[2022] KEHC 16349 (KLR)

In re Dismas Anduru Achar (Deceased) (Succession Cause 290 of 2007) [2022] KEHC 16349 (KLR) (14 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16349 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 290 of 2007

TM Matheka, J

December 14, 2022

IN THE ESTATE OF THE LATE DISMAS ANDURU ACHAR (DECEASED)

Between

Emily Akoth Anduru

Applicant

(Suing as one of the Administrator/Beneficiary of Dismus Anduru Achar)

and

George Nyoro Nganga t/a Nyoro General Engineering Ltd

1st Respondent

Tango Auctioneers & General Merchants

2nd Respondent

Ruling

1. The 1st Respondent was the plaintiff in High Court Civil Suit No. 41 of 1998 Dismas Anduru Achar & Anduru Construction Co. Ltd, in which vide an Amended Plaint, filed in court on 9th December 1998, he sought judgment on account of services rendered to the defendants between the years 1991 and 1997. He sought judgment against the 1st defendant for the sum of Kshs. 116,000/= which the plaintiff claimed was the balance of the agreed cost of the sub contract of fitting timber railings around the void area of a hotel known as Stag’s Head. The plaintiff claimed that the 1st defendant had sub contracted him to undertake the fittings and had failed to pay him the said balance of Kshs. 116,000/= as against the 2nd defendant, the plaintiff claimed the sum of Kshs. 455,552/= which the plaintiff averred was in respect of services rendered on various construction sites on instructions of the 2nd defendant. The plaintiff therefore prayed for judgment to be entered against the defendants, both jointly and severally, for the sum of Kshs. 571,552/= plus costs of the suit and interest at court rates. After a hearing the court delivered its Judgment on 5th September, 2012 in favour of the plaintiff against the defendants for the sum of Kshs.571, 552/= plus interest at court rates from the date of filing suit. The plaintiff was also awarded costs of the suit.

2. It is not in dispute that the 1st defendant died on 2nd September, 2006.

3. There is nothing from the judgment in HCC 41 of 1998 to show that this position was brought to the attention of the learned trial court.

4. After the demise of the deceased the Applicant herein and one Serphine Anyango petitioned for grant of letters of administration intestate on 2nd May, 2007. The Grant was issued to the Applicant on 31st July, 2007 and subsequently a Certificate of Confirmation of Grant was issued by this court on 22nd February, 2021. The deceased had numerous properties which were distributed amongst his beneficiaries. One of the properties owned by the deceased was Land Title Njoro Ngata Block 1/860 Kiamunyi Developed Rentals, which was allocated to the Applicant.

5. The 1st respondent commenced execution proceedings against the deceased in High Court Civil Suit No. 41 of 1998 and advertised the above land Njoro Ngata Block 1/860 A Residential Property With Residential Storey House for sale by Public Auction which sale was slated for 5th April 2022. This is what provoked Applicant’s Motion dated 25th March, 2022 now before this court.

6. The Motion is brought under sections 45, 47, 73 and 76 of the Law of Succession Act, Rules 41, 63 and 73 of the Probate and Administration Rules, Order 37 Rule 1, 24 Rule 3 & 51 Rule 1,2 and 3 of the Civil Procedure Rules, Sections 1A and 3A of the Civil Procedure Act seeks the following orders:-1. That pending the hearing and determination of this application inter partes an order of temporary injunction do issue restraining the 1st respondent either by itself, its agents and/or servants from selling, transferring, alienating or otherwise howsoever interfering with Land Title Njoro/Ngata Block 1/860 1/860 pending the hearing and determination of this application.2. That the actions of execution by the respondents against Land Title Njoro/Ngata Block 1/860 1/860 ,the property of the Applicant, Emily Akoth Anduru are null and void.3. That an order of this court do issue lifting any encumbrances whatsoever on the Land Title Njoro /ngata Block1/860,the property of the Applicant, Emily Akoth Anduru to give full effect to the certificate of grant dated 22/2/2022. 4.That a permanent injunction do issue against the Respondents from executing against Land Title Njoro /ngata Block1/860,the property of the Applicant, Emily Akoth Anduru .5. Any other orders as the court may deem fit.6. Costs and further incidentals to this Application be provided for. ( emphasis added)

7. The grounds for the Application are grounds set out on its face and the supporting Affidavit of Emily Akoth Anduru sworn on 25th March, 2022. She deponed that there is a Judgement in HCC No.41 of 1998 between George Nyoro T/a Nyoro General Engineering v Dismus Anduru & Another, against the deceased in Succession Cause Number 290 of 2007. That the deceased passed away 2006 midway the proceedings and the judgment was delivered in 2012. That legally the suit against the deceased herein abated one year after his death for the reason that the 1st respondent never sought to substitute the deceased with his legal representative in the suit and for the purported execution as per Order 24 Rule 4 of the Civil Procedure Rules.

