Peter Waweru Waciuri, (hereinafter referred to as the plaintiff) sued his siblings Paul Gachengo Waciuri, John Muriu Wachiuri, Ann Wanja Wachiuri and Joyce Wangari Wachiuri (herein after referred to as defendants) in respect of property No. Dundori/Lanet Block 2/118 [Tabune](hereinafter referred to as the suit property) which was initially registered in the names of their mother, Grace Wangui Wachiuri on 3.7.1990 but later transferred on 18.4.2012 in the names of Paul Gachengo Wachiuri (first defendant) without a grant of letters of administration intestate and title deed issued on 30.5.2012 in the estate of the deceased who died on 8th January 2000.
Later the title was closed on sub-division and nine titles were created. The suit was filed vide plaint dated 5.12.2023 and filed on 7.12.2023 but amended on 5.2.2024. In the amended plaint, the plaintiff is suing as the administrator on the Estate of the late Grace Wangui Wachiuru.
The plaintiff states that he is the son and the Legal Administrator of the estate of the late Grace Wangui Wachiuri who is the bonafide owner of land parcel originally known as Dundori/Lanet block 2/118 (Tabuga).
The plaintiff avers that the defendants fraudulently and secretly caused the transfer and sub division of the said parcel of land known as Dundori/Lanet block 2/118 (Tabuga) creating new title numbers Dundori/lanet block 2/2579, 2580, 2581, 2582, 2583, 2584, 2585, 2586 and 2587 (Tabuga) registered in his respective names as the new registered owner of without the knowledge and consent of the plaintiff herein together with their family members.
The 1st defendant later transferred land parcel number Dundori/Lanet block 2/2587, 2585 and 2584 to the 2nd 3rd and 4th defendants respectively.
The plaintiff further avers that upon conducting official search in the lands registry he discovered that the original title number Dundori/Lanet block 2/118 has now been sub divided to create new title numbers Dundori/Lanet block 2/2579, 2580, 2581, 2582, 2583, 2584, 2585, 2586 and 2587 (Tabuga) registered in the names of the defendants.
The particulars of fraud and misrepresentation are that the defendants caused sub division, transfer and registration of Dundori/Lanet block 2/118 to create new title numbers Dundori/Lanet block 2/2579, 2580, 2581, 2582, 2583, 2584, 2585, 2586 and 2587 (Tabuga) without the knowledge of the plaintiff and other family members of the late Grace Wangui Wachiuri and transferring land parcel number Dundori/Lanet block 2/118 fraudulently. Moreover, knowingly presenting forged documents in the land registry.
The plaintiffs claim against the Defendants jointly and severally is to have the Title deeds of land parcel Number Dundori/Lanet block 2/2579, 2580, 2581, 2582, 2583, 2584, 2585, 2586 and 2587 (Tabuga) issued to the Defendants cancelled and the land to revert to its original title Number Dundori/Lanet block 2/118 measuring 1.46 Hectares.
The plaintiff prays further for an order for cancellation of all new Titles numbers Dundori/Lanet block 2/2579, 2580, 2581, 2582, 2583, 2584, 2585, 2586 and 2587and any other subsequent titles created from the original title number Dundori/Lanet block 2/118 and or any subsequent transfer and or registration to a third party be reverted and restored in the name of the late Grace Wangui Wachiuri.
He further prays for an order declaring land parcel originally known as Dundori/Lanet block 2/118 was owned and belongs to the late Grace Wangui Wachiuri as the bonafide owner.
Lastly, a permanent injunction restraining the defendants by themselves , their servants and/ or agents from entering , surveying, subdividing, allocating, alienating, disposing of and /or interfering with or in any way dealing with the said parcels of land known as Dundori/Lanet block 2/2579, 2580, 2581, 2582, 2583, 2584, 2585, 2586 and 2587 which is the suit property.
