High Court 10885 of 2025

2. The application is premised on the ground that the transfer and the subsequent consolidation are necessary for the expeditious and prudent trial. 3. The 1st Respondent herein, Elizabeth Thairora Kariuki swore a Replying Affidavit on 14/10/2024 in opposition to the application. She averred that the estate was a going concern generating monthly rental income, which was being disproportionately appropriated, thus necessitating the need for an account for purposes of transparency. 4. The 2nd Respondent herein, Magdalene Kabuya King’ori swore a Replying Affidavit on 26/9/2024 in opposition to the application. She averred that succession cause No. E096/2022 is a nullity ab initio, having been filed in a court without jurisdiction, and there is nothing to transfer. She and the 1st Respondent were appointed as the administrators of the estate of the deceased, and it is legally untenable to have 2 grants in respect of the same estate. 5. The 2nd application is summons for confirmation of grant dated 19/6/2024. The 2nd Respondent has at paragraph 4 of her affidavit in support of the summons for confirmation of grant proposed how Plot No. 2X KIANJAI MARKET, L.R No. KIANJAI/KIANJAI/1XX6, L.R No. 3X/THAU/MUMUI, L.R No. MITUNTU/6X and MERU MUNICIPALITY BLOCK 11/6X (hereinafter referred to as the estate properties) ought to be distributed. 6. Agnes Rigiri Baaru swore an affidavit of protest on 2/7/2024 in opposition to the 2nd Respondent’s proposed mode of distribution. She made her own proposal at paragraph 6 thereof and gave the reasons thereto. 7. The 1st Respondent herein Elizabeth Thairora Kariuki had sworn a Replying Affidavit on 2/7/2024 in support of the protest. 8. Magdalene Kabuya King’ori, the 2nd Respondent herein filed her statement dated 12/9/2024 in support of the summons for confirmation of grant. 9. The applications were directed to be canvassed by way of written submissions, which were duly filed. Disposition. 10. Having considered the applications, the response thereto, the submissions on record and the authorities relied on, I find the issue for determination to be whether they are merited. 11. On the 1st application, Section 47 of the Law of Succession Act vests the High Court with jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient. 12. Indeed, the High Court is empowered under Section 18 of the Civil Procedure Act to withdraw and transfer any suit pending before a lower court to itself or to another court of competent jurisdiction to hear and determine it. 13. The factors to be considered before transfer can be ordered were enlisted by the court (G.V Odunga J as he then was) in Hangzhou Agrochemicals Industries Ltd. v Panda fiowers Ltd [2012] eKLR as follows; “…the motive and the character of the proceedings, the nature of the relief or remedy sought, the interests of the litigants and the more convenient administration of justice, the expense which the parties in the case are likely to incur in transporting and marinating witnesses, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship. If the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the application must be refused. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10885/eng@2025-07-22 2

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Being a discretionary power, the decision whether or not to exercise it depends largely on the facts and circumstances of a particular case.” 14. There is no doubt that Meru Chief Magistrate Succession Cause No. E096/2022 relates to the estate of the deceased herein, and it would be highly undesirable to have two parallel proceedings in respect of the estate of the same person in two distinct courts. 15. Needless to state, the parties herein intimated to court on 1/4/2025 and 4/6/2025 that they were agreeable to the said transfer and consolidation of the two causes. It is only after transfer that the court can ascertain whether the said cause was a nullity ab initio for being filed in a court which was divested of jurisdiction. 16. I find that the transfer of Meru Chief Magistrate Succession Cause No. E096/2022 to this court and the consolidation thereof with this cause is warranted, and it is hereby allowed. 17. On the prayer for appointment of the 3rd Respondent as an administrator, I note that the 1st and 2nd Respondents herein were issued with a grant of letters of administration intestate on 21/3/2023. More importantly, the Respondents are all children of the deceased herein who rank in equal degree of consanguinity under Section 66 of the Law of Succession Act. 18. The prayer for appointment of Dominic Ntongai, the 3rd Respondent herein as an administrator is thus rejected. 19. On the 2nd application, the deceased herein died intestate survived by Dominic Ntongai, Elizabeth Thairora Kariuki, Lucy Kinya, Agnes Rigiri, Margaret Kabuya King’ori, Gabriel Kubai (now deceased but survived by Peninah Kalayu Kubai), Margaret Kaembe, Martha Ncece (now deceased) and Ann Kamathi (now deceased). 20. The Protestor, the 1st Respondent and the 2nd Respondent are in concession on the distribution of Plot No. 2X Kianjai Market, which is alleged to have been left for the daughters of the deceased. 21. The 2nd Respondent has proposed that L.R No. Kianjai/Kianjai/1XX6 be given solely to her while the Protestor proposes that it be shared equally between the 2nd Respondent, the Interested Party and the estate of Martha Ncece. Both the Protestor and the 1st Respondent concur that the deceased herein had during her lifetime bequeathed a portion of it to the Interested Party and Martha Ncece (now deceased). 22. I find that the proposal by the Protestor in regard to L.R No. Kianjai/Kianjai/1XX6 is fair and just. 23. As regards, L.R No. 3X/Thau/Mumui, I find that the proposal by the Protestor is fair, because the 2nd Respondent has already benefitted from the distribution of L.R No. Kianjai/Kianjai/1XX6. 24. There is no dispute that the deceased herein had transferred 6 acres of L.R No. Mituntu/6X to the 3rd Respondent and 2 acres thereof to Gabriel (now deceased) during her lifetime. The justification given by the 2nd Respondent for giving herself and Margaret Kaembe 2 acres each, while Martha Ncece, the Protestor and Ann Kamathi get 1 acre each, is that the Protestor, Ann Kamathi and Martha Ncece have other parcels of land. Nonetheless, there is no evidence that such properties exists, and besides, the Protestor’s proposal is supported by the 1st Respondent. For that reason, I find that the proposal by the Protestor that the remainder of L.R No. Mituntu/6X be shared equally amongst the 1st and 2nd Respondents, Margaret Kaembe, the Protestor and Ann Kamathi is more equitable. 25. The upshot from the foregoing considerations is that the 1st application dated 14/8/2024 is allowed in terms of prayer 1 thereof. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10885/eng@2025-07-22 3

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26. The 2nd application is equally allowed in the following terms: 1. 27. The grant of letters of administration issued to the 1st and 2nd Respondents on 21/3/2023 is hereby confirmed as proposed by the Protestor at paragraph 6 of the protest dated 2/7/2024, save for L.R No. MERU MUNICIPALITY BLOCK 11/6X, whose distribution remains as decreed by Muchelule J in Nairobi Environment and Land Court Civil Suit No. 310 of 2010. There is no order as to costs. DATED AND DELIVERED AT MERU THIS 22ND JULY, 2025 S.M. GITHINJI JUDGE APPEARANCES:Mrs. Kinyanjui for Elizabeth (administrator) and Beneficiary (Agnes). Mr. Murango Mwenda for 2nd administrator (Magdalene). Mr. Ngera holding brief for Mr. Thuranira for one beneficiary. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10885/eng@2025-07-22 4

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