Monicah Nyagichuhi Ngothi v John Gikaru Ngothi & Peris Wambui Ngothi [2016] KEHC 7492 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 1371 OF 1997

IN THE MATTER OF THE ESTATE OF EVANSON NGOTHI KAHARWA (DECEASED)

MONICAH NYAGICHUHI NGOTHI...........................APPLICANT

VERSUS

JOHN GIKARU NGOTHI........................................RESPONDENT

PERIS WAMBUI NGOTHI........................................PETITIONER

RULING

1. The deceased Evanson Ngothi Kaharwa died intestate on 19th March 1991.  He was survived by one wife Peris Wambui Ngothi (the petitioner) and five children Monicah Nyagichuhi Ngothi (the applicant), Samuel Kibuchi Ngothi, Erastus Njoroge Ngothi, Alice Esther Waithera Ngohi and John Gikaru Ngothi (the respondent).  The petitioner petitioned for letters of administration intestate on 3rd July 1997.   A grant was issued to her on 4th September 1997 and confirmed on 2nd June 2000.  She died on 17th September 2005 before she could distribute the estate.  On 25th September 2015 the applicant filed this application seeking to be substituted as the administrator of the estate in place of her late mother.  The respondent opposed the application.

2. It is notable that prior to this application, the respondent filed an application dated 19th January 2015 seeking to revoke and/or annul the grant issued to the petitioner.  His complaint, which is the same complaint now, was that petitioner filed the Cause without reference to him, and without indicating in the affidavit in support that he was one of the children of the deceased and therefore entitled to benefit from the estate; that, even when the distribution was eventually done he was not invited or his consent sought, although some provision was made for him.  Lastly, that the deceased had another piece of land (LR No Ndabibi/Block 2/Tarabete/104) which was not disclosed.  Also not disclosed was that the deceased had sold 2 acres of the land to Geoffrey Kinyua Gacheru (the 2nd applicant in the application for revocation) which had not been formally transferred.

3. The court directed that the application for substitution be heard in priority.

4. The affidavits and statements filed by the applicant and her siblings indicate that the respondent was left out of the petition because he was violent, uncaring, drunk, etc. The rest of the family was opposed to him being an administrator of the estate of the deceased.

5. Prima facie, all the children of the deceased have an equal claim to the estate of the deceased.  Without being seen to be dealing with the pending application, I find that the interests of justice dictate that the respondent be allowed to participate in the administration of his late father’s estate.  Consequently, I allow the application dated 24th September 2015, except that the name of the petitioner (now deceased) shall be substituted with those of Monicah Nyagichuhi Ngothi and John Gikara Ngothi as the administrators of the estate of the deceased Evanson Ngothi Kaharwa.

DATED and SIGNEDatNAIROBIthis15THday ofFEBRUARY 2016.

A.O. MUCHELULE

JUDGE

DELIVEREDatNAIROBIon the16THday ofFEBRUARY 2016.

W. MUSYOKA

JUDGE