The defendants filed defence stating that the Plaintiff was bequeathed Five (5) acres land within Rongai Sub-County while the defendants were bequeathed all that parcel of land known as Dundori Lanet Block/2118 (Tabuga) measuring 1.46 hactares now the suit land. The defendants aver that in fact the deceased went on to facilitate the transfer of the Plaintiff's bequeathal in the Plaintiff's favour prior to her death.
The 1st Defendant transferred the suit parcel to himself, subdivided the suit parcel and divided the same with the other defendants, all of this was as per the wishes of the deceased who had bequeathed them the suit parcel prior to her death.
The defendants aver that the Plaintiff is the one guilty of fraud and misrepresentation as he has already transferred his bequeathal to himself and now want to benefit from the defendants' inheritance, a fact that the Plaintiff has conveniently refused to disclose to this Honourable Court.
The Defendants avers that the Plaintiff was not properly appointed as an administrator since he did not obtain the consent of other beneficiaries of the deceased's estate and the Defendants shall raise a preliminary point of law urging the Honourable Court to strike out the entire suit with costs for being fatally defective. The defendants deny the Plaintiff's claim in that the same is frivolous, vexatious, baseless, moot and an abuse of the court process.
When the matter came up for hearing, the plaintiff testified as PW1 whereas the defendants also testified in this court. I will not go into the details of their testimony because the issue of capacity should be addressed first.
The suit herein was filed by the plaintiff who did not have capacity to sue. The suit ab initio was a nullity having been filed by a person without locus standi. The plaintiff amended the suit on 5th February 2024 to clothe himself with capacity, however this court finds that at the time of amendment the plaint was already a nullity for lack of capacity.
The plaintiff gave evidence that his mother Grace Wangui Wachiuri died on 8.1.2000 and was survived by 11 dependents. She was the registered owner of L.P No. Dundori /Lanet/Block 2/118. When he conducted any official search, he discovered that his mother’s land had been and had been subdivided into nine parcels of land Dundori /Lanet/Block 2/2579-2387. The said subdivision was done without any succession cause.
DW1, DW2, DW3 sworn Wachiuri, Paul Wachiuri, Anne Wanja Wachiuri testified that their mother died leaving them the suit parcel of land where they live todate. They did not produce any evidence to demonstrate that they obtained any grant of letters of administration intestate.
DW4, Emma Sitienei testified that Rongil/Langaret/Block 5/461 [Kandulina] was registered in the name of Peter Waweru Waciuri having been transferred to him by Government of Kenya. His name was in the registration that was presented by the officials of the land buying company.
According to the records of the land buying company, the original owner was Waciuru Wanjohi but was replaced by Peter Waweru Waciuri. DW5, Jane Gitare a land Registrar Nakuru testified that D/L/Block 1/118 was initially registered in the names of Grace Wangui Waciuri. She did not see any transfer to Paul Gachengo Waciuri. The green cards show that the portions were registered on 18.4.2012. She states that it is not possible for a deceased to transfer land.
Section 45 of the Law of Succession Act (Cap 160) of Kenya strictly prohibits intermeddling with the property of a deceased person. It mandates that no one can take possession of, dispose of, or interfere with a deceased person's estate without legal authority (a grant of representation) or legal authorization. Violating this is an offense punishable by fines or imprisonment
I do find that though the defendants dealt with the deceased property irregularly without a grant of letters of administration intestate, the plaintiff also commenced this suit without obtaining the grant ad litem and therefore the suit is a nullity as the suit was commenced without capacity. The plaintiff obtained a limited grant of letters of administration ad litem after filing the suit and purported to amend the suit to cloth himself with capacity. The basis of a limited grant is found in Section 54 of the Law of Succession Act, Chapter 160 of the Laws of Kenya (hereinafter referred to as 'the Act') which states that: -
'54. A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act.'
I do find that the acquisition of the limited grant of the letters of administration ad litem should be before filing the suit and not after filing the suit as capacity should not be obtained in retrospect. In this case, obtaining the grant after filing the suit did not give the plaintiff capacity as the same could not operate in retrospect.
On the other hand, the suit property was transferred from the deceased to the 1st defendant without obtaining and or confirmation of grant of letters of administration in respect of the estate of the late Grace Wangui Wachiuri.
