[2022] KEHC 16630 (KLR)

In re Estate of Gathi Mwate (Deceased) (Succession Cause 151 of 2007) [2022] KEHC 16630 (KLR) (23 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16630 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 151 of 2007

RN Nyakundi, J

December 23, 2022

IN THE MATTER OF THE ESTATE OF GATHI MWATE (DECEASED)

In the matter of

Johnnes Mwangi Gathi

1st Petitioner

Joseph Hinga Gathi

2nd Petitioner

James Wainaina Mwangi

3rd Petitioner

Peter Njoroge Mwangi

4th Petitioner

Ruling

1. Before me are summons for confirmation of grant dated October 12, 2020 in which the petitioner seeks orders that: -1. That the grant of letters of administration intestate made to the petitioners in this matter on March 22, 2022 be confirmed.2. That costs of this application be in the cause.

2. The Summons are further supported by the affidavit of Johnnes Mwangi Gathi Joseph Hinga Gathi and James Wainaina Mwangi sworn on June 27, 2022. The 1st, 2nd and 3rd petitioners want the that the grant of letters of administration made to them on March 22, 2022 be confirmed. The 1st, 2nd & 3rd petitioners’ deposed that the deceased herein died on February 21, 2002 and was survived by the following dependants;Johnnes Mwangi Gathii - SonJoseph Hinga Gathi – SonJames Wainaina Mwangi – SonSamuel Kamau Mwangi – SonMary Wairimu Kabuga – SonPeter Njoroge Mwangi – Son

3. The 1st, 2nd and 3rd petitioners maintain that save from the abovementioned dependants, there are no other dependants of the deceased. The 1st , 2nd and 3rd petitioners deposed that the identification of assets and shares of all persons beneficially entitled to inherit from the estate of the deceased has be been ascertain as follow;a.Kapsaret/Kapsaret Block 1 (Yamumbi)No 367 – measuring 4 acres to be wholly given to Samuel Kamau Mwangi.b.Juja Kiaura Plot 210 – measuring 0. 0585HA – to be wholly given to Peter Njoroge Mwangi.c.Kiganjo/Handege Plot T/96 – to be wholly given to Peter Njoroge Mwangi.d.Market LockupNo 215 – to be wholly given to Peter Njoroge Mwangie.Kiganjo/Handege Plot No 669 – to be wholly given to Peter Gitua Muhia (purchaser).f.Juja Kiaura Plot 171 measuring 0. 8811 – to be shared equally between Johnnes Mwangi Gathii, Joseph Hinga Gathi, James Wainaina Mwangi and Mary Wairimu Kabuga.g.Kahawani Plot 683 – measuring ½ acre to be shared equally between Johnnes Mwangi Gathii, Joseph Hinga Gathi and James Wainaina Mwangi.h.ShareNo 215 – to remain the name of Johnnes Mwangi Gathi.

4. The application is however opposed by Peter Njoroge Mwangi, the 4th petitioner herein.

5. The 4th petitioner does not agree with the proposed mode of distribution by the 1st , 2nd and 3rd petitioners. The 4th petitioner deposed that that the 1st petitioner has sold property known as Kiganjo/Handege Plot No 669 measuring approximately 2 acres without the consent of all the beneficiaries.

6. The 4th petitioner maintains that property known as Market Lockup No 215 belongs to him and thus does not form part of the estate of the deceased.

7. The 4th petitioner deposed that parcel of land known as Kahawani Plot 683 belongs to him and that he has a title deed to that effect.

8. The 4th petitioner contends that he has not been given any monies or assets belonging to his late father.

9. The 4th petitioner deposed that the deceased had 7 acres of in Kuresoi in parcel of land known as Mwarangania Farmers Society but the same were sold by the 1st petitioner herein.

10. The 4th petitioner contends that parcel of land known as Kiganjo/Handege Plot No 669 was sold by the 1st petitioner, 2nd petitioner and Mary Wairimu Kabuga and the proceeds thereof were shared amongst the three.

11. The 4th petitioner maintains that the parcels of land known as Juja Kiaura Plot 171 and 210 were given to be him in 1997 by the deceased and that he has been in possession and occupation of the two parcels to date. The 4th petitioner further deposed that the title deeds to the said parcels however are still in the deceased’s name. The 4th petitioner also averred that he is possession of the said titles.

