[2022] KEHC 15790 (KLR)

In re Estate of Chege Muhoro (Deceased) (Succession Cause 796 of 2018) [2022] KEHC 15790 (KLR) (Family) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15790 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Family

Succession Cause 796 of 2018

SN Riechi, J

December 1, 2022

Between

Rose Wanjiru Muriu & 6 others

Applicant

and

I & M Bank Limited

Respondent

Ruling

1. This matter relates to the Estate of Chege Muhoro (Deceased) who died on February 16, 2018. The applicants are beneficiaries of the estate of Deceased. The intended respondent is a loan facility bank that advanced the deceased a loan during his lifetime.

2. Following the demise of deceased, John Gichuki Chege and Linus Kabiga Chege filed this Succession Cause by petitioning for letters of administration on August 28, 2018 and the same were issued to them by this court on August 6, 2021. Before the confirmation of the grant the Objectors/Applicants herein filed affidavit of protest dated January 19, 2022. The Applicants contemporaneously filed this instant application dated September 21, 2022 under certificate of urgency seeking the following orders;i.Spentii.That this court be pleased to enjoin I & M Bank Limited as a Respondent in this matter.iii.Spentiv. An injunction be issued restraining the Respondent herein,its agents,servants and anyone claiming under them or its behalf from selling,disposing of,by way of any manner whatsoever in land reference LR NO 36/1/903 charged in the name of Chege Muhoro(now deceased) pending hearing and determination of this suit.v.Costs be in this cause,

2. The application is premised on the grounds on face of it and the supporting affidavit of the Applicant sworn on September 21, 2021. The grounds of the application are that the Respondent I & M bank has fraudulently instructed auctioneers to auction the deceased's parcel of land at Kshs 6,434,438. 02/= while loan balance is not fully determined. That the charged property belonged to the deceased and there is a pending matter in court to determine the rightful administrators of the estate. That the suit property LR NO 36/1/903 has a current valuation of more than amount which exceeds the loan, That unless the respondent is restrained together with their agents they are likely to sell the property to Applicants' prejudice. The Applicants therefore pray that the respondent be enjoined and this court issue restraining orders to the Respondent/Respondent.

3. The Respondent opposed the application and filed a replying affidavit sworn on October 24, 2022 by the respondent's Manager, Debt Recovery Unit, Janet Gatwiri. She briefly stated that the application is bad in law and abuse of court process solely meant to frustrate the Respondent in its legitimate exercise of its statutory power of sale without any basis in law. The Respondent stated that Grant of Letters of Administration to the state was issued by this court on August 6, 2021 and the said grant has never been set aside or stayed.

4. The Respondent stated that pleadings filed in this matter discerned that the subject property is charged to I & M Bank Limited and in the circumstance the property is not free property of deceased as envisage under section 3 of the Law of Succession Act and does not form part of the deceased Estate.

5. The Respondent averred that by a Letter of Offer dated October 21, 2017 the respondent agreed advanced to Deceased a Term Loan Facility in the sum of Kshs 5,000,000/=. The Respondent secured the loan by a Legal Charge dated December 15, 2017 and deed of Assignment of Rental Income also dated December 15, 2017 over Land Reference Number 36/1/903.

6. The Respondent stated that pursuant to the Legal Charge, the respondent proceeded to commence realization of the suit property to recover the outstanding amount. The respondent stated that the application does not meet the threshold for grant of the equitable relief sought and the respondent stands to be prejudiced if the orders sought are granted.

7. On October 19, 2022 this court gave directions that the application be canvassed by way of written submission. Mr Nyamweya for the applicants submits that when a parcel of land is charged as a security over a loan advanced by a bank, that property becomes encumbered and the security becomes a liability over the estates of the deceased. He submits that for purpose of succession that liability has to be taken care of by repaying the bank then discharging the property before completing the process of confirmation and distribution of the deceased's estate. He relied on case law of Lilian Imari Mahira & another v Kenya Commercial Bank Limited,Migori Branch[2017]eKLR. He submits that the property still remains property of the deceased only that it is not free property for purpose of succession.

8. He submits that the Applicants herein should have been served with statutory notices to enable them exercise their right of redemption subject to Rule 15(d) of Auctioneers Rules. He submits that the Applicant be allowed to redeem their property in accordance with the stated laws and authority.

9. The Counsel for the respondent Mr Kabaiko submitted that the application herein is incompetent for reasons that there exists no suit between the Applicants and the intended respondent seeking determination of a permanent injunction as prayed in the Application. Counsel submits that the substratum of order 40 of the CPR envisaged that there must be a suit. He relied on decision Isaac Ndungu Muchemi vs Marula Estate Limited Civil Appeal 111 of 1995. He submits that this court should decline to join the Respondent into the succession dispute. He submits that this court has no jurisdiction to determine the commercial/contractual questions raised in the application in a succession matter. He submits that the respondent's statutory power of sale does not amount to intermeddling with the estates of the deceased. He submits that the application has not met the conditions for grant of an injunction order.

