In re Estate of Simon Njoroge Wataku (Deceased) [2019] KEHC 11273 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 1669 OF 2014

IN THE MATTER OF THE ESTATE OF SIMON NJOROGE WATAKU - (DECEASED)

ANN MWIHAKI NJOROGE.......PETITIONER/ADMINISTRATOR

VERSUS

MICHAEL JUSTUS NJOROGE......................................PROTESTOR

RULING

1. The deceased Simon Njoroge Wataku died intestate on 7th June 2012. He was survived by a widow Ann Mwihaki Njoroge (petitioner/administrator) and three daughters. On 18th June 2014 the petitioner and one David Njoroge Chuchu applied for the grant of letters of administration intestate. The grant was issued on 24th February 2015, and confirmed on 13th March 2017. The deceased had left the following properties which were distributed to the beneficiaries during the confirmation:-

(a) LR No. Githunguri/Kimathi/941;

(b) LR No. Githunguri/Kimathi/1571;

(d) LR No. Kabete/Kibichiko/2634 (1/4 share)

(e) LR No. Kabete/Kibichiko/2635;

(f) LR No. Gatamaiyu/Kamuchege/1684;

(g) shares at Safaricom Ltd vide CDS A/C No. 2029897

2. The deceased was the son of the late Daniel Wataku Njoroge who died on 19th August 2001. Following his death the High Court at Nairobi Succession Cause No. 2269 of 2005was filed in which Mary Wairimu Wataku was issued with an intestate grant and certificate of confirmation. Land parcels Nos Githunguri/ Kimathi/1571 and Githunguri/Kimathi/941 were given to the deceased herein in the distribution.

3. The protester Michael Justus Njoroge is the brother of the late Daniel Njoroge Wataku. He is laying a claim to land parcel No. Githunguri/Kimathi/1571 which is a subdivision of land parcel No. Githunguri/Kimathi/940. Infact, his claim is over the whole of the parcel No. Githunguri/Kimathi/940. His case is that he was the registered proprietor of land parcel No. Githunguri/Kimathi/940. In 1991 he took a loan of Kshs.50,000/= from the Agricultural Finance Corporation. He gave the title to the land as security. He was not able to service the loan which grew to Kshs.125,000/=. He approached the late Daniel Njoroge Wataku to help repay the loan. Daniel cleared the loan but retained the title deed until such time that the protester was able to refund the money. Daniel died before the refund. The protester later discovered that Daniel had got himself registered as the owner of the land parcel No. Githunguri/Kimathi/1571 which was a subdivision of the land parcel No. Githunguri/Kimathi/940. He filed this protest to claim land parcel No. Githunguri/Kimathi/1571 from the petitioner.

4. The petitioner’s response was that subsequent to the loan transaction between the protester and the Agricultural Finance Corporation as indicated above, Daniel bought land parcel No. Githunguri/Kimathi 940 from the protester and that was how he (Daniel) became the registered proprietor of the land. She stated that when succession proceedings were filed following the death of Daniel, land parcel No. Githunguri/Kimathi/1571 devolved to the deceased.

5. I agree with the petitioner that the protest cannot be allowed. The protester’s cause of action was against Daniel. After Daniel died, he had a cause of action against the administrator of his estate.

6. Even then, the cause of action was to recover land parcel No. Githunguri/Kimathi/940 and its subdivisions including land parcel No. Githunguri/Kimathi/1571. The protester was not a beneficiary of the estate of Daniel. What was therefore open to him was to sue the administrator of the estate in the Environment and Land Court under the Environment and Land Court Act whose section 13 gives the court the jurisdiction to hear and determine all disputes relating to land in accordance with Article 162(2)(b)of the Constitution.

7. In short, I find that the protest has no merit and I dismiss it with costs.

DATED and DELIVERED at NAIROBI this 7TH day of MAY 2019.

A.O. MUCHELULE

JUDGE