[2022] KEHC 1406 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

SUCCESSION CAUSE NUMBER 349 OF 2001

IN THE MATTER OF THE ESTATE OF THE LATE

PAUL GITAU NJENGI alias PAUL NJANE NJENGI (DECEASED)

MARTHA WAIRIMU NJANE................................1ST APPLICANT

SAMWEL NJENGI NJANE..................................2ND APPLICANT

VERSUS

MARY NYAKIO NJANE.........................................RESPONDENT

R U L I N G

(Application Dated 30th September 2021)

1. Martha Wairimu Njane and Mary Nyakio Njane are the administrators of the estate of the late Paul Gitau Njengi alias Paul Njane Njengi. On 25th January 2021 a Certificate of Confirmation of Grant was issued by this court pursuant to a consent arrived among the parties on 28th February 2020 through mediation. The consent was adopted as an order of this court.

2. The effect of the grant is that it effected the formula for the sharing of the deceased’s properties between the two (2) houses at 32%:68%

“NAMEDESCRIPTION OF PROPERTY SHARE

1ST HOUSE ALL THE PROPERTY OF THE DECEASED AT THE TIME 32%

(MARTHA WAIRIMU & OF HIS DEATH AND WHAT WAS SOLD AFTER THE DEATH

SAMUEL NJENGI) OF THE DECEASED TOGETHER WITH ALL RENTAL INCOME

FROM THE ESTATE OF THE DECEASED BE VALUED AND SHARED

2ND HOUSE 68%

(MARY NYAKIO)

THE FORMULA ABOVE TO APPLY TO THE PROPERTY THAT IS SUBJECT TO THE ONGOING CASE WITH 3RD PARTY IF THE PROPERTY REVERTS BACK TO THE ESTATE.”

3. It is in this background that the 1st administrator Martha Wairimu Njane has brought the Chamber Summons dated 30th September seeking orders;

a. That the application be certified as urgent and he heard on a priority basis.

b. That the credit balance in the joint account of MARTHA WAIRIMU NJANE and MARY NYAKIO NJANE at National Bank be shared in the ratio of 32% and 68% as per the partial certificate of confirmation of the grant and the same be paid out upon granting of the order.

c. That the rental units in L R NO 533/43/11/, MILIMANI MOLO be shared as follows:

1. The first house/administrators – 5 units

2. The 2nd house/administrators – 11 units

d. That the matrimonial homes of the administrators be identified and set aside.

e. That the values of the following properties be mutually agreed upon and in default, the same value and valuation charges be shared in the ratio of 32% and 68% respectively: -

a. L.R. NO 12666/21 TURI CENTRE

b. MAU SUMMIT BLOCK 1/354 MOLO TOWN

f. That the question of account and rental income and sale of the properties by either party be resolved after the sale of the above properties and any disadvantaged party be compensated from the other’s share of proceeds of sale.

g. That if the properties are ultimately sold to third parties, the proceeds of sale be subjected to the percentages set out in the partial confirmation of grant.

h. That the court be pleased to issue further orders or directions that may seem expedient in the circumstances.

4. The grounds for the application are that;

1. That the succession cause has stalled.

2. That the applicant is ill and needs funds for her medication.

3. That the honourable court has partially confirmed the grant and the ratios given 32% for the 1st house and 68% for the 2nd house be maintained in sharing out the remaining properties.

4. That the case has been pending in court for many years and the maxim that justice delayed is justice denied very aptly capture the ongoings in this case.

The grounds are reiterated in the Supporting Affidavit of the applicant sworn on 30th September 2021.

5. This application is opposed by the 2nd administrator, Mary Nyakio Njane. She sets out the grounds as follows;

“4. THAT the money in the account is rent collected from Land Parcel No. L.R. No. 533/11/43 from July 2016 where also my homestead is located.

5. THAT previously since the demise of the deceased I had been collecting same and using it for my own support.

6. THAT on the applicant’s part she has been collecting rent from plot no. 12666 Turi Centre and plot no. 533/11/55 for her own upkeep. The respondent has not been depositing same in the estate account.

