[2021] KEHC 2355 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. 1596 OF 2015

IN THE MATTER OF THE ESTATE OF GEOFFREY NGIGI NG’ANG’A (DECEASED)

WINNIE WAHU NGANGA..........APPLICANT

VERSUS

IRENE WAMBUI NGIGI........RESPONDENT

RULING

1. Before this Court is summons dated 29th April 2021which summons was amended on 15th June 2021by which the Applicant WINNIE WAHU NGANGAseek the following orders: -

“(a) SPENT

(b) SPENT

(c ) THAT the Respondent be and is hereby restrained by herself her employees servants or agents from collecting rent from the property known as BLOCK A KISERIAN PLOT NO 83 B.

(d) THAT the Respondent be and is hereby restrained by herself, her employees, servants or agents from humiliating, intimidating, harassing and threatening the tenants residing in the property known as BLOCK KISERIAN PLOT NO. 83B.

(e ) THAT the Respondent be and is hereby restrained by herself, her employees, servants or agents from humiliating, intimidating, harassing and threatening the Applicant, her employees, servants or agents in the course of managing and collecting rent from the tenants residing in the property known as BLOCK A KISERIAN PLOT NO. 83B.

(f) THAT the Respondent be and is hereby restrained by herself, her employees, servants or agents from interfering with the ownership, possession and control of the property known as BLOCK A KISERIAN PLOT NO. 84B.

(g) THAT the Respondent be and is hereby ordered to pay the Applicant all the monies received by her from December 2020 to date being rent collected by the Respondent from the property, BLOCK A KISERIAN PLOT NO. 83B.

(h) THAT the officer Commanding Kiserian Police Station to enforce and assist in the compliance of the order.

(i) Any other order which the Honourable court may deem fit to grant.

(j) Costs of the Application be provided for.

2. The summons was premised upon Section 47 of the Law of Succession Act, Cap 160, Laws of Kenya Rules 49 of the Probate & Administration Rulesand all enabling provision of the law and was supported by the Affidavit dated 29th April 2021, sworn by PETER NGANGA one of the Administrators of the estate.

3. The Respondent IRENE WAMBUI NGIGIthrough her advocatesMessrs KARANJA & GISORE ADVOCATESfiled an Affidavit dated 21st May 2021in opposition to the Application. The summons was canvassed by way of written submissions. The Applicants filed their written submissions dated 24th June 2021whilst the Respondent relied on her written submissions dated 21st June 2021.

BACKGROUND

4. This Succession Cause was filed in relation to the estate of GEOFFREY NGIGI NGANGA (hereinafter ‘the Deceased’) who passed away intestate on 3rd April 2015. The Deceased who was polygamous and had two wives was survived by the following –

1st House

Peter Nganga - son

James Mungai Ngigi - son

Stephen Mbugua Ngigi – son

Winnie Wahu Nganga – Daughter

2nd House

Irene Wambui Ngige – 2nd Wife

Peter Nganga Ngige – son

Charity Wanja Ngigi – Daughter

Winfred Wahu Ngigi – Daughter

Alicia Wambui Ngigi – Daughter

5. In the petition filed on 21st June 2015 seeking Grant of letters of Administration Intestate the inventory of the Deceased assets was given as follows –

“(a) Title No. Ngong/Ngong 45588

(b) LR No 4480/210 Ngong Town

(c ) LR No 4480/194 Ngong Town

(d) LR No. 305/101 B

(e ) Title No. Kajiado-Olchoro-Onyore 13999

(f) Motor vehicle Registration No KBJ 457R

(g) Motor vehicle Registration No. KBV 065X

(h) Motor vehicle Registration No. KAR 520K

(I) Account with Equity Bank Limited, Ngong Branch.

(j) Kiserian/Kiserian Plot 83B”

6. On 25th September 2019letters of Administration Intestate were issued to PETER NGANGA, JAMES MUNGAI NGIGI, IRENE WAMBUI NGIGIandPETER NGANGA as joint Administrators of the estate. On 25th November 2020the letters of Administration were fully confirmed. The certificate confirmed grant indicated that the estate of the Deceased would be distributed as follows: -

