[2022] KEHC 1663 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

SUCCESSION CAUSE NO. 79 OF 2017

IN THE MATTER OF THE ESTATE OF JAMES NJENGA NJUGUNA

RULING

1. The deceased had two wives. The wife of the first house was MARY NJERI NJOROGEnow deceased.The wife of the second house isMARY NJERI NJENGA. The deceased in this estate passed away on 24th August, 1985 and for various reasons the administration of the deceased’s estate has not to date been concluded. One of the reasons for the administration not been concluded is that immovable property of this estate namely KARAI/GIKAMBURA T.510 is claimed by other persons who allege that the deceased held that property in trust for them.

2. Justice W. Musyoka by a ruling dated 5th May, 2017 ordered that the question of the ownership of the property KARAI/GIKAMBURA/T.510 as between the deceased and the claimants be referred to the Environmental and Land Court (ELC) for resolution.

3. The estate has another property KARAI/GIKAMBURA/937.

4. There are two administrators to this estate, namely Mary Njeri Njenga and Martin Mbugua Njenga.

5. Summons dated 25th May, 2021, the subject of this Ruling was filed by the second administrator Martin Mbugua Njenga. That application seeks the following prayers:-

(a) THAT the grant of letters of administration issued to Mary Njeri Njenga and Martin Mbugua Njenga be partially confirmed in terms of the consent of the parties adopted in court on the 30. 10. 2013.

(b) THAT an order the District Land Registrar do remove all cautions placed on parcel of land known as KARAI/GIKAMBURA/937.

(c) THAT the District Land Surveyor do proceed to the parcel of land known as KARAI/GIKAMBURA/937 and subdivide the same as per the partial confirmation of grant.

(d) THAT all the parties to sign the transmission documents and in default the Deputy Registrar to sign the necessary documents to ensure transfer as per the partial confirmation.

(e) THAT the court orders substitution of the deceased son Bernard Njoroge Njenga with his legal wife Lucy Njuhi Njenga.

6. The above application largely seeks to enforce a consent ordered recorded before court on 30th October, 2013 as follows:-

(a) That by consent, LR No. KARAI/GIKAMBUR/937 be shared equally between the two (2) widows namely, Mary Njeri Njrooge and Mary Njeri Njenga, with Mary Njeri Njrooge’s share being from the house side away from the house and Mary Njeri Njenga’s share to comprise the house where she currently resides.

(b) THAT by consent, the two widows to hold their shares in Karai/Gikambur/937 in trust for their children as distributed in the affidavits filed by the parties.

7. The application is opposed by Mary Njeri Njenga the first administrator. Her opposition is to the effect that the confirmation of the grant should await the ELC’s determination on ownership of property Karai/Gikambur/T510. This first administrator deponed in her affidavit that the outcome of the ELC case will affect the beneficiaries’ shares of the estate.

8. I have considered the affidavit evidence and I form the view that parties having consented to the mode of distribution of the property KARAI/GIKAMBUR/937 there is no reason to deny the application for partial confirmation of grant.

9. Section 47 of the Law of Succession Act empowers this Court to entertain any application and determine any dispute under the Act. The Section is in the following terms:-

“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:

10. Further, Rule 73 of the Probate and Administration Rules provides as follows:-

“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

11. That Rule reinforces the courts exercise of its inherent powers.

12. The second administrator seeks partial confirmation of grant amongst other well deserving orders. The second administrator deponed and it was not denied by the first administrator that the 2nd house, that is, the house of the first administrator is in exclusive occupation of the property KARAI/GIKAMBURA/937 and that they are reluctant to have the status quo changed. The first administrator did not deny the allegation of occupation and use by her house of that property.

13. In my view, the deceased having died in 1985 there is need for the beneficiaries to get partial confirmation of grant, in terms of the parties consent.

DISPOSITION

14. In respect to summons dated 25th May, 2021, I order as follows:-

(a) The grant of letters of administration issued to Mary Njeri Njenga and Martin Mbugua Njenga is hereby partially confirmed in the following terms:-

The property KARAI/GIKAMBURA/937 shall be shared equally between the first house and the second house as follows:

FIRST HOUSE

Martin Mbugua Njenga shall hold the first house share in trust for:-

i. Edwin Gitau

ii. Lucy Njuhi Njenga

iii. Nancy Wanjiru

iv. Joyce Wanjiku

v. Mercy Muthoni

SECOND WIFE

Mary Njeri Njenga shall hold the second house share in trust for:-

i. George Kahenya

ii. Samuel Kamau

iii. Grace Wanjiru

iv. Michael Kabue

v. Rachel Njeri

(b) The District Land Registrar shall henceforth remove all cautions placed on property KARAI/GIKAMBURA/937.

(c) The District Land Surveyor shall undertake sub-division of KARAI/GIKAMBURA/937 as per the partial confirmed grant.

(d) Parties shall sign all documents necessary to carry out the transmission of KARAI/GIKAMBURA/937 and in default the Deputy Registrar of this Court shall sign for the parties who fail to sign.

(e) There shall be no orders as to costs to summons dated 25th May, 2021.

RULING DATED AND DELIVERED AT KIAMBU THIS 10TH DAY OF MARCH, 2022.

MARY KASANGO

JUDGE

Coram:

Court Assistant : Maurice

For 1st Administrator : - Ms. Kimotho H/B Mrs. Kihika

For 2nd Administrator : - Mr. Masore Nyangau

RULING DELIVERED VIRTUALLY.

MARY KASANGO

JUDGE