In re Estate of Maryanne Wanjiru Njuguna & James Njuguna Gachuru (Deceased) [2023] KEHC 24502 (KLR) | Succession Proceedings | Esheria

In re Estate of Maryanne Wanjiru Njuguna & James Njuguna Gachuru (Deceased) [2023] KEHC 24502 (KLR)

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In re Estate of Maryanne Wanjiru Njuguna & James Njuguna Gachuru (Deceased) (Miscellaneous Application 11 of 2017) [2023] KEHC 24502 (KLR) (30 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24502 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Application 11 of 2017

SM Mohochi, J

October 30, 2023

IN THE MATTER OF THE ESTATE OF MARYANNE WANJIRU NJUGUNA (DECEASED AND JAMES NJUGUNA GACHURU(DECEASED)

Between

EN (Suing on Behalf of MM minor)

Applicant

and

Rose Wangui

Respondent

Ruling

1. Before me is a Notice of Motion Application dated 4th May, 2017 expressed to be brought under the provisions of Order 51 of the Civil Procedure Rules and Sections 1, 1A, 3, 3A of the Civil Procedure Act (Cap 21 of the Laws of Kenya) seeking the following nine (9) Orders:i.Spent.ii.Spent.iii.Spent.iv.This Honorable Court be pleased to issue an order of inhibition to inhibit any dealing in respect to the deceased's estate in particular Parcel No Nakuru Municipality Block 2/195 and Pangani Nakuru Plot No 247. v.This Honourable Court be pleased to issue an order restraining the Respondent her agents, those who claim in her name, servants and/or employees from leasing out subdividing, selling, charging, mortgaging, and/or however dealing with the deceased's property i.e. land Parcel No Nakuru Municipality Block 2/195 and Panoni Nakuru Plot No 247. vi.Spent.vii.Spent.viii.Spent.ix.That the burden of costs of this application be borne by the Respondent.

2. The Application is supported by a sworn Affidavit of EN dated 4th May 2017, and is based on the following Eight (8) grounds:i.That the Applicant herein is a daughter in law of Maryanne Wanjiru Njuguna also known as Maryanne Wanjiru (deceased) and also a grandmother to the Minor MM .ii.That the Applicant is the wife to James Njuguna Gacharu (deceased) a son of Maryanne Wanjiru (deceased).iii.That the said Maryanne Wanjiru (deceased) is the lawful and legitimate proprietor of the properties known as Parcel No. Nakuru Municipality Block 2/195 and Pangani Nakuru Plot No. 247. iv.That the Respondent herein is my sister in law and a daughter to the deceased Maryanne Wanjiru.v.That the said Maryanne Wanjiru died intestate on 25th February, 2017. vi.That the said Maryanne Wanjiru (deceased) was suffering psychiatric challenges which bordered on serious level of depression for quite some time.vii.That all was well until the demise of the said Maryanne Wanjiru (Deceased) where the respondent herein chased us away and further refused to talk to us.viii.That later on we received crucial information that the respondent herein was making several attempts to change the true ownership of all the properties forming part of the estate with the sole intention of disenfranchising the applicant as well as the minor.

3. On the 4th May 2017, pending hearing and determination of this Application, this court issued Restraining Order against the Respondents and/or her agents from leasing, selling, charging and a temporary order of inhibition on Land Parcel No Nakuru Municipality Block 2/195 and Pangani Nakuru Plot 247

4. On the 12th May 2023, this court directed that the Application was to be heard and determined on the basis of written submissions, and the Applicant confirmed filing her written submissions on the 9th of May 2023, the Respondent was granted 14 days to file her written submissions which she did on the 27th June 2023.

Applicant’s Case 5. The Applicants Submit by framing four (4) issues for the court’s consideration:i.Whether the Minor ( MM ) is a beneficiary of the estate?ii.Whether the orders sought can be grated?iii.Whether there was a gift in contemplation of death?iv.Who should bear costs of the Application?

