[2017] KEHC 1902 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

MISC. SUCCESSION CAUSE NO. 681 OF 2002

In the matter of the Estate of KENNETH NGARI JOSIAH (Deceased)

MARIAM GACHOKA NJERU………...........……APPLICANT

VERSUS

JOSIAH KARIUKI NGARI...….......……1ST RESPONDENT

SHEILIAH EMELDA KARIMI................2ND RESPONDENT

R U L I N G

1. This is a ruling on the summons dated 10/02/2017 seeking for a conservatory order to restrain the respondents and their agents, servants and/or representatives from sub-dividing, advertising for sale, transferring/selling and interfering in any way with L.R. Evurore/Nguthi/1524 and plot No. 26 at Ishiara. It also seeks for orders that any money received as quarterly rent from plot No. 26 be deposited in court.

2. In the supporting affidavit, the applicant states that she is a co-administrator to the estate of the deceased alongside the two respondents vide certificate of confirmation issued on 3/12/2002. Without informing her, the respondents proceeded to sub-divide deceased's land L.R. Evurore/Nguthi/1524 measuring 6. 4 ha. and only alloted her a small plot measuring 0. 10 ha. She contends that her entitlement is far much a bigger share than 0. 10 ha.

3. It is further stated that the respondents who are grandchildren of the applicant caused to be registered plot No. 26 Ishiara in the joint names of the three petitioners in equal shares without considering that the applicant's share was supposed to be bigger than that of each one of them.

4. On plot No. 26 Ishiara, was fixed a Safaricom mast which earns the family of the deceased a quarterly rent which the respondents have been receiving without giving a share to her.

5. The 1st respondent in his replying affidavit said that the succession cause was not filed by the applicant herself but by one Deborah Njeru. Further that the applicant is over 95 years old and is under the care of Deborah Njeru. Being the applicant herein, the applicant should attend court personally instead of sending Deborah to represent her. He further stated that the plot No. 26 at Ishiara is co-owned by one Eustace Njeru and he ought to have been involved in this application.

6. The 2nd respondent said that the deceased's family discussed and agreed on the issue of distribution of the estate which was followed through in this cause. She also disputes that the finger print in this succession cause is that of the applicant. She also raised the issue of one Eustace Njeru the co-owner of the plot arguing that he ought to have been involved in this cause. It is denied that Safaricom has paid an rent to the respondents because the lease had expired.

7. On the issue of the applicant having not signed the supporting affidavit the supporting affidavit which I believe the 1st respondent referred as “succession cause”. I note that the summons is signed by the advocates of the applicant Eddie Njiru & Co. The supporting affidavit is shown to have been sworn by Miriam Gachoka Njeru, the applicant herein. The 2nd respondent specifically states that the fingerprint is not that of the applicant but of Deborah Njeru who normally attends court. There was no evidence of a finger print expert produced by the respondents to prove this.

8. Deborah Njeru appeared in court and introduced herself as standing in for her aged mother who is over 90 years, incapacitated and unable to attend court.

9. The applicant is represented by an advocate in this application and need not attend court during the hearing of an application. The advocates' presence suffices in that he is the one prosecuting the application. The applicant may only be required to attend court to testify or as otherwise directed by the court.

10. I find the allegation that the applicant did not affix her fingerprints on the supporting affidavit baseless.

11. The respondents allege that no matters regarding plot No. 26 Ishiara may be dealt with in the absence of the co-owner one Eustace Njeru. I have perused the judgment of of Wanjiru Karanja, J. delivered on 13/03/2011 and noted that the claim of co-ownership with the deceased made by Eustace Njeru was dismissed.

12. The 1st respondent did not recognize that co-ownership in his evidence before the court during the hearing of the case. It is therefore dishonest of him to raise the issue in this application. Furthermore, the claim of the applicant is for rent paid by Safaricom Ltd which is only payable to the petitioners after the death of the deceased.

13. The respondents did not deny that they have excluded the applicant from her share of the income in the Safaricom mast lease. Their claim that there is no rent payable since the lease has expired does not make sense.

14. The lease is renewable by the petitioners who are the co-administrators of the estate. It is interesting to note that none of the parties availed the information on the status of the lease or on the rent payable.

15. It goes without saying that the parties in this application who are already jointly registered as proprietors of the plot in equal shares are all entitled to share the rent equally. It would be unfair for the respondents to deny their elderly grandmother her share of the income.

16. As for distribution of the estate, the applicant says that she was excluded by the respondents from giving her input as to the share each beneficiary should get. Although the 2nd respondent denies this, the applicant has established the need to preserve the estate of the deceased or the resultant sub-division parcels pending resolution of the dispute.

17. The applicant is a co-administrator to the estate with an equal right as the respondents in the estate and her contribution or wish cannot be ignored.

18. I find the application merited and allow it as prayed, of course with the following directions.

(a) That the conservatory order is applicable to the resultant parcels upon sub-division of L.R. Evurore/ Nguthi/1524 and to plot No. 26 Ishiara market.

(b) That the respondents are hereby directed to file in court within 21 days documents of the Safaricom lease, evidence of the quarterly or monthly rent as the case may be since the date of confirmation of the grant on 3/12/2002.

(c) That the applicant and the respondents are granted 30 days to resolve the issue of distribution failure to which the applicant shall file the relevant application and in default these orders for preservation of the estate be vacated.

DELIVERED, DATED AND SIGNED AT EMBU THIS 14TH DAY OF NOVEMBER, 2017.

F. MUCHEMI

J U D G E

In the presence of:-

1. Ms. Muriuki for Njiru for applicant

2. 1st respondent present