8. She deponed that the 1st defendant went to rest on his laurels after the demise of the deceased despite having a judgment and being aware of the Succession Cause never sought to be enjoined therein at an appropriate stage as a creditor where his interest would have been catered for.

9. She deposed that the Succession Cause for the intestate estate was instituted in 2007 and on 22nd February 2022 a Certificate of Confirmation of Grant was made.

10. She averred that there is eminent threat to execute against Land Title No. Njoro Ngata Block 1/860 on 5th April 2022 in which she is the beneficiary and that this is done with a blind eye to the legal requirement under Order 37 Rule 1 of the Civil Procedure Rules.

11. She averred that without intervention of this Honorable Court there is glaring and imminent threat of execution by the 2nd respondent against her.

12. It was her position that the 1st Respondent had moved un-procedurally and illegally to register a court order against the property of the applicant as can be gleaned from the official search of 18th March, 2022.

13. She contended that the Law of Succession Act provides for the manner in which creditors can make their claim against the estate of a deceased debtor as provided for under Order 37 of the Civil Procedure Rules and Rule 41(3) of the Probate and Administration Rules.

14. She averred that there was a process in which the decree in HCC No.41 of 1998 between George Nyoro T/a Nyoro General Engineering v Dismus Anduru & Another, and cited Musyoka J in Re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR who observed that;“..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 the court can give effect to it.”

15. She stated there was no basis upon which the 1st respondent could single out the said property for execution which property has already devolved to her as per the confirmed grant of 22nd February 2022. That doing so without seeking to revoke the entire grant was discriminatory and illogical.

16. She averred that service of statutory notice of sale of said property was allegedly served upon the deceased hence it was invalid. She relied on Josephine Njoki Mwangi v Housing Finace Corporation Of Kenya Limited [2008] eKLR where the court pointed out that:-“The service of a Statutory Notice of Sale of suit property upon a deceased person is invalid. The Chargee cannot exercise its statutory power of sale based on such a notice. The Defendant’s statutory power of sale cannot crystallize upon such service. The Defendant could therefore not exercise that power to sell the suit property.”

17. She stated that allowing the respondents to proceed with the sale of the aforesaid property would be tantamount to disinheriting her and her entire dependents.

18. The 1st respondent swore a Replying Affidavit in opposition to the Application on 19th April 2022. He deposed that the application was incompetent, defective, bad in law and a feeble attempt by the Applicant to deny him a chance to enjoy the fruits of his judgment in Nakuru Hccc No.41 Of 1998 (george Nyoro T/a Nyoro General Engineering Ltd. v Dismus Anduru And Anduru Construction Ltd. delivered on 5th September 2012.

19. He averred that in the said judgment the deceased and his business were directed to pay him a total current sum of Ksh.2,190,532/= and has commenced execution of the said decree against the deceased judgment debtor property known asNjoro/ngata Block1/860.

20. He averred that previously the applicant had stopped execution by instituting a suit in Nakuru CMCC No. E142 of 2022 but the same was dismissed for want of jurisdiction and that the present application was another attempt to deny him the fruits of his judgment.

21. He deposed that this court lacked jurisdiction to determine this matter as the execution proceedings were properly decreed by a court of equal status and therefore this court could not delve into merits of the aforesaid case.

22. He averred that there was no certificate of lease or title deed presented in affidavit evidence by the Applicant to show that she was the current owner of the parcel of land in question and thus this Application was meant to defeat execution of the decree.

23. It was his deposition that the issue of abatement of suit before delivery of judgment had come too late as the court is already functus officio.

24. He prayed for the interim orders to be discharged and for dismissal of this suit with costs.

25. The 2nd respondent did not file a response. On 26th May, 2022 the parties took directions to dispose off the application by way of Written Submissions.

