[2023] KEHC 20406 (KLR)

In re Estate of Elkanah Ogonyo Ombonyo (Deceased) (Family Miscellaneous Application E001 of 2023) [2023] KEHC 20406 (KLR) (29 June 2023) (Ruling)

Neutral citation: [2023] KEHC 20406 (KLR)

Republic of Kenya

In the High Court at Nyamira

Family Miscellaneous Application E001 of 2023

WA Okwany, J

June 29, 2023

IN THE MATTER OF THE ESTATE OF THE LATE ELKANAH OGONYO OMBONYO – DECEASED

Between

Stephen Nyandigisi Ombonyo

Applicant

and

Lydia Moraa Kengere

Respondent

Ruling

1. This ruling is in respect to two (2) applications, namely: -a.The application dated May 9, 2023b.The Respondent’s application dated June 5, 2023

Application dated May 9, 2023 2. The applicant herein, SNO, seeks the following orders: -1. That this application be certified as urgent and be heard ex-parte in the first instance.2. That Conservatory orders do issue restraining the Respondent from withdrawing, transferring, or dealing in whichever manner with all those funds previously deposited funds or currently deposited or being created into bank accounts Number xxxx Domiciled at Co-operative Bank of Kenya Limited Nyamira Branch, Account Number xxxx Domiciled at Equity Bank, Nyamira Branch, Account Number xxxx Domiciled at Equity Bank, Nyamira Branch which accounts entail and constitute cash deposits in respect of assets, terminal benefits and Co-operative savings transmitted thereto with respect to the deceased EOO.3. The Motor Vehicle Registration Number KBE xxxB purchased by the respondent using part of the terminal benefits of the Late EOO (deceased) be and is hereby preserved for accounting to the beneficiaries of the said estate pending the hearing of this application.4. That Conservatory orders restraining the Respondent from alienating, transferring, selling and disposing the property/assets of the deceased estate of the Late EOO (deceased) or acquired from the proceeds of the deceased’s terminal benefits namely: - All that parcel house Unit Number: A14-131 at NHC Langata Phase 1. ; Land title no. West Mugirango/Siamani/xxxx, East Kitutu/botobori II/xxxx, East Kitutu/botobori II/xxxx, NSSF deductions/interest account, Motor Vehicle Registration Number KBC xxxB and any other moveable and immovable properties of the deceased in any manner whatsoever pending the hearing and determination of this application.5. That Conservatory orders restraining the respondent from withdrawing, transferring, or dealing in whichever manner all those funds domiciled All that Account Number xxxx Domiciled at Co-operative Bank, Nyamira Branch; All that Account Number xxxx Domiciled at Equity Bank, Nyamira Branch; All that Account Number xxxx Domiciled at Equity Bank, Nyamira Branch; Motor Vehicle Registration Number KBE xxxB same being part of the assets of the deceased estate of the late EOO (deceased) pending further orders of this Honourable Court.6. That Conservatory orders restraining the Respondent from alienating, transferring, selling and disposing the property/assets of the deceased estate of the late EOO (deceased) in any manner whatsoever pending the hearing and determination of this application.7. That Conservatory orders restraining the Respondent from alienating, transferring, selling and disposing the property/assets of the deceased or withdrawal of cash from the accounts mentioned in paragraph 2 above in any manner whatsoever pending intestate succession of the estate of the late EOO (deceased) and or further orders of court.8. That an order to compel the administrators to provide accounts of all the funds received as gratuity/death benefits and KTDA Sacco withdrawals and income generated from the assets of the deceased from the time of death and to be subjected to independent accounting audit at the expense of the estate for the purpose of ascertaining whether the withdrawals and or usage is within the parameters of the law and Succession Act.9. That orders that any income generated from the deceased’s estate be deposited in an interest generating account where all beneficiaries are signatories and that any withdrawals from the said accounts be done with authority from court and the consent of all beneficiaries of the estate and for the benefit of the beneficiaries who are minors.10. That the costs of this application be borne by the respondent.