I do find that the whole process of dealing with the suit property by the defendants was null and void. However, having found that the suit was commenced without a grant of letters of administration ad litem, the suit is declared a nullity for the plaintiff’s lack of capacity. No orders as to costs as the parties herein are family members. Orders accordingly.
Later the title was closed on sub-division and nine titles were created. The suit was filed vide plaint dated 5.12.2023 and filed on 7.12.2023 but amended on 5.2.2024. In the amended plaint, the plaintiff is suing as the administrator on the Estate of the late Grace Wangui Wachiuru.
The plaintiff states that he is the son and the Legal Administrator of the estate of the late Grace Wangui Wachiuri who is the bonafide owner of land parcel originally known as Dundori/Lanet block 2/118 (Tabuga).
The plaintiff avers that the defendants fraudulently and secretly caused the transfer and sub division of the said parcel of land known as Dundori/Lanet block 2/118 (Tabuga) creating new title numbers Dundori/lanet block 2/2579, 2580, 2581, 2582, 2583, 2584, 2585, 2586 and 2587 (Tabuga) registered in his respective names as the new registered owner of without the knowledge and consent of the plaintiff herein together with their family members.
The 1st defendant later transferred land parcel number Dundori/Lanet block 2/2587, 2585 and 2584 to the 2nd 3rd and 4th defendants respectively.
The plaintiff further avers that upon conducting official search in the lands registry he discovered that the original title number Dundori/Lanet block 2/118 has now been sub divided to create new title numbers Dundori/Lanet block 2/2579, 2580, 2581, 2582, 2583, 2584, 2585, 2586 and 2587 (Tabuga) registered in the names of the defendants.
The particulars of fraud and misrepresentation are that the defendants caused sub division, transfer and registration of Dundori/Lanet block 2/118 to create new title numbers Dundori/Lanet block 2/2579, 2580, 2581, 2582, 2583, 2584, 2585, 2586 and 2587 (Tabuga) without the knowledge of the plaintiff and other family members of the late Grace Wangui Wachiuri and transferring land parcel number Dundori/Lanet block 2/118 fraudulently. Moreover, knowingly presenting forged documents in the land registry.
The plaintiffs claim against the Defendants jointly and severally is to have the Title deeds of land parcel Number Dundori/Lanet block 2/2579, 2580, 2581, 2582, 2583, 2584, 2585, 2586 and 2587 (Tabuga) issued to the Defendants cancelled and the land to revert to its original title Number Dundori/Lanet block 2/118 measuring 1.46 Hectares.
The plaintiff prays further for an order for cancellation of all new Titles numbers Dundori/Lanet block 2/2579, 2580, 2581, 2582, 2583, 2584, 2585, 2586 and 2587and any other subsequent titles created from the original title number Dundori/Lanet block 2/118 and or any subsequent transfer and or registration to a third party be reverted and restored in the name of the late Grace Wangui Wachiuri.
He further prays for an order declaring land parcel originally known as Dundori/Lanet block 2/118 was owned and belongs to the late Grace Wangui Wachiuri as the bonafide owner.
Lastly, a permanent injunction restraining the defendants by themselves , their servants and/ or agents from entering , surveying, subdividing, allocating, alienating, disposing of and /or interfering with or in any way dealing with the said parcels of land known as Dundori/Lanet block 2/2579, 2580, 2581, 2582, 2583, 2584, 2585, 2586 and 2587 which is the suit property.
The defendants filed defence stating that the Plaintiff was bequeathed Five (5) acres land within Rongai Sub-County while the defendants were bequeathed all that parcel of land known as Dundori Lanet Block/2118 (Tabuga) measuring 1.46 hactares now the suit land. The defendants aver that in fact the deceased went on to facilitate the transfer of the Plaintiff's bequeathal in the Plaintiff's favour prior to her death.
The 1st Defendant transferred the suit parcel to himself, subdivided the suit parcel and divided the same with the other defendants, all of this was as per the wishes of the deceased who had bequeathed them the suit parcel prior to her death.
