[2022] KEHC 2730 (KLR)
The court found that the administrators are entitled to administer the estate as per the confirmed grant of letters of administration, which includes access to and subdivision of the estate properties. The objector, Daniel Kioko Kaindi, has already been allocated specific portions of the estate and is not entitled...
Source-derived case information.
- Citation
- [2022] KEHC 2730 (KLR)
- Parties
- Applicant: Esther Ndete Mbului; Applicant: Erick Musya Kaindi; Respondent: Daniel Kioko Kaindi
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 34 of 2017
- Procedural Posture
- Succession Cause / Ruling on Application for Security and Access to Estate Property
- Outcome
- application allowed
- Judges
- GMA Dulu
- Legal Topics
- Administration of Estates, Grant of Letters of Administration, Obstruction of Administration, Estate Property Access
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Ndete Mbului
Applicant
Erick Musya Kaindi
Applicant
Daniel Kioko Kaindi
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Security and Access to Estate Property
Legal Issues
- 1 Whether the administrators are entitled to security and access to the estate properties for purposes of subdivision and administration as per the confirmed grant.
- 2 Whether the objector's actions constitute obstruction of the administration of the estate.
- 3 Whether the existence of a pending appeal or application in the Court of Appeal bars the granting of the orders sought.
Ratio Decidendi
The court found that the administrators are entitled to administer the estate as per the confirmed grant of letters of administration, which includes access to and subdivision of the estate properties. The objector, Daniel Kioko Kaindi, has already been allocated specific portions of the estate and is not entitled to obstruct the administration or claim more than what is provided in the confirmed grant. The court noted that the objector's application for leave to appeal out of time was dismissed, and thus there is no operative stay or pending appeal that would prevent the administrators from carrying out their duties. The court was satisfied that the administrators' account of obstruction...
Court Disposition
application allowed
Orders
- An order is issued directing the County Commander of Makueni and Machakos Counties and/or Ward Commanders and/or any officer under them within whose jurisdictions the properties of the estate are situated to provide security to the administrators and their appointed surveyors for purposes of visiting the suit...
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
SUCCESSION CAUSE NO. 34 OF 2017
FORMERLY MACHAKOS SUCCESSION CAUSE NO. 93 OF 2003
IN THE MATTER OF THE ESTATE OF DAVID KAINDI MBULUI (DECEASED)
ESTHER NDETE MBULUI
ERICK MUSYA KAINDI..........ADMINISTRATORS/APPLICANTS
-VERSUS-
DANIEL KIOKO KAINDI................................................OBJECTOR
RULING
1. Before me is an application dated 7th August 2020 brought by the two administrators Esther Ndete Mbului and Eric Musya Kaindi under section 45 and 47 of the Law of Succession Act (cap.160).
2. The application seeks the following two orders –
1) That an order do and is hereby issued directing the County Commander of Makueni and Machakos Counties and/or Ward Commanders and/or any officer under them within whose jurisdictions the properties of the estate herein are situated to provide security to the administrators herein together with their appointed surveyors in the course of visiting the suit properties for purposes of carrying out subdivision preparation of mutationbeaconing and or any other activity required to fully administer the estate herein as per certificate ofconfirmation of grant dated 24th October 2019 and the grant herein.
2) That costs of this application be borne by the objector/respondent.
3. The application has grounds on the face of the summons, inter alia that the objector filed an application for revocation of grant which was dismissed, and that since then the administrators had been unable to fully administer the estate as the objector had been denying them entry to the properties of the estate and more specifically Machakos/Konza North Block 1/122 and had built a fence and gate and runs cottages, bar and restaurant.
4. The application was filed with a supporting affidavit sworn by Esther Ndete Mbului on 7th August 2020 which amplifies the grounds of the application and adds that the orders sought herein would enable the administrators administer the estate. The affidavit annexes a copy of the certificate of confirmed grant of letters of administration issued by the court on 24th October 2019.
5. The application is opposed through an affidavit sworn by the objector Daniel Kioko Kaindi on 21st June 2021, in which it was deponed that there was a pending appeal in the Court of Appeal in respect of this court’s decision on the said estate in dismissing the respondent’s application for review; that the said appeal is Nairobi E031/2020 in which there is a pending application for injunction, and that the objector developed the land with the full consent and knowledge of the applicants.
6. In response thereto, the applicants filed a further affidavit sworn by Esther Ndete Mbului in which it was deponed that the respondents’ application for leave to appeal out of time to the Court of Appeal was dismissed on 18th June 2021.
7. The application was canvassed through written submissions. In this regard, the administrator/applicants’ counsel B.M Mungata & company filed their submissions on 5th October 2021, while the objectors’ counsel Muumbi & company filed their submissions on 7th December 2021.
8. Having considered the application, documents filed and the submissions on both sides, it is apparent from the submissions of the objector’s counsel that what the administrators have stated in their affidavits on the subject land and on the case is the true position, except that the objector thinks that no evidence has been tendered in court to show that the objector obstructed any attempt to survey or subdivide the land. I also note that in terms of the contents of the confirmed certificate of grant of letters of administration, the objector Daniel Kioko Kaindi has been given 2. 6 acres in Malili Ranch Plot Number 112, and in equal share with others in Machakos/Konza North Block 1/122. Thus the objector is entitled to what has been given to him in the confirmed grant of letters of administration and no more.
9. I thus find no reason to decline this application. In the result, I allow the application and grant prayer 1. I make no orders as to costs.
DELIVERED, SIGNED & DATED THIS 2ND DAY OF FEBRUARY, 2022 IN OPEN COURT AT MAKUENI.
............................
George Dulu
Judge