7. THAT on or about 13th February 2003 the Applicant sold parcels of different sizes totaling 9 acres to 18 individuals out of L.R. No. 9604/1 Molo. Annexed is a copy of the sale agreement marked ‘MNN 1”

8. THAT the total sale price was Kshs. 900,000, a monumental sum in the year 2003.

9. THAT when I learnt of the sale I made an application herein dated 20th March 2003, and the court granted orders restraining the applicant from making further sales. Annexed hereto is a copy of the order marked ‘MNN2’

10. THAT the applicant ignored the orders and sold a further 18 acres.

11. THAT the land the applicant has sold totaling 27 acres has been occupied by the buyers.

12. THAT further the applicant has never accounted for rent from a farmhouse mansion and servant quarter 4 rooms on L.R. No. 9604/1 Molo.

13. THAT the applicant also sold properties part of L.R. No. 533/55/11 being the parcels marked A, B, G and part of F in the sketch plan annexed hereto and marked ‘MNN 3’. All the portions are occupied by the purchasers.

14. THAT the applicant has also sold stores and trees belonging to the estate worth approximately Kshs. 300,000 which money has not been accounted for.”

6. The application is brought underSection 47 of the Law of Succession Act

47. Jurisdiction of High Court

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:

Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.

7. The issue for determination is whetherin light of the consent order with respect to the distribution of the estatethe prayers sought are tenable.

8. The first applicant filed Written Submissions. The 2nd applicant relied on her affidavit. I have carefully considered the submissions as well as the rival affidavits.

9. To determine this application, I must consider the consent of the parties as entered into during mediation; the record of the mediation states;

“BY CONSENT

All parties present and accompanied by their respective advocates. The parties agree as follows;

1. All the property of the deceased at the time of his death to be valued and the valuation to include whatwas sold after the death of the deceased, together with all rental income from the estate of the deceased.

2. The parties agree that after the said valuation they shall share the property as follows;

(i) First house (i.e. 1st respondent and applicant to get 32%) thirty two per cent.

(ii) Second house i.e. (2nd respondent) to get 68% (sixty eight percent.

3. The formula above shall apply to the property that is subject to the on-going case with 3rd party if the property reverts back to the estate.

4. Parties agree that this agreement is to be adopted by the court.

Signed by

1. Martha Wairimu

2. Mary Nyakio

3. Samwel Njengi

4. Tengekyon & Koske Advocate

5. Ngure & Co. Advocates

6. Makori & Co. Advocates

7. Mercy Njengi

8. James Njengi

9. Flora Bidali (Mediator)”

10. It is evident that, the parties agreed that all the property of the deceased, including what was sold after the death of the deceased, plus the rental income, would be valued, and only AFTER the said valuation, then would the estate be distributed in accordance with the brokered percentages – 32% for 1st house, 62% for 2nd house.

11. This application seeks to have the rental income and money in the bank shared before the said valuation. It seeks distribution of specific rental units in accordance with the formula agreed upon, and an order on the sharing of the cost of valuation of some specific properties.

12. The reason given is that the administration of the estate has stalled.

13. On the issue of identification of matrimonial homes, each of the administrators is a widow of the deceased. It is not clear why the court should begin to look into the issue of identifying the matrimonial homes, yet the distribution of the estate has not commenced.

14. On valuation, the two parties agreed. It has not been demonstrated that any effort has been made at the mutual valuation of the estate and the same has failed.

15. Clearly this court cannot go outside the terms of consent of the parties, to enforce the consent. It is the parties who agreed on the sharing formula and when it would kick in. If they wish to change it, then they would have to sit down and agree that there are certain parts of the estate that cannot wait for the valuation, and move the court appropriately.

16. The parties ought to enforce their own consent because it is binding on them.

17. Hence, despite the applicant’s circumstances, the application is not tenable in light of the terms of the consent.

18. The same is denied with nor orders as to costs.

DATED, DELIVERED AND SIGNED AT NAKURU THIS 17TH DAY OF MARCH, 2022.

Mumbua T. Matheka

Judge

In the presence of:-

Court Assistant Edna

Ms Njoroge for Martha Wairimu

Mr. Ngure for Mary Nyakio Njane