In re Estate of Daniel Gacheru Ndiang'ui (Deceased) [2023] KEHC 25280 (KLR)

In re Estate of Daniel Gacheru Ndiang'ui (Deceased) (Succession Cause 115 of 2017) [2023] KEHC 25280 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25280 (KLR)

Republic of Kenya

In the High Court at Kiambu

Succession Cause 115 of 2017

A Mshila, J

November 10, 2023

In the matter of

ANM

1st Applicant

Fiona Wacuka Gacheru

2nd Applicant

David Ndiangui Gacheru

3rd Applicant

As the joint trustees of GN (Minor)

Ruling

1. The Applicants filed before court Summons dated 7th March, 2022 for an Order that leave be granted to Agnes Njanja Makunyi, Fiona Wacuka Gacheru And David Ndiangui Gacheru who hold a portion of the property known as Ruiru Kiu Block 2 (Githunguri) /2076 as trustees of GN (minor) to subdivide the said portion of the property and deal with it and any resultant subdivisions thereof in a manner as they deem fit for the benefit in the interest of the minor.

2. In a ruling delivered on 30th June, 2022, Lady Justice Mary Kasango made an order that the leave sought would not be granted until the trustees confirm the following;-a.Whether property Ruiru Kiu Block 2 (Githunguri) 2076 is part of the estate of deceased.b.The mother of the minor GN be revealed and ensure she attends open court session to give her consent orally.c.The trustees do clarify which of the sub-divided plots are intended to be sold and the price offered and they further clarify those plots not being sold the persons in whose names they will be registered.d.Whether a trustee’s bank account has been opened in respect to the minor Gracious Nyangendo, if not such account be immediately opened and the evidence of such account be provided to the court.

3. The court further indicated that upon the above being satisfactorily responded to, the court will give final orders on the application dated 7/3/2022.

4. Subsequently, on 23rd March, 2023, the Administrators filed a Notice of Motion premised under the provisions of Section 58, 66 and 71(2A) of the Law of Succession Act and all other enabling provisions of the law. The Administrators sought for orders;-a.Spentb.That this Honourable court be pleased to allow the subdivision of parcel of land referred in Share Certificate Number 3315 Githunguri Constituency Ranching Company Limited also known as parcel number Ruiru Kiu Block 2 (Githunguri) /2076 measuring approximately 0. 5 Hectares into two portions as envisaged in the grant.c.That this Honourable Court do allow the Administrators who are also the trustees of GNG (minor) together with the mother ANM (trustee) to dispose/sell one of the portions in favour of the minor and the other portion to be dealt with as per the grantd.That the proceeds of sales of the minor’s portion to be held in a joint account opened by the Administrators who are also the trustees of the minor together with the mother.Bank: Co-operative Bank LimitedBranch: Dagoretti CornerACC/NO: 01109622474100

5. The application is premised on the ground that the Administrators and the trustees of Gracious Nyagendo Gacheru (minor) intend to subdivide parcel number Ruiru Kiu Block 2 (Githunguri) /2076 as envisaged in the grant and dispose one of the portions in favour of the minor and the remaining portion be dealt with as per the grant as the minor requires basic commodities and the mother to the minor is financially constrained as such the need for funds.

6. The application is supported by the affidavit of Fiona Wacuka Gacheru being one of the Administrators and the trustees of GNG (minor). She deposed that they intend to subdivide parcel number Ruiru Kiu Block 2 (Githunguri) /2076 as envisaged in the grant and dispose one of the portions in favour of the minor and the remaining portion be dealt with as per the grant. She stated that the minor requires basic commodities and the mother to the minor is financially constrained as such funds are needed. She contended that it is in the interest of the other immediate beneficiary for the land to be subdivided. The proceeds were said to be towards the sole interest of the minor.

7. On 28/7/2023, the court delivered its ruling where the applicants were directed to first comply with the order dated 30/6/2022.

8. In compliance with the court’s directions, Fiona Wacuka Gacheru, filed her affidavit, as one of the Administrators of the deceased’s estate. She confirmed that Ruiru Kiu Block 2 (Githunguri) 2076 forms part of the deceased’s estate being a resultant of Share Certificate no. 3315 Githunguri Constituency Ranching Company Limited and the same is listed in the schedule of assets in the rectified certificate of partial confirmation of grant dated 14/7/2020. She deposed that the minor’s mother ANM is well known to her. She indicated that the parcel of land has been sub-divided into two equal portions with one portion belonging to Faith Gathigia while the other part belongs to the minor. That the plots that are intended to be sold are three plots out of five. She indicated that there are buyers and the agreed purchase price is Kshs. 1. 5 Million each. She stated that the proceeds will be used towards the maintenance of the minor’s needs and that a trustee’s bank account was opened with the trustees being the signatories. She urged the court to allow the orders sought in the application dated 23rd March, 2023 as they have complied with the directions of the court.

9. On 18/9/2023, Agnes Njanja Makunyi appeared in court to orally give consent in regard to the sub-division and sale of Ruiru Kiu Block 2 (Githunguri) 2076 towards the maintenance of her daughter GNG (minor). She also confirmed that an account has been opened at Co-operative Bank Dagoretti Branch.

Findings And Determination 10. For the forgoing reasons this court makes the following findings and determinations;i. This court finds that the property known as Ruiru Kiu Block 2 (Githunguri) 2076 is part and parcel of the estate of deceased.ii. ANM the mother of the minor GN was revealed and attended open court session and gave her consent orally to the sub-division of the subject property known as Ruiru Kiu Block 2 (Githunguri) 2076. iii. Leave granted for the sub-division of the property known as Ruiru Kiu Block 2 (Githunguri) 2076. iv. The trustees identified three out of five plots to be sold at an agreed purchase price is Kshs. 1. 5 Million each. The proceeds will be banked in a Trust Account and the funds used towards the maintenance of the minor’s needs;v. A Trustee Bank account is found to have been opened by the Administrators who are also the trustees in respect to the minor GN together with the mother; the details are as follows;Bank: Co-operative Bank LimitedBranch: Dagoretti CornerACC/NO: 01109622474100Orders complied with accordingly

DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 10TH DAY OF NOVEMBER, 2023A. MSHILAJUDGEIn the presence of;Mourice – Court AssistantN/A by parties