REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
FAMILY DIVISION
PROBATE & ADMINISTRATION CAUSE NO. 932 OF 2000
ROSE WAMBUI GACHENGECHI
ALICE WANJIRU GACHENGECHI ................... APPLICANTS
VERSUS
PATRICK KIARIE GACHENGECHI .................... RESPONDENT
RULING
It is inconceivable that a matter this old still finds it way back on to the cause list. A look at the size of the court file and the yellowing pages reveals a drawn-out succession battle, pitting family members against each other. The background of this dispute is marred with applications, such as the one for determination herein.
By an untitled Application dated 3 May 2024, the Applicants seek the following orders:
Spent
That further the Certificate of Grant issued to PATRICK KIARIE GACHENGECHI and confirmed on 11 July 2005 be revoked, annulled and/or varied or set aside;
That the land parcel number NGENDA/ ITURU/282 be reverted back to the names of the Deceased for fresh distribution;
That the costs of the application be provided for
The Application is supported by an Affidavit sworn by the Applicants in which they aver that the Grant was obtained fraudulently by making false statement and/or concealment from the Court of something material to the cause. The Applicants further aver that “the Grant was obtained by means of an untrue allegation of a fact essential; in point of law to justify the grant notwithstanding that the allegation was made in ignorance of facts .”
It is the Applicants’ case that the Administrator/Respondent went ahead in registering parcel number NGENDA/ITURU/282 to himself as the sole beneficiary and the same was to be shared equally amongst all beneficiaries of the estate. They argue that this was done contrary to the orders of the Court dated 11 July 2005 issued by Hon. Lady Justice Martha Koome, as she was then. Attached to the Affidavit is a copy of the Certificate of Confirmation of Grant dated 11 July 2005 as well as the Order of even date.
The Respondent filed his response to the Application denying the averments made by the Applicants.
I have keenly read the Replying Affidavit and submissions by the respective parties. I do not wish to regurgitate the same here since the Application in itself lacks any merit whatsoever.
This Application, for lack of better words, is misconceived and ill-advised. I would go as far as labelling it as an abuse of precious judicial time.
First and foremost, the Applicants have cast aspersions against the Respondent, intimating some form of fraud or concealment of facts, which they have failed to elaborate to the Court. These are just blanket statements made without any iota of evidence to show that indeed, the Respondent concealed facts from the Court at the time of obtaining the Grant.
Secondly, the Application is predicated on the allegation that the Administrator/Respondent has fraudulently converted parcel number NGENDA/ITURU/282, which belonged to the Deceased, to himself and left out other beneficiaries. I have read the Certificate of Confirmation of Grant. Whereas in the description of properties the same indicates NGENDA/ITURU/282, in the distribution the same parcel is indicated as NGENDA/ITURU/285. In his response, the Respondent clarified that the error was typographical and the correct parcel number is NGENDA/ITURU/285.
The Order issued on 23 August 2005 also indicates the parcel number as NGENDA/ITURU/285.
In a bid to establish the veracity of the Applicants’ claims, I perused the Petition and other documents filed at the commencement of these proceedings. I find no document or evidence whatsoever that the Deceased owned parcel number NGENDA/ITURU/282. Further, the Applicants have not presented any evidence before me to indicate the same. In fact, in the copy of Green Card annexed to their application, the parcel number denoted is NGENDA/ITURU/285.
It is rather unfortunate that this Application was drawn and filed by Counsel. It would have been forgivable if the same had been done by the Applicants in person. I, therefore, condemn the Application to its befitting fate. The same is dismissed with costs to the Respondent.