6. As to whether the Minor ( MM ) is a beneficiary of the estate.the Applicant EN submits that, she is suing on behalf of a minor, MM as his mother. That she got married to James Njuguna Gacharu, now deceased on 26th August 2000, they were blessed with one child, MM as is evidenced by the marriage & birth certificates annexed and marked as EN3 and EN4 in the supporting Affidavit.

7. That James Njuguna Gacharu preceded his mother in death leaving behind the Applicant and a child MM . Consequently, Applicant and her son were dependent on her mother in-law, Maryanne Wanjiru, for upkeep and other expenses including school fees.

8. That Maryanne Wanjiru passed away in 2017, leaving Applicant and her son without financial support, prompting them to make the instant Application to court to protect the interests of the minor.

9. That the question that follows then is what happens when a child dies before their parent’s reliance has been placed on the case of in the Estate of John Kihara Njau alias Kihara John (Deceased) [2021] eKLR Justice LA Achode observed that:“In such instances, the share of the deceased child, otherwise termed as a beneficiary, devolves under the rules of intestacy or testacy as applicable. In the instant case, the child or beneficiary in question is Naomi Karungari Kairu (deceased). Her share of the estate of her late father, the deceased herein, ought therefore to devolve to her beneficiaries. This is to say that a grandchild can inherit from their grandparents directly through their deceased parents"

10. Furthermore, Mrima. J in Cleopa Amutala Namayi vs. Judith Were Succession Cause 457 of 2005 [2015] eKLR, as cited in re Estate of John Kihara Njau alias Kihara John (Deceased) (2021] eKLR (supra) stated that:“..The only time where the grandchildren can inherit directly from their grandparents is when the grandchildren's own parents are dead. Those grandchildren can now step into the shoes of their parents and take directly the share that ought to have gone to the said parents. Needless to say, such grandchildren must hold appropriate representation on behalf of their parents."

11. Additionally, the Minor MM , despite having depended on his grandmother for financial support upkeep, needs not to prove dependency to assert his right as was affirmed in the Estate of John Kihara Njau alias Kihara John (Deceased) [2021] eKLR(Supra) where justice L.A Achode further stated;“It therefore follows that the children of Naomi Karungari Kairu (deceased) ought to have been included as beneficiaries of the estate of their grandfather, the deceased herein, to inherit the share due to their late mother........since the Applicants are merely seeking the share of the estate of the deceased that was rightfully due to their late mother, and not directly claiming a share of the deceased's estate in their own capacities, they need not prove dependency as argued by the Respondents. As such, the arguments on dependency are without basis and must fail.”

12. As to whether the orders sought can be granted? the Applicant submit that, the Minor MM is well within his rights as a grandchild to make the instant application to protect the estate in which he has vested interest as a beneficiary and needs not to prove any dependency.

13. That it is of note, that upon the Death of the Applicant’s mother in-law, the Applicant and the minor MM were left without financial support and exposed to ridicule, from her sister in-law, the Respondent herein to the in an effort to exclude the Applicant's son from claiming inheritance as of right.

14. That Section 47 of the Law of Succession Act provides that this Court shall have jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decrees and make such orders therein as may be expedient and that Section 47 gives court the power to issue protective orders in order to safeguard the estate of a deceased person. Justice S.M Githinji In re Estate of Kitur Chepsungulgei (Deceased) (2021] eKLR Cited the Court of Appeal case of Floris Piezzo & Another -vs- Giancarlo Falasconi (2014) eKLR, where the court stated.“Indeed Section 47 of the said Act gives the Court jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decree and orders as may be expedient. It cannot be said that such decrees and orders would exclude injunction orders. In other words, we are of the same view that Section 47 of the Act gives the Court all-embracing powers to make necessary orders, including injunctions where appropriate to safeguard the deceased's estate. This section must be read together with Rule 73 of the Probate and Administration Rules which further emboldens Court's jurisdiction to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court. We would imagine such orders would also include injunctive orders."

