[2009] KEHC 3692 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Succession Cause 913 of 2003

IN THE MATTER OF THE ESTATE OF CHARLES MCHARO MWANYUMBA (DECEASED)

RULING

CHARLES MCHARO MWANYUMBA who died on 19/2/2003, was survived by his wife MIRIAM SHIGHADI MWANYUBA (‘Miriam/ the respondent’) and their three minor children.

Miriam and her sister EMILY CHAO KILINDA petitioned to administer his estate on 10/4/2003 and they managed to obtain the relevant Grant on 24/6/2003, which date, for some strange reason appears to be the same date on the confirmed Grant. Miriam was mandated upon the said confirmation, to hold land known as WERUGHA/WUNDANYI/ 839 (‘the subject land’), as trustee for the aforementioned children in equal shares. She was however allowed to be the absolute owner of motor vehicle registration number KAE 387 B, which was the only other asset that formed part of her late husband’s estate.

MARY NDIGA KIBUKA(‘Mary/the applicant’), who is a sister to the deceased and hence Miriam’s sister in law, has now moved this court, seeking an order to restrain Miriam from disposing of the subject property pending the hearing and determination of a yet to be filed application for the revocation or annulment of the aforesaid Grant, which would explain her second prayer, that her proposed application for the said revocation or nullification, which is attached to the supporting affidavit, be deemed as duly filed upon payment of the requisite fees.

She mainly alleges fraud and cites four grounds in this application, and it is her contention that not only does the subject land form part of their ancestral land, but that she was never consulted during the process. Her learned counsel Mr. Mutisya, chose to base his submissions on the issue of fraud and mainly on the fact the confirmed Grant bears the same date as the Grant of Letters of Administration.

Mrs. Macharia, who appeared for Miriam urged the court to dismiss the application for want of merit and it was her submission that the applicant had failed to meet the test for granting the restraining orders under Order XXXIX of the Civil Procedure Rules, for she must establish that she has a prima facie case, and that she stands to suffer irreparable damage; that where the court is in doubt it ought to consider the balance of convenience. It was also her ground that the applicant lacked the relevant locus standi to bring forth this cause.

The relevant provision of the law pertaining to locus standi, is to be found in section 29 of the Law of Succession Act (‘the Act), wherein it is provided that:

‘For the purposes of this Part, “dependent” means –

(a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to this death;

(b)such of the deceased’s parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; andwhere the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

Admittedly the applicant is a sister to the deceased, so she can not fall under category (a). She has not been able to establish that she falls under category (b) either for she does not allude to the fact that she was his dependant during his lifetime, and given both circumstances, it clearly means that cannot rank in priority to the wife to the deceased, and more so, she lacks locus standi in this cause, and since she cannot rank in priority to Miriam, it is my humble opinion that Miriam was under no obligation to seek her consent before presenting her petition.

Be that as it may, though the applicant alleged that the subject property was ancestral land, she was hard pressed to convince the court of the fact, especially because the said property had been transferred to the deceased by his father as far back as September 1988, which was almost fifteen years before his death, yet the applicant did not adduce any evidence to show that she had taken appropriate action against her father late father and her brother to ensure that the land was declared ancestral land. In my humble opinion, this is but a belated attempt to interfere with proprietary rights which the deceased obtained over the said land and subsequently thereto which the respondent has now acquired over the said property. Her ground cannot therefore lie.

I have perused the proceedings herein and it is on record that though the Grant was issued on 24/6/2003 and confirmed on 2/3/2004, there was a definite typographical error in dating the confirmed Grant which error cannot be visited on the respondent. I would for that reason find that that ground also lacks in merit. Let the respondent present a rectified Grant for execution.

All in all, the applicant who does not even have an application for revocation on the record has no leg to stand on because an application for restraining orders must be based on a substantive application, which in this case would be an summons for revocation or annulment, has failed to convince me that she deserves the orders which she seeks and I do dismiss her application.

But that is not all, for I doubt that the respondent has legal rights to dispose of the subject property. Though she holds it in trust for her children, the applicant readily concedes that she has already received part payment for it, but she must obtain the authority of this court to dispose of it. Indeed this is the position as contained in section 37 of the Law of Succession Act, where it is provided that, “a surviving spouse entitled to a life interest under the provisions of section 35 or 36, with the consent of all co-trustees and all children of full age, or with the consent of the court, may, during the period of the life interest, sell any of the property subject to that interest if it is necessary for his own maintenance, provided that, in the case of immovable property, the exercise of that power shall always be subject to the consent of the court”.

Given the above circumstances, it is only fair that each party bears its own costs of this application.

Dated and delivered at Nairobi this 5th day of May 2009.

JEANNE GACHECHE

Judge

Delivered in the presence of: