Kennedy Mbui Kimari v Joseph Njoroge Kimari [2014] KEHC 1827 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBIMILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 2359 OF 2005

IN THE MATTER OF THE ESTATE OF KIMARI NG’ANG’A (DECEASED)

KENNEDY MBUI KIMARI..................................................APPLICANT

VERSUS

JOSEPH NJOROGE KIMARI......................................RESPONDENT

JUDGMENT

1. The deceased KIMARI NG’ANG’A died intestate on 16th September 1991.  The family chose his widow ESTHER WAMBUI KIMARI and one of the sons, JAMES NJOROGE (the respondent) to apply for letters of administration intestate.  The two petitioned the court and a grant was issued to them on 21st October 2005.  Under section 71 of the Law of Succession Act (Cap 160), the two were required to apply for confirmation of the grant after the expiry of six months.  The applicant JOHN MBUGUA KIMARI is one of the children of the deceased and beneficiary of the estate.  He has through this application complained that their mother and respondent failed under section 76(d)(i) to apply for the confirmation of the grant within one year, and that up to now no such application has been made.

2. The applicant has deponed that their mother (the deceased’s widow) died on 10th July 2013 before the grant was confirmed.  Unknown to him and the other beneficiaries of the estate, the widow and the respondent had on 27th January 2007 got the estate land DAGORETTI/KANGEMI/480 subdivided, and got one of the subdivisions, DAGORETTI/KANGEMI/1627, registered in their joint names.  This was done even as the original title deed was being held by the family.

3. When the widow died, the respondent transferred the estate into his name and now seeks to evict the rest of the beneficiaries.

4. These are the reasons why applicant seeks that the grant be evoked and that a fresh grant be issued jointly to him and his brother NJUGUNA KIMARI.  The application was served but did not elicit any response.

5. There is no reason given by the respondent why they did not seek to have the grant confirmed in order to empower the distribution of the estate.  It was going to be a confirmation that the beneficiaries of the estate were to be identified and their respective shares allocated.  The widow and the respondent had no authority, before the grant was confirmed, to share the estate among themselves, or at all.  The actions to share the estate and to have it, or portions of it, to be registered in their names, or in the name of the respondent, were fraudulent and intended to disinherit the rest of the beneficiaries.

6. It is for these reasons that the application dated 5th March 2014 is allowed.  The grant that was issued to ESTHER WAMBUI KIMARI and JAMES NJOROGE KIMARI on 21st October 2005 is hereby revoked.  The subdivision of DAGORETTI/KANGEMI/480, is cancelled.  The registration of DAGORETTI/KANGEMI/480, its subdivision,  DAGORETTI/KANGEMI/1627, or any other subdivision, into the names of ESTHER WAMBUI KIMARI and/or JAMES NJOROGE KIMARI are hereby cancelled.  The applicant asked that a fresh grant be issued to him and NJUGUNA KIMARI.  The request was not challenged and was brought on behalf of the rest of the beneficiaries.  I grant the request, but also order that within 60 days they bring an application to confirm that fresh grant.  Such application should be served on all the beneficiaries, including the respondent.  Costs of the application shall be borne by the respondent.

DATED and DELIVERED at NAIROBI this 6th day of November, 2014.

A.O. MUCHELULE

JUDGE