12. The 4th petitioner is not willing to take parcel of land known as Kiganjo/Handege Plot T/96 and proposed that the same be given to his other siblings and that he instead given parcel of land known as Juja Kiaura Plot 171.

13. As for share No 215, the 4th petitioner deposed that the same be shared equally amongst all the beneficiaries of the deceased and not Johnnes Mwangi Gathi alone.

14. The 4th petitioner also filed submission dated October 31, 2022.

15. The 4th petitioner proposes that the deceased’s estate be distributed as follows;NO. PROPERTIES SIZE BENEFICIARIES

GATUNDU/HANDEGE PLOT NO 66 2 ACRES JOHNNES MWANGI AND JOSEPH HINGA

HANDEGE GATUNDU PLOT NO T96 ¼ OF ACRE JOHNNES MWANGI AND JOSEPH HINGA

MWARAGANIA/KURESOI MOLO 7 ACRES JOHNNES MWANGI

LAIKIPIA NGARUA 3 ACRES JOHNNES MWANGI

KAPSARET/KAPSARET BLOCK 1 (YAMUMBI) 367 4 ACRES SAMUEL KAMUA

GACHORORO/JUJA BO. 171 2 ACRES PETER NJOROGE MWANGI

GACHORORO/JUJA/201 1/8 ACRES PETER NJOROGE MWANGI

16. The 4th petitioner submitted that the deceased gave him parcels of land known as Gachororo/Juja/171 and Gachororo/Juja/210 while he was alive and that he died before transferring the same to him. the 4th petitioner reiterated that he has been in occupation and possession of the said parcels since 1997. The 4th petitioner submitted that he has developed parcel of land known as Gachororo/Juja/210 measuring 1/8 and has built permanent houses on it.

17. The 4th petitioner reiterated that parcel of land known as Kiganjo/Handege PlotNo 669 was sold by the 1st petitioner and Mary Wairimu Kabuga and the proceeds thereof were shared equally between the two leaving out the rest of the beneficiaries. The 4th petitioner maintains that the subject parcel belonged to the deceased and the 1st transferred the same to himself when there was a pending succession cause in court in Eldoret Succession CauseNo 151 of 2007. The 4th petitioner deposed that the said transfer is questionable and the subsequent transfer to the said Peter Gathi Muhia.

18. The 4th petitioner contends that his aforementioned proposed mode of distribution is fair.

19. The 4th petitioner submitted that the shares in Gachororo Farmers Limited being shareNo 215 be shared equally amongst all the beneficiaries.

20. The 4th petitioner wants parcel of land known as Gachororo/Juja/171 measuring 2 acres be given to him as it is the only asset, he calls home.

21. Regarding Gachororo Farms Stall No 215 the 4th petitioner submitted that the same does not form part of the deceased’s estate as it belongs to him and he has a certificate of ownership to that effect. The 4th petitioner further submitted that parcel of land known as Juja/Kiaura Block 1/643 does not also form part of the deceased’s estate as he already has title to it.

Determination 22. I have read carefully considered the pleadings, evidence and submissions on record.

23. From the pleadings by the respective parties, it is evident that their dispute as to the proposed mode of distribution to be adopted by the court. The 4th petitioner is opposed to the mode of distribution that has been submitted by the 1st, 2nd and 3rd petitioners herein. The 4th petitioner has raised weighty concerns regarding the said proposed mode of distribution. The 4th petitioner is in fact alleging ownership of some of the properties that have been listed thereinunder. The 4th petitioner has also raised allegations of intermeddling by some of the beneficiaries of the deceased’s estate.

24. If distribution on record, there is a variance in terms of the names of the suit properties that have be listed in each of the proposed mode of distribution. I cannot conclusively tell what is in fact the proper land referencing for the said suit properties.

25. Bearing in mind that the mode of distribution in the instant cause is the main bone of contention, the court can only determine the issues aforementioned if parties were to tender viva voce evidence. The issues being raised herein are weighty and cannot be determined at the juncture, they would naturally require the calling of witnesses and evidence.

26. In light of all the above, I do make the following final orders on the application before me: -i.The summons for confirmation of grant dated June 27, 2022 and filed in court on June 30, 2022, be and is hereby dismissed.ii.Parties to tenderviva voce evidence on the mode of distribution of the estate of the of the deceased.iii.Each party shall bear its own costs noting that the claim herein is a succession cause involving members of one family.Orders accordingly.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 23RD DAY OF DECEMBER, 2022. R. NYAKUNDIJUDGE