In re Estate of Annah Muthoni Chege (Deceased) [2022] KEHC 10320 (KLR)

In re Estate of Annah Muthoni Chege (Deceased) (Succession Cause E1277 of 2020) [2022] KEHC 10320 (KLR) (Family) (9 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10320 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause E1277 of 2020

AO Muchelule, J

May 9, 2022

Between

Rose Wanjiru Muriu

1st Applicant

Linus Kabiga Chege

2nd Applicant

and

Ejidiah Wanjiku Chege

1st Respondent

George Mugo Chege

2nd Respondent

Biliha Muthoni Chege

3rd Respondent

Charles Gacheru Chege

4th Respondent

Nancy Wanjiru Chege

5th Respondent

Pricilla Wangari Chege

6th Respondent

Gerald Muhoro chege

7th Respondent

Linus Kafiga Chege

8th Respondent

John Gichuki Chege

9th Respondent

Ruling

1. The deceased Annah Muthoni Chege, died intestate on the 10th September 2018. she was the wife of the late Chege Muhoro who had died on 16th February 2018. When the two were alive, they were the joint registered owners of Plot No. 36/1/311 in Eastleigh in Nairobi. the plot was developed with rental units, and had paying tenants.

2. The deceased’s children with her late husband included the applicants Rose Wanjiru Muriu and Linus Kabiga Chege. It does appear that Chege Muhoro had another family. This consisted of wife Ejidiah Wanjiku Chege (the 1st respondent) and her children (the 2nd to 9th respondents).

3. Upon the death of Chege Muhoro, the parcel of land registered in the joint name passed to the deceased. This subsequent registration was hotly contested by the respondents who considered the property to belong to the family and which should be inherited by the two houses. The 1st respondent’s case was that, following her marriage to Chege Muhoro in 1961 she substantially contributed to the development of the property. My considered view is that the issue regarding the interest, if at all, of Chege Muhoro’s second house in the property following his death, and the subsequent registration in the name of the deceased should properly be litigated in the Environment and Land Court.

4. Following the death of the deceased, the applicants petitioned this court, and obtained a grant of letters of administration intestate on 13th May 2021. Armed with the grant, they filed the present summons dated 12th July 2021 seeking to restrain the respondents, their agents and/or servants, from trespassing, encroaching, constructing, and collecting rent or in any other manner dealing with the property. Their case was the they had authority, through the grant, to administer this property of the estate but that they had been forcefully blocked by the respondents who were collecting rent from the tenants. The rent collected so far was Kshs.9,825,000/=. They sought the rent to be refunded to them as the administrators of the estate.

5. The respondents replied to the application by laying claim to the property, and by giving a history of the various suits that were on-going between the parties over the property. They claimed that the grant had been obtained fraudulently by them not being informed about it. One of the suits they referred to was HCCC No. 113 of 2019 at Milimani in which the applicants had sued them over the property. They referred to an order dated 14th November 2019 in the suit asking the tenants in the property to pay rent into the joint account in the name of the advocates of the two sides, and that the account opened for the purpose would be interest earning. The respondents complained that the applicants had not brought the suits and the order to the attention of the court. It is basic that an applicant who seeks the exercise of the court’s discretion has to be candid and make the fullest material disclosure. The applicants did not abide by this requirement.

6. I note that the court is not dealing with any application by the respondents for the revocation of the grant issued to the applicants.

7. Ideally, under section 45 of the Law of Succession Act (Cap. 160) the grant issued to the applicants should entitle them to take possession of LR No. 26/1/311 at Eastleigh and manage the collection of rent of behalf of the estate of the deceased. This is because any person without a grant of probate or letters of administration, or without an order of the court, should not take charge of, or administer, the estate of a deceased person. In this case, however, there is an earlier order by a court of equal jurisdiction that asked the advocates of the parties to collect rent and save it in an interest earning account opened and operated by them. If the orders sought in the instant application are granted, they will conflict with the above order.

8. These are the reasons why I will not allow the present application.

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF MAY 2022. A.O. MUCHELULEJUDGE