Issues for determination 10. From the pleadings and submissions. It is evident that prays 1 and 3 of the application have been spent. The only prayers remaining for determination are prayer 2- That this court be pleased to enjoin I & M Bank Limited as a Respondent in this matter and prayer 4- That an injunction be issued restraining the Respondent herein, its agents,servants and anyone claiming under them or its behalf from selling,disposing of, by way of auction and in any manner entering into the said land in any manner whatsoever in land reference LR NO 36/1/903 charged in the name of CHEGE MUHORO(now deceased) pending hearing and determination of this suit.

11. Therefore the main issues for determination are;i.Whether the Respondent should be enjoined as a party to this cause ii. Whether this court should grant the prayers sought in the application.

12. On the 1 st issue the Applicants seek order that the Respondent be enjoined as Respondent to this succession proceedings as they are charge in the property of deceased and therefore it is important that they should be enjoined as creditors. The Applicants submitted that the Respondent be joined in this proceedings as creditors. The respondent on the other hand opposed and submitted that they don't are not parties to the succession cause and they have no interest in the cause rather than being deceased creditors therefore they should not be enjoined.

13. I have analysed evidence on record and the Respondent has not proposed to be enjoined as a party to the succession cause. In light of the foregoing observations, it is my finding that the applicants herein have not convinced this court that Respondents merit to be enjoined into the proceedings. The same is dismissed.

14. On second issues the Applicants are seeking an order of injunction restraining the respondent and its agents from selling, disposing, transferring, leasing, charging and dealing in any manner with suit property being LR No 36/1/903 charged in the name of deceased pending hearing and determination of suit.

15. The respondent on the other hand argued that the Applicants have not met the requirements of grant of injunction orders. The Respondent submitted that the injunction orders cannot be granted for reasons that there is no existing suit between the Applicants and the respondents.

16. Having set out the parties' respective arguments this court needs to determine whether it should grant injunctive orders as sought in the Applicants' Application. I will refer parties to relevant laws being Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules.

17. Section 47 of the Law of Succession Act provides: -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,

18. On the other hand, Rule 73 of the Probate and Administration Rulesprovides that:'73. 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.'

19. The two provisions cloth the High Court with wide discretion to do what is necessary to ensure that the ends of justice are met. In the case of Floris Piezzo & Another —vs- Giancarlo Falasconi (2014) eKLR, the Court of Appeal while considering whether an injunction can be issue in a Succession Cause expressed itself as follows;'We have carefully considered the grounds of appeal, rival written and oral submissions, and the law. The application before the high Court was for temporary injunction to restrain the appellants from dealing with the suit premises in a manner inimical to the estate of the deceased. The question which arose and had to be determined first was whether the Court had jurisdiction to grant an injunction in a Succession Cause. The appellants took the position that the Court had no such jurisdiction whereas the Respondent took the contrary position. However the Hi h Court was persuaded that Rule 73 the Probate and Administration Rules reserved the Court's inherent jurisdiction to allow for the grant of injunctions in deserving cases. We are in total agreement with this conclusion. We have no doubt at all that the Law of Succession Act gives the Court wide jurisdiction in dealing with testamentary and administration issues of an estate. Indeed Section 47 of the said Act gives the Court jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decree and orders as may be expedient. It cannot be said that such decrees and orders would exclude injunction orders. In other words, we are of the same view that Section 47 of the Act gives the Court all-embracing powers to make necessary orders. including iniunctions where appropriate to safeguard the deceased's estate. This section must be read together with Rule 73 of the Probate and Administration Rules which further emboldens Court's jurisdiction to make such orders as may be necessary for the ends ofjustice or to prevent abuse of the process of Court. We would imagine such orders would also include injunctive orders." In the instant application, the Respondent has challenged the jurisdiction of this court to hear and determine the claim by the Applicants to the subject property. It is trite law that a court may not proceed to hear a suit over which it lacks jurisdiction. In OWNERS OF MOTOR VESSEL 'LILLIAN S' - VS - CALTEX OIL (K) LTD [1989] KLR it was held as follows:-'Jurisdiction is everything without it a court of law has no power to make one more step. Where a court of law 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 the moment it holds the opinion that it is without jurisdiction.'

20. From the application, affidavits and submissions,two issues clearly emerge;1. That the estate of the deceased has appointed administrators and were issued with grant dated August 6, 2021 appointing;i. John Gichuki Chegeii. Linus Kabiga Chege as Administrators.2. That the deceased during his lifetime took a loan from I & M Bank which loan has not been repaid.3. That I&M Bank do not want to be enjoined in a succession cause as their interests are commercial in nature.

21. This Court notes that the priority function of a probate court is the distribution of estate of the deceased. The court cannot propose to handle commercial dispute because the estate and commercial entities in particular banks who advanced loans to the deceased in a commercial transaction. 22. This in my view is the provision of the commercial court. The court notes that there are administrators appointed who have capacity to assert their rights if any in commercial court and cannot drag the same in this succession cause.

23. I therefore find no merit in the application dated September 21, 2022 which is hereby dismissed with costs.

DATED AT NAIROBI THIS 1STDAY OF DECEMBER 2022. S. N. RIECHIJUDGE