[2006] KEHC 241 (KLR)
The court found that both the petitioner and objectors are beneficiaries of the deceased's estate and are entitled to use the land as they did at the time of the deceased's death. The court held that restraining one party from 'interference' could be interpreted in various ways and would not resolve the underlying...
Source-derived case information.
- Citation
- [2006] KEHC 241 (KLR)
- Parties
- Petitioner: Hudson Esendi Kivunaga; Objector: Timothy Asirigwa Esendi; Objector: Herman Lovega Esendi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 548 of 2004
- Procedural Posture
- Succession Cause / Interlocutory Application for Injunction Pending Grant of Letters of Administration
- Outcome
- Status quo order granted; all parties to maintain peace and continue using their respective portions of land as at the time of death until distribution.
- Legal Topics
- Succession of Estates, Injunctive Relief, Intermeddling With Estate, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hudson Esendi Kivunaga
Petitioner
Timothy Asirigwa Esendi
Objector
Herman Lovega Esendi
Objector
Procedural Posture
Succession Cause / Interlocutory Application for Injunction Pending Grant of Letters of Administration
Legal Issues
- 1 Whether the petitioner should be restrained from interfering with or causing destruction to the estate property pending determination of the succession cause.
- 2 Whether the objectors and petitioner, as beneficiaries, are entitled to access and use the deceased's land prior to distribution of the estate.
- 3 Whether an order restraining interference with the suit property is appropriate in the circumstances.
Ratio Decidendi
The court found that both the petitioner and objectors are beneficiaries of the deceased's estate and are entitled to use the land as they did at the time of the deceased's death. The court held that restraining one party from 'interference' could be interpreted in various ways and would not resolve the underlying disputes. Instead, the court ordered that the status quo be maintained, with all parties continuing to use their respective portions of land without hindrance, and directed all parties to refrain from acts of destruction or obstruction. The court emphasized the need for peace and preservation of the estate pending its distribution and urged the parties to expedite the hearing...
Court Disposition
Status quo order granted; all parties to maintain peace and continue using their respective portions of land as at the time of death until distribution.
Orders
- The status quo obtaining at the time of death of the deceased shall be maintained and parties shall continue to use without hindrance their respective portions of the land.
- The petitioner and the objectors shall maintain peace and refrain from any acts of destruction of the trees, houses and other structures or crops on the land.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Succession Cause 548 of 2004
IN THE MATTER OF THE ESTATE OF RICHARD ESNDI CHAGADWA (DECEASED)
A N D
HUDSON ESENDI KIVUNAGA……………......………PETITIONER
A N D
TIMOTHY ASILIGWA ESSENDI
HERMAN LOVEGA ESENDI………………………...OBJECTORS
R U L I N G
The deceased in this cause was Richard Essendi Chagadwa who died on 9th November, 1997 leaving land title No. Kakamega/Kedoli/90. He was a polygamist with three wives, Belida Inziani Esendi, deceased, Rosa Musuluve Esendi, deceased, and Esther Alivitsa Esendi who survived him and is still alive. The deceased was also survived by several sons. One of them Hudson Esendi Kivunaga, (petitioner), filed the petition in this cause on 28. 10. 2004 seeking a Grant of Letter of Administration intestate. The petition was gazetted on 24-12-04 under Gazette Notice No.10247. The Grant of Letters of Administration has not yet been issued.
On 26. 1.05, Timothy A. Esndi and Herman L. Esendi (objectors) the other sons of the deceased filed objection to the making of the Grant sought by Hudson Esendi Kivunaga.
On 3. 10. 2006 the said objectors filed an application seeking an order for the petitioner to be restrained from “further interference in the suit property”. The application came up for hearing on 18. 10. 06. They (objectors) had earlier filed an application dated 16. 5.2006 seeking an order to stop the petitioner from intermeddling with the estate of the deceased and causing wanton acts of destruction to the estate of the deceased. That application is scheduled to be heard on 11. 12. 2006.
When the application dated 3. 10. 06 came up for hearing on 18. 10. 2006, Mr. Obudho, learned counsel for the objectors, urged the court to grant the injunction order against the petitioner to stop further acts of wanton destruction of the estate. The application was supported by the affidavit of Timothy Asirigwa Esendi, one of the two objectors, which I have read. I have also perused the replying affidavit of the petitioner and duly considered the submissions made by Mr. Obudho, learned counsel for the objectors and Mr. Musiega, learned counsel for the petitioner. I have observed that the objectors are brothers from one of the three wives and the petitioner is an only son in one of the three houses. The issues raised by the objectors on the one hand and by the petitioner on the other can only be determined following hearing where the parties are cross-examined and the court has the benefit of ascertaining the truth. The petitioner and the objectors are all beneficiaries and are entitled to be on the land of their late father. While the order sought to restrain a party from “interference of the suit property” is liable to different interpretations, it cannot resolve the on going wrangles and feuds. It is desirable that each heir continues to have access and use the land of the deceased in the manner obtaining as at the time of death of the deceased until the estate is distributed. The petitioner has no superior claim to that of the objectors over the estate of their deceased father. After due consideration of the application, I order that –
(a)the status quo obtaining at the time of death of the deceased shall be maintained and parties shall continue to use without hindrance their respective portions of the land.
(b)the petitioner and the objectors shall maintain peace and refrain from any acts of destruction of the trees, houses and other structures or crops on the land.
(c)The petitioner shall not hinder or prevent any of the objectors or any of the beneficiaries from using their respective portions of the land.
(d) The parties shall move with speed to get the cause heard and the estate distributed.
Delivered, dated and signed at Kakamega this 29th day of November, 2006
G. B. M. KARIUKI
J U D G E