The defendants aver that the Plaintiff is the one guilty of fraud and misrepresentation as he has already transferred his bequeathal to himself and now want to benefit from the defendants' inheritance, a fact that the Plaintiff has conveniently refused to disclose to this Honourable Court.
The Defendants avers that the Plaintiff was not properly appointed as an administrator since he did not obtain the consent of other beneficiaries of the deceased's estate and the Defendants shall raise a preliminary point of law urging the Honourable Court to strike out the entire suit with costs for being fatally defective. The defendants deny the Plaintiff's claim in that the same is frivolous, vexatious, baseless, moot and an abuse of the court process.
When the matter came up for hearing, the plaintiff testified as PW1 whereas the defendants also testified in this court. I will not go into the details of their testimony because the issue of capacity should be addressed first.
The suit herein was filed by the plaintiff who did not have capacity to sue. The suit ab initio was a nullity having been filed by a person without locus standi. The plaintiff amended the suit on 5th February 2024 to clothe himself with capacity, however this court finds that at the time of amendment the plaint was already a nullity for lack of capacity.
The plaintiff gave evidence that his mother Grace Wangui Wachiuri died on 8.1.2000 and was survived by 11 dependents. She was the registered owner of L.P No. Dundori /Lanet/Block 2/118. When he conducted any official search, he discovered that his mother’s land had been and had been subdivided into nine parcels of land Dundori /Lanet/Block 2/2579-2387. The said subdivision was done without any succession cause.
DW1, DW2, DW3 sworn Wachiuri, Paul Wachiuri, Anne Wanja Wachiuri testified that their mother died leaving them the suit parcel of land where they live todate. They did not produce any evidence to demonstrate that they obtained any grant of letters of administration intestate.
DW4, Emma Sitienei testified that Rongil/Langaret/Block 5/461 [Kandulina] was registered in the name of Peter Waweru Waciuri having been transferred to him by Government of Kenya. His name was in the registration that was presented by the officials of the land buying company.
According to the records of the land buying company, the original owner was Waciuru Wanjohi but was replaced by Peter Waweru Waciuri. DW5, Jane Gitare a land Registrar Nakuru testified that D/L/Block 1/118 was initially registered in the names of Grace Wangui Waciuri. She did not see any transfer to Paul Gachengo Waciuri. The green cards show that the portions were registered on 18.4.2012. She states that it is not possible for a deceased to transfer land.
Section 45 of the Law of Succession Act (Cap 160) of Kenya strictly prohibits intermeddling with the property of a deceased person. It mandates that no one can take possession of, dispose of, or interfere with a deceased person's estate without legal authority (a grant of representation) or legal authorization. Violating this is an offense punishable by fines or imprisonment
I do find that though the defendants dealt with the deceased property irregularly without a grant of letters of administration intestate, the plaintiff also commenced this suit without obtaining the grant ad litem and therefore the suit is a nullity as the suit was commenced without capacity. The plaintiff obtained a limited grant of letters of administration ad litem after filing the suit and purported to amend the suit to cloth himself with capacity. The basis of a limited grant is found in Section 54 of the Law of Succession Act, Chapter 160 of the Laws of Kenya (hereinafter referred to as 'the Act') which states that: -
'54. A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act.'
I do find that the acquisition of the limited grant of the letters of administration ad litem should be before filing the suit and not after filing the suit as capacity should not be obtained in retrospect. In this case, obtaining the grant after filing the suit did not give the plaintiff capacity as the same could not operate in retrospect.
On the other hand, the suit property was transferred from the deceased to the 1st defendant without obtaining and or confirmation of grant of letters of administration in respect of the estate of the late Grace Wangui Wachiuri.
I do find that the whole process of dealing with the suit property by the defendants was null and void. However, having found that the suit was commenced without a grant of letters of administration ad litem, the suit is declared a nullity for the plaintiff’s lack of capacity. No orders as to costs as the parties herein are family members. Orders accordingly.