15. Therefore, that the court can grant the injunctive orders sought together with production of documents and giving a full account of the estate.

16. Additionally, in Japhet Kaimenyi M'ndatho v M'ndatho M'mbwiria [2012] eKLR as cited in re Estate of Kitur Chepsungulgei (Deceased) [2021] eKLR(Supra) the court noted that an applicant in an application for preservatory orders:“has to satisfy the following conditions: -a.That the suit property is at the risk of being disposed of or alienated or transferred to the detriment of the applicant unless Preservatory orders of inhibition are issued.b.That the refusal to grant orders of inhibition would render the applicant's suit nugatory.c.That the applicant has arguable case."

17. That the Applicant has satisfied all the aforementioned conditions in establishing the clam of the Minor as a beneficiary in the estate of the Maryanne Wanjiru Njuguna.

18. That the Respondent continued to deal with property of the estate without legitimate authority. Further to even attempting to dispose-off properties forming part of the estate, that is land Parcel No Nakuru Municipality Block 2/195 and Pangani Nakuru Plot No 247.

19. That the Applicant has established a case for intermeddling as is provided for under Section 45 of the Law of Succession Act and that according to Musyoka, J held in Veronica Njoki Wakagoto (Deceased) (2013] eKLR that:“The effect of (section 45] ...is that the property of a dead person cannot be lawfully dealt with by anybody unless such a person is authorized to do so by the Law. Such authority emanates from a grant of representation and any person who handles estate property without authority is guilty of intermeddling. The law takes a very serious view of intermeddling and makes it a criminal offence."

20. As to whether there was a gift in contemplation of death? that the deceased died in 2017, 5 years after the purported gift was donated to the Respondent.

21. That the law governing Donatio Mortis Causa is well anchored in statute and case law and Section 31 of the Laws of Succession Act provides that;“A gift made in contemplation of death shall be valid, notwithstanding that there has been no complete transfer of legal title, if:(a)The person making the gift is at the time contemplating the possibility of death, whether or not expecting death, as the result of a present or imminent danger, and b) person gives movable property (which includes any debt secured upon movable or immovable property) which he could otherwise dispose of by will, and(c)There is delivery to the intended beneficiary of possession or the means of Possession of the property or of the documents or other evidence of title there to: and(d)A person makes a gift in such circumstances as to show that he intended it to revert to him should he survive the illness or danger; and(e)The person making the gift dies from any cause without having survived that same illness or danger; and(f)The intended beneficiary survives the person who mad the gift to him: provides that:(I)No gift made in contemplation of death shall be valid if the death is caused by suicide;(ii)The person making the gift may, at any time before his death, lawfully request its return. "

22. As far as the doctrine goes, it infers transfer of property in contemplation or anticipation of the death of the maker. The effect of the transfer involves a conditional precedent that the testators' death should occur shortly and that it is eminent.

23. That the Respondent did not produce any material evidence to show this court that the deceased was fearful of passing on sooner and thus effected the gift. Reliance is placed on the case of King v Chiltern Dog Rescue 2015 EWCA Civil 581 as cited in the case of In re Estate of Kabue Ole Lepate (Deceased) [2018] eKLR lays down the principles of this doctrine as follows:“First in contemplating his impending death, it was clear from the authorities that the donor must have good reason to anticipate death in the near future from an identified cause. In neither Vallee nor King had that requirement been met. In Vallee Mr. Bogusz was approaching the end of his natural lifespan, but he did not have reason to anticipate his death in the near future from a known cause. Similarly, while most of Mrs Fairbrother's life was behind her, she was not anticipating her Impending death in the sense used in the authorities. She was not suffering from a fatal illness or shortly to undergo an operation or to undertake a dangerous journey.Secondly, it was essential that the gift was conditional on the contemplated death and in any event the gift would lapse if that death did not occur soon enough. In cases where early death is inevitable the court relaxes the requirement that the donor should specifically require the return of the property if he should recover. In the instant case Mrs. Fairbrother's words were no more than a statement of testamentary intent and both Mr. King and Mrs Fairbrother had proceeded on that basis, rather than on the basis that a gift had been made.Thirdly, dominion meant physical possession of (a) the subject matter or (b) some means of accessing the subject matter (such as the key to a box) or (c) documents evidencing entitlement to possession of the subject matter.”