Applicant’s Submissions 26. The Applicant’s submissions were filed by her advocates on 17th May, 2022. Six issues were identified for determination. Namely:-1. Whether this court has jurisdiction to hear this matter.2. Whether the proposed sale and execution is valid.3. Whether an order of temporary injunction should issue restraining the 1st respondent from selling the land Title Njoro/Ngata Block 1/860 1/860 pending the hearing and determination of this Application.4. Whether a permanent injunction should issue against the respondents preventing them from executing against Land Title Njoro/Ngata Block 1/860 1/860 pending the hearing and determination of this Application.5. Whether a permanent injunction should issue against the respondents preventing them from executing against Land Title Njoro /ngata Block1/860, the property of the Applicant, Emily Akoth Anduru .6. Who should bear the costs of this suit?

27. On the first issue, the applicant submitted that under Section 47 of the Law of Succession Act Cap 160 this court is clothed with jurisdiction to hear and determine this matter.

28. On the second issue, the applicant reiterated averments contained in her Supporting Affidavit.

29. On the third issue, the applicant submitted that the conditions for grant of an injunction as stated in the case of Giella v Cassman Brown & Company Limited [1973]EA are:-1. An applicant must show a prima facie case with a probability of success.2. An applicant must prove he/she will suffer irreparable injury if an interlocutory injunction is not granted.3. If the court is in doubt, it will decide an application on a balance of convenience.

30. On the first condition, the applicant submitted that on 22nd February, 2022 a grant was confirmed in favour of the administrators and that they have established that there is imminent threat to execute against Land Title No. Njoro Ngata Block 1/860 thus the applicant’s property rights are likely to be infringed by the respondents if the said sale is allowed to proceed.

31. On the second condition, the applicant relied on D.K Maraga J (as he then was) holding in JM Gichanga v Co-Operative Bank of Kenya Ltd (2005) eKLR while applying the finding in the court of Appeal in Aikman v Muchoki (1984) KLR 353 thus;“My understanding of the Court of Appeal decision in Giella case is that the court proceeds to consider the second condition of irreparable harm which cannot be compensated for by an award of damages only if it entertains doubt on the 1st condition of the probability of success, like when the court thinks that the Plaintiff has a fifty/fifty chance of success.”

32. The applicant therefore submitted that having established that she has a prima facie case, the determination of the aforesaid second condition is not mandatory, but in the event the court deems fit to consider, she submitted that she is likely to suffer irreparable injury because such sale will not only affect her property rights but will affect her livelihood in general something which cannot be compensated by way of damages..

33. On the third condition, the Applicant argued that balance of convenience tilts in their favour as she has established that she has a Certificate of Confirmation of Grant dated 22nd February 2022 in which she is this property devolves to her hence she has proprietary interest in the same. She relied on the case of Naftali Ruthi Kinyua v Patrick Thuita Gachure & Another [2015] eKLR.

34. On whether a permanent injunction ought to issue against the respondent the applicant submitted in the affirmative. She relied on the case of Kenya Power & Lighting Co. Limited v Sheriff Molana Habib[2018]eKLR where the court held that a permanent injunction determines the rights of the parties before the court and is thus a decree of the court granted upon the merits of the case after evidence in support of and against the claim has been tendered.

35. She submitted that she has tendered evidence that her rights are being threatened with violation and that the only way her proprietary rights will be protected fully is through a permanent injunction to perpetually restrain Respondents from continuing with execution.

36. On costs she prayed for costs on grounds that the same is discretionary and awardable to the successful party. In support of this proposition reliance was placed on Section 27 of the Civil Procedure Act and the case of Party of Independent Candidate Of Kenya v Mutula Kilonzo & 2 Others [2013] eKLR.

1St Respondent’s Submissions 37. The 1st respondent filed his submissions on 6th June, 2022. He framed 5 issues for determination.;1. Whether this Honourable Court has jurisdiction to entertain this matter.2. Whether the Applicant is entitled to a temporary injunction.3. Whether the suit abated as against the deceased applicant.4. Whether the execution by the 1st respondent is valid5. Whether costs should issue

38. On the 1st issue, the respondent submitted that that this court is bereft of jurisdiction to entertain this application on the basis that the decree issued in Nakuru HCCC No.41 of 1998 was issued by a court of equal status as the present forum and therefore this court cannot supervise, direct, guide or mend the mistakes real or perceived of the court of the same status.

