[2017] KEHC 1018 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

SUCCESSION CAUSE NO. 2588 OF 2012

IN THE MATTER OF THE ESTATE OF GEORGE NJOROGE NGUGI

(DECEASED)

SERAH NJERI MUTHONI................APPLICENT/PROTESTOR

VERSUS

FLORENCE MUTHONI NJOROGE......................RESPONDENT

AND

LYDIA WAIRIMU....................................................RESPONDENT

RULING

This is a Ruling on the Affidavit of Protest application of 22nd February, 2017 by the Applicant/ Protestor who prays for orders that the Administrators/Respondents Summons dated 25th October 2016 be dismissed as it was filed with malice, bad faith and the intention of disinheriting the rightful beneficiaries. In her Affidavit of protest she averred that the Grant of letters of administration OF 28TH JANUARY 2013 was obtained fraudulently through misrepresentation and concealment of material facts since the said administrators failed to include her and her siblings from the list of beneficiaries with the sole intention of disinheriting them.

The deceased passed away on 22nd June, 2012 according to the death Certificate of serial number 269156 attached and marked GNN-1. The Respondents filed a Petition for grant of letter of administration. They also attached a letter from the office of the chief, Riruta Location dated 3rd September, 2012 in which the chief stated that the deceased was resident in this location prior to his death. That he is survived by the following:

a. Florence Muthoni Kiragu- Wife 46years old

b. S W- Daughter 12years old

c. M W-Daughter-10 years old

The 1st and 2nd Respondents filed this petition in their capacity as wife and cousin of the deceased respectively. A notice of the application for the grant inviting objections thereto was published in the gazette notice of 13th November, 2012 in accordance with Section 7(4) of the Law of Succession Act, 1984. A grant of letters of administration Intestate (P&A 41) was then granted on 28th January, 2013 to the Respondents. On 6th March 2014 the Respondents filed an application under a certificate of urgency seeking orders from this court that this court directs the District Land Registrar, Nairobi to register restrictions to any dealings with Land Parcel Numbers DAGORETTI/RIRUTA/6550 and DAGORETTI/RIRUTA/6549 which comprise the estate of the deceased and which are illegal subdivisions of the original land parcel no. DAGORETTI/RIRUTA/340. Their grounds for urgency were that the said original parcel was invaded by strangers who secretly caused the above subdivision and applied for registration of the two sub-divided parcels above named with the Land Registrar, Nairobi with the intention of disinheriting the rightful heirs of the deceased. This Application was supported by the Affidavit of the Second Respondent/Administrator sworn on the grounds that there exists Succession Cause No. 119 of 1993wherein a Grant of letters of Administration and Certificate of Confirmation of Grant were issued. These were however revoked by the court. In spite of this other purported beneficiaries of the deceased’s estate went ahead to use the revoked certificate of confirmation of grant to register the sub-division of land parcel no. DAGORETTI/ RIRUTA/ 340. She further averred that the District Land Registrar refused to register the Caution against the above named subdivided parcels and instead referred her and the first Respondent to the court for necessary orders. The Supporting Affidavit of the First Respondent/ Administrator in this application stated that the deceased in this matter was a son to the late NGUGI NJOROGEwhose demise led a Grant of Letters of Administration being issued to the deceased and JACKSON MAHINDI GITONGA as evidenced in the exhibit marked WFM1 herein filed. The two were jointly registered as proprietors of DAGORETTI/ RIRUTA/ 340. Before this land was subdivided as per the confirmed grant of 9th November, 1993 the beneficiaries of this estate realized that other persons had another certificate of confirmation of Grant dated 6th March, 1998 herein the exhibit filed and marked FWM3. The confirmed grant of 9th November, 1993 was revoked. The matter was referred to elders and the area chief who identified the beneficiaries if this estate as GEORGE NJOROGE NGUGI (DECEASED) and JACKSON MAHINDI GITONGA. The deceased in this matter vide Succession Cause 1391 of 2006 was granted fresh administrative powers in this very estate BY A grant of letters of administration dated 14TH November 2006. This grant was confirmed on 6th November, 2007 and this certificate of confirmation of Grant (marked FWM4) shows that the land in dispute went to GEORGE NJOROGE NGUGI absolutely. Before execution, GEORGE NJOROGE NGUGI died. An application for rectification was made to substitute his name with those of the Respondents /Administrators. A copy of the rectified grant dated 2nd October, 2013 was filed on 9th January, 2014. Upon presentation of this rectified grant for registration the Respondents/Administrators found out that there were others who used the revoked grant of succession cause no. 119 of 1993 to cause the subdivision of the above disputed parcel. They applied for registration of a caution but were referred to the court for orders. The Application for registration of a caution dated 5th February 2014 was attached to this application and marked FWM7.