24. That the Respondent has not in any way demonstrated that the purported gift has satisfied all the principles above to be considered a perfect gift to her. Additionally, we are not told the conditions prevailing at the time as to the deceased death or sickness to contemplate death from which she was to gift the property in anticipation of death, that the deceased Maryanne Wanjiru Njuquna died 5 years later, which is not as soon as an anticipation of death can get.

25. Reliance is placed on re Estate of Kabue Ole Lepate (Deceased) [2018] eKLR (supra) Justice R. Nyakundi in in dismissing a claim for a gift made in contemplation of death, observed that:“As it states Gifts in contemplation of death are only valid where a person making it contemplates death from a cause that is proximate, either at existing or immediately impeding peril placing the donor in extremis. A mere ailing state is insufficient (See the principle in Wood Bridge Spooner 1819 3 B and Aldo 233 106 ER 647).The categorical conclusion is that it is impossible without evidence to contend that the deceased had an ailment which subsisted from the year 2009 until his demise on 13th June, 2012. If there was none of the respondents proved by way of medical evidence.It is elementary principle as defined in Black’s Law Dictionary 4th Edition 701 and Cyclopaedic Law Dictionary 3rd Edition that "when a person is sick beyond the hope of recovery and near death, he is said to be in extremís"Accordingly, in this case there was no real evidence before me that the deceased as at 21st March 2009 was near death and said to be extremis to donate his property as gifts in contemplation of death.It is not shown by evidence adduced by the respondents that as at the time the deceased made the alleged gift his death was inevitable within the immediate future.Secondly, this matter in my judgement must satisfy in strict sense the legal requirements as was stated by Jackson LJ. in the persuasive decision in the case of King v Chiltern Dog rescue case (supra)."

26. That, the official search of the property Nakuru Municipality Block 2/195 produced by the Respondent in her Replying Affidavit, indicates a sale and the only logical conclusion would be a fraudulent transfer culminating to a sale to the current owner. An aspect which this court is not clothed with the jurisdiction to handle, but rather the Environment and Land Court.

27. Further in the same case of In re Estate of Kabue Ole Lepate (Deceased) [2018] eKLR (supra) in making his determination stated that:“That in contemplation of death the version of the respondent failed to demonstrate good reason for the deceased to anticipate death in the near future from the date in 21st March 2009 when he made the donation over his property until his demise on 13th June, 2012. In fact the deceased died of old age and not from any serious sickness. Secondly, the respondent has failed to account with cogent material and evidence the gift was conditional on the contemplated death and in any event the gift would lapse if that death did not occur soon enough. The object of this second element would be defeated by the delay and long lapse of time it took for the deceased death to occur. This ground alone invalidates the gift in contemplation of death as urged by the respondent."

28. That ultimately, it is to the benefit of all the beneficiaries if the orders of inhibition and restraining orders which will act as preservatory orders to the properties highlighted, that is Nakuru Municipality Block 2/195, Pangani Nakuru Plot No 247 and the estate at large are upheld and the Respondent made to produce documentation in relation to the estate of both Maryanne Wanjiru Njuguna and James Njuguna Gacharu. Also give a full account of the income received from the estate.

Respondents Case Issues for Determination: 1. Whether the Applicant's Son is a beneficiary?

2. Whether the Properties Municipality Block 2/195 and Pangani Plot 247 forms part of the Estate?

29. Application is opposed vide the Replying Affidavit sworn by the Respondent on the 26th November, 2017urging that, the Application herein is not sound in law and that the provisions of Order 42 Rule 6 of the Civil Procedure Rules are in applicable as the application ought to have been filed under Rule 5(2) b of the Court of Appeal Rules and that the Motion ought to have been filed before the Court of Appeal.

