Salome Wambui Njau v Caroline Wangui Kiguru [2015] KEHC 7833 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. 166 OF 2012

IN THE MATTER OF THE ESTATE OF PETER KIGURU NJUGUNA (DECEASED)

SALOME WAMBUI NJAU …………………………...…………………..APPLICANT

VERSUS

CAROLINE WANGUI KIGURU ……………..…………….………….RESPONDENT

RULING

1. The application for determination is a Summons dated 2nd April 2014 and taken out under Section 26 of the Law of Succession Act, Cap 160, Rules 49 and 73 of the Probate and Administration Rules and Sections 1A, 1B, 3A of the Civil Procedure Act, Cap 21 of the Laws of Kenya.

2. It seeks a declaration that Ngong/Ngong 28314 forms part of the estate of the deceased despite the fact that the same is currently registered in the name of the respondent, revocation and cancellation of the respondent’s title deed in respect of  the said property, injunctive orders to restrain the respondent from  alienating or in any way disposing of  the said parcel of land  pending determination of the matter, and a mandatory injunction  reinstating the applicant as the occupier of the said parcel of land.

3. The application is premised on the grounds on the face of application, as well as in the supporting affidavit sworn by Salome Wambui Njau, the applicant herein, on 2nd April 2013. It is averred that the applicant is a widow of the deceased having married the latter under statute in 2001. The couple then bought the property in 2002 and constructed the matrimonial home there. The deceased gifted the property to the respondent sometime in 2010. It is the applicant’s fear that the respondent might have unduly influenced the deceased. The deceased died in 2011 and shortly thereafter the respondent caused the property to be transferred to her name. She subsequently evicted the applicant from the matrimonial home.

4. The respondent has opposed the application and filed an affidavit in reply. She avers that the applicant did not participate in the acquiring of the property Ngong/Ngong/23814 and to the contrary the said property was bought by her late father and mother in 1998. She states that the said property was equivalent to ¾ of an acre but the same was subsequently subdivided into ¼ an acre forming Ngong/Ngong/23814, Ngong/Ngong/23815 and Ngong/Ngong/23816. She avers that the applicant got married to the deceased on 12th October, 2001 and joined them at their matrimonial house at Ngong/Ngong/23814.

5. The application was disposed of by way of written submissions, in consonance with directions that had been given on 25th May 2015. The applicant’s written submissions were filed on 27th July, 2015. The respondent’s submissions were filed on 16th July, 2015.

6. The applicant’s submissions largely summarise the facts as set out in her affidavit. She states that she has an interest in the suit property on the grounds that it was her matrimonial home and that its transfer to the respondent was irregular as her consent was not sought. It is contended that the suit property being the matrimonial home of the applicant and the deceased forms part of the deceased estate.

7. The respondent submits that by the time of the demise of Peter Kiguru Njuguna the properties known as Ngong/Ngong/23814, Ngong/Ngong/23815 and Ngong/Ngong/23816 had been gifted by him to the three beneficiaries. The process of transfer and registration of the properties was carried out and both the applicant and the respondent proceeded to pay for transfer’s costs and stamp duty for their respective parcels of land. It is asserted that the properties were transferred to the respective beneficiaries who have since obtained title deeds to the same. It is contended that the applicant’s argument that the donation and gift of Ngong/Ngong/23814 was acquired through undue influence could not hold as parcel number Ngong/Ngong/23816 was gifted to the applicant on the same date by the deceased.

8. I have considered the pleadings and written submissions filed by the respective parties. I find that the application as filed by the applicant does not have merit, since the property in question was gifted and transferred to the respondent before the demise of the deceased. It therefore follows that the said property having been gifted to the respondent by the deceased and having been duly transferred to the respondent cannot form part of the deceased’s estate.  The applicant does not deny that she also benefited from another asset gifted to her by the deceased at the same time.

9. Accordingly, the application is dismissed. The respondent shall have costs of the application.

DATED, SIGNED and DELIVERED at NAIROBI this 23RD DAY OF OCTOBER, 2015.

W MUSYOKA

JUDGE