The Respondents/Administrators then filed on 13th June 2014, summons for confirmation of grant. In their Supporting Affidavit they stated that the deceased was to register DAGORETTI/RIRUTA/5913 and DAGORETTI/RIRUTA/5914 which were to be curved out of the DAGORETTI/ RIRUTA/ 340 and he was to benefit from DAGORETTI/RIRUTA/5913 as per the annexed unregistered mutation attached and marked FNM2. This is the ascertained estate of the deceased and the mode of distribution was to be as follows:

DAGORETTI/RIRUTA/5913 (0. 224ha) to be held by FLORENCE MUTHONI NJOROGE & LYDIA WAIRIMU jointly as trustees of the deceased’s children; S W N and M W N.

The above land had according to the Respondents been sold to a buyer but the deceased passed away before effecting the transfer thereof. The buyer therefore refused to release the balance until the finalization of this succession cause and her share is transferred to her. This formed the basis of the certificate of urgency filed on 3rd July 2014 which sought a confirmation of grant so as to be able to cater for school fees of S W N, child of the deceased.

A Certificate of Confirmation of Grant dated 30th July 2014 was issued by Hon. Kimaru J to the Respondents and the above stated mode of distribution was adopted.

A summons for rectification of confirmed Grant dated 4th July, 2016 was filed by the Respondents seeking to have DAGORETTI/RIRUTA/5913 replaced with the title number. DAGORETTI/RIRUTA/6549 of 0. 0373 ha. Which is the number it was allocated by the Land Registrar. A rectified Grant was then issued on 6TH September, 2016 adopting the above stated parcel number. The Applicants then sought orders from this court to direct the District Land Registrar, Nairobi to transfer the said parcel to NIXON MBURUGO.

ON 31ST January, 2016, this court issued orders directing that the confirmed grant cannot be rectified further until the Petitioners have fully paid for the plot then the court will rectify the grant and have the land transferred to the Applicant.

It is then that the Applicant/Protestor in this cause filed her affidavit of protest. Herein she deponed that; the suit property originally belonged to WANJERI who left it for her children NGUGI NJOROGE and PHYLLIS WANJIRU NJOROGE. At some time unknown to her, half the property was sold to JACKSON MAHINDI GITONGA and he was given the title as a sign of good faith to keep n his custody pending sub division. He deposited the title deed with the then District Officer of Waithaka Division for safe custody. Evidencing this is a letter from the District Officer is attached and marked SNM4. In that letter the District Officer states that the land DAGORETTI/ RIRUTA/ 340 was co owned by PHYLLIS NJOROGE who lived on that land with her daughter HANNAH MUTHONI and was buried on the same parcel upon her demise. HANNAH MUTHONI raised her 6 children on the same parcel.

To date some of her children still live on that land which is the only home they have ever known. The deceased was mentally and physically challenged after an accident. His wife acted on his behalf. Due to the never ending disputes between the deceased and his aunt Hannah Muthoni, the title deed was kept by Jackson Mahindi in the safe custody of the District Officer. This case is complex due to the existence of three different versions of confirmed grants of letters of administration. The Respondents through their actions fraudulently sought to disinherit the children of Hannah Muthoni. Mr. Mahindi is only a step or two away from completing the registration process of the new parcel numbers but cannot effect the completion due to the actions of the Respondents. SNM5 is a copy of a letter from the Senior Chief Kawangware Location inviting Kariuki Njoroge, Nyagutie Njoroge and Gitonga Mahindi to a meeting so as to discuss the land dispute of LR. NO. DAGORETTI/RIRUTA /340. A copy of a notice of motion dated 9th October 2015 shows that there is a pending suit in the Environment and Land Court Case No. 880 of 2015.

DETERMINATION

The Court record confirms that the estate of the deceased herein comprises of Dagorretti/Riruta/340 which is the subject of dispute in Succession Cause No. 119 of 1993 & Environment and Land Court Case No. 880 of 2015.

The Applicant herein filed Protest to the Respondents Application of 25th October 2016 seeking orders from this Court to direct the District Land Registrar Nairobi to register Land Parcel Dagorretti/Riruta/6549 (originally Dagorretti/Riruta/340) to the name of Nixon Mburugo.

The Applicant filed protest after the grant was confirmed on 30th July 2014 The Applicant ought to have filed revocation of grant to challenge the distribution of estate. Be that as it may, from the pleadings and evidence adduced by Applicant on 3rd April 2017, it is clear that the suit property is subject of dispute and contested interests and this Court will not grant the orders sought in the absence of clear and confirmed beneficial and/or proprietary interest to the subject suit property. Therefore the Respondents' application is dismissed. Parties claiming ownership and/ or beneficial interest must first establish their interest then the Court may confirm such interests.

DELIVERED SIGNED & DATED IN OPEN COURT ON 10TH NOVEMBER 2017

M.W.MUIGAI

JUDGE

IN THE PRESENCE OF;

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