30. The Respondent is the only surviving child of Maryanne Wanjiru Njuguna who passed on the 24th February, 2017. At the time of her death her son James Njuguna Gacharu had died and no letters of administration was taken out in respect to his Estate.

31. The Respondent's contention is that the deceased Maryanne Wanjiru Njuguna her mother at the point of her death never left any free property due for inheritance.

32. On the first issue, the Respondent submits that the Applicant was never married to her deceased brother James Gacharu and hence the purported son does not qualify to be a beneficiary. The Applicant's case is that she was married to the deceased son and that her son is a beneficiary of the Estate.

33. That the marriage certificate annexed does bear grave discrepancies and hence cannot be seen as plausible, that she was married in 2000 whereas the Marriage Certificate was issued in 2017. It further states that the marriage was customary Marriage and Christian Marriage as alleged in her application. It also does not bear James Njuguna Gacharu's signature at all. This document therefore leaves a lot of questions rather than clarity. It is therefore clear that the said Marriage Certificate has been annexed as a means to fit and hoodwink the court in believing there was a legitimate marriage while in fact there was none.

34. That if at all, the Applicant was married to the deceased son, why did she not take out letters of administration in relation to his estate when he passed away and only did so after the demise of the mother. The Applicant even filed a citation in the chief magistrate's court in Succession Cause No.18 of 2018 where upon the Respondent indicating that she had no interest in filing a succession cause in respect to her mother's Estate because there was nothing due for inheritance, the Applicant herein was granted permission to do so and has never done so up to date.

35. That the purported birth certificate speaks of one James Njuguna Gachuru and nothing on record shows whether this James Njuguna Gachuru is one and the same person as James Njuguna Gacharu. Further, the date of birth of the child shows to be 17th January, 2001 whereas the Applicant's Marriage Certificate indicates they were married in 2017. This is an indication that the applicant's case is saddled with nothing but lies that cannot be countenanced by any Court of Justice. Also there is no evidence that has been tendered to speak to the fact that maybe if the child was not the deceased biologically that he actually provided for him before his demise?

36. As to whether the Properties Nakuru Municipality Block 2/195 and Pangani Nakuru Plot No. 247 form part of the Estate of Maryanne Wanjiru? It is the Respondent's position that these properties do not form part of the Estate as they are not free property. The Applicant has alluded to the fact that these properties belongs to the deceased Maryanne Wanjiru but no Copies of the Titles have been annexed to support the same. The Respondent contends that her late Mother has never owned a property referred to as Pangani Nakuru Plot No. 246 whatsoever and if such a property exists the Applicant should bring forward the relevant documents to that effect.

37. The Respondent's case is that her deceased mother owned two properties Nakuru Municipality Block 2/195 which was transferred in her name before her mother's demise and Nakuru Municipality Block 1/561 which was sold over ten years ago as evidenced by the Respondent'sannexure BRW" in her replying affidavit.

38. The Respondent has submitted that, the claim that the property Nakuru Municipality Block 2/195 was not a gift because she has not produced evidence to show that the deceased transferred to her in contemplation of death is not in contention but whether the gift was in contemplation of death. The Respondent has annexed her Agreement made with her deceased mother which was done in 2012 whereas she passed in 2017 which indicates the intention was to grant a gift inter vivos. Even then, the actual transfer as per the search certificate was effected in 2016. This shows that the deceased from the onset intended to have the property inherited by the Respondent and thus the property is not a free property for distribution.

