[2004] KEHC 2445 (KLR)
The court found that the applicant, as a widow of the deceased, is an interested party with sufficient standing to seek preservation orders over the estate, even before a grant of letters of administration is issued. The respondents did not file a replying affidavit, leaving the applicant's allegations...
Source-derived case information.
- Citation
- [2004] KEHC 2445 (KLR)
- Parties
- Applicant: Abigael Muhuzani; Respondent: Simon Chando; Respondent: Florence Chando; Respondent: Margaret Chazi
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 63 of 2004
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application for Preservation Orders
- Outcome
- application allowed in part
- Legal Topics
- Succession, Letters of Administration, Intermeddling With Estate, Preservation of Estate, Locus Standi, Matrimonial Home Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abigael Muhuzani
Applicant
Simon Chando
Respondent
Florence Chando
Respondent
Margaret Chazi
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application for Preservation Orders
Legal Issues
- 1 Whether the applicant, as a widow of the deceased, has locus standi to seek preservation orders before grant of letters of administration is issued.
- 2 Whether the respondents should be restrained from intermeddling with the estate of the deceased and from interfering with the applicant's freedom of movement.
- 3 Whether preservation orders should be granted to protect the estate pending issuance of letters of administration.
Ratio Decidendi
The court found that the applicant, as a widow of the deceased, is an interested party with sufficient standing to seek preservation orders over the estate, even before a grant of letters of administration is issued. The respondents did not file a replying affidavit, leaving the applicant's allegations uncontroverted. The court held that the preservation of the estate is paramount to prevent dissipation or intermeddling, and that both the applicant and respondents should be restrained from disposing of or taking possession of the deceased's assets until proper administration is granted. The court also found no basis for the respondents' argument that the applicant lacked locus standi in...
Court Disposition
application allowed in part
Orders
- Respondents are restrained from disposing of, taking possession of, or in any way intermeddling with the estate of the deceased.
- Respondents are restrained from threatening, insulting, or interfering with the applicant's freedom of movement.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
SUCCESSION CAUSE NO. 63 OF 2004
IN THE MATTER OF THE ESTATE OF MATINI MLANDA CHANDO (DECEASED
ABIGAEL MUHUZANI ……………………………… APPLICANT
- Versus -
SIMON CHANDO
FLORENCE CHANDO
MARGARET CHAZI ……….……..........……… RESPONDENTS
R U L I N G
Abigael Muhuzani who says she is a widow of the late MATINI MLANDA CHANDO (the Deceased) has in this cause petitioned for a grant of letters of administration of the estate of the Deceased. Simultaneously with the filing of the petition she also filed an application under section 45 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules seeking to restrain the Respondents their servants or agents from disposing off, taking possession or in any other way intermeddling with the estate of the deceased. She also seeks an order to restrain the Respondents from threatening, insulting or in any way interfering with the Petitioner’s freedom of movement.
In the supporting affidavit she stated that since the death of the Deceased the Respondents have been going to her house and not only insulting her but also threatening to take away the properties belonging to the deceased.
The Respondents did not file any replying affidavit. Instead they, through their Advocates, filed grounds of opposition to the effect that the application is bad in law and that the Applicant has no locus standi as she has not obtained a grant of letters of administration. Mrs. Ngugi, counsel for the Respondents, submitted that the Respondents have not done or threatened to do any of the things they are accused of. She also stated that one of the Respondents Florence Chando is the widow of the Deceased who, although entitled to the properties of the Deceased has, however, not taken or threatened to take any property of the deceased.
Mrs. Ngugi further argued that anyone intermeddling with the estate of a deceased person commits a criminal offence under section 45 of the Law of Succession Act. If the Respondents had intermeddled with the estate of the Deceased in this case as it is alleged, then the matter should have been reported to the police for appropriate action.
As I have already stated the Respondents have not filed a replying affidavit. So the arguments by the Petitioner stand uncontroverted. That she has no locus standi does not hold in this particular application. Being a widow of the Deceased she is an interested party. According to her the Respondents are not only seeking to take away the Deceased’s property but they are also threatening to throw her out of the matrimonial home. In respect of the assets of the deceased all she is seeking is the preservation of the estate.
For these reasons I allow the application in terms of paragraphs 2 and 3 thereof and further order that the Applicant shall also not take away the assets of the Deceased from the Deceased’s home or in any way dispose of them until letters of administration are issued and authority is given to her to dispose of them. The estate of the Decease should be preserved for distribution, at the right time, to the rightful heirs of the deceased. To avoid creating tension in the family. I make no order as to costs.
DATED this 31st day of March 2004.
D.K. Maraga
Ag. JUDGE