[2021] KEHC 1335 (KLR)
The court found that the ELC case (No. 1 of 2020) cited by the respondent as the basis for removing property GATAMAIYU/KAGWE/1227 from the estate had been dismissed for want of prosecution. This fact was established by the applicants' unrebutted affidavit evidence. As there was no longer any pending litigation...
Source-derived case information.
- Citation
- [2021] KEHC 1335 (KLR)
- Parties
- Applicant: Hannah Njeri Njoroge; Applicant: Esther Njeri Njoroge; Respondent: Tabitha Gathoni Kamau
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 76 of 2020
- Procedural Posture
- Succession Cause / Ruling on Notice of Motion to Exclude Property From Estate
- Outcome
- application dismissed with costs
- Judges
- MM Kasango
- Legal Topics
- Administration of Estates, Grant of Letters of Administration, Removal of Property From Estate, Pending Litigation Effects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hannah Njeri Njoroge
Applicant
Esther Njeri Njoroge
Applicant
Tabitha Gathoni Kamau
Respondent
Procedural Posture
Succession Cause / Ruling on Notice of Motion to Exclude Property From Estate
Legal Issues
- 1 Whether property GATAMAIYU/KAGWE/1227 should be removed from the list of assets available for distribution in the deceased's estate.
- 2 Whether the existence of a pending suit (ELC No. 1 of 2020) justifies exclusion of the property from the succession proceedings.
Ratio Decidendi
The court found that the ELC case (No. 1 of 2020) cited by the respondent as the basis for removing property GATAMAIYU/KAGWE/1227 from the estate had been dismissed for want of prosecution. This fact was established by the applicants' unrebutted affidavit evidence. As there was no longer any pending litigation affecting the subject property, there was no legal justification to exclude it from the list of assets available for distribution in the deceased's estate. The application to remove the property was therefore dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The notice of motion dated 26th January, 2021 is dismissed with costs.
- Property GATAMAIYU/KAGWE/1227 remains part of the estate for distribution.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
SUCCESSION CAUSE NO. 76 OF 2020
IN THE MATTER OF THE ESTATE OF PETER NJNOROGE KARIMA (DECEASED)
RULING
1. HANNAH NJERI NJOROGE and ESTHER NJERI NJOROGE petitioned hereof for grant of letters of administration intestate in respect to the estate hereof. Amongst the deceased’s assets is property GATAMAIYU/KAGW/227.
2. A notice of motion application dated 26th January, 2021 was filed by Tabitha Gathoni Kamau. By that application, Tabitha seeks to have removed from this cause the property GATAMAIYU/KAGWE/1227 (subject property) from the list of assets available for distribution in this succession cause. Tabitha has based her prayer on the ground that there is pending a case ELC No. 1 of 2020 between TabithaandEsther Njeri Njoroge.In that case Tabitha seeks injunction to restrain Esther from alienating the subject property.
3. Hannah Njeriand Esther Njeri by their replying affidavit dated 30th April, 2021 stated that ELC case referred to by Tabitha was dismissed for want of prosecution. That deposition was not responded to, it was not rebutted and accordingly the court hereby finds that indeed that it was proved to be the position. Accordingly, there is no ground to grant an order removing the subject property from the list of deceased’s assets.
4. Following the above finding, the notice of motion dated 26th January, 2021 is dismissed with costs.
RULING DATED AND DELIVERED AT KIAMBU THIS 2ND DAY OF DECEMBER, 2021
MARY KASANGO
JUDGE
Coram:
Court Assistant: Maurice
For Tabitha Gathoni : Mr. Nduati
For Hannah Njeri
: Mr. Mitiambo
: Esther Njeri
COURT
Ruling delivered virtually.
MARY KASANGO
JUDGE