39. He also submitted that a succession court exercises distinct jurisdiction from that of the high court as donated to it by the Law of Succession Act.

40. The respondent further submitted that the fourth order on the face of the Application can only be granted by the Environment and Land Court.

41. He relied on the cases of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 & Owners and Master of the Motor Vessel “Joey” v Owners and Masters of the Motor Tugs “Barbara” And “Steve B” [2008]1 EA 367 in which the court emphasized the importance of jurisdiction and stated that if a court lacks it, it has no power to make one more step and should down its tools.

42. On the second issue, the 1st respondent submitted that the applicant has not met the three conditions for grant of injunction as stipulated in the cases of Giella v Cassman Brown & Co Ltd(supra)& Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR.

43. With respect to the third issue, the 1st respondent submitted that the applicant from the onset was aware of the proceedings in the high court and at no point did they seek to stay the proceedings.

44. He argued that the issue of abatement of the suit before delivery of judgment is now overtaken by events as the court in Nakuru HCCC No.41 of 1998 is already functus officio. To buttress this position he relied on the case of Isaac Olang Solongo v Gladys Nanjekho Makokha (Being the Administrator of the Estate of Antonina Makokha (Deceased) & another [2021] eKLR wherein it was held that:“.. The decree holder should not wring his hands in helplessness owing to the demise of a judgment debtor or undertake lengthy succession proceedings to facilitate substitution. He should by simply accessing the premises take possession while holding the decree as evidence of his right as against the whole world, which would terminate the execution…”

45. On the fourth issue, the 1st respondent submitted that the execution is proper and within the confines of the law since the proper procedure was followed and all the requisite notices issued and that further there is no application for stay of execution on record. The 1st respondent relied on the case on Michael Bartenge v Stephen Bartenge [2007] eKLR quoted with approval in the case of Florence Cherugut v Cheptum Murei Annah [2022] eKLR wherein it was held that:-“By virtue of section 30 of the Civil Procedure Act; “A decree may be executed either by the court which passed it or by the court to which it is sent for execution.” In effect, it is the court which executes decrees. The party, who holds a decree which is in his favour, only applies to the court to execute the decree. Therefore, if the order to stop the execution was issued in the nature of an injunction, it would effectively be addressed against the court. And, as it is the duty of the court to execute its decrees, an injunction to restrain it from so doing would be purporting to stop the court from performing one of its roles. That, in my considered view, would not be proper, even if the orders were clothed is such language as suggested that the orders were directed against the defendant. The only manner in which courts are stopped from taking steps to execute decrees is through orders for stay of execution. No such order has been sought herein.”

46. On the last issue, the 1st respondent referred to, Judicial Hints on Civil Procedure, 2ndEdition, page at page 101, by Richard Kuloba where he authoritatively stated as follows on the issue of costs:-“The law of costs as it is understood by Courts in Kenya, is this, that where a plaintiff comes to enforce a legal right and there has been no misconduct on his part-no omission or neglect, and no vexatious or oppressive conduct is attributed to him, which would induce the Court to deprive him of his costs- the Court has no discretion and cannot take away the plaintiff’s right of costs. If the defendant, however innocently, has infringed a legal right of the plaintiff, the plaintiff is entitled to enforce his legal right and in the absence of any reason such as misconduct, is entitled to the costs of the suit as a matter of course”.

47. Ultimately, he urged this court to direct that the applicant bear the costs of this application.

Issues For Determination 1. Whether this court has jurisdiction to determine this matter in view of the judgment in HCC No.41 of 1998 between George Nyoro T/a Nyoro General Engineering v Dismus Anduru & Another delivered on 5th September 2012.

2. Whether the orders of temporary & permanent injunctions sought by the Applicant should issue

3. Who should bear the costs of the application?

Analysis 48. These issues will be dealt with together. On jurisdiction Nyarangi, JA in the case of Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited [1989] KLR 1 while citing Words and Phrases Legally Defined – Vol. 3: I-N page 13 held:“By jurisdiction is meant the authority which a court has to decide matters that are before it or take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake both of these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”

49. In that case the Court further held:“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.

50. It is the 1st respondent’s argument that this court lacks jurisdiction to determine this matter as it is neither an appellate court nor review court. That the trial court in HCC 41 of 1998 and this court are of equal status hence this court cannot supervise or rectify its mistakes if any in that case. The jurisdiction of this court in succession matters is set out under Section 47 of the Law of Succession Act. It states:“47. Jurisdiction of High Court

The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.”