3. The application is supported by the applicant’s affidavit and is premised on the grounds that: -1. The applicant is a brother to the deceased herein and has obtained a limited Grant Ad Litem dated April 27, 2023 hence capacitated with locus to bring and sustain this application as required by of section 45 of the Law of Succession Act.2. The respondent herein has not taken out any grant of letters or limited grant of letters of administration under section 54 of the law of Succession Act to enable her administer the estate of her deceased husband or spend monies pertaining to the terminal benefits of the deceased.3. The respondent herein sought/ processed and received Death Gratuity, pension benefits, KTDA/ Chai Sacco benefits from the deceased's employer in excess of KShs. 22 Million, which benefits the respondent has been administering without any accountability or without any authority of the court thus exposing the minors to uncertainties and peril.4. The respondent has unlawfully and without any colour of right Intermeddled with the deceased's estate and there IS reasonable apprehension that unless restrained by orders of this court, the Respondents will continue with acts of wanton wastage of the estate: thus disinheriting the other beneficiaries of the estate who are minors and have not been provided for in any way as required by Law.5. The respondent is not the sole beneficiary of the deceased's estate which is survived by the respondent and two minor children who are in dire need of protection by this Honourable court co secure and preserve their portion of the inheritance of the estate. The said estate was survived by the following beneficiaries: -i.LMK....spouse.....adultii.BBO...daughter...17 Yearsiii.ROO…son…12 YearS6. It is in line with the law and in the best interests of the minors herein that conservatory orders be granted to preserve the estate pending proper succession of the estate of the deceased In which case provisions will be made to all the beneficiaries as detailed in the chief’s letter.7. The deceased's assets and or monies are being utilized by the respondent who is purporting to administer the same without the authority and permission of court by avoiding to obtain a grant of administration of the said estate and thus managing the estate whimsically and arbitrarily. The following are the assets of the deceased's estatea.All that unit house apartment Unit Number: A 14- House Number 131 at NHC Langata phase I purchased in the name of the respondent using the deceased's account without the requisites of succession with rental income.b.All that title no. West Mugirango/siaman1/xxxx in the name of the deceased with a rental income.c.All that title No. East Kitutu/ Botobori xx/xxxx in the name of the deceased d. All that title No. East Kitutu/ Botobori xx/xxxx in the name of the deceasede.All that Account Number xxxx Domiciled at Cooperative Bank, Nyamira Branch.f.All that Account Number xxxx Domiciled at Equity Bank, Nyamira Branch.g.All that Account Number xxxx Domiciled at Equity Bank, Nyamira Branch.h.All that Motor Vehicle Registration Number KBE 427B purchased using monies from the estate without requisites of succession.i.Cash withdrawn from the deceased's account using ATM after his demise and or without letters of administration to capacitate withdrawal.j.NSSF deductions/savings.8. The respondent holds the said properties and there is an eminent danger that she may proceed and dispose of the same to the detriment of other beneficiaries and in a manner not contemplated under the Law of Succession Act cap 160. 9.The respondent received Death Gratuity, pension benefits, KTDA/Chai Sacco benefits from the deceased's employer to the tune of more than 22 Million, which are banked in various banks wherein the respondent is the sole signatory to Bank Account No Number xxxx Domiciled at Co-operative Bank, Nyamira Branch; bank Account Number xxxx Domiciled at Equity Bank, Nyamira Branch; bank Account Number xxxx Domiciled at Equity Bank, Nyamira Branch.10. The respondent has been making various withdrawals without any accountability despite the monies being terminal benefits of the deceased hence part of the estate of the deceased herein.11. There is a grave danger that the respondent may proceed and withdraw all the funds in the said Accounts effectively disinheriting my niece and nephew who are minors and bona fide beneficiaries of the estate.12. There is no provision that has been made to divide and secure the portion of inheritance pertaining to the minors and the respondent has applied the estate as if she is the sole beneficiary of the estate in breach of section 45 of The Law of Succession Act.13. There is an urgent need for the respondent to give an account of all the monies received for and on behalf of the estate to capacitate the proper Intervention and supervision of this Honourable Court.14. This Honourable court has jurisdiction and it is indeed seized of capacity and powers to intervene and direct suitably to ensure that the ends of Justice are met, including issuing protective orders in order to safeguard the estate of a deceased person from arbitrary and unguided transactions.15. It is mete and justice and in the interests of greater substantive justice to grant the orders sought herein.

