In re Estate of James Peter Gicharu (Deceased) [2024] KEHC 2424 (KLR)

In re Estate of James Peter Gicharu (Deceased) (Succession Cause E594 of 2021) [2024] KEHC 2424 (KLR) (Nairobi) (7 March 2024) (Ruling)

Neutral citation: [2024] KEHC 2424 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Nairobi

Succession Cause E594 of 2021

HK Chemitei, J

March 7, 2024

IN THE MATTER OF THE ESTATE OF THE LATE JAMES PETER GICHARU (DECEASED)

Between

Francis Kariuki Njiibu

Applicant

and

Jane Wangeci Gicharu

1st Respondent

Michael Muchunga Gicharu

2nd Respondent

Ruling

1. The applicant herein vide his application dated 22nd July 2022 sought to have the grant issued to the respondents cancelled or revoked on the grounds that the same was obtained fraudulently by concealment of material facts. The applicant claims that he was a nephew of the deceased herein as his deceased mother was the brother to the deceased.

2. He claimed that the suit property namely Dagoretti/Mutuini/326 was acquired by his late grandfather William Mbote Muchugia and had it registered in the name of the deceased in 1958.

3. It was his case that the same ought to have been registered in the two sons of his grandfather, the deceased herein and Stephen Muchugia Mbote.

4. The filing of this cause therefore by the respondents who are the son and widow of the deceased could not go unchallenged as they failed to notify the court that they were beneficiaries as well.

5. The respondent filed their preliminary objection dated 4th November 2022 claiming that this court is not sized of jurisdiction to entertain the application and that the same ought to be referred to the Environment and Land Court.

6. The court directed the parties to file written submissions which they have complied save the respondents and the court has perused the same and does not wish to reproduce the same here fully.

7. It is the respondent’s submissions that what is before this court is basically a succession matter under the provisions of section 47 of the CAP 160 as read with Rule 41 (3) of the Probate rules. In other words, it is the question of determination of the legitimate beneficiaries to the estate and their respective entitlements.

8. I have carefully read the application and in particular the family tree as explained by the applicants. There is no doubt that the land was registered in the names of the deceased herein. Whether it was with the consent of his father and by extension the applicant’s grandfather is an issue to be determined.

9. In paragraph 5 of his affidavit in support of the application sworn on 27th July 2022 the applicant has stated as follows;“That the land parcel number Dagoretti/Mutuini /326 ought to have been registered in the names of James Gicharu Mbote (deceased) and Stephen Muchugia Mbote (deceased) who were the sons of the 2nd wife at the time of land consolidation and demarcation.”

10. He went on to state in paragraph 6 that “at the time of the said registration in 1958 my grandfather William Mbote Muchugia was deceased.”

11. He stated in paragraph 7 that at the time of the deceased being registered as a proprietor in 1958 he was only 11 years old and that it was “still unclear how the name of my uncle Stephen Muchugia Mbote (deceased) was removed from the title deed”

12. The court has wholesomely and extensively produced the above portions of the averments to indicate that the issue in this matter has to do with how the deceased had himself registered as the proprietor of the suit land leaving behind the applicants and the other beneficiaries.

13. To this end, the question of registration and ownership of land is not for this court to discuss. It is not the mandate of CAP 160 to interrogate how a deceased person got himself to be registered as the owner of land. That is the preserve of the Environment and Land Court.

14. Once the said court peradventure concludes for example that the deceased fraudulently registered himself, then it may throw the ball to this court to determine whether the applicant and other family members of the late William Mbote Muchugia are beneficiaries of the deceased estate herein.

15. In the premises I find the preliminary objection meritorious and the same is hereby allowed with no order as to costs.

16. The application dated 22nd July 2022 is as well dismissed with no order as to costs.

DATED SIGNED AND DELIVERED AT NAIROBI VIA VIDEO LINK THIS 7TH DAY OF MARCH 2024. H K CHEMITEIJUDGE