[2025] KEHC 760 (KLR)

In re Estate of Margaret Nyawira Maina (Deceased) (Succession Cause 149 of 1997) [2025] KEHC 760 (KLR) (3 February 2025) (Ruling)

Neutral citation: [2025] KEHC 760 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 149 of 1997

JM Nang'ea, J

February 3, 2025

IN THE MATTER OF THE ESTATE OF THE LATE MARGARET NYAWIRA MAINA (DECEASED)

Between

Peter Njoroge Mwangi

Administrator

and

Anderson Gicho Nganga

1st Interested Party

Jane Muthoni Gachathi

2nd Interested Party

James Opondo Manyuru

3rd Interested Party

Ruling

1. This ruling follows the Administrator’s Notice of Motion dated 18th April 2024 seeking reliefs as hereunder;a.Spentb.Spentc.Spentd.An order of eviction of the 1st and 2nd Interested Parties from a parcel of land known as Kiambogo Settlement Scheme /348 to be effected by the OCS, Elementaita Police Station.

2. By Affidavit in support of the Motion, the Administrator contends that the 1st and 2nd Interested Parties are in unlawful occupation of the above described parcel of land comprising the estate of the deceased thereby interfering with its distribution to beneficiaries. The court is told that there is urgent need for determination of ownership of the stated land in the circumstances.

3. The 1st and 2nd Interested Parties oppose the application vide their joint affidavit in reply. They attack the application as premature for the reason that Grant of Letters of Administration herein are yet to be confirmed. They aver that the administrator has failed to involve them and other beneficiaries of the estate in discussions as to its distribution. The 1st Interested Party claims to have bought part of the land in question from a son of the deceased called Maina Gacharu who is also now deceased. The said Maina Gacharu’s widow is also said to have surrendered part of the same land to the 2nd Interested Party in lieu of a debt owed to her. The two Interested Parties state that they are in occupation of their respective portions of the land.

4. The Administrator chose not to make submissions while the 1st and 2nd Interested Parties filed written submissions through their advocates. The other parties to the matter did not react to the application.

5. Firstly, the 1st and 2nd Interested Party submit that the application is not supported by evidence as the affidavit in support thereof is not shown to have been witnessed by a Commissioner for Oaths as required in law. Secondly, it is argued that an eviction order cannot issue as an interim relied in these proceedings. Citing various cases including Julius Martin v Caleb Arap Rotich [2021] eKEEL 195 (KLR), Counsel submit that any challenge against their clients should be mounted in a civil suit sine they are claiming ownership of land comprising the estate.

6. I have considered the application and the response thereto. I have also studied the file. My brother Justice A. K. Ndung’u in the ruling of 20th June 2019 found that the Interested Parties did not unlawfully purchase the land for the reason that the purported purchase occurred before Grant of Letters of Administration has been confirmed and therefore bordered on intermeddling with the estate. The court therefore declined the grant an order of temporary of injunction to the Interested Parties.

7. Regarding this application, indeed the Administrator’s affidavit is not witnessed by the Commissioner for Oaths contrary to the requirement of the law. It is not therefore an affidavit recognized in law and consequently, this application is not supported by any evidence. It is thus for striking out which I hereby do with no order as to costs.

8. As observed in the Interested Parties’ submissions this court sitting as a Succession Court may not have jurisdiction to entertain an application for eviction orders. Such reliefs should be sought from the Environment and Land Court with the necessary pecuniary jurisdiction. The Interested Parties are also advised to protect their interests in any such suit and not in this Cause which only involves the beneficiaries of the deceased’s estate. The Interested Parties were also so advised by my brother Justice H. M. Nyaga on 5/6/2024.

9. In order to complete this long pending matter, the Administrator is directed to move to confirm the Grant of Letters of Administration issued to him without further delay.

J. M. NANG’EAJUDGE.RULING DELIVERED THIS 3RD DAY OF FEBRUARY, 2025 IN THE PRESENCE OF:Administrator present in personAdvocate for 1st and 2nd Interested Parties, Ms Karuga3rd Interested Party, absentThe Court Assistant (Jeniffer)J. M. NANG’EA, JUDGE.