4. When the application came up for mention on May 23, 2023, this court directed the parties to canvass it by way of written submissions. The court also issued orders for the maintenance of status quo.

5. The Respondent opposed the application through her replying affidavit sworn on 13th June 2023 wherein she avers that the Applicant lacks the locus standi to lodge, sustain and/or maintain the application.

6. The Respondent states that the orders sought are substantive in nature and cannot be obtained through a miscellaneous application. She states that she is the widow of the late EOO (Deceased) who died on January 11, 2016 leaving her with 2 minor children. She adds that the deceased also left behind some properties including a matrimonial home where she resides with her children but that for some unexplained reason, the applicant and his siblings have continuously intimidated, harassed and interfered her life by laying unfounded, baseless and frivolous claims in respect to the deceased’s property. She denies the claim that she has intermeddled with the estate of the deceased and contends that the allegation is meant to tarnish her name in a bid to form a basis to disinherit her and her children.

7. It is the respondent’s case that the applicant does not have a beneficial interest in the deceased’s estate and that he unprocedurally obtained the Letters of Administration, Ad Litem, through misrepresentation. She further states that the application is founded on falsehoods and malice intended to depict her in bad light.

The Respondent’s application 8. The Respondent filed the application dated 5th June 29, 2023 seeking the following orders: -“Pending the hearing and determination of the main motion, the Honourable Court be pleased to issue an order directing the 1st and 2nd interested parties herein, the same being Co-operative Bank Limited and Equity Bank Limited to unblock Bank Account Nos. xxxx held in Co-operative Bank of Kenya, Nyamira branch, xxxx and xxxx held in Equity Bank Limited, Nyamira Branch and the Applicant to continue operating and transacting as the sole owner of the said Accounts.”

9. The application is supported by the respondent’s affidavit and is premised on the ground that upon granting of the status quo orders on 23rd May 2023, the applicant’s Counsel wrote to the banks purporting to interpret the status quo orders to mean that the respondent was restrained from withdrawing cash or carrying out any transactions in the listed bank accounts. It is the Respondent’s case that she is the sole accountholder of the listed accounts.

10. The Applicant opposed the Respondent’s application through his replying affidavit and further affidavit sworn on 19th and 20th June respectively wherein he avers that the Respondent received the deceased’s terminal dues and other benefits to the tune of over Kshs. 22,000,000/= and other benefits without having obtained grant of representation which dues were transmitted through her bank accounts held at Co-operative Bank and Equity Bank.

11. The Applicant accuses the Respondent of excluding other lawful beneficiaries/dependants from the deceased’s estate which requires the assets of the deceased to be gathered and administered according to the provisions of the Law of Succession Act. It is the Applicant’s case that the estate of the deceased should be preserved as stated in the application dated May 9, 2023.

12. The two applications were canvassed by way of written submissions which I have considered. The main issues for determination as follows:-a.Whether the applicant has the locus standi to initiate these proceedings against the respondent.b.Whether the application dated May 9, 2023 is competent.c.Whether the applicant and the respondent have made out cases for the granting of the orders sought in their respective applications.

Locus Standi 13. In the case of Law Society of Kenya vs Commissioner of Lands & Others, Nakuru High Court Civil Case No.464 of 2000, the Court held that ;-“Locus Standi signifies a right to be heard, A person must have sufficiency of interest to sustain his standing to sue in Court of Law”.

14. Further in the case of Alfred Njau andothers...vs... City Council of Nairobi ( 1982) KAR 229, the court also held that;-“The term Locus Standi means a right to appear in court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings”.

15. It is evident that locus standi is the right to appear and be heard in court or other proceedings and literally, it means ‘a place of standing’. Therefore if a party is found to have no locus standi, then it means he/she cannot be heard even on whether or not he has a case worth listening to.

16. In the present case, I note that the applicant obtained grant of Letters of Administration Ad Litem on April 27, 2023 which grant was limited for the purpose of filing a suit. I find that the Applicant established his interest in the matter as a brother of the deceased. In this regard, I find that the Applicant has the locus standi to file the suit.

