[2023] KEHC 25133 (KLR)

In re Estate of Benson Mbugua Kamau (Deceased) (Succession Cause 68 of 2022) [2023] KEHC 25133 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25133 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 68 of 2022

SM Mohochi, J

November 10, 2023

IN THE MATTER OF THE ESTATE OF BENSON MBUGUA KAMAU (DECEASED)

Between

George, Muchai Kamau

1st Applicant

Judy Akisali

2nd Applicant

and

Jonathan Humfrey Kamau

1st Respondent

Naomi Wanjiru Njoroge

2nd Respondent

Ruling

1. By notice of motion dated the February 10, 2022, filed pursuant to section 3A of the Civil Procedure Code and order 51 rules 1, of the Civil Procedure Rules seeking the following Orders;i.Spent.ii.That pending the hearing and determination of this of this Suit, this Honourable Court be pleased to issue an Order of temporary injunction restraining the Defendants by themselves, their agents, servants from trespassing, leasing, entering, erecting structures, selling, transferring, alienating, disposing, tilling, cultivating. interfering and/or in any way from encroaching and intermeddling with the Estate of the late Benson Mbugua Kamau.iii.That the Order issued be enforced by the OCS Elburgon Police Stationiv.That the costs of this application be provided for.

2. This Application is supported by the sworn affidavit of Jonathan Humfrey Kamau dated February 10, 2021 and is premised on the following seven (7) grounds;i.That the applicants are the administrators of the late Benson Mbugua Muchai who died on 2/6/2018. ii.That the 2nd defendant was enjoined to be a co-Administrator vide a ruling dated 22/4/21. iii.That the 1st and the 2nd Respondents are meddling with the deceased estate and has gone ahead and sold 2 acres of land and let out 12 acres to one Robert Orina Mosioma.iv.That 2nd Applicant with his brother who are the beneficiaries from the 1st family have been left with only 5 acres to farm.v.That it is only fair and just that the 1st and the 2nd Respondent are stopped from interfering, selling, letting out and/or intermeddling with the estate of the late Benson Mbugua Kamau until the finalization of the cause.

3. This matter came up for directions July 25, 2023, and the court noted that despite repeated directions to file written submissions the Applicant had failed to comply while the Respondents complied and filed their written submissions on the July 21, 2023. Notwithstanding the Applicants non-compliance the Court thus reserved this matter for ruling.

4. The Court shall rely on the Application filed and the supporting Affidavit, the Supplementary Affidavit by the 1st Applicant dated October 8, 2022

Applicants Case 5. That George Muchai is one of the administrators of the estate of the deceased and has the consent of his co-administrator to swear this affidavit on her behalf.

6. That on 23 May 2019, George Muchai and his niece petition this court for letters of administrator for the estate of his late brother Benison Mbugua Kamau.

7. That upon gazettement a grant of Letters of administration interstate was issued to them on 8th day of October 2019 when the matter was due for confirmation, the 2nd Respondent on 5th March 2020 lodged an application for revocation of the grant.

8. That application for revocation was heard and ruled in her favor vide a ruling dated 22/4/21 where she was allowed to be enjoined as the 3rd administrator.

9. That even before the same was done, the 1st Respondent again lodged another application dated 10th February 2021 which he has never prosecuted to date hence rendering the confirmation of this matter to stale.

10. That early this year in February 2022, George Muchai called his uncles after the 1st Respondent summoned him to the Area chief in Turi claiming that he has refused the 1st and the 2nd Respondents to take over his father's properties, claiming he wanted to kill the 2nd Respondent which allegations were rubbished.

11. That at the arbitration at the chief's office, He was ordered to prosecute his application to have the Court conclude the matter and have the estate distributed amongst the two families but temporarily, the chief ordered from the 20 acres each party to occupy and let out 10acres as the matter is concluded but not to have the estate sold.

12. That since the Respondent had taken money from people as from 2020, several summonses were done at the chief's, ACC Turi and we agreed that the Respondent's lessee to occupy only 8 acres in compensation of his money last year which was ending in February 2022

13. That when in February 2022 came to have the 1st and the 2nd Respondents share the land with other beneficiaries, and have the lessee move out of the occupied land since he was fully compensated, instead they saw a tractor ploughing the land which is 12 acres to one Robert Orina Misioma.