51. The P & Arules 73 save the inherent power of the court to do justice and to prevent the abuse of the process of court.

52. So does this court have the jurisdiction to deal with the application before me? I would answer in the affirmative. I have no fear that in doing so I would in any way be exercising any supervision or appellate power over the judgment In HCC 41 of 1998. I am well aware that that I do not have the jurisdiction to do so. I am aware it would be an unacceptable a strange aberration. On this I am well guided by the Court of Appeal in Bellavue Development Company Ltd v Francis Gikonyo & 7 Other (2018) eKLR where the court stated:“This position is so well established that it would be strange aberration for a judge to embark on what is essentially an examination of the judicial conduct and pronouncement of judges of the same status as himself, a task that is left to courts and judges of higher status in hierarchy by way of appeals. ”

53. In addition the Court of Appeal in Floris Piezzo & Another v Giancardo Falasconi (2014) eKLR as quoted by court in Mbatha Mulavu & another v Annah Ndunge Mulavu & 3 others (2018) eKLR observed that the succession court under Section 47 of the Law of Succession Act, Rule 73 of the Probate and Administration Rules is bestowed with all embracing powers to entertain any application and to make such orders as may be expedient and necessary for the ends of justice.

54. There is no dispute that the judgment debtor in the above suit died on 2nd September 2006. Judgement was delivered after his death. In respect of the provisions of Order 24 Rule 4 of the Civil Procedure Rules the suit against the deceased abated on 2nd September 2007 owing to the fact that the 1st respondent herein did not make the requisite application within one year of the deceased’s substitution with a legal representative before the same court. Equally, execution proceedings against the judgment debtor were commenced after his death. There is a clear distinction between this case and the authority cited by the 1st respondent Isaac Olang Solongo v Gladys Nanjekho Makokha (Being the administrator of the Estate Antonina Makokha (Deceased) & another [2021] eKLR. In that case there had been a dispute over land judgment was in favour of the decree holder. Death occurred long after the decree was issued and all that had been pending was its execution. That is not the position here. At the time of the death of the deceased the case was still pending before the court and no decree had been issued against the deceased, In addition the property the 1st respondent wishes to execute against was not the subject of the HCC 41 of 1998.

55. It is clearly evident that the respondent approaches the issue of jurisdiction from the view of the High Court Civil Case Number 41 of 1998. He argues that the fact that his decree emanated from that case, the applicant herein cannot challenge it before the probate court. That position is correct. The decree from the High Court cannot be challenged in this court.

56. However, is that what the applicant is doing? From my reading of the application before me, it appears to me that what the applicant is saying is that the respondent may have his decree, but he is executing it not against the person and property of the person against whom he obtained it but upon a different person and the property of a different person. That had he desired to do so, there was a process under the Law of Succession Act that he ought to have followed to enable him execute his decree.

57. The 1st respondent cannot pretend that what he is claiming is money and he is not claiming it from the defendants in the civil suit but against the property of the 1st defendant, who is deceased. That property is the subject of the succession proceedings in this case as it forms part of the estate of the deceased. This court has already pronounced itself with respect to the estate and the same has been distributed. Can the 1st respondent proceed in the manner he does as though this court has not dealt with the matter? I do not think so. In the first place, there has been a Succession Cause since 2007. There have been legal representatives of the estate of the deceased since the grant was issued in 2007. Since 2007 all the property of the deceased has vested in the personal representatives of the deceased. Up to the time the estate was distributed, there was no indication that the respondent was a creditor of the estate, and therefore the personal representatives of the deceased could not have just imagined a creditor and set about providing for the creditor. They proceeded as under Section 71 of the Law of Succession Act and distributed the estate by the fact that the personal representatives filed a cause pursuant to the death of the deceased, and followed the laid court process as per the Law of Succession Act, this court is clothed with jurisdiction, under Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules.

