John Kinyanjui Waichira and Ndungu Njoroge seeks the following orders:(a)That this Court be pleased to enjoin John Kinyanjui Waichira and Ndungu Njoroge as interested parties in this succession.(b)That this Court issues conservatory orders against the Administrators of the estate of the deceased and the objector herein from interfering, selling or charging land parcels numbers Ruiru East/Juja East Block 2/1964 and 1965 pending the hearing and determination of the application. 3.The application is based on the grounds thereof and the sworn affidavit of Ndungu Njoroge dated the same date. 4.The substance of the application is that they purchased land parcels numbers Ruiru East Block 2/1964 and 1965 from one Martin Ngengi Kungu pursuant to Thika Succession Cause No. 432 of 2005 in respect to the estate of the late Joseph Kungu Ngengi. 5.That the said Martin Ngengi Kungu sold to Alice Murugi land parcel number Ruiru East Block 2/1966 as well. 6.He said that they paid the entire purchase consideration and he transferred the titles in their favour. 7.However, the said certificate of confirmation of grant was revoked as well as the resultant titles and thereafter learned of this cause. Further that the Administrators in this cause have refused to effect transfer of the titles to them and that they were afraid that the said properties which they purchased innocently without notice may be transferred to third parties so as to defeat the end of justice. 8.It is their prayer therefore that they be enjoined as interested parties in this case. 9.The second application dated 6th June 2022 by Stephen Ndungu Muigai and Caroline Mumbi Wangombe prays for orders against the Respondents that:(a)The Applicants be enjoined in the cause as interested parties.(b)The properties known as title number Ruiru East /Juja East Block 2/1963 and 1962 be and are hereby expunged from further proceedings of this succession cause.(c)The Court revoke the grant issued to the Respondents and confirmed on 19th March 2007 and rectified on 2nd February 2016.(d)The Respondents be restrained from interfering with the Applicant’s property and possession of land titles Ruiru East/Juja East Block 2/1963 and 1962 in any way whatsoever.(e)Any other relief of the Court. 10.The application is premised on the grounds thereof and the affidavit of Stephen Ndungu Muigai sworn on the same date. 11.The substantive issue in the deposition is that the Applicants are the current registered owners of the suit parcels of land, that is, Stephen Muigai parcel number Ruiru East/Juja East Block 2/1962 and parcel number Ruiru east /Juja East Block 2/1963 to Caroline Mumbi Wangombe respectively. 12.That the said parcels were sold to them by the late Christine Wanjiku Kungu who was the administrator of the estate of the deceased herein. The said sale was pursuant to the grant of letters of administration which had been issued in her favour 13.The applicant has attached the sale agreements as well as other documents including copies of the title’s deeds. 14.The applicant has equally attached copies of the confirmation of grant by this Court dated 19th March 2003. 15.He deponed that later he learned that one Martin Kungu Ngengi attempted to sale the two parcels to them only to discover that one Alice Murugi had purchased the same, namely, Ruiru East /Juja East Block 2/1965 and 1966 despite having no authority to sale. 16.He went on to state that he leaned that the succession cause had not been completed and he placed an inhibition on the register. However, they have since learned of the confirmed grant which however gives the two parcels of land to some other persons and not themselves hence the making of this application. 17.It is his case therefore that for the last 18 years they have enjoyed the use of the two parcels and consequently they do not form part of the estate anymore. 18.The third application dated 6th June 2022 by Alice Murugi prays for orders that:(a)The applicant be enjoined as an interested party herein.(b)The Administrators of the estate herein effect transmission of titles numbers Ruiru East/Juja East Block 2/1964 ,1965 and 1966 to the applicant herein.(c)In case that order number two is not complied within 14 days from the date herein the Deputy Registrar of this Court executes all the transfer documents pertaining to land parcels number Ruiru East/Juja East Block 2/1964,1965 and 1966 in place of the Administrators.(d)The Court do revoke the grant issued to the Respondents and confirmed on 19th March 2007 and rectified on 2nd February 2016. 