39. Reliance has been placed on the case of Benson Mutuma Muriungi V C.E.O Kenya Police Sacco & Anor (2016) the court observed that Estate“means the free property of a deceased person and Free Property", in relation to a deceased person means the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death;"

40. Also reliance has been placed on the case of Re Estate Of Ruth Wanjiku Karugu (deceased) 2021) eklr citing the case of Re Estate of the late Gedion Manthi Nzioka (Deceased) 2015 eKLR, where the honorable Justice gave guidance as to the requirement of Law as far as a gift intervivos is concerned. The learned judge stated as follows;“In Law, gifts are of two types. There are the gifts made between living persons (gifts inter vivos), and gifts made in contemplation of death (gifts mortis causa). Section 31 of the Law of Succession Act provides as follows with respect to gifts made in contemplation of death:....For gifts inter vivos, the requirements of law are that the said gift may be granted by deed, an instrument in writing or by delivery, by way of declaration in trust by the donor, or by way of resulting trusts or the presumption of Gifts of Land must be by way of registered transfer, or if the land is not registered it must be in writing; by a declaration of trust in writing. Gifts inter vivos must be complete the same to be valid, "

41. Further, the court was referred to Odunga's Digest on Civil Case law and procedure Vol (III) Page 2417 at paragraph 5484 (d) e - i where the learned justice said this about transfer of immovable property as gifts inter vivos or causa nortis;

42. Generally speaking, the moment in time when the gift takes effect is dependent on the nature of the gift; the statutory provisions governing the steps taken by the donor to effectuate the gift. (see in re Frú Deceased (1946) CH 312 Rose; and Trustee Company Ltd Vs Rose (1949) CL 78 Re: Rose Vs Inland Revenue Commissioners (1952) CH 499 Penington v Walve (2002) IWLR 2075 Maledo V Beatrice Stroud (1922) AC 330, Equity will not come to the aid of volunteer and therefore if a donee needs to get an order from a court of equity in order to complete his title, he will not get it. If, on the other hand the donee has under his control everything necessary to constitute his title completely without any further assistance from the donor, the donee needs no assistance from equity and the gift is complete. It is on that principle that in equity it held that a gift is complete as soon as the donor has done everything and the donor has to do that is to say as soon as the donee has within his control all those things necessary to enable him, complete his title. Where the donor has done all in his power according to the nature of the property given to vest the legal interest in the property in the done, the gift will not fail even if something remains to be done by the done or some third person. Likewise, a gift of registered land becomes effective upon execution and delivery of the transfer and cannot be recalled thereafter even though the donee has not yet been registered as a proprietor."

43. In Re (1952) Pelington u Another -V Waine & ORS (2002) ALL ER. In Lubberts Estate Re (2014) ABCA 216 the Court emphasized that;An inter vivos gift exists if the donor, while alive, intends to transfer unconditionally legal title to property and either transfers possession of the property to the donee or some other document evidencing an intention to make and the donee accepts the gift." For a gift to be valid the donor must intend to make a present gift of the property and he/she must actually deliver the property to the donee must accept the gift.

44. In the Estate of The Late Gichunge M'Itwerandu alias Githungu M'Nthiiri as quoted in of Re Estate Wanjiku supra, Justice Mabeya held;“A person can deal with his property a she wills during his life time, whoever feels aggrieved on how his/her parent had dealt with his property should at the earliest opportunity question such a person during his/her lifetime. He/She cannot wait until such person dies to raise issues of discrimination or unfairness. Such issues can only validly be raised in cases of a will since wills are kept until the testator passes on. However, request that are given as gifts inter vivos openly so given and in my view whoever is dissatisfied is at liberty to question the same before the demise of the giftor.".

45. That the Respondent was already registered as the proprietor of the Parcel Nakuru Municipality Block 2/ 195 before the demise of her mother and that a copy of the Gift Deed annexed establishes there was an offer and acceptance between the parties. As such the property cannot form part of the Estate of the deceased Estate because it was given during the lifetime of the deceased and legal title issued. To that end, ownership of the said property already shifted to the Respondent who is now the legal proprietor of the Land and any orders to the contrary may unjustly disturb their quiet possession of the said parcel of Land.