58. The 1st respondent has not sued the applicant herein. He cannot execute against her or the property that devolves against her without due process. That is the point that must be clear. He sued the deceased and his company. When the deceased died the applicant and others became his legal representatives and the property devolved around them.

59. The 1st respondent’s decree dated 5th September, 2012. It is to be executed against Dismus Anduru & Anduru Construction Company Limited, and the targeted property is Njoro Ngata Block 1/860. That property as per the Certificate of Confirmation of Grant made on 22nd February 2022 devolved to the applicant. The attempted execution of the decree on 5th April 2022 clearly violates the provision of the Law of Succession Act as to the manner in which a decree against a deceased person ought to be executed.

60. Section 37 of the Civil Procedure Act provides for the process to be followed in a case where the judgment debtor dies before the decree is fully satisfied.“37. Legal representative

(1)Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passed it to execute the same against the legal representative of such deceased, or against any person who has intermeddled with the estate of such deceased.(2)Where the decree is executed against such legal representative, or against any person as aforesaid, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability the court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.”

61. I have pointed out that as at the time the deceased died there was no decree against him. There was a pending suit.

62. Under the Law of Succession Act, at the distribution of the estate the legal representatives are required to pay debts the known debts of the deceased. Hence can a creditor decide for himself which asset he wants, then proceed to instruct auctioneers to take it? That cannot be the correct position. That is the mayhem the Law of Succession Act by making provision for the manner in which the creditor of a deceased person can be paid his debts from the estate. Indeed that is one of the duties of the legal representatives.

63. While it is true that the right place to determine the legality or otherwise of the decree in High Court Civil Case Number 41 of 1998 is in the civil court, this court is empowered to deal with all aspects of the estate of the deceased person as provided for in the Law of Succession Act.

64. It is my view that the Act by a creditor of picking for himself a specific asset, not connected to the debt and appropriating it to himself without the due process set out in the Law of Succession Act actually amounts to intermeddling, when he or she is aware that the owner of the said land is dead. Section 45 states clearly;“(1)Except so far as expressly authorized by this Act, no person shall, for any purpose, take possession, or dispose of or otherwise intermeddle with any free property of the deceased person.”

65. The respondent’s decree is for the sum of Kshs. 571,552/00 plus costs and interest of the suit. This decree dated 5th September 2012 does not have in its body the mention of any property of the deceased, leave alone the property named in the application for execution. Let us for one moment imagine if creditors were allowed a free for all upon the death of their debtor. Estates would waste, and beneficiaries would be the worse for it.

66. Hence, this court has jurisdiction to protect the estate of the deceased and to protect the interests of those beneficially entitled to the estate, whose interest is identified as per the Law of Succession Act.

67. The property Njoro/Ngata/Block 1/860 is but just one of the assets of the of the estate of the deceased. According to the record in this cause the estate of the deceased consisted of the following properties:i.Awendo Town Council Plot No. 1280 (Old No. 542)ii.Awendo Town Council Plot No. 1281 (Old No. 503)iii.Awendo Town Council Plot No. 1312 (Old No. 180)iv.Awendo Town Council Plot No. 133 (Old No. 190)v.Land Title No.Njoro/ngata Block1/860 Land Title No.vi.Njoro/ngata Block1/861 – (Main House)vii.Land Title No.Njoro/ngata Block1/862 – (Undevelopedviii.Land Title No.Njoro/ngata Block1/863 (property in the name of a third party under unclear circumstances, the same having been transferred after the Death of the Deceased. The Administrators to follow up the matter. – To be pursuedix.Title No. North Sakwa/Kamasoga/1958x.Title No. North Sakwa/Kamasoga/1962xi.Title No. North Sakwa/Kamasoga/1652xii.Title No. North Sakwa/Kamasoga/1653xiii.Agricultural plot in Kombo Village in Awendo, near chief’s office, appropriately one acre (title number to be ascertained) – To be Pursuedxiv.Plot at Kanyagwala village with rental units, but in the name of previous owner one John Obambo (title number to be ascertained)xv.Ancestral land in Obama village in Awendo registered in the the names of the Deceased Dismas Anduru Achar, his father Philip Achar, and his three brothers Peter Achar, Julius Achar and John Achar (title No. to be ascertained) - To be pursuedxvi.Plot in Kombok, Obama village where the rural home of Everline and Pamela Anduru is situated (Title Number North Sakwa/Kamasoga/1896xvii.Title No. Central Kitutu/Daraja Mbili/527(in the name of a third party under unclear circumstances. Administrators to follow up) – To be pursuedxviii.Title No. Nakuru Municipality Block 1/833 (Racetrack) – (Developed with rentals) –xix.Title Number Kiambogo/Miroreni Block 1/627 (property in the name of Angeline Mukhanyi Anduru – but agreed as forming part of the Deceased’s estate)xx.Title Number Kiambogo/Miroreni Block 1/628 (in the name of Pamela Auma Anduru but agreed as forming part of the estate of the Deceased)xxi.Title Number Kiambogo/Miroreni Block 1/629xxii.Shares as Kenya Commercial Bankxxiii.Bank Account at National Bank of Kenya, Nakuru Branchxxiv.Bank Account at National Bank of Kenya, Awendo Branchxxv.Estate Account at Equity Bankxxvi.Bank Account at Post Bankxxvii.Bank Account at Kenya Commercial Bankxxviii.Motor Vehicle Reg. No. KAM 618Mxxix.Motor Vehicle Reg. No. KAD 587Uxxx.Motor Vehicle Reg. No. KAJ 057Nxxxi.Motor Vehicle Reg. No. KAP 881Dxxxii.Benefits at NSSFxxxiii.Construction Machineryxxxiv.Proceeds for sugar at Sony Sugar Companyxxxv.Rental income held by Rosgret Management Agency

