[2012] KEHC 4393 (KLR)
The court found that the applicants had failed to comply with a previous court order requiring them to apply for confirmation of the grant within 30 days. Instead, they filed the present application seeking interlocutory relief, which the court deemed to be an improper attempt to circumvent the earlier directive....
Source-derived case information.
- Citation
- [2012] KEHC 4393 (KLR)
- Parties
- Applicant: Esther Wambui Njoroge; Applicant: Peter Mwaura Njoroge; Applicant: Monica Wanjiku Njoroge; Applicant: Nancy Kabura Mburu Njoroge; Applicant: Samuel Kibunja Njoroge; Applicant: Bernard Mungai Njoroge; Applicant: Patrick Kimani Njoroge; Respondent: Charles Kiarie Njoroge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1456 of 2009
- Procedural Posture
- Succession Application / Ruling on Interlocutory Application Prior to Confirmation of Grant
- Outcome
- application struck out
- Judges
- CM Njagi
- Legal Topics
- Administration of Estates, Intermeddling With Estate, Confirmation of Grant, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Wambui Njoroge
Applicant
Peter Mwaura Njoroge
Applicant
Monica Wanjiku Njoroge
Applicant
Nancy Kabura Mburu Njoroge
Applicant
Samuel Kibunja Njoroge
Applicant
Bernard Mungai Njoroge
Applicant
Patrick Kimani Njoroge
Applicant
Charles Kiarie Njoroge
Respondent
Procedural Posture
Succession Application / Ruling on Interlocutory Application Prior to Confirmation of Grant
Legal Issues
- 1 Whether the respondent should be restrained from intermeddling with the estate properties pending confirmation of grant.
- 2 Whether the respondent should render accounts for the estate properties.
- 3 Whether a manager should be appointed to manage the estate properties pending confirmation of grant.
Ratio Decidendi
The court found that the applicants had failed to comply with a previous court order requiring them to apply for confirmation of the grant within 30 days. Instead, they filed the present application seeking interlocutory relief, which the court deemed to be an improper attempt to circumvent the earlier directive. The court emphasized that its orders must be respected and that parties cannot change course mid-stream. As such, the application was struck out, and the parties were directed to file an application for confirmation of the grant within a further 30 days. The court also noted the importance of collecting estate assets into a common pool for fair distribution but held that this...
Court Disposition
application struck out
Orders
- The application dated 19th December, 2011 is struck out pending the filing of an application for confirmation of the grant within 30 days.
- Costs will be in the cause.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE MATTER OF THE ESTATE OF JOSEPH NJOROGE KIBUNJA alias NJOROGE KIBUNJA (DECEASED)
ESTHER WAMBUI NJOROGE }
PETER MWAURA NJOROGE }
MONICA WANJIKU NJOROGE }
NANCY KABURA MBURU NJOROGE} ……..…. BENEFICIARIES/
SAMUEL KIBUNJA NJOROGE} APPLICANTS
BERNARD MUNGAI NJOROGE}
PATRICK KIMANI NJOROGE}
VERSUS
CHARLES KIARIE NJOROGE ………………… RESPONDENT
R U L I N G
The application before the Court is brought by Chamber Summons dated 19th December, 2011 and taken out under Sections 45and47of theLaw of Succession Act (Cap. 160 of the Laws of Kenya). By the application, the Applicants seek orders that –
1. The Respondent be restrained by an order of the Court from inter-meddling with Thika Municipal Block 4953/766, L.R. No. 4953/15/IV, Majengo Plot No.6 and LOC 5/Kabati/486/51/1 the estate of the deceased herein pending the confirmation of the grant.
2. The Respondent be ordered to render true statements of accounts in respect of Thika Municipal Block 4953/766, L.R. No. 4953/15/IV, Majengo plot number 6 and LOC 5/KABATI/51/1.
3. A manager be appointed to manage the above properties pending the confirmation of the grant.
4. The costs of this application be borne by the Respondent.
The application is supported by the annexed affidavit of Esther
Wambui Njoroge and is based on the grounds that –
(a)The Respondent has been inter-meddling with the estate herein.
(b)He has been collecting the rents and keeping the money to himself to the detriment of the other beneficiaries.
(c)The beneficiaries are not likely to agree on the mode of distribution of the estate any time soon.
At the oral canvassing of this application, Ms. Njuguna appeared for four beneficiaries, Mr. Kamiro for Bernard Njoroge and Charles Kiarie Njoroge appeared in person. Without going into unnecessary and uncalled for details, I note that the issues raised in the supporting affidavit of Esther Wambui Njoroge are very weighty. I agree with the sentiments expressed therein that it is important for the assets belonging to the estate to be collected and brought into a common pool so that the distribution of the estate would be fair to all. It is neither in order nor in the interests of other beneficiaries for one person to be pocketing the bulk of monies collected in the name of the estate.
I am concerned however about one development. Before the hearing of this application, I note that the matter had last been before Maraga, J., as he then was, on 25th October, 2011. The matter slated for hearing on that date was an application by Chamber Summons dated 12th July, 2011 seeking the exclusion of Charles Kiarie Njoroge as one of the administrators to the estate of the deceased and the administrators to the estate be retained as Esther Wambui Njoroge and Peter Mwaura Njoroge. When the matter came for hearing, the notes made by the learned Judge read as follows –
“By consent the application dated 12th July, 2011 is hereby withdrawn with order as to costs. Administrators to apply for confirmation within 30 days.”
The 30 days given by the Court for applying for confirmation of the grant expired on or about 25th November, 2011. It was not until 19th December, 2011 that the present application was filed, and it was not an application for confirmation of the grant as directed by Judge Maraga. As we speak now, the order made by the Judge seems to have been swept under the carpet, and a Court will not allow its orders to be made in vain. We cannot afford to change course mid-stream. It may well be that if the parties had heeded the Court orders and made an application for confirmation of the grant, some progress would have been made in this matter leading towards its finalization. As it stands now, it is as if we are moving in a whirlpool and unless such movement is checked, a lot more time and resources will go down the drain.
For the above reasons, I am constrained to strike out this application, which I hereby do, pending the filing of an application for confirmation of the grant, as previously directed by the Court, within a further 30 days from today.
Costs will be in the Cause.
Orders accordingly.
DATED and DELIVERED at NAIROBI this 29th day of February, 2012.
L. NJAGI
JUDGE