46. That the Applicant has intimated that it was the deceased Maryanne Wanjiru who was taking care of her and the minor after the demise of her son. It would then have been incumbent on the Applicant to question her during her lifetime on the manner in which she disposed her property if at all she was dependant on her and for her son's inheritance but she did not do so. The court in Re Estate of Ruth Wanjiku pronounced itself thus;“As correctly pointed out by the petitioners, the Applicants did not raise any complaint with regards to this parcel being entirely given to her brother during the deceased's lifetime and she should not do so now."

47. That the only avenue for the Petitioner is to challenge the registration is in the Environment and Land Court.

48. That Section 24(a) of the Land Registration Act provides that:“the registration of a person as the proprietor of lands on of a person as the proprietor of Land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto."

49. From the foregoing the Respondent submit that the Applicant's application is misconceived and devoid of merit hence not deserving of the court's discretion and should be dismissed with costs.

Analysis & Determination 50. Having considered the present application, the affidavits in support and opposition of the said application, as well as the respective submissions of the parties, it is my view that the main issues for determination by this court are:a.Whether this court has jurisdiction to entertain this Application?b.Whether the Applicant should be granted Restraining Orders and an Order of Inhibition on land Parcels No Nakuru Municipality Block 2/195 and Panoni Nakuru Plot No 247?c.Who should bear the costs of this Application?

Jurisdiction 51. In Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, the Court of Appeal affirmed and rightly so, that‘Jurisdiction is everything. without it, a Court has no power to make one more step.’

52. While considering the court’s jurisdiction it is worthy to recall that this miscellaneous Application is filed pursuant to Order 51 of the Civil Procedure Rules and Sections 1, 1A, 3, 3A of the Civil Procedure Act

53. Section 3A of the Civil Procedure Act, provides that, nothing in the Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

54. Section 1A of the Civil Procedure Act provides that the objective of the Act and the rules is to facilitate the just, expeditious, proportionate and affordable resolution of all disputes governed by the Act.

55. Section 1A (3) of the Civil Procedure Act requires a party or a counsel on record to assist the court in furtherance of the overriding objectives.

56. Section 19 of the Civil Procedure Act Cap 21 states that: - “Every suit shall be instituted in such manner as may be prescribed by Rules.”

57. Likewise Order 3 Rule (i) (ii) of the Civil Procedure Rules 2010 provides that: -“every suit shall be instituted by way of a Plaint or in such other manner that may be prescribed. As a general rule a suit can only be instituted by way of a Plaint, petition or an Originating summons.”

58. In Photo Energy Limited Vs Hashi Energy Limited Misc 180 of 2018 the Court stated as follows: -“Order 3 Rule(i) (ii) of the Civil Procedure Rules provides that every suit shall be instituted by way of a Plaint. As a general rule a suit can only be instituted by way of a Plaint, Petition or an Originating summons. A Notice of Motion is not legally recognized as an originating process. A Notice of Motion can only be filed within a properly instituted suit. The Applicants failed to file any originating process in this matter. I find that the attempt to institute this suit by way of a notice of Motion renders the entire suit defective.” (own emphasis)

59. The Notice of Motion is not anchored on any suit and one wonders what will transpire after the Application is spent? What will the Applicant do with the reliefs sought? In view of the foregoing, the suit before the court is not competent. The applicant came by way of notice of motion which is not prescribed by any law or rule as an originating process. In any event, an interlocutory injunction can only be granted in the interim pending the resolution of the suit.

60. In a miscellaneous cause commenced by way of a motion, once the application is determined, the proceedings are terminated, the matter is concluded and there would be no further hearing of the dispute.

61. The Substratum of the dispute amongst the parties herein is in relation to alleged property land Parcel No Nakuru Municipality Block 2/195 and Pangani Nakuru Plot No 247 of the deceased person subject to a probate and administration.

62. In the instant case, the court must indeed examine whether the land Parcel No Nakuru Municipality Block 2/195 and Pangani Nakuru Plot No 247 belonged to the deceased and if so, whether the same was distributed.

