[2021] KEHC 4908 (KLR)
The court found that Dagoretti/Riruta/T.36 was not the free property of the deceased at the time of his death, as it was registered in the name of another person (the late Joel Njuguna Gitau). The administrators were aware of the disputed ownership and failed to disclose this material fact during the confirmation of...
Source-derived case information.
- Citation
- [2021] KEHC 4908 (KLR)
- Parties
- Applicant: Mary Wachuka Chege; Respondent: Susan Njoki Chege; Respondent: Jane Wanjiru Chege; Respondent: James Wainaina Chege; Respondent: George Mbugua Chege; Respondent: Elizabeth Wanjiku Chege; Respondent: Regina Gathoni; Respondent: Esther Ruguru Chege; Respondent: Mary Wachika Chege; Applicant: Judy Njeri Joel
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1751 of 1993
- Procedural Posture
- Succession Cause / Ruling on Application for Review of Judgment
- Outcome
- application for review allowed; judgment reviewed to exclude Dagoretti/Riruta/T.36 from the estate
- Judges
- AO Muchelule
- Legal Topics
- Estate Distribution, Review of Judgment, Adverse Possession, Property Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Wachuka Chege
Applicant
Susan Njoki Chege
Respondent
Jane Wanjiru Chege
Respondent
James Wainaina Chege
Respondent
George Mbugua Chege
Respondent
Elizabeth Wanjiku Chege
Respondent
Regina Gathoni
Respondent
Esther Ruguru Chege
Respondent
Mary Wachika Chege
Respondent
Judy Njeri Joel
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether Dagoretti/Riruta/T.36 was part of the deceased's estate at the time of distribution.
- 2 Whether the omission of material information regarding the ownership of Dagoretti/Riruta/T.36 justified review of the judgment under Order 45 rule 1 and 2 of the Civil Procedure Rules.
Ratio Decidendi
The court found that Dagoretti/Riruta/T.36 was not the free property of the deceased at the time of his death, as it was registered in the name of another person (the late Joel Njuguna Gitau). The administrators were aware of the disputed ownership and failed to disclose this material fact during the confirmation of the grant. The omission of this information was material and justified review of the judgment. Consequently, the court exercised its discretion under Order 45 rule 1 and 2 of the Civil Procedure Rules to review and exclude Dagoretti/Riruta/T.36 from the estate of the deceased, pending determination of the ownership dispute in HCCC No. 529 of 2000 (OS).
Court Disposition
application for review allowed; judgment reviewed to exclude Dagoretti/Riruta/T.36 from the estate
Orders
- Dagoretti/Riruta/T.36 is excluded from the estate of the deceased pending determination of ownership in HCCC No. 529 of 2000 (OS).
- Costs of the application shall follow the event.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 1751 OF 1993
IN THE MATTER OF THE ESTATE OF JAMES CHEGE NDWARU (DECEASED)
MARY WACHUKA CHEGE.........................................................................................APPLICANT
VERSUS
SUSAN NJOKI CHEGE..................................................1ST RESPONDENT/ADMINISTRATOR
JANE WANJIRU CHEGE..............................................2ND RESPONDENT/ADMINISTRATOR
JAMES WAINAINA CHEGE.........................................3RD RESPONDENT/ADMINISTRATOR
GEORGE MBUGUA CHEGE............................................................................4TH RESPONDENT
ELIZABETH WANJIKU CHEGE.....................................................................5TH RESPONDENT
REGINA GATHONI.......................................................................................... 6TH RESPONDENT
ESTHER RUGURU CHEGE.............................................................................7TH RESPONDENT
MARY WACHIKA CHEGE..............................................................................7TH RESPONDENT
RULING
1. When on 9th November 2017 this court shared the estate of the deceased John Chege Ndwaru, it was on the basis that Dagoretti/Riruta/T.36 was part of the estate. The parcel was ordered to be shared equally among the children of the deceased who were John Ndwaru Chege, Salome Wanjiku Chege, Mary Wachuka Chege (1st administrator), Susan Njoki Chege, James Wainaina Chege (3rd administrator/2nd respondent), Jane Wanjiru Chege (2nd administrator), Elizabeth Wanjiku Chege, David Munguratu Chege, George Mbugua Chege (4th administrator), Esther Ruguru Chege and Regina Gathoni.
2. The applicant Judy Njeri Joel is the granddaughter and one of the administrators of the late Joel Njuguna Gitau following the Succession Cause No. 968 of 2010at Nairobi. Her case was that at the time the deceased died, and up to the time his estate was distributed, Dagoretti/Riruta/T.36 did not belong to him as it was registered in the name of the late Joel Njuguna Gitau. She annexed a certificate of official search. Her application dated 3rd March 2020 and filed on 19th March 2020 sought that the judgment of this court be reviewed in relation to the parcel of land by excluding it from the deceased’s estate.
3. The applicant’s supporting affidavit showed that the administrators had in HCCC No. 529 of 2000 (OS) filed an adverse possession claim against the late Joel Gitau Njuguna. The claim was dismissed for want of prosecution. The administrators filed a response to the present application to confirm to the court that the suit has since been reinstated following the application.
4. It is therefore evident that at the time that the administrators herein were distributing the estate of the deceased they knew that Dagoretti/Riruta/T.36 was not the free property of their late father (the deceased). They knew this was a disputed property. They stated that the deceased had vide a sale agreement dated 27th March 2006 bought the parcel from the late Joel Gitau Njuguna but that the transfer had not been effected. This is information they were required to give to this court at the time of the confirmation of the grant of the estate of the deceased.
5. I consider that the fact that Dagoretti/Riruta/T.36 was a contested property, and was in the name of the late Joel Gitau Njuguna, was material information that was not availed to the court when it distributed the same to the family of the deceased. Under Order 45 rule 1and2 of the Civil Procedure Rules, I review the judgment of this court that was delivered on 9th November 2017 by excluding Dagoretti/Riruta/T.36 from the estate of the deceased. This will allow for the dispute over the parcel in HCCC No. 529 of 2000 (OS) to be heard and determined. If at the end of the day the parcel is determined to belong to the deceased, it will be shared as ordered in the judgment herein.
6. Costs of this application shall follow the event.
DATED AND DELIVERED AT NAIROBI THIS 21ST DAY OF JULY 2021
A.O. MUCHELULE
JUDGE