19.The application is based on the grounds thereof and the sworn affidavit of the applicant of even date. 20.The gist of the applications is that she purchased the three properties from Christine Wanjiku sometimes in January 2004 as per the sale agreements attached to the supporting affidavit. 21.She said that she paid all the purchase consideration but the transfers were nevertheless not effected by the vendor who was the administrator of the estate herein. 22.She said that after the death of Christine Wanjiku she held series of meetings with the Respondents, John Gathuku, Anne Wacera Kungu, Martin Ngengi and Eunice Njeri Kungu but it bore no fruits as the transfer was not effected. 23.She said that Martin Kungu Ngengi was even convicted and sentenced to serve one and half years in jail vide Criminal Case Number 566 of 2011 (Thika) for an offence of selling land parcel number Ruiru East/Juja East Block 2/1964 illegally. 24.Her application is therefore based on the apprehension that the estate would not transfer the suit parcels unless she is made a party in this suit. 25.The Respondents in response to the applications filed a preliminary objection dated 23rd August 2022 arguing that this Court was not sized of the requisite jurisdiction to entertain the three applications. They cited the provisions of Section 162 (2) (b) of the Constitution as well as section 13 of the Environment and Land Act. 26.The Court directed the parties to file written submission which they complied and I have had the occasion to peruse the same together with the cited authorities. 27.The Court has equally perused the replying affidavits on record and the history of this cause. 28.I think this is a case where the Court must decide of first significance whether the preliminary objection is merited. 29.For a preliminary objection to succeed the same must satisfy the grounds laid in the Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors [1969] EA 696 where the Court stated that;“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … [A] preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.’ 30.In this case there is no doubt that the Applicants in the three applications purchased the suit properties from the beneficiaries/Administrators of the estate and not from the deceased. In my view therefore they cannot qualify to be creditors to the estate as contemplated under the Succession Act. 31.The record shows that the grant was issued on 19th March 2007 and rectified on 2nd February 2016 by Justice M W Muigai. From the rectified grant the parcels in dispute namely Ruiru East/Juja East Block 1962, 1963, 1964, 1965 and 1966 were distributed to various beneficiaries who included the Respondents herein. 32.In my view therefore, the Applicants ought to direct their complains to the above beneficiaries directly and not the estate of the late Joseph Kungu Ngengi as the deceased did not deal with them in any manner. 33.The proper Court to deal with the matter therefore post confirmation is the Environment and Land Court and not this Court under the provisions Article 162 (2) (b) of the Constitution as read with section 2 of the Land Act (No 6 of 2012) and Land Registration Act No.3 of 2012 respectively. 34.This Court already identified the beneficiaries when it confirmed or rectified the grant. It thereafter became funtus officio and any claim against the beneficiaries ought to be addressed to them directly. 35.The Administrators work ended when the grant was confirmed in essence and the only remaining exercise is executing the grant through transmission of the properties to the named beneficiaries. 36.This Court is estopped by jurisdiction from inquiring into sales or transactions that were not undertaken by the deceased. Venturing into the various sales, whether valid or otherwise, the Applicants did with the Administrators and or the beneficiaries would be stretching the jurisdiction of this Court. 37.This Court for instance cannot inquire into how the two Applicants for instance Stephen Ndungu Muigai and Caroline Mumbi Wangombe came into possession of their titles as the deceased it appears did not deal with them. 38.In the premises I think I have said much to show that the Applicants ought to take the battle to the right Court and not this Court as it became functus officio when it distributed the estate to the deceased beneficiaries. The prayers for revocation of the grant cannot avail because the Applicants have no nexus with the deceased. 39.The preliminary objection is therefore allowed and the three applications mentioned above are hereby dismissed with no order as to costs. DATED SIGNED AND DELIVERED AT NAIROBI VIA VIDEO LINK THIS 18TH DAY OF JUNE 2026.H. K. CHEMITEIJUDGE, FCIArb.