Wathuko Nderi Chongo v Nderi Wathuko Chongo & 2 others

Nyandarua/Olaragwai/229 measuring 44.5 acres which was acquired by the deceased and transferred to the first house. (ii) The beneficiaries in distributing LR No Nyandarua/Olaragwai/288, Nyandarua Mumui/ Olaragwai/185, Nyandarua Mumui/Olaragwai /186, Mawingu settlement scheme plots 49 and 50, Kiarutara location 16 and 14, Mwagu 16/135 and Turasha ridge plot 3, the court parties to consider LR No Nyandarua/Mumui/344 which was acquired by the deceased and fraudulently transferred to Nderi Wathuko Chongo of the first house. 2. The Applicant has also prayed for costs of the application. 3. The application is based on the sworn affidavit of the Applicant dated the same date. 4. The application is opposed by the respondents vide the preliminary objection dated 15th February 2023 in which they stated that the properties namely Nyandarua/Olaragwai/229 was registered in the name of the late Tabitha Wanjiku and parcel number Nyandarua/ Olaragwai/344 belonged to Nderi Wathuko Chongo and not the deceased herein. 5. The 1st Applicant has further in opposition to the application sworn an affidavit dated 21st November 2022 to exemplify and to buttress the assertion contained in the preliminary objection. 6. The court has perused the annexures to the replying affidavit above and it is evident that land parcel number Nyandarua/Olaragwai/ 229 was transferred from Settlement Fund Trustees to the late Tabitha Wanjiku on 7th October 1977 and at no time the deceased herein was the registered owner. 7. At the same time land parcel number Nyandarua/Mumui/344 was transferred to Nderi Wathuko Chongo on 15th December 2008 by one Maina Kimemia. 8. The green cards attached to the said replying affidavit states as much. 9. In view of the above evidence and in view of this courts ruling of 11th July 2024 I find that the preliminary objection is meritorious. The Applicant ought to pursue his claim over the two properties in another forum and not this court. His deceased father was never a registered owner of any of the two parcels. If there were any family arrangements then perhaps it ought to have been captured in the consent filed settling the estate. 10. At the same time if there was any fraud as alleged by the Applicant then this court will not be able to deal with the same for the reasons that the deceased was never the registered owner of the two parcels. 11. In the premises I do not find any merit in the application and the same is hereby dismissed with no order as to costs. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 3RD DAY OF OCTOBER 2024. H K CHEMITEI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/11629/eng@2024-10-03 2

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