In re Estate of Priscilla Njeri Gachinga (Deceased) (Succession Cause E799 of 2024) [2025] KEHC 8290 (KLR) (Family) (13 June 2025) (Ruling)
Neutral citation:
[2025] KEHC 8290 (KLR)
Republic of Kenya
Succession Cause E799 of 2024
PM Nyaundi, J
June 13, 2025
IN THE MATTER OF THE ESTATE OF PRISCILLA NJERI GACHINGA (DECEASED)
Between
Catherine Wangari Gachinga
Applicant
and
Gachinga Nduni Ngongu
Respondent
Ruling
1.Before this Court is the Petition for grant of letters of administration ad litem dated 23rd September 2024 filed by Catherine Wangari Gachinga (the applicant).
2.The application is supported by the affidavit sworn by the applicant of even date and a supplementary affidavit sworn on 24th November 2024. The applicant avers that the deceased died intestate on 16th February 2016. The deceased was married to her father, Gachinga Nduni Ngongu. They were blessed with four children. The deceased and Gachinga Nduni Ngongu were registered owners of Title Number Dagoretti/Riruta/1527 now known as Nairobi/Block 66 /1527 situated in in Riruta, Dagoretti Sub-County, Nairobi. Gachinga Nduni Ngongu transferred the property to the deceased through a deed executed on 22nd June 2009. This meant that he surrendered his share to the deceased and was only a trustee of the estate after the deceased’s death.
3.That the respondent is prohibited by law from claiming the parcel of land on the ground of survivorship. The deceased singlehandedly developed the property by putting up rental houses which has been their source of income. This was also the deceased’s matrimonial home. They lived in the estate property till 2022 when Loice Wamburi Gachinga moved in as a legal wife of the deceased. She has since then evicted the John Wamburi Gachinga who is her brother. She also removed his roof, disconnected water and electricity and removed the adjacent housed. The incident was reported to Riruta Police Station on 26th August 2024. She averred that Loice’s actions have rendered the deceased’s children and grandchildren destitute. They have also been denied access to the property to collect rent. That the respondent has not petitioned for letters of administration in regards to the estate of the deceased. Since a full grant has not been issued, she opted to file this application in order to file a suit against the Respondent and Loice (the respondent’s third wife) who have since interfered with the property.
4.The application was opposed. Gachinga Nduni Ngongu filed a replying affidavit sworn on 14th November 2024. He also filed the following grounds of opposition;i.That, the Application dated 23rd September 2024 offends the provisions of Rule 12 of the Probate and administration rules which provides that application for limited grants shall be by way of Petition.ii.That, the consents by other beneficiaries of the estate have not been obtained for the issuance of the grant in favour of the applicant.iii.That, the parcel of land being the subject matter of the applicant’s application does not form part of the estate of the late Priscilla Njeri Gachinga.iv.That this Honorable court be pleased to dismiss the summons application with costs.
5.He averred that the deceased was his second wife. He married her after his 1st wife died. He bought land known as Dagoretti/Riruta/1527 now known as Nairobi/Block 66 /1527 in 1980. The land was registered in his name but later, he voluntarily had the land registered in his name and that of the deceased. He bequeathed Ngong/Ngong/49608 to the 1st houses and Dagoretti/Riruta/6184 to the second house where the applicant comes from. He married Loice in 2010 through customary marriage and moved in with her to Dagoretti/Riruta/1527 now known as Nairobi/Block 66 /1527. He later married her on 29th September 2021 under the marriage Act.
6.He visited the lands office to have the name of the deceased removed from the title and be registered as the sole owner. He was issued with a new title in his name. He built a house for his late son, John Maina Gachinga on the suit property where he lived with his children until 2023 when they vacated. He demolished the house and put up rental houses to give him income. That the applicant and his grandchildren did not approve his marriage to Loice and they invaded his property and demolished the structures he had put up. That he reported the applicant and his grandsons severally to the Police. That although he signed an agreement to transfer the land to the deceased, the transfer was incomplete because he did not sign a transfer form.
7.He averred that since the property is registered in his name, this court should not issue the applicant with letters of administration ad-litem. He argued that he has made bulk development on the property and put strict proof on the applicant. That in any case, he ranks in priority by virtue of Section 66 of the Law of Succession if letters of administration intestate were to be issued. He urged the court to dismiss the applicant’s application with costs to him.
Applicant’s Submissions.
