[2014] KEHC 4775 (KLR)
The court found that while there were allegations of intermeddling by the respondents, there was no proof provided to substantiate these claims. The applicants had also failed to obtain the consent or notify most beneficiaries when petitioning for Letters of Administration, which was deemed deceitful. The deceased's...
Source-derived case information.
- Citation
- [2014] KEHC 4775 (KLR)
- Parties
- Applicant: Daniel Wambua Nzove; Applicant: Francis Kivuitu Nzove; Respondent: Kivindyo Nzove; Respondent: Kivindyo Mutinda; Respondent: Mutua Kivindyo
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 265 of 2013
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application for Injunction
- Outcome
- Application for injunction declined; status quo to be maintained pending confirmation of grant.
- Judges
- LN Mutende
- Legal Topics
- Injunctive Relief, Intermeddling With Estate, Distribution of Estate, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Wambua Nzove
Applicant
Francis Kivuitu Nzove
Applicant
Kivindyo Nzove
Respondent
Kivindyo Mutinda
Respondent
Mutua Kivindyo
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the applicants are entitled to a temporary injunction restraining the respondents from interfering with parcel Muthetheni/Kionyweni/179 pending determination of the succession cause.
- 2 Whether the applicants properly petitioned for Letters of Administration without the consent of all beneficiaries.
- 3 Whether there is sufficient evidence of intermeddling by the respondents to warrant injunctive relief.
Ratio Decidendi
The court found that while there were allegations of intermeddling by the respondents, there was no proof provided to substantiate these claims. The applicants had also failed to obtain the consent or notify most beneficiaries when petitioning for Letters of Administration, which was deemed deceitful. The deceased's purported distribution of property was not documented, leading to disputes among beneficiaries. Given the lack of evidence of intermeddling and the need to preserve the estate, the court declined to grant the injunctive orders sought by the applicants. Instead, it ordered that the status quo as at the time of the deceased's demise be maintained pending confirmation of the...
Court Disposition
Application for injunction declined; status quo to be maintained pending confirmation of grant.
Orders
- Status quo as at the time of the deceased's demise to be maintained pending confirmation of the grant.
- Applicants to file application for Confirmation of Grant within one month.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 265 OF 2013
IN THE MATTER OF THE ESTATE OFNZOVE MUU (DECEASED)
DANIEL WAMBUA NZOVE……….....1st PETITIONER/APPLICANT
FRANCIS KIVUITU NZOVE……......2nd PETITIONER/APPLICANT
VERSUS
KIVINDYO NZOVE……………………………………...1ST RESPONDENT
KIVINDYO MUTINDA…………………………………2ND RESPONDENT
MUTUA KIVINDYO ...............................................3RD RESPONDENT
RULING
By an application dated 27th August, 2013, the applicant seeks a temporary injunction to restrain the respondents from trespassing, disposing or dealing with Muthetheni/Kionyweni/179 occupied by the 1st applicant pending hearing and determination of the cause.
The applicant is based on grounds that;-
The respondents are beneficiaries of the estate of the deceased and prior to his demise, the deceased had subdivided his property amongst children;
The applicant in particular was given parcel No. Muthetheni/Kionyweni/179 which he was already in possession of;
The respondents are interfering with the parcel of land deterring him to cultivate it;
It would be in the interest of justice to have status quo maintained pending hearing and determination of the cause.
In a response thereto, the respondents deponed that the deceased had three (3) wives, the applicants are from the 2nd house while they (respondents) are from the 1st house and they have lived on the disputed parcel of land since birth. The parcel of land was divided equally amongst the three houses prior to the deceased’s demise.
The applicants petitioned for Letters of Administration without the knowledge or consent of the 1st and 3rd houses, therefore the application does not qualify for issuance of an injunction sought.
Rival submissions by both counsels for the applicants and respondents have been considered. The parcel of land, the subject of this application forms part of the estate of the deceased. It has been demonstrated that at the time of petitioning for Letters of Administration the applicants did not obtain consent and/or notify most beneficiaries to the estate of the deceased which was deceitful on their part.
Further it is established that prior to the deceased’s demise he purported to distribute his properties. This was however not documented. This resulted into the beneficiaries having a dispute over the estate of the deceased.
No. person ought to intermeddle with the estate of the deceased. The court has a duty of ensuring such property is preserved. It is alleged without certainty that the respondents have intermeddled with the parcel of land purportedly distributed to the applicants. There is however no iota of proof of the allegation. The court cannot grant injunctive orders unless a prima facie case is established. In the premises it would call for the status quo that was maintained at the time of the demise of the deceased to prevail.
However, this is a case where a temporary grant of Letters of Administration was issued on the 11th July, 2013. Nine(9) months have elapsed since then. It would be in the interest of justice that the estate be distributed. It is therefore ordered that status quo be maintained pending confirmation of the grant issued. The applicants/petitioners are directed to file the application for Confirmation of the Grant within one (1) month. In default the order for status quobeing maintained shall lapse.
It is so ordered.
DATED, SIGNEDand DELIVERED at MACHAKOS this 23RD day ofMAY 2014.
L.N. MUTENDE
JUDGE