DATED AND DELIVERED AT NAIROBI THIS DAY OF JUNE 2025
HELENE R. NAMISI
JUDGE OF THE HIGH COURT
Delivered on virtual platform in the presence of:
...N/A......for the Applicants
...N/A.....for the Respondent
Libertine Achieng.... Court Assistant
IN THE HIGH COURT OF KENYA AT MILIMANI
FAMILY DIVISION
PROBATE & ADMINISTRATION CAUSE NO. 932 OF 2000
ROSE WAMBUI GACHENGECHI
ALICE WANJIRU GACHENGECHI ................... APPLICANTS
VERSUS
PATRICK KIARIE GACHENGECHI .................... RESPONDENT
RULING
It is inconceivable that a matter this old still finds it way back on to the cause list. A look at the size of the court file and the yellowing pages reveals a drawn-out succession battle, pitting family members against each other. The background of this dispute is marred with applications, such as the one for determination herein.
By an untitled Application dated 3 May 2024, the Applicants seek the following orders:
Spent
That further the Certificate of Grant issued to PATRICK KIARIE GACHENGECHI and confirmed on 11 July 2005 be revoked, annulled and/or varied or set aside;
That the land parcel number NGENDA/ ITURU/282 be reverted back to the names of the Deceased for fresh distribution;
That the costs of the application be provided for
The Application is supported by an Affidavit sworn by the Applicants in which they aver that the Grant was obtained fraudulently by making false statement and/or concealment from the Court of something material to the cause. The Applicants further aver that “the Grant was obtained by means of an untrue allegation of a fact essential; in point of law to justify the grant notwithstanding that the allegation was made in ignorance of facts .”
It is the Applicants’ case that the Administrator/Respondent went ahead in registering parcel number NGENDA/ITURU/282 to himself as the sole beneficiary and the same was to be shared equally amongst all beneficiaries of the estate. They argue that this was done contrary to the orders of the Court dated 11 July 2005 issued by Hon. Lady Justice Martha Koome, as she was then. Attached to the Affidavit is a copy of the Certificate of Confirmation of Grant dated 11 July 2005 as well as the Order of even date.
The Respondent filed his response to the Application denying the averments made by the Applicants.
I have keenly read the Replying Affidavit and submissions by the respective parties. I do not wish to regurgitate the same here since the Application in itself lacks any merit whatsoever.
This Application, for lack of better words, is misconceived and ill-advised. I would go as far as labelling it as an abuse of precious judicial time.
First and foremost, the Applicants have cast aspersions against the Respondent, intimating some form of fraud or concealment of facts, which they have failed to elaborate to the Court. These are just blanket statements made without any iota of evidence to show that indeed, the Respondent concealed facts from the Court at the time of obtaining the Grant.
Secondly, the Application is predicated on the allegation that the Administrator/Respondent has fraudulently converted parcel number NGENDA/ITURU/282, which belonged to the Deceased, to himself and left out other beneficiaries. I have read the Certificate of Confirmation of Grant. Whereas in the description of properties the same indicates NGENDA/ITURU/282, in the distribution the same parcel is indicated as NGENDA/ITURU/285. In his response, the Respondent clarified that the error was typographical and the correct parcel number is NGENDA/ITURU/285.
The Order issued on 23 August 2005 also indicates the parcel number as NGENDA/ITURU/285.
In a bid to establish the veracity of the Applicants’ claims, I perused the Petition and other documents filed at the commencement of these proceedings. I find no document or evidence whatsoever that the Deceased owned parcel number NGENDA/ITURU/282. Further, the Applicants have not presented any evidence before me to indicate the same. In fact, in the copy of Green Card annexed to their application, the parcel number denoted is NGENDA/ITURU/285.
It is rather unfortunate that this Application was drawn and filed by Counsel. It would have been forgivable if the same had been done by the Applicants in person. I, therefore, condemn the Application to its befitting fate. The same is dismissed with costs to the Respondent.
DATED AND DELIVERED AT NAIROBI THIS DAY OF JUNE 2025
HELENE R. NAMISI
JUDGE OF THE HIGH COURT
Delivered on virtual platform in the presence of:
...N/A......for the Applicants
...N/A.....for the Respondent
Libertine Achieng.... Court Assistant