[2019] KEHC 11273 (KLR)
The court found that the protestor's claim was not properly the subject of succession proceedings, as it amounted to an adverse claim to land already registered in the name of the deceased and forming part of the estate. The proper forum for such a dispute is the Environment and Land Court, which has exclusive...
Source-derived case information.
- Citation
- [2019] KEHC 11273 (KLR)
- Parties
- Applicant: Ann Mwihaki Njoroge; Respondent: Michael Justus Njoroge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1669 of 2014
- Procedural Posture
- Succession Cause / Ruling on Protest After Confirmation of Grant
- Outcome
- protest dismissed with costs to the petitioner
- Judges
- AO Muchelule
- Legal Topics
- Succession of Estates, Intestate Administration, Land Ownership Disputes, Protest to Confirmation, Jurisdiction of Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ann Mwihaki Njoroge
Applicant
Michael Justus Njoroge
Respondent
Procedural Posture
Succession Cause / Ruling on Protest After Confirmation of Grant
Legal Issues
- 1 Whether the protestor is entitled to land parcel No. Githunguri/Kimathi/1571 as part of the deceased's estate distribution.
- 2 Whether the protestor's claim should be addressed within the succession proceedings or through a separate suit in the Environment and Land Court.
Ratio Decidendi
The court found that the protestor's claim was not properly the subject of succession proceedings, as it amounted to an adverse claim to land already registered in the name of the deceased and forming part of the estate. The proper forum for such a dispute is the Environment and Land Court, which has exclusive jurisdiction over land ownership disputes under section 13 of the Environment and Land Court Act and Article 162(2)(b) of the Constitution. The protestor was not a beneficiary of the deceased's estate and therefore could not challenge the distribution through a protest in the succession cause. The protest was dismissed as lacking merit, with costs awarded to the petitioner.
Court Disposition
protest dismissed with costs to the petitioner
Orders
- The protest is dismissed with costs to the petitioner.
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. 1669 OF 2014
IN THE MATTER OF THE ESTATE OF SIMON NJOROGE WATAKU - (DECEASED)
ANN MWIHAKI NJOROGE.......PETITIONER/ADMINISTRATOR
VERSUS
MICHAEL JUSTUS NJOROGE......................................PROTESTOR
RULING
1. The deceased Simon Njoroge Wataku died intestate on 7th June 2012. He was survived by a widow Ann Mwihaki Njoroge (petitioner/administrator) and three daughters. On 18th June 2014 the petitioner and one David Njoroge Chuchu applied for the grant of letters of administration intestate. The grant was issued on 24th February 2015, and confirmed on 13th March 2017. The deceased had left the following properties which were distributed to the beneficiaries during the confirmation:-
(a) LR No. Githunguri/Kimathi/941;
(b) LR No. Githunguri/Kimathi/1571;
(c) LR No. Kabete/Kibichiko/2644;
(d) LR No. Kabete/Kibichiko/2634 (1/4 share)
(e) LR No. Kabete/Kibichiko/2635;
(f) LR No. Gatamaiyu/Kamuchege/1684;
(g) shares at Safaricom Ltd vide CDS A/C No. 2029897
2. The deceased was the son of the late Daniel Wataku Njoroge who died on 19th August 2001. Following his death the High Court at Nairobi Succession Cause No. 2269 of 2005was filed in which Mary Wairimu Wataku was issued with an intestate grant and certificate of confirmation. Land parcels Nos Githunguri/ Kimathi/1571 and Githunguri/Kimathi/941 were given to the deceased herein in the distribution.
3. The protester Michael Justus Njoroge is the brother of the late Daniel Njoroge Wataku. He is laying a claim to land parcel No. Githunguri/Kimathi/1571 which is a subdivision of land parcel No. Githunguri/Kimathi/940. Infact, his claim is over the whole of the parcel No. Githunguri/Kimathi/940. His case is that he was the registered proprietor of land parcel No. Githunguri/Kimathi/940. In 1991 he took a loan of Kshs.50,000/= from the Agricultural Finance Corporation. He gave the title to the land as security. He was not able to service the loan which grew to Kshs.125,000/=. He approached the late Daniel Njoroge Wataku to help repay the loan. Daniel cleared the loan but retained the title deed until such time that the protester was able to refund the money. Daniel died before the refund. The protester later discovered that Daniel had got himself registered as the owner of the land parcel No. Githunguri/Kimathi/1571 which was a subdivision of the land parcel No. Githunguri/Kimathi/940. He filed this protest to claim land parcel No. Githunguri/Kimathi/1571 from the petitioner.
4. The petitioner’s response was that subsequent to the loan transaction between the protester and the Agricultural Finance Corporation as indicated above, Daniel bought land parcel No. Githunguri/Kimathi 940 from the protester and that was how he (Daniel) became the registered proprietor of the land. She stated that when succession proceedings were filed following the death of Daniel, land parcel No. Githunguri/Kimathi/1571 devolved to the deceased.
5. I agree with the petitioner that the protest cannot be allowed. The protester’s cause of action was against Daniel. After Daniel died, he had a cause of action against the administrator of his estate.
6. Even then, the cause of action was to recover land parcel No. Githunguri/Kimathi/940 and its subdivisions including land parcel No. Githunguri/Kimathi/1571. The protester was not a beneficiary of the estate of Daniel. What was therefore open to him was to sue the administrator of the estate in the Environment and Land Court under the Environment and Land Court Act whose section 13 gives the court the jurisdiction to hear and determine all disputes relating to land in accordance with Article 162(2)(b)of the Constitution.
7. In short, I find that the protest has no merit and I dismiss it with costs.
DATED and DELIVERED at NAIROBI this 7TH day of MAY 2019.
A.O. MUCHELULE
JUDGE