[2022] KEHC 14931 (KLR)

Mungai & 7 others v Mugo & another (Succession Cause 324 of 2003) [2022] KEHC 14931 (KLR) (Family) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14931 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 324 of 2003

MA Odero, J

October 7, 2022

Between

Lucy Wanjiru Mungai

1st Applicant

Margaret Muthoni Waiganjo

2nd Applicant

Jane Wamaitha Njoroge

3rd Applicant

Susan Njeri Karanu

4th Applicant

Mary Njiiri Karanu

5th Applicant

Joyce Nyokabii Karanu

6th Applicant

Alice Wambui Karanu

7th Applicant

Rahab Wangari Karanu

8th Applicant

and

Geoffrey Mbui Mugo

1st Respondent

Esther Ngina Mugo

2nd Respondent

Ruling

1. Before this Court for determination is the summons dated 7th February 2022 by which the Applicant seek the following orders:-“1. That the original boundary on land parcel Number Karai/Renguti/74 separating the portion of the deceased and the portion of Joseph Karanu Mugo be restored pending the hearing and determination of this cause.2. That the Applicants be allowed to carry on their usual business of farming in the portion of Joseph Karanu Mugo.3. That costs of this application be provided for.”

2. The application which was premised upon Rule 73 and 49 of the Probate and Administration Ruleswas supported by the Affidavit of even date and the Supplementary Affidavit dated 23rd February 2022 sworn by Lucy Wanjiru Mungai, the 1st Applicant.

3. The Application was opposed through the Replying Affidavit dated 8th November 2021 sworn by Esther Ngina Mugo one of the Administrators of the estate of the Deceased. One of the Co-Administrators of the estate Hosea Gitau Mugo filed a Further Replying Affidavit dated 31st March 2022. The matter was canvassed by way of written submissions. The Applicants filed the written submissions dated 9th June 2022 whilst the Respondent relied upon their written submissions dated 10th June 2022.

Background 4. The Succession Cause relates to the estate of the late Cosmas Mugo Kamau who died intestate on 10th September 1991. A copy of the Death Certificate Serial Number 266466 is annexed to the Petition for Grant of letters of Administration Intestate. According to the Chiefs letter dated 28th May 2004 authored by the chief of Karai Location, the Deceased was survived by the three (3) wives.i.Muthoni Mugo (Deceased)ii.Wanjiku Mugo (Deceased)iii.Njeri MugoThe Deceased also had several children.

5. Following the demise of the Deceased Teresiah Njeri Mugo, Hoseah Gitau Mugo and Moses Gathegu representing the three Houses filed a Petition dated 24th January 2003 seeking Grant of letters of Administration Intestate which Grant was issued on 15th August 2006. The Grant was duly confirmed on 26th January 2011.

6. Thereafter one of the Administrators of the estate Teresiah Njeri Mugo passed away on 22nd August 2012 before completion of distribution of the estate. A fresh Grant de bonis non was issued on 27th October 2014 to include Esther Ngina Mugo as an administrator.

7. The Applicants herein aver that they are the daughters to one Joseph Karanu Mugo who was a son to the Deceased. Accordingly, the Applicants are the grandchildren of the Deceased. They state that they have been farming their fathers 1. 25 acre piece of land being Parcel Number Karai/Renguti/74 (hereinafter the ‘Karai Plot’) whilst the Respondents (who are the Administrators of the estate have been farming on the remaining 3. 75 acre parcel of land.

8. The Applicants claim that prior to his demise the Deceased had clearly demarcated his land to each beneficiary. That sometime in February 2018 the Respondents without involving the Applicants restructured the boundaries and refused to allow the Applicants to continue with their farming activities on the Karai Plot which they rely on for their livelihood. The Applicants allege that the Respondents whilst distributing the estate have interfered with the original boundaries of the Karai Plot. They filed the present application seeking restoration of the boundaries.

9. The Respondents assert that they are the lawful administrators of the estate of the Deceased. They state that the estate has already been distributed in accordance with the certificate of confirmed Grant dated 27th October 2014.

10. The Respondents further state that the Applicants are daughters of their late brother Joseph Karanu Mugo who together with the 1st Respondent are beneficiaries entitled to the share allocated to the 1st House. That the 1st House which was represented by the widows fully consented to the mode of distribution of the estate and that the sub-division was undertaken with the full consent of all the family members.

11. According to the Respondents when the Applicants mother fell ill, the Applicants resorted to disowning the family agreement regarding the sharing of the land.

12. The 2nd Respondent stated that the family held a meeting to discuss the grievances of the Applicants. That the Applicants laid claim to an extra quarter acre portion of land which was released to them in the interest of peace in the family. The necessary amendments to the sub divisions were done as per the subdivision plan marked ENM ‘3’ which is annexed to the Replying Affidavit.

13. The Respondents submit that the Applicants who are not direct beneficiaries to the estate (they claim through their late fathers share) should not be allowed to re-open the distribution of an estate, which had been fully agreed upon by all beneficiaries. They urge the court to dismiss this application.

Analysis and Determination 14. I have carefully considered the application before this court, the Replying Affidavit filed as well as the written submission filed by both parties.

15. It is common ground that the Applicants herein are not the children of the Deceased. They are the grandchildren of the Deceased and can only claim the share of the estate allocated to their late father Joseph Karanu Mugo.

16. A look at the record clearly reveals that the father of the Applicants was allocated a 0. 13 hectare share of the property known as Kimana/Tikondo/882 as well as a 0. 12 hectare share of the property known as Karai/Renguti/74 (the suit land herein).

17. At the time of confirmation of the Grant all the beneficiaries to the estate being the sons and daughters of the deceased agreed to the mode of distribution of the estate. A consent was filed in court on 29th July 2020 which consent was signed by all the beneficiaries to the estate. The father of the Applicants Karanu Mugo was represented by his wife Rahab Karanu who also signed the consent. The Applicants cannot now take issue with the mode of distribution of the estate twelve (12) years after their parents had consented to the same. The Applicants can only claim the portion of land which was allocated in the confirmed Grant to their late father.

18. This court is sitting as a Probate Court with the sole mandate to oversee the distribution of the estate to the genuine beneficiaries. As stated earlier the Applicants are not beneficiaries to the estate of the Deceased herein. If the Applicants have claim any additional land then that claim can only be ventilated in the Environment and Land Court which court has the exclusive mandate to determine disputes relating to use, ownership, and occupation of land.

19. As far as I am concerned the estate of the deceased was distributed in conformity with the confirmed Grant dated 27th October 2014 and with the full consent of all the beneficiaries. The Applicants can only utilize the portion of land allocated to their late father. They cannot twelve (12) years later come in and demand for a redistribution of the estate. Accordingly, I find no merit in this application. The same is dismissed in its entirety. This being a family matter each side shall bear its own costs.

DATED IN NAIROBI THIS 7TH DAY OF OCTOBER, 2022. …………………………………MAUREEN A. ODEROJUDGE