[2022] KEHC 10182 (KLR)

Gecaga v Gecaga & another (Succession Cause 937 of 2017) [2022] KEHC 10182 (KLR) (Family) (10 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10182 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 937 of 2017

MA Odero, J

June 10, 2022

IN THE MATTER OF THE ESTATE OF BETHUEL MAREKA GECAGA (DECEASED)

Between

Margaret Gacigi Gecaga

Applicant

and

Udi Mareka Gecaga

1st Respondent

Quinvest Limited

2nd Respondent

Ruling

1. Before this Court is the summons dated 10th November 2020 by which Margaret Gacigi Gecaga (the Applicant) seeks the following orders: -1. Spent2. Spent3. Thatthere be an order for maintenance of status quo in regard to the continued occupation and peaceful and quiet possession of the property known as LR. No. 214/721 situate in Old Muthaiga Estate by the deceased widow Margaret Gacigi Gecaga pending the hearing and final determination of the pending application on record for confirmation of the grant dated 6th May 2020 and/or until further orders of the Honourable Court.4. Spent5. Thatthe Honourable court be at liberty to issue such other or further orders as it may deem just to grant.”

2. The summons was premised upon Rule 73 of the Probate and Administration Rules Cap 160 and all other enabling provisions of the law and was supported by the Affidavit of even date sworn by Victoria Wambuaan Advocate of the High Court of Kenya.

3. The Respondents Udi Mareka Gecaga and Quinvest Limited opposed the application through the Grounds of opposition dated 14th April 2022 as well as the Replying Affidavit dated 22nd December 2020 sworn by the 1st Respondent.

4. The application was canvassed by way of written submissions. The Applicant despite having had proper notice of the directions made by the court did not file any written submissions. The Respondent relied on his submissions dated 14th April 2022.

Background 5. This succession cause relates to the estate of Bethuel Mareka Gecaga(hereinafter ‘the Deceased) who died intestate on 14th December 2016 at the Aga Khan Hospital in Nairobi. A certified copy of the Death Certificate serial Number 510718 is annexed to the citation dated 21st July 2017.

6. Following the demise of the Deceased a Grant of letters of Administration intestate was on 14th September 2019 issued in the names of the Applicant, the Respondent and one Gathoni Dietz (Mrs). That Grant has not been confirmed to date.

7. On 27th February 2020 Hon Justice Onyiego made interim orders in the following terms.1. That the application dated 25th February 2020 be and is hereby certified as urgent.2. Thatthere be an injunctive order restraining the release of the sum of Kshs 55,987,559. 65 plus all accrued interest thereon to date held at Kenya Commercial Bank Limited (Fixed Deposit Ref/AC No. MM/517600078) in the names of Jmm Jenga & Co. Advocatesand Hamilton Harrison & Mathews Advocate pending determination of the exact assets comprising the Deceased’s estate herein, the beneficiaries thereof, share of each of the beneficiaries and/or the hearing and final distribution of the subject estate.3. ……………………….”

8. The above interim order has been extended severally. The applicant states that she is apprehensive that adverse action may be taken against the funds held in the KCB Account pending finalization of her application. She therefore prays for a further extension of said interim order pending hearing and final determination of the application dated 25th February 2020.

9. The Applicant further avers that she is currently in occupation of the property known as L.R. No. 214/721 situate in Old Muthaiga estate which she avers is the matrimonial home. According to the Applicant the said property was under questionable circumstances registered in the name of Quinvest Limited(the 2nd Respondent) a company in which the Deceased held 99% shares which shares and assets she insist form part of the estate of the Deceased. She states that there have been threats to evict her from the said property and accordingly prays that orders of ‘status quo’ be made to safeguard her occupation of the said property.

10. According to the Respondent there is no need to extend the interim orders made on 27th February 2020 as said orders remain in force automatically pending the outcome of the application dated 25th February 2020 filed by the Applicant.

11. Regarding the property in old Muthaiga Estate the position of the respondents is that the said property belongs to the 2nd Respondent Quinvest Ltd and does not form part of the estate of the Deceased. The 1st Respondent denies that any attempt has been made to evict the Applicant from said property. He avers that all that was requested was that the Applicant co-operate with the management of the company in facilitating the fumigation of the property. Further, the Respondent informed the court that the question of the Applicants occupation of the Muthaiga House is live before the Environment and land Court vide case Number E015 of 2021: Quinvest Limited vs Margaret Gacigi Gecaga, which court he submits is mandated to determine the issue. The Applicant terms the present application an abuse of court process and urges to dismiss the same entirely.

Analysis and Determination 12. I have carefully considered the application before this court, the affidavit filed in reply as well as the written submissions filed by the Respondent. The only two issues for determination are:(i)Whether the interim orders made on 27th February 2020 ought to be extended.(ii)Whether orders of status quo ought to be made with respect to the occupation of L.R. No. 214/721 Old Muthaiga Estate.

