Case ID:176218

In re Estate of Daniel Wainaina Gachoka [2021] eKLR

Case Metadata

Case Number:

Succession Cause 346 of 1986

Parties:

In re Estate of Daniel Wainaina Gachoka alias Daniel Mariba Gachoka (Deceased)

Date Delivered:

07 May 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Maureen Akinyi Odero

Citation:

In re Estate of Daniel Wainaina Gachoka [2021] eKLR

Court Division:

Civil

County:

Nairobi

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. 346 OF 1986

IN THE MATTER OF THE ESTATE OF DANIEL WAINAINA GACHOKA

alias DANIEL MARIBA GACHOKA (DECEASED)

JOHN MBIRI GACHOKA

LUCAS KAIRU WAIRIMU

(as the administrators of the Estate of

MARGRET MAGIRI (Deceased))

...........................APPLICANTS

VERSUS

STEPHEN KAGUKU MARIBA ............................RESPONDENT

RULING

(1) Before this Court is the Notice of Motion dated

16

th

July 2020

in which

JOHN MBIRI GACHOKA & LUCAS KAIRU WAIRIMU

(as administrators of the Estate of

MARGARET MAGIRI

) (hereinafter

‘the Applicants’

) seek the following orders:-

1. SPENT

2. SPENT

3. The Honourable Court be pleased to order that the Confirmed Grant issued to STEPHEN KAGUKU MARIBA be revoked.

4. In the alternative, the Honourable Court be pleased to order that he confirmed grant issued to STEPHEN KAGUKU MARIBA be amended or rectified to remove half of the LR No. Kiganjo/Kiganjo/110 from the assets of the estate of DANIEL WAINAINA GACHOKA alias DANIEL MARIBA GACHOKA.

5. The Respondent be compelled to sign the mutation and transfer forms hiving off half of LR No. Kiganjo/Kiganjo/110 to the personal representatives of the Estate of Margaret Magiri (Deceased), failing which the Deputy Registrar of this Honourable Court to sign the said the mutation and transfer forms.

6. The costs of this application be provided for.

(2) The Application was premised upon

Section 76

of the

Law of Succession Act,

and

Rule 44(1)

of the

Probate and Administration Rules

and was supported by the Affidavit sworn on

16

th

July 2020

by the 1

st

Applicant

JOHN MBIRI GACHOKA

and the 2

nd

Applicant

LUCAS KAIRU WAIRIMU.

BACKGROUND

(3) This cause relates to the estate of

MARGARET MAGIRI

(the Deceased) who in

High Court Civil Case No. 1554 of 1989

was declared to have acquired by way of adverse possession a half share in the property known as

Title L.R. No. Kiganjo/Kiganjo/110

. The Court of Appeal in

Civil Appeal No. 188 of 2002

upheld the decision of the High Court that the Deceased and her children were entitled to equal proportions in the estate of

DANIEL WAINAINA GACHOKA

alias

DANIEL MARIBA GACHOKA

.

(4) The Applicant alleges that despite being fully aware of the above decisions the Respondent proceeded to sub-divide the said parcel of land to his immediate family to the exclusion of the beneficiaries of

MARGARET MAGIRI

(the Deceased) in effect disinheriting them. Hence the present application.

(5) The Respondent despite having been served with the present application failed to file any reply thereto.

ANALYSIS AND DETERMINATION

(6) The application was disposed of by way of written submissions. The Applicants filed in Court their written submissions dated

28

th

January 2021.

(7) I have carefully considered this application, the Affidavit in Support as well as the annextures thereto. It is evident that the Applicants did file another application dated

28

th

June 2019

seeking similar orders. In a ruling delivered on

27

th

February 2020

,

Hon. Lady Justice Ali-Aroni

delivered a Ruling in which she stated as follows:-

“6. I have considered the matter and do concur with the Respondent on the Applicants capacity to bring this application as they are neither the representatives of the estate of Margaret Magiri (Deceased) nor the estate of Kibe Mariba (Deceased) though I note that the Applicants may have a genuine claim nonetheless.

7. Consequently, I will decline the application for now. The Applicants be at liberty to re-apply as the application is not yet determined on merit once they obtain legal capacity.”

(8) The Applicants have not demonstrated that they are the legal representatives of the estate of the late

Margaret Magiri

. As such the Applicants have failed to comply with the directives given by

Justice Ali-Aroni

in her Ruling of

26

th

February 2020

. All they have done is to file the same application once again. The orders sought in this application cannot be granted to the Applicants until the orders of

Justice Ali-Aroni

have been complied with. Only then will the Applicants have the requisite locus standi to pursue this matter. In the circumstances I do hereby strike out the Notice of Motion dated

16

th

July 2020

and make no orders on costs.

DATED IN NAIROBI THIS 7TH DAY OF MAY, 2021.

…………………………………..

MAUREEN A. ODERO

JUDGE