[2016] KEHC 4725 (KLR)
The court found the Notice of Motion dated 28th June, 2015 to be incompetent and defective because it failed to properly describe the parties and properties involved, and was brought under procedural rules (Civil Procedure Rules) that do not apply to succession proceedings except as specifically provided. The Law of...
Source-derived case information.
- Citation
- [2016] KEHC 4725 (KLR)
- Parties
- Petitioner: Antony Muthike Njagi; Applicant: Faith Mumbi Njagi; Applicant: Jane Mabuti Njagi; Respondent: Beatrice Wangundi Kiama
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 180 of 2014
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application (notice of Motion)
- Outcome
- Application struck out as incompetent; status quo and restriction orders issued.
- Judges
- BB Limo
- Legal Topics
- Succession Procedure, Administration of Estates, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Antony Muthike Njagi
Petitioner
Faith Mumbi Njagi
Applicant
Jane Mabuti Njagi
Applicant
Beatrice Wangundi Kiama
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application (notice of Motion)
Legal Issues
- 1 Whether the Notice of Motion dated 28th June, 2015 is competent and properly before the court.
- 2 Whether the Civil Procedure Rules apply to succession proceedings under the Law of Succession Act.
- 3 Whether the court should grant an order of status quo and restriction over the estate property pending administration.
Ratio Decidendi
The court found the Notice of Motion dated 28th June, 2015 to be incompetent and defective because it failed to properly describe the parties and properties involved, and was brought under procedural rules (Civil Procedure Rules) that do not apply to succession proceedings except as specifically provided. The Law of Succession Act and the Probate and Administration Rules provide a complete and exclusive procedural code for succession matters, and applications must be brought by summons as required by Rule 59. The court, therefore, struck out the application for being improperly before it. However, recognizing the need to preserve the estate and in light of a prior consent and the...
Court Disposition
Application struck out as incompetent; status quo and restriction orders issued.
Orders
- The Notice of Motion dated 28th June, 2015 is struck out with costs.
- An order of status quo is to be maintained in respect to properties KABARE/GACHIGE/2335 and 2336 pending administration or determination of the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
SUCCESSION CAUSE NO. 180 OF 2014
IN THE MATTER OF THE ESTATE OF MARGRET WAIRIMU NJAGI (DECEASED)
AND
ANTONY MUTHIKE NJAGI…………...…………..……..…..PETITIONER
VERSUS
FAITH MUMBI NJAGI………..…………….…1STOBJECTOR/APPLICANT
JANE MABUTI NJAGI………………….…..2ND OBJECTOR/APPLICANT
BEATRICE WANGUNDI KIAMA…....…………CREDITOR/RESPONDENT
RULING
This is a ruling in respect to a Notice of Motion dated 28th June, 2015 brought in respect to the estate of Margaret Wairimu Njagi but brought by a party that is not described. The application seeks to restrain Antony Muthike Njage one of the administrators herein and one Beatrice Wangundi Kiama also not assigned any description.
The application is brought under Section 45, 47 and 52 of the Law of Succession Act and Order 37, 40, and 51 of The Civil Procedure Rules 2010 Section 1A, 1B and 3A of Civil Procedure Act and Article 159 of the Constitution.
I have looked at the application and with due respect to the applicants’ counsel the application is incompetently drawn and is irredeemably defective in law and form for the following reasons:
The properties sought to be restricted are not given.
The party/parties to the application are not described or named. This court is unable to tell who it is that is moving the court and who the respondents are. Description of parties in a suit or cause is a basic, elementary and important and this court is unable to fathom how such a basic requirement can escape the attention of counsel.
The Law of Succession Act is complete with its own unique set of prescribed procedures in dealing with any issue arising therefrom. By a dint of the provisions of Rule 63(1) of Probate and Administration Rules the application of Civil Procedure Rules is quite restricted to specific rules of the Civil Procedure Rules and certainly the provisions of Order 37, 40 or 51 of the Civil Procedure Rulesdo not apply. An application for injunction or for any prayers sought in this application must comply with Rule 59 of the Probate and Administration Rules which provides that applications in succession causes shall be in form of summons. There is no place for Notice of Motions in litigatious proceedings in succession causes and Rule 72 of Probate and Administration Rulesmakes it mandatory for parties in succession causes to comply with the procedures provided for in the rules that govern succession proceedings in court. Rules of Procedure are there to regulate order in court for convenience of everyone and timely dispensation of justice. The rules of procedure and the provisions of Civil Procedure Act save as provided for under the above cited rules do not apply in succession proceedings.
In view of the above, this Court finds that to the extent to which I have pointed out, the application dated 28th June, 2015 is incompetent and defective. This Court has not been properly moved and I have no other option other than to strike out the application with costs. However, owing to the consent of parties entered in court on 11th April, 2016 and cognizant of the interest of justice, I am inclined to invoke the provisions of Section 47 of Law of Succession Act Cap. 160 and Article 159 of the Constitution and order pending the administration and/or determination of this cause an order of status quo in respect to the property comprised in the estate herein namely KABARE/GACHIGE/2335 and 2336 shall be maintained. The parties to this cause can continue occupying what they have been occupying and utilizing and an order of restriction is hereby issued to be placed on until the estate is fully administered and/or distributed to the respective beneficiaries in accordance with the law.
Dated and delivered at Kerugoya this 18th day of May, 2016.
R. K. LIMO
JUDGE
18. 5.2016
Before Hon. Justice R. Limo
Court Assistant Willy Mwangi
Abubakar holding brief for Fatuma for Petitioner/Respondent present
Nyareru for applicant present
COURT: Ruling signed, dated and delivered in the open court in the presence of Nyareru for the applicant and Mr. Abubakar holding brief for Fatuma for Respondent.
R. K. LIMO
JUDGE
18. 5.2016