[2015] KEHC 1427 (KLR)
The court found that the applicant, as the widow and named beneficiary in the deceased's will, had established a sufficient prima facie interest in the subject property, which had been her matrimonial home for over twenty-five years. The court held that, pending the hearing and determination of the substantive...
Source-derived case information.
- Citation
- [2015] KEHC 1427 (KLR)
- Parties
- Applicant: Grietje Alberta Van Unen (also known as Dr. Margriet Van Unen); Respondent: Executor of the Estate of Bernhard Martens
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1975 & 2125 of 2015
- Procedural Posture
- Succession Cause / Interlocutory Application for Injunctive Relief Pending Hearing
- Outcome
- Interim injunctive relief granted in favour of the applicant pending hearing and determination of the application.
- Judges
- DN Musyoka
- Legal Topics
- Matrimonial Property, Injunctive Relief, Succession Proceedings, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grietje Alberta Van Unen (also known as Dr. Margriet Van Unen)
Applicant
Executor of the Estate of Bernhard Martens
Respondent
Procedural Posture
Succession Cause / Interlocutory Application for Injunctive Relief Pending Hearing
Legal Issues
- 1 Whether the applicant is entitled to interim injunctive relief to preserve her occupancy and prevent alienation of the matrimonial property pending determination of the application.
- 2 Whether the applicant has established sufficient interest in the estate to warrant protective orders.
Ratio Decidendi
The court found that the applicant, as the widow and named beneficiary in the deceased's will, had established a sufficient prima facie interest in the subject property, which had been her matrimonial home for over twenty-five years. The court held that, pending the hearing and determination of the substantive application, it was just and necessary to preserve the applicant's quiet possession and occupancy of the property and to prevent any sale, lease, exchange, charge, or other alienation or disposal of the property. The court relied on the applicant's status as a beneficiary under the will, her long-term residence, and the applicable statutory provisions to grant interim injunctive...
Court Disposition
Interim injunctive relief granted in favour of the applicant pending hearing and determination of the application.
Orders
- The applicant shall not be removed from nor her quiet possession and occupancy of the property disturbed pending hearing and determination of the application.
- The property shall not be sold, leased, exchanged, charged, or otherwise alienated or disposed of during the pendency of the application or until further court orders.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 1975 & 2125 OF 2015
IN THE MATTER OF : THE ESTATE OF BERNHARD MARTENS (DECEASED)
RULING
The application the subject of this ruling is dated 23rd October 2015 and was filed in HCSC No. 1975 of 2015. It seeks injunctive relief with respect to the property known as LR No. 1160/265 (Original No. 1160/138/2) and LR No. 1160/266 (Original No. 1160/138/3) Mbagathi Ridge 4, Karen, Nairobi.
When the matter was placed before me on 28th October 2015, as Duty Judge, I certified it urgent and gave directions on its service and hearing on 4th November 2015. On 29th October 2015 I directed the court files relating to HCSC No. 1975 of 2015 and HCSC No. 2125 of 2015 be put together as the two related to the same estate.
On 4th November 2015 Miss Kariuki for the applicant informed me that she had not served the application on the named respondent as the said respondent resides out of the jurisdiction, and that she would, in separate proceedings, be applying to serve the same by way of substituted service.
Ms. Kariuki invited me to grant temporary relief pending hearing inter partes of the application. She stated that the applicant had certain rights over the property in question arising from Article 42 of the Constitution, Sections 28 and 93(2) of the Land Registration Act, and Sections 45 and 47 of the Law of Succession Act, which arose from over twenty-five (25) years of marriage to the deceased. She asserted that the said property has been the applicant’s matrimonial home for that period. She urged me to make orders to preserve the property.
Miss Shaw for the executor did not oppose the application, stating that the executor recognized the claims by the applicant as widow of the deceased. She added that the applicant was one of the beneficiaries named in the will of the deceased.
The deceased herein died on 4th June 2015 at Karen, Nairobi. He left a written will executed on 4th November 2011 at Naarden in the Netherlands. Chapter 2 of the said will identified the applicant, Grietje Alberta Van Unen, who is also known as Dr. Margriet Van Unen, as partner of the deceased and one of the beneficiaries under the will. Her residence is described in the will as Mbagathi Ridge 4, Karen, Nairobi, which is the same physical address stated in the application before me.
Prima facie, without considering the contents of the affidavit in support of the application on their merits, Chapter 2 of the will establishes sufficient interest in the estate by the applicant to warrant orders being granted to secure her occupancy of the subject property pending hearing and disposal of the application herein.
I am persuaded to make orders in the following terms:-
a. That the applicant herein shall not be removed from nor her quiet possession and or occupancy of the property described in paragraph 2 of the application dated 23rd October 2015 be disturbed pending the hearing and determination of the said application; and
b. That the said property shall not be sold, leased, exchanged, charged or in any other manner whatsoever alienated or disposed of during the pendency of the application dated 23rd October 2015 or further orders of the court.
9. It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI this 6TH DAY OF NOVEMBER, 2015.
W. MUSYOKA
JUDGE