68. The respondent has not placed before this court any evidence of any lawful authority to deal with the specific property that he has picked in the manner that he purports. The property among others devolved to the legal representatives in 2007, and to the beneficiaries in 2022, and they are not parties to the suit in which he purports to execute.

69. The probate court cannot turn a blind eye to the fact that the respondent is trying to execute a decree obtained against a person who was dead, while there were legal representatives already seized of that property and whom he chose to ignore despite the legal requirement that he ought to have dealt with them, or to the fact that he is the one who ought to have brought his claim against the estate. That act of not turning a blind eye cannot by any stretch of imagination be equaled to questioning the jurisdiction of a court of contemporaneous jurisdiction. It is a refusal to abet an illegality, not done by the court, but being perpetuated by a party out to abuse the process of the court. The respondent knows the right thing to do, but chooses to do the thing that amounts to abuse of the process of the court.

70. A creditor’s right is against the whole estate, a creditor cannot choose the property he wishes to execute against, he must follow the laid down process. I am not the only one saying this. In Re Estate of Mukhobi Namonya (Deceased) [2020] eKLR stated that,“The omission of persons who claim to be claimants from or creditors of the estate is not a ground for revoking a grant. After all, creditors of an estate are entitled to have their debts settled. It is for this reason that debts and liabilities are given priority over distribution of the estate. Debts and liabilities ought to be settled first. Distribution is of the net estate, after the debts and liabilities have been met. The administrators have a duty to identify the creditors of the estate and to pay them off before proposing distribution, or to make provision for them at confirmation of grant. Such claimants and creditors have an obligation to place their claims before the administrators….”

71. The 1st respondent has not demonstrated that he indeed placed his claim before the administrators. He simply chose a property and proceeded to advertise it for sale. That, the law of succession does not allow.

72. In the circumstances I am of the view, that the court not only has jurisdiction, but that the applicant has established that she will suffer irreparable harm if the respondent is not permanently restrained from executing the decree against her and the property hence the actions of execution by the respondents against Land Title Njoro/Ngata Block 1/860 1/860 are null and void. To that end;i.The order be and is hereby issued lifting any encumbrances whatsoever on the Land Title Njoro /ngata Block1/860, to give full effect to the Certificate of Confirmation of Grant dated 22 nd February 2022. ii.That respondent be and is hereby restrained from executing against Land Title Njoro/ngata Block1/860. iii.The costs of this application be borne by the respondents.iv.Orders Accordingly.

DATED, SIGNED AND DELIVERED VIA EMAIL THIS 14 TH DAY OF DECEMBER 2022. MUMBUA T MATHEKAJUDGECA EdnaOdhiambo & Odhiambo Advocatesodhiamboandodhiamboadv@gmail.comMirugi Kariuki & Co. Advocates