[2022] KEHC 12531 (KLR)

In re Estate Gitucha Magochi (Deceased) (Succession Cause 100 of 2004) [2022] KEHC 12531 (KLR) (Family) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12531 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 100 of 2004

MA Odero, J

July 15, 2022

Between

Beth Mirigo Kinunu

1st Applicant

Peter Njuguna Kiarie

2nd Applicant

and

Stephen Mwatha Kanja

Respondent

Ruling

1. Before this Court for determination is the summons dated 11th March 2022 by which Beth Mirigo Kinunu And Peter Njuguna Kiarie in their capacity as the Administrators of the estate of the Deceased seek the following orders:-1. That the Respondent by himself, his brothers, servants, employees, workers, aids, personal representatives and/or any other person authorized, permitted or directed by him be restrained from interfering in any manner with the Applicants access, entry or surveying of the parcel of land known as Juja 10090/71, Ngenda/githunguchu/885 And Ngenda/githunguchu/884 pending the hearing and determination of this Application/matter.2. That the OCS Juja police station do assist and facilitate in overseeing maintenance of Order Number 1 above and provide security in ensuring maintenance of peace by respondents over parcel of Land Known as Juja10090/71. 3.That the OCS Gatundu Police Station do assist and facilitate in overseeing maintenance of peace by the respondents over parcel of land known as Ngenda/githunguchu/885. 4.That the costs of the Application be provided for and borne by the Respondent.”

3. The application was premised upon Section 47, 48 of the Law of Succession Act Rules 49 and 73 of the Probate and Administration Rules, sections 1A, 3A, 3B of the Civil Procedure Act, Order 40, Rule 51 of the Civil Procedure Rules, Article 48, 50 and 159 (2) (b) of the Constitution of Kenya 2010 and was supported by the Affidavit of even dated and the further Affidavit dated 19th April 2022 sworn by the two Applicants.

4. The Respondent Stephen Mwatha Kanjaopposed the application through his Replying Affidavit dated 15th April 2022. The application was canvassed by way of written submissions. The Applicants filed the written submissions dated 5th May 2022 whilst the Respondent relied upon his written submissions dated 13th May 2022.

Background 5. This Succession Cause involves the estate of Gitucha Magochi Alias Kanja Njuguna (hereinafter ‘the Deceased’) who died intestate on 8th July 1988.

6. Vide a Ruling delivered by this court on 16th July 2021, the court gave directions on the mode of distribution of the estate. The Applicants who are the Administrators aver that their attempts to comply with that Ruling of the court have been thwarted by the Respondent.

7. The Applicants state that in their efforts to distribute the estate as directed by the court in its Ruling of 16th July 2021, they have made efforts to access and enter the parcel of land known as Juja 10090/71 (hereinafter ‘the suit land’). The suit land in a five (5) acre parcel of land, which is to be distributed amongst several beneficiaries. The Applicants state that they sought to access the suit land in order to facilitate the subdivision of the same in preparation for its distribution.

8. That although the Respondent and his brothers have already commenced development of their portion of the suit land, they have denied the Applicants and their workers access to the suit land damaging a motor vehicle in the process. The Applicants now seek orders to restrain the Respondents from interfering with the process of distribution of the estate.

9. In his Replying Affidavit dated 15th April 2022 the Respondent states that being dissatisfied with the Ruling delivered on 16th July 2021 he filed a Notice of Appeal dated 28th July 2021. That he has also filed in the Court of Appeal an Application No. E298 of 2021 under certificate seeking to stay the execution of the confirmed Grant dated 16th July 2021. That said application is yet to be heard and determined. The Respondent’s position is that his application for stay ought to be heard and determined before distribution of the estate can commence. That if distribution is allowed to proceed then his appeal will be rendered nugatory.

10. The Respondent denies the allegation that he has already embarked on developing his portion of the suit land. He states that he is merely extending his residential home, which he has occupied for a long time. The Respondent urges the court to dismiss the application in its entirety.

Analysis and Determination 11. I have carefully considered the application before this court, the Reply filed by the Respondent as well as the written submissions filed by both parties.

12. It is not in dispute that the Applicants herein are the administrators of the estate of the Deceased. Neither is it in dispute that the court on 16th July 2021 gave directions on the manner in which the estate was to be distributed. The Respondent who was aggrieved by the court ruling has exercised his rights to appeal against said Ruling. However unless and until a stay is granted by the court of Appeal the Ruling remains valid and enforceable.

13. The Respondent submits that if the distribution is allowed to proceed then his appeal will be rendered nugatory. I do not agree. If the Respondent succeeds on appeal then any sub-divisions carried out on the suit land can be cancelled by the Court of Appeal. In any event, the process of sub dividing a property takes some time. At present, the Applicants are only seeking to enter the land for purposes of conducting surveys. This will not in any way negate the Appeal filed by the Respondent.

14. The Respondent has no legal right to prevent or deny the Applicants access to estate property nor does the Respondent have any legal rights to violently interfere with the work of the Applicants and their agents in preparing the suit land for subdivision.

15. Section 47 of the Law of Succession Act provides as follows: -”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:Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.”

16. Similarly Rule 73 of the Probate and Administration Rulesprovides that –“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

17. The Respondent is well within his rights to apply for a stay of the Execution of the confirmed Grant dated 16th July 2021. However, as of now no such stay has been granted. As such, the Respondent must be restrained from interfering with the Administrators as they prepare to distribute the estate in accordance with said confirmed Grant.

18. Accordingly, I do find merit in the present application and grant orders as follows:-1. The Respondents by himself or his servants, employees, workers and/or any other person under the direction of the Respondent be and are hereby restrained from interfering in any manner with the Applicants access, entry, or surveying the parcel of land known as Juja 10090/71, Ngenda/githunguchu/885 and Ngenda/githunguchu/884 pending the determination of the Application for stay filed by the Respondent in the Court of Appeal.2. This being a family matter I make no orders on costs.

DATED IN NAIROBI THIS 15TH DAY OF JULY, 2022. …………………………………..MAUREEN A. ODEROJUDGE