[2015] KEHC 6162 (KLR)
The court found that the central issue—whether the respondent is a widow and thus a beneficiary—remains unresolved and cannot be determined at the interlocutory stage based solely on conflicting affidavit evidence. The court held that it is not possible to prefer one party's affidavit evidence over the other's...
Source-derived case information.
- Citation
- [2015] KEHC 6162 (KLR)
- Parties
- Applicant: Elizabeth Mukonyo Kivindu; Respondent: Serah Mbulwa Kivindu
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 33 of 1995
- Procedural Posture
- Succession Cause / Interlocutory Application for Conservatory Orders Pending Determination of Summons for Revocation of Grant
- Outcome
- Application partially allowed; conservatory orders granted pending hearing of summons for revocation of grant.
- Judges
- BT Jaden
- Legal Topics
- Succession Estate Administration, Revocation of Grant, Beneficiary Entitlement, Customary Law Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Mukonyo Kivindu
Applicant
Serah Mbulwa Kivindu
Respondent
Procedural Posture
Succession Cause / Interlocutory Application for Conservatory Orders Pending Determination of Summons for Revocation of Grant
Legal Issues
- 1 Whether the respondent is a widow of the deceased and therefore a beneficiary of the estate.
- 2 Whether conservatory orders should be granted to restrain the respondent from dealing with the estate pending determination of the summons for revocation of grant.
Ratio Decidendi
The court found that the central issue—whether the respondent is a widow and thus a beneficiary—remains unresolved and cannot be determined at the interlocutory stage based solely on conflicting affidavit evidence. The court held that it is not possible to prefer one party's affidavit evidence over the other's without a substantive hearing. Therefore, the court granted only the prayer for conservatory orders to preserve the estate pending the hearing and determination of the summons for revocation of grant, which will conclusively address the respondent's status and entitlement.
Court Disposition
Application partially allowed; conservatory orders granted pending hearing of summons for revocation of grant.
Orders
- Conservatory orders granted restraining the respondent from encroaching, alienating, or dealing with any part of the estate of George Kivindu Sanga pending hearing and determination of the summons for revocation of grant.
- Costs in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 33 OF 1995
IN THE MATTER OF THE ESTATE OF GEORGE KIVINDU SANGA
ELIZABETH MUKONYO KIVINDU ......................... ADMINISTRATOR/APPLICANT
VERSUS
SERAH MBULWA KIVINDU …………………..………………………. RESPONDENT
R U L I N G
1. The application dated 10/12/2012 seeks the following orders:-
“(Spent).
THATthe Respondent be restrained from encroaching, alienating or in any other manner dealing with any part of the Estate ofGeorge Kivindu Sanga(Deceased) pending hearing and determination of the Respondent’s Summons for Revocation of Grant filed on 21st June 2012.
THATconservatory orders be granted on all that property comprising of the estate declared to be the estate ofGeorge Kivindu Sanga(Deceased) pending hearing and determination of the Respondent’s summons for Revocation of Grant filed on 21st June 2012.
THATthe costs of this application be borne by the Respondent.”
2. The grant of Letters of Administration intestate was made to the Applicant on 5/5/1995. The Summons for Confirmation filed herein remains pending. The Respondent filed a Summons for Revocation/Annulment which is yet to be heard.
3. The Applicant’s complaint is that the Respondent has encroached on the land parcel No. Makueni/Unoa/31 which is part of the estate of the deceased. That the Respondent has carried out ploughing on the said land and is also putting up a construction therein.
4. The application is opposed. It is the Respondent’s contention that she is a co-wife to the Applicant. That she got married to the deceased under Kamba Customary Law in year 1960. That she was given the land in question by the deceased in the year 1962. The Respondent has further averred that she and her children are entitled to half share of the estate of the deceased.
5. The Applicant filed a further affidavit and denied that the Respondent is her co-wife. It is further averred that the Respondent’s children were not sired by the deceased.
6. During the hearing of the application, the parties relied on their affidavit evidence.
7. I have considered the said affidavit evidence. The main issue herein is whether the Respondent is a widow of the deceased and therefore whether together with her children they are beneficiaries in the estate of the deceased. The Applicant has denied that the Respondent is her co-wife. At this stage of the case, it is not possible for the court to prefer the affidavit evidence of any of the parties to the other. The Summons for revocation ought to be heard first so that the issue whether the Respondent is a widow of the deceased can be settled first.
8. For the above stated reasons, I only allow prayer No. 3 of the application. Costs in cause.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 5thday of February 2015.
………………………………………
B. THURANIRA JADEN
JUDGE