Interim Orders 13. The Applicant has sought to have the interim orders made on 27th February 2020 extended pending the hearing and determination of the application dated 25th February 2020. A perusal of the file reveals that on 16th December 2021 Hon Lady Justice Mutuku delivered a ruling in which she stated as follows:-“the outcome of this ruling is that the summons dated 25th February 2020 brought by Margaret Gacigi Gecaga fails and is hereby dismissed. The summons dated 15th July 2020 brought by Udi Mareka Gecaga succeeds in that the order issued on 27th February 2020 extended on 26th May 2020 and on 29th June 2020 restraining the release of Kshs 57,658,165/- (funds) placed in a joint interest earning account at Kenya Commercial Bank Limited in the names of J.M. Njenga Company Advocates and Hamilton Harrison and Mathews Advocates is hereby set aside. Each party shall bear own costs in both applications. Orders shall issue accordingly.”

14. The Applicant has now come to this court seeking orders which had already been dismissed by a court of concurrent jurisdiction. This amounts to an abuse of court process. I note that the Applicant filed a Notice of Appeal dated 16th December 2021 indicating an intention to appeal against the Ruling of Justice Mutuku. However, this court has no information as to whether an appeal was indeed filed and if so what is the outcome (if any).

15. As things stand the orders now being sought for extension of the interim orders was dismissed by the High Court. This court has no powers to review and/or set aside orders made by a court of concurrent jurisdiction. As such, this prayer must fail.(ii)L.R. No. 214/721

16. The Applicant has sought orders of status quo in respect of her occupation of the house in Old Muthaiga Estate. The position of the Respondent is that the said property belongs to the 2nd Respondent and is not the matrimonial home as alleged by the Applicant. The position of the Respondents is that the Muthaiga property does not form part of the estate of the Deceased. It is manifest that the dispute between the parties in this regard is one over the question of the Applicants right to ‘occupy’ the said property.

17. The court is sitting as a Probate Court with the mandate to ensure and supervise the distribution of the estate of the Deceased to the genuine heirs. In ReEstateofGKK (Deceased) [2017] eKLR it was held that-“the primary function of a probate court is distribution of the estate of the dead person.”

18. The question of right to ownership use and occupation of land are by Article 162 of the Constitution of Kenya (2010) the exclusive preserve of that Environment and Land Court Article 162 (2) (b) provides that –(2)Parliament shall establish courts with the statues of the High Court to hear and determine disputes relating to(a)the environment and the use and occupation of, and title, to land.” (own emphasis)

19. Section 13 of the Environment and Land Court Act provides for the jurisdiction of that court as follows:13. Jurisdiction of the court“(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes―(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land;(c)relating to land administration and management;(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land.[Rev. 2012] No. 19 of 2011 Environment and land court 9 [Issue 1]3. ……………………”

20. In the case of Joseph Kaberia Kumarivs Tony Mwenda Muthaura[2021] eKLR the court held that-“What resonates from the Constitution, the relevant statutes and case law is that issues appertaining to user occupation and title to land and environment are in the domain of an Environment and land Court. Even when such issues arise in relation to the estate of a Deceased person concerning third parties (as is the case here) they still remain in the domain of the aforementioned court and not the Probate Court” (own emphasis)

21. Therefore, the correct and proper forum before which the Applicant and/or the Company ought to ventilate their claim to the suit land is the ELC. It would be counterproductive and a waste of judicial time to proceed with the hearing of this Application without evidence of any order/Decree from the ELC legitimizing the claim of the Applicant and/or Company to the suit land.

22. In Re EstateofStone Kathubi Muinde(Deceased) [2016] eKLR Hon Justice William Musyoka held that:-“Such claims to ownership of alleged estate property, as between the estate and a third party, should be resolved through the civil process in a civil suit properly brought before a civil court in accordance with the provisions of the Civil Procedure Act and the Civil Procedure Rules. This could mean filing suit at the magistrates’ courts, or at the Civil or Commercial Divisions of the High Court, or at the Environment and Land Court. If a decree is obtained in such suit in favour of the claimant then such decree should be presented to the probate court in the succession cause so that that court can give effect to it.” (Own emphasis)

23. Moreover, the 1st Respondent has averred (which averment is not disputed) that there exists in the ELC suit No. E015 of 2021 filed by the 2nd Respondent seeking orders to evict the Applicant from the property in Old Muthaiga Estate.

24. The Applicant filed an application in the ELC seeking to stay the ELC suit pending determination of this succession cause. In dismissing that application for stay vide a Ruling delivered on 8th October 2021 Hon Justice Eboso stated as follows:-“Taking the above into account, it is my view that staying this suit without substantively hearing the parties on the questions to whether or not the defendant is entitled to occupy and/or use the suit property for free would occasion injustice to the registered proprietor of the suit property. The Plaintiff Company is the registered proprietor. The Plaintiff Company is not a party to the succession cause. At this point, the Defendant has not categorically advanced any reason why she should be allowed to occupy the suit property for free. The forum available to her to tender that explanation is this suit.” (own emphasis).

26. Given the existence of the ELC suit the question of the Applicants rights to occupy the Muthaiga House is clearly ‘sub judice’. It is devious and amounts to an abuse of court process for the Applicant being fully aware of the existence of ELC suit in which she has been an active participant to file an application in this court seeking status quo orders in respect to the same property.

27. Finally I find no merit at all in the summons dated 10th November 2020. The same is dismissed in its entirely and costs are awarded to the Respondent.

DATED IN NAIROBI THIS 10TH DAY OF JUNE, 2022. ...................................MAUREEN A. ODEROJUDGE