63. There is no doubt that the suit the property land Parcel No Nakuru Municipality Block 2/195 did not form part of the estate of the Maryanne Wanjiru (deceased). This has been evidenced by an official search indicating the property had been transferred in 2016 one year before the demise of the deceased.

64. The Respondent contends that her late Mother(deceased) has never owned a property referred to as Pangani Nakuru Plot No. 246 whatsoever.

65. In fact, following a citation Nakuru Chief Magistrate's Court in Succession Cause No.18 Of 2018 by the Applicant, not disclosed to the court, the Respondent indicated that the deceased’s estate did not have any assets to be subjected to a probate and administration.

66. In the foregoing, it is my finding that the suit property land Parcel No Nakuru Municipality Block 2/195 indeed belonged to the deceased but was transferred to the Respondent during the deceased’s lifetime as a result of which, the property no longer forms part of the estate of the deceased and thus cannot be the subject of preservation by the succession court. This position finds support in Abdalla Mutembei Gisaga v Pamela Gacheri Patrisio & 5 others [2014].

67. In Grace Wanjiru Gichari & Anor Vs Stephen Maina Muchiri Succ Cause No. 154 OF 1989 eKLR where the court while dealing with a similar scenario as herein held that: -“The estate having been distributed and taken over by the respective beneficiaries cannot be the subject of preservation by the succession court. Any dispute arising concerning property already distributed should be dealt with in the Environment and Land Court.”

68. Furthermore, I am convinced that the Applicant's contention would really be about ownership and use, the title of the Respondent and not inheritance, as the estate of the deceased did not have any known assets at the time of her death. As such, it is my finding that this court lacks jurisdiction to determine a claim against the estate of the deceased as in effect the court would be deciding on the ownership of title which should appropriately be handled by the Environment and Land Court.

69. The Applicant has equally conceded in the submission that, the official search of the property Nakuru Municipality Block 2/195 produced by the Respondent in her Replying Affidavit, indicates a sale and the only logical conclusion would be a fraudulent transfer culminating to a sale to the current owner. An aspect which this court is not clothed with the jurisdiction to handle, but rather the Environment and Land Court.

70. In the upshot of the above, the High Court has no jurisdiction to make determinations relating to title to land, and use and occupation of land, which are some of the issues that arise from the application before me. That jurisdiction lies with the Environment and Land Court, by virtue of Articles 162( 2) and 165 (5) of the Constitution, the Environment and Land Court Act (No. 19 of 2011), Sections 2 and 101 of the Land Registration Act (No. 3 of 2012) and Sections 2 and 150 of the Land Act (No. 6 of 2012). Let the Applicant agitate her claims through the channels established under those statutes.

71. I have read the submission that the Applicant and the minor (next friend), are entitled to the land through succession and that if the deceased had gifted inter vivos the Respondent then the same was fraudulent and is about ownership, occupation and use of title to land, which, clearly, takes the matter way out of the jurisdiction of the High Court.

72. As a general rule a suit can only be instituted by way of a Plaint, Petition or an Originating Summons. A Notice of Motion is not legally recognized as an Originating Process. A Notice of Motion can only be within a properly instituted suit, this court finds the Application, dated 4th May, 2017 to be incompetent and without merit and hereby dismiss the same, with costs to the Respondent.

73. The Restraining Order against the Respondents and/or her agents from leasing, selling, charging and the temporary order of inhibition on Land Parcel No Nakuru Municipality Block 2/195 and Pangani Nakuru Plot 247 issued by this court on the 5th May 2017 is hereby vacated.

74. Should the Applicant be aggrieved by this ruling dismissing her Application, there is leave to her to move the Court of Appeal, appropriately, for a second opinion, within Forty-Five (45) days.It is so ordered.

SIGNED, DELIVERED VIRTUALLY ON TEAMS PLATFORM ON THIS 30THDAY OF OCTOBER 2023________________________MOHOCHI S.MJUDGE