Name Description of Properties Share of Heirs

Irene Wambui Ngigi Block B Kiserian Plot No. 83B Whole

James Mungai Ngige LR No. 3429

LR No. 4480/194 Whole

Stephen Mbugua Ngigi LR No. 4581

LR NO. 14140 Whole

Winnie Wahu Nganga Block A Kiserian Plot No 83B

Lorry Registration No. KBJ 457J

Ngong/Ngong/45588 Whole

Peter Nganga Title No. IR No 395 (LR No. 4480/210) Whole

Alicia Wambui Ngigi

Winfred Wahu Ngigi

Charity Wanja Ngigi Olochoronyore (3 acres) Equally

Alicia Wambui Ngigi Motor Vehicle Reg. No. KBV 856D Whole

Winfred Wahu Ngigi Motor Vehicle RAV4 Reg. No. KAR 520K Whole

Charity Wanja Ngigi

Peter Nganga Ngige Equity Bank Fund Equally

Peter Nganga Ngige Kiserian Posho Mill Whole

7. The Applicants case is that notwithstanding the fact that she was allocated BLOCK A KISERIAN PLOT NO. 83B(hereinafter referred to as ‘BLOCK A’), and the Respondent was allocatedBLOCK B KISERIAN PLOT NO 83B(hereafter referred to as BLOCK B) her attempt to take control of Block A has been rebuffed by the Respondent who has used force coercion, intimidation and violence in order to remain in control of the entire property. That the Respondent has all along been collecting rent from Block A which was allocated to the Applicant to the tune of roughly Kshs 150,000 monthly.

8. The Applicant alleges that the Respondent has threatened and intimidated the tenants in Block A to pay the rent to her thereby causing loss to the Applicant. The Applicant submits that the certificate of confirmed Grant by which she was allocated Block A remains valued – it has neither been set aside nor revoked. That the actions of the Respondent amounts to contempt of court hence the present application.

9. The Respondent on her part states that there are no two properties known as Block A Kiserian Plot 83B and Block B Kisearin Plot NO. 83B. The Respondent asserts that there is only one single property known as KISERIAN PLOT NO. 83B/BUS which is her matrimonial home and which she acquired and registered in her own name. That said property does notform part of the estate of the Deceased and could not therefore have been allocated to the Applicant. The Respondent states that the description of the property at BLOCK AandBLOCK Bis a creation of the Applicant in an attempt to mislead the court.

10. The Respondent further alleges that the Grant was confirmed without her knowledge and/or involvement and states that she fully intends to challenge the confirmed Grant. That she only became aware that the Grant had been confirmed when the Applicant approached her tenants seeking to be paid rent. The Respondent urges the court to dismiss the application its entirety.

Analysis and Determination

11. I have carefully considered the summons before this court. The affidavit filed in rely thereto as well as the written submissions filed by both parties.

12. The Applicant herein is seeking declaratory orders with respect to Block Aas well as orders to restrain the Respondent from collecting rent from said property. The orders which are being sought are final in nature and can only be granted after a full hearing at which evidence is called and parties are at liberty to cross-examine the witnesses.

13. The bone of contention is whether there exists two properties being Block A and Block B or whether as the Respondent asserts there is only one single property being Kiserian Plot No 83/BUS.

14. The certificate of confirmed Grant issued on 25th November 2020refers to two distinct plots being Block A Kiserian Plot No. 83Band Block B Kiserian Plot No 83B. However, a certificate of official search dated 27th November 2015refers to a Plot No 83 BUS Kiserian which is registered in the name of Irene Wambui the Respondent herein. The search indicates that said plot was transferred to the Respondent on 28th August 2013. Yet another certificate of official search dated23rd February 2016refers to one property beingPlot No. 83B Kiserianwhich is registered in the name ofGeoffrey Ngigi Nganga (the Deceased).From the documents, it is difficult to determine the true status of the Kiserian Plot.

15. The question of whether there exists one plot or two separate plots and the question of who between the Applicant and the Respondent is entitled to the rental income arising therefrom are questions that cannot be determined on the basis of Affidavit evidence.

16. I do note that the Respondent has filed an application for review of Grant dated 6th July 2021in which she seeks the removal of the property known as Kiserian Plot No. 83/BUS as an asset subject to distribution by the Administrators. The said application is yet to be heard. It is my view that these are matters that can be canvassed during the hearing of that summons for review of Grant.

17. In the circumstances I am not inclined to allow the present summons. The same is dismissed in its entirety. This being a family matter I make no orders on costs.

DATED IN NAIROBI THIS 22ND DAY OF OCTOBER, 2021

…………………………………..

MAUREEN A. ODERO

JUDGE