[2015] KEHC 6177 (KLR)
The court found that the intended defendants had no crystallized interest in the estate as distribution had not occurred, and thus lacked capacity to sell or defend any share of the estate. The Environment and Land Court lacks jurisdiction to determine issues of distribution of a deceased estate, which is the...
Source-derived case information.
- Citation
- [2015] KEHC 6177 (KLR)
- Parties
- Plaintiff: Daniel Mule Musau; Plaintiff: Philip Muilu Musau (suing as administrators ad litem of the estate of Musau Muilu Mwova); Defendant: Titus Ndambuki; Intended Defendant: Samuel Katela Musau; Intended Defendant: Sospeter Mutinda Musau; Intended Defendant: Peter Mutie Musau
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 19 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Joinder and Distribution of Estate
- Outcome
- application dismissed
- Judges
- CM Kariuki
- Legal Topics
- Joinder of Parties, Intermeddling With Estate, Sale of Deceased Property, Probate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Mule Musau
Plaintiff
Philip Muilu Musau (suing as administrators ad litem of the estate of Musau Muilu Mwova)
Plaintiff
Titus Ndambuki
Defendant
Samuel Katela Musau
Intended Defendant
Sospeter Mutinda Musau
Intended Defendant
Peter Mutie Musau
Intended Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Joinder and Distribution of Estate
Legal Issues
- 1 Whether the intended defendants should be enjoined as parties to the suit.
- 2 Whether the Environment and Land Court has jurisdiction to determine distribution of a deceased estate.
- 3 Whether the sale of estate property before distribution constitutes intermeddling and is illegal.
Ratio Decidendi
The court found that the intended defendants had no crystallized interest in the estate as distribution had not occurred, and thus lacked capacity to sell or defend any share of the estate. The Environment and Land Court lacks jurisdiction to determine issues of distribution of a deceased estate, which is the exclusive domain of the probate and administration court. The purported sale of estate property before distribution constitutes intermeddling and is illegal under Section 45(1) of the Succession Act. The intended defendants' joinder would not add value to the suit, as there is no claim against them and their presence is not necessary for the effective adjudication of the issues. The...
Court Disposition
application dismissed
Orders
- The application dated 26.9.2014 is dismissed.
- Costs to the plaintiffs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
ELC CASE NO.19 OF 2014
DANIEL MULE MUSAU….…………………………...…….....… 1ST PLAINTIFFF
PHILIP MUILU MUSAU (SUING AS ADMINISTRATORS
AD LITEM OF THE ESTATE OF MUSAU MUILU MWOVA) …... 2ND PLAINTIFF
VERSUS
TITUS NDAMBUKI ………………………………………….........… DEFENDANT
SAMUEL KATELA MUSAU …………………....... 1ST INTENDED DEFENDANT
SOSPETER MUTINDA MUSAU …………....….. 2ND INTENDED DEFENDANT
PETER MUTIE MUSAU …………………….. 3RD INTENDED DEFENDANT
R U L I N G
By a Plaintdated 11. 3.2014, the Plaintiff filed the instant suit on 11. 3.2014 seeking an injunctive relief against the Defendant over Masii/Utithini/181. In his defence the Defendant averred that though the suit land in names of Musau Mwilu deceased 3 deceased beneficiaries sold to him part of their intended shares of estate pending the determination of the succession case on distribution.
On 29. 9.2014 the above intended beneficiaries Samuel Katela Musau, Sospeter Mutinda Musau and Peter Mutie Musau filed a Motion dated 26. 9.2014 seeking to be enjoined as parties in the suit and for the determination of distribution of estate to be done at the same time in the instant suit. The grounds for the said application are that the Applicant entered into a sale agreement with the Defendant to sell their interest. Samuel Katela Musau on their behalf has sworn an affidavit on 26. 9.2014 narrating the background of sale transaction inter alia. The application is opposed by the Plaintiff and the 1st Plaintiff has sworn an affidavit on 14. 11. 2014 on his behalf and that of the 2nd Plaintiff.
The Plaintiff’s case is that the Orders sought cannot be granted and application is in competent. The prayer on distribution of estate can only be handled by a probate and administration court. ELC court cannot entertain such an issue. On enjoining the intended Defendants, the Plaintiff argues that they have no capacity to enter the suit to defend as they are not the administrators. In any event the suit is against the Defendant and there is no claim against them. Further it is argued that, sale of part of estate before distribution is a criminal act known as intermeddling with the property of a deceased person. The alleged agreement is illegal and unenforceable. The applicable rule in the circumstances of the case is Order 1 Rule 10(2) Civil Procedure Rules 2010. This rule empowers court to enjoin Defendant/Plaintiff whose presence in court may be necessary in order to enable court effectively and completely adjudicate upon and settle all questions involved in the suit.
The Applicant wish to be enjoined to come to justify aiding the intermeddling of the estate of a deceased person. There is no claim against them and their shares have not crystalized to enable them alienate them and even defend them. At this stage the best the applicants can be is the Defendant’s witnesses to demonstrate under what law they purported to sell expected Shares from the deceased estate. In ELLY ODHIAMBO ONYUKA –VS- AYUB ODHIAMBO MIGWELLA Civil Appeal 81/2012. The court held that a seller of a property of a deceased person while still registered in deceased person name lacks capacity to do so and is contrary to Section 45(1) of Cap.160. In any event where agreement like in this case is not blessed by a Land Board Consent, the same is null and void.
The court thus finds that the applicants will not add any value in the suit and their enjoining does not meet the threshold set by Order 1 Rule 10(2) Civil Procedure Rule 2010 and thus rejects the application herein. The court makes the following orders:
The application dated 26. 9.2014 is dismissed.
Costs to the Plaintiffs.
DatedandDeliveredatMachakos,this 20thday ofFebruary, 2015.
CHARLES KARIUKI
JUDGE