14. That further still even after letting out more acreage than agreed, he saw a structure being built and on enquiring, he was told the 1st and the 2nd Respondents have already sold the same to Peter Wanjau Maina, Karuri Rua among others who was building the house.

15. That on enquiry, he came to learn that the 1st and the 2nd Respondents have already sold 2. 5 acres therein which was prohibited by the ACC Turi until we finalize the succession.

16. The 1st and the 2nd Respondents are now in occupation of 14 ½ acre from the remaining 20 acres and with so doing they are disinheriting the 1st family where they come let out, and sell secretly and then relocate to Nairobi.

17. That the matter was reported at the Chief's office at Turi and when the 1st and 2nd Respondents were summoned twice they declined to appear.

18. That it is in the interest of justice that the 1st Respondent be compelled to prosecute his pending application to have this matter finalized and the estate distributed by the court.

19. That if the Respondents are not stopped from intermeddling with the estate of the deceased, it will mean by the time the succession is finalized the 1st family will have nothing to inherit from the estate.

20. That in the circumstances, it is only fair and just to have the Applicant's application allowed as the 2nd Applicant and his brother are likely to suffer irreparable damages.

Respondents Case 21. The Respondents have contested the Applicants Application dated June 21, 2022, seeks orders barring the respondent's from intermeddling with the deceased estate.

22. That the Applicants and 2nd respondent are administrators of the estate of the late Benson Mbugua Kamau (deceased). And the subject estate herein, flows from the estate of Jonathan Kamau Mbugua (deceased) who was the father to Benson Mbugua Kamau (deceased).

23. A certificate of confirmation of grant of the Estate of the late Jonathan Kamau Mbugua (deceased) was made on November 4, 2010, in Nakuru succession 181 of 2005.

24. The deceased Benson Mbugua Kamau, was given 49 acres, from the subject parcel of land herein, being L.R No.9049 (Mitoni farm) among other properties, in the certificate of confirmation of grant issued on 4/11/2010 in the Estate of the late Jonathan Kamau Mbugua.

25. That subsequently, a summon for rectification of grant dated 18/10/2019 was filed in Succession 181 of 2005, and later an application for amendment of the rectified grant was filed dated 15/10/2020, in which application orders were sought for the removal of Benson Mbugua Kamau(deceased) as a beneficiary from subject parcels of land mentioned therein.

26. The respondents objectors herein are a wife and son to the deceased, Benson Mbugua Kamau, while the Applicant/petitioners are a brother to the deceased and his niece.

27. The 1st applicant George Muchai Kamau, has also parcel of land vide the certificate of confirmation of above mentioned. benefitted 49 acres from the subject grant in succession 181 of 2010.

28. In deciding whether to grant the temporary injunction, this court is bound to and rely on the precedent set out in the case of Giella v Cassman Brown (1973) EA 358 In which the conditions for the grant of an interlocutory injunction were settled as follows:“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not be normally granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

29. Has the Applicant made out a prima facie case with a probability of success" In the case of Mrao v First American Bankof Kenya Limited & 2others (2003) KLR 125, a prima facie case was described as follows:“a prima facie case in a Civil Application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

30. Having considered the rival submissions and this being a discretionary application I am unconvinced that the conditions for grant of injunctions has been met.

31. While Prima facie case has been established being a succession dispute in the Estate of the late Benson Mbugua Kamau in the absence of a property specified as to form part of the estate of the deceased, the irreparable injury to be occasioned should such preservation order not be made has not been presented.

32. This Court has been invited to make a blanket injunction the Estate of the late Benson Mbugua Kamau no specific asset sought to be preserved has been presented and/or laid out, the open-ended orders sought cannot be effectively enforced by the OCS Elburgon Police Station.

33. This Court equally note the irregular form of the instant Application moving a succession court vide a notice of motion is a fatality in itself as there exists no procedure to entertain notice of motion in probate and administration matter.

34. The application fails on account of lack of merit and is accordingly dismissed.

35. Costs of this application are awarded to the respondents.It is so ordered.

SIGNED, DELIVERED VIRTUALLY ON TEAMS PLATFORM ON THIS 10TH NOVEMBER 2023. ...................Mohochi S.MJUDGE