[2012] KEHC 4641 (KLR)
The court found that the applicant had established, on a balance of probabilities and in the absence of any rebuttal, that the petitioner intended to dispose of the suit plot before confirmation of the grant. The evidence showed that the late Peter Gikonyo Njenga was a dependant and his family had been in occupation...
Source-derived case information.
- Citation
- [2012] KEHC 4641 (KLR)
- Parties
- Applicant: Charles Nganga Njenga; Respondent: Lucy Wangari Njenga
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 426 of 2006
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application for Injunction and Substitution
- Outcome
- application allowed in part
- Judges
- SP Ouko
- Legal Topics
- Succession, Injunctive Relief, Grant Confirmation, Dependant Substitution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Nganga Njenga
Applicant
Lucy Wangari Njenga
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application for Injunction and Substitution
Legal Issues
- 1 Whether the petitioner should be restrained from interfering with or disposing of plot No. LIMURU/NGECHA/T.234 pending confirmation of grant.
- 2 Whether the widow of the deceased son, Peter Gikonyo, should be substituted as a beneficiary in place of her late husband.
Ratio Decidendi
The court found that the applicant had established, on a balance of probabilities and in the absence of any rebuttal, that the petitioner intended to dispose of the suit plot before confirmation of the grant. The evidence showed that the late Peter Gikonyo Njenga was a dependant and his family had been in occupation of the suit plot. The widow's unchallenged affidavit established her right to be substituted as a beneficiary. The court held that it was just and necessary to restrain the petitioner from interfering with or disposing of the suit plot to preserve the estate and protect the interests of all beneficiaries pending confirmation of the grant. The court also directed the applicant...
Court Disposition
application allowed in part
Orders
- The petitioner is restrained from interfering with and/or disposing of plot No. LIMURU/NGECHA/T.234 pending confirmation of the grant.
- The applicant is directed to prosecute the pending applications to enable the petitioner to move the court for confirmation of the grant.
Full Case Text
Judgment text and source record
19 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
SUCCESSION CAUSE NO. 426 OF 2006
IN THE MATTER OF THE ESTATE OF THE LATE AMOS NJENGA GIKONYO
CHARLES NGANGA NJENGA……………………………..APPLICANT/OBJECTOR
VERSUS
LUCY WANGARI NJENGA……………………………..RESPONDENT/PETITIONER
RULING
The deceased in this case Amos Njenga Gikonyo died intestate and was survived by a widow Lucy Wangari Njenga, the petitioner and several children, including the objector, Charles Nganga Njenga.
Although the objection together with answer to petition and petition by way of cross-petition was filed on 12th October 2006, the grant was somehow confirmed on 22nd October 2006 while the objection is still pending determination. Also pending is summons for revocation of the grant and for restraining orders filed on 21st February 2007 again brought by the said Charles Nganga Njenga.
The third application by him and others to which this ruling relates is dated 7th March 2011 and seeks that the petitioner be restrained from interfering or disposing of plot No. LIMURU/NGECHA/T.234 (the suit plot) and that one son of the deceased, Peter Gikonyo, who is also deceased, be substituted by his widow, Susan Waiter Gichohi. The application is supported by three affidavits sworn by the applicants, Charles Nganga Njenga, the said Susan Waithera Gichohi and another son of the deceased, John Mburu Njenga. It is the depondents’ contention that Peter Gikonyo died on 21st December 2010 after this petition was filed; that he was survived by his widow Susan Waithera Gichohi and two children aged 30 and 28 years respectively; that the late Peter Gikonyo Njenga and his family lived on the suit plot where he had constructed a permanent four roomed house and sunk a borehole.
On the 1st March 2011, strangers posing as buyers came to the suit plot claiming they had been sent by the petitioner who intended to sell the suit plot to them, even before the grant is confirmed. It is also contended that the petitioner has stopped John Mburu Njenga from using plot No. NJORO/NGATA BLOCK 2/345. There was no reply to all the foregoing allegations. The petitioner also did not attend at the hearing of this application despite service with a hearing notice.
Whereas it is specifically sought that the petitioner be restrained from interfering with the suit plot (LIMURU/NGECHA/T.234), the affidavit of Charles Nganga Njenga and John Mburu Njenga has not stated what wastage is being committed to any other assets by the petitioner. According to Charles Nganga, the petitioner has been receiving Kshs.90,000 per year under a contract with Safaricom Limited which she does not account for. There is no evidence of the existence or nature of that contract. John Mburu Njenga on the other hand is unhappy that the petitioner has restrained him from using NJORO/NGATA BLOCK 2/345. There is no prayer in the application to restrain the petitioner with regard to this property.
Secondly there is no claim that the petitioner is in anyway wasting it or intending to sell it. Regarding the suit plot, it is not in doubt that the late Peter Gikonyo Njenga was a dependant of the deceased, being his son; that indeed his name was included in this cause as such; that he died in 2010 and was survived by a widow and two children. The widow has averred without being contradicted that the late Peter Gikonyo Njenga and his family has been in occupation of the suit plot which is registered in the name of the deceased; that the petitioner intends to dispose of it even before the grant is confirmed. I am persuaded in the absence of any evidence in rebuttal that the applicant is entitled to the relief sought herein.
For that reason it is ordered that the petitioner shall be and is hereby restrained from interfering with and/or disposing of plot No. LIMURU/NGECHA/T.234 pending confirmation of the grant. The applicant is on the other hand directed to prosecute the pending applications so that the petitioner can move the court to confirm the grant which is over-due.
I award no costs.
Dated, Signed and Delivered at Nakuru this 28th day of February, 2012.
W. OUKO
JUDGE