8.The Applicant filed written submissions dated 7th January 2025. It was her submission that the Respondent donated the property in issue to the deceased in expectation of death also commonly known gift causa mortis. She relied on the decision of Aphaxard Nyaga & 2 others vs Robert Njue & 2 others [2021] eKLR, which defines gift causa mortis as a gift is settled by deed or an instrument in writing by delivery, by way of declaration of trust by the donor or by a resulting trust or transfer and registration. That such gift must have passed to the recipient and is now property of the estate available for distribution. She submitted that the Respondent indeed transferred ownership rights to the deceased vide a deed dated 22nd June 2009.
9.She further submitted that the Respondent has not come to court with clean hands by stating in his replying affidavit that he gifted the deceased Dagoretti/Riruta/6184 and not Dagoretti Riruta/1527 also known as Nairobi/Block/66/1527.
10.Lastly, it was her submission that although the respondent ranks higher in priority to petition for letters of administration intestate, he has refused or ignored to apply for the same and allowed a non-beneficiary to intermeddle with the estate. That this court should issue grant ad litem to the applicant to prevent further wastage or intermeddling by the respondent’s third wife.
Respondents Submissions.
11.The Respondent’s submissions are dated 11th March 2025. He submitted that the applicant has not proved the existence of a legal right or liability as to why she should be issued with a limited grant. Further, that she has not proved that there exists a threat to the deceased’s estate. It was the respondent’s submission that the applicant relied on a document which according to law, does not qualify as transfer of property. Although he had the property registered in the joint names of the deceased and him, where one person dies, the surviving person becomes the sole proprietor of the property as was held in the decision of Micheni Aphaxard Nyaga & 2 others vs Robert Njue &2 others [2021] eKLR.
12.He submitted that the allegation by the applicant that the respondent had gifted the deceased the property does not meet the threshold of gift intervivos.He relied on the decision of In re Estate of the late Gedion Manthi Nzioka (Deceased) [2015] eKLR. According to him, the purported gift was incomplete as the transfer had not been completed.
13.The respondent submitted that the application by the applicant is in contravention to Rule 12 of the Probate and Administration Rules which provides that such applications should be by way of petition. Lastly, he argued that he ranks in priority if the grant was to be issued and therefore, the applicant should not be issued with the grant.
Analysis and Determination.
14.I have considered this petition. The Succession Act allows granting of limited grants for various purposes. These are provided for under Section 54 of the Act which provides that:
15.The Fifth Schedule of the Act gives details of various limited grants and the correct format to use in petitioning the court. Limited Grants Ad Litem fall under paragraph 14 of the Fifth Schedule of the Law of Succession Act. The paragraph is specific that the grant of administration ad litem is limited to filing of suit. It states that:
16.The court in the case of In re Estate of Henry Kithia Mwitari (Deceased) [2021] eKLR stated:-
17.Further, the court in the case of Karega & 2 others v Kiama & 2 others (Succession Cause 6 of 2019) [2022] KEHC 9880 (KLR) (8 July 2022) (Ruling) stated:-
18.The Respondent mainly has argued that the court cannot issue a limited grant to the applicant because he is the sole registered owner of the property that the applicant alleges is estate property. In his replying affidavit and submissions, he states that he solely bought the property in 1980 and had it registered in his sole name. On 17th January 2005, he had the property registered in his name and that of the deceased. After the deceased’s death, he followed due procedure and applied that the property be issued in his name. A new title deed was indeed issued in his name on 19th April 2024.
19.The Applicant on the other hand argues that the property was registered in the names of the respondent and the deceased. She argues that the Respondent gifted the deceased the property vide a deed executed on 22nd June 2009. The Respondent denies that he gifted the deceased with Dagoretti/Riruta/1527 now known as Nairobi/Block/66/1527. He stated that he settled the children of the 1st and 2nd house in Ngong/Ngong/49608 and Dagoretti/Riruta/6184 and therefore, Nairobi/Block/66/1527 is not estate property.a.At this stage all the Court is required to determine whether the applicant should. be granted the grant to enable her lodge a claim on Title Number Dagoretti/ Riruta/1527 Now Known as Nairobi/ Block 66/1527. The merits of her claim will be determined by a court of competent jurisdiction.
20.I will therefore allow the application on the following termsa.The Grant of letters of Administration ad litem will issue to Catherine Wangari Gachinga limited for purposes of filing suit, prosecuting, defence and pursuing the legal related interests of the estate in relation to the property known as Title Number Dagoretti/ Riruta/1527 Now Known as Nairobi/ Block 66/1527b.Each party to bear their own costs
21.File closedIt is so ordered
SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 13th DAY OF JUNE, 2025.P. M. NYAUNDIHIGH COURT JUDGEIn the presence of:Otieno Owanda for Applicant (Wangari)Ndambuki for RespondentFardosa Court Assistant