17. Regarding the competency of the application, I note that the Applicant did not file a substantive suit, but instead, initiated this case through a Miscellaneous Application. In the same vein, it was not disputed that a succession case has not been filed in respect to the estate of the deceased. The question which arises is whether the orders sought by the Applicant can be granted in the absence of a substantive suit. The answer to this question is contained in the case cited by the respondent, being Edema & 2 others v Edema & 5 others, (Miscellaneous Succession Cause No. 001 of 2022) [2022] KEHC 9960 (KLR) where under similar circumstances, the court held: -“Further to this, no succession cause has been filed in respect of the estate of the deceased. The net effect is that the application is not anchored on an existing suit. The interlocutory orders sought cannot be granted in a vacuum in the absence of an existing suit. In the premises I find that the application is fatally defective and the orders sought cannot issue.”

18. Taking a cue from the decision in the above cited case, I similarly find that the interim orders sought by the applicant cannot be granted in the absence of a substantive suit as to do so will be tantamount to granting the applicant orders in a vacuum or indefinitely as it is not known when, if at all, a substantive succession cause will be filed when the court will be able to determine the issue of the distribution of the deceased’s estate. It is also instructive to note that the applicant has not indicated if he has any intentions of filing a succession cause thus lending credence to the respondent’s position that he only intends to tarnish her name, harass and intimidate her.

19. Assuming that the Applicant had filed a substantive suit/succession cause, would his application succeed? The answer to the above question will require this court to interrogate if the application meets the threshold set for the granting of orders of injunction as the application basically seeks orders to restrain the Respondent from carrying out any transactions in her listed bank accounts.

20. It is common ground that for an injunction to be issued, the applicant must satisfy the three requirements settled in Giella v Cassman Brown[1973] EA 348 where the court held that an applicant must demonstrate that they have a prima facie case with a probability of success, demonstrate irreparable injury which cannot be compensated by an award of damages if a temporary injunction is not granted, and if the court is in doubt show that the balance of convenience is in their favour.

21. In Nguruman Limited v Jane Bonde Nielsen and 2others NRB CA Civil Appeal No. 77 of 2012 [2014] eKLR the Court of Appeal reiterated the three conditions to be fulfilled before an interim injunction is granted as set out in Giella v Cassman Brown (Supra) and further clarified that the conditions are to be applied as separate, distinct and logical hurdles which an applicant is expected to surmount sequentially. Consequently, if the applicant does not establish a prima facie case then irreparable injury and balance of convenience do not require consideration. On the other hand, if a prima facie case is established, then the court will consider the other conditions.

22. The Court of Appeal discussed what constitutes a prima facie case in Mrao Ltd v First American Bank of Kenya Limited and 2others [2003] eKLR and explained that it is,“a case in 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 to call for an explanation or rebuttal from the latter.”

23. It is therefore apparent that a Prima facie case is one that is not frivolous but one which is easily discernable from the pleadings even before the party is heard as it will show a right exists which may be infringed if an injunction is not issued and the onus of establishing the existence of a prima facie case lies with the applicant.

24. Applying the above principles to the instant case, I note that the applicant has not presented any material before this court to show, first of all, his entitlement to the money held in the various accounts or that the monies held in the Respondent’s said accounts form part and parcel of the deceased’s alleged gratuity or terminal benefits. Furthermore, the applicant did not tender any evidence to show that the respondent is mismanaging, intermeddling with or wasting the deceased’s estate or that he stands to suffer any loss as a result of the Respondent’s continued operations of her own bank accounts.

25. I find that the applicant’s application does not meet any of the conditions set for the granting of orders of injunction or any of the orders sought in the application.

26. In sum, I find that the application dated May 9, 2023 is not merited and I therefore dismiss it with costs to the Respondent.

27. Turning to the prayers sought in the Respondent’s application dated 5th June 2023, I note that the orders dismissing the application dated May 9, 2023 have a direct bearing on the second application which was basically concerned with the interpretation of the interim orders issued on 23rd May 2023. This is to say that with the dismissal of the said application dated May 9, 2023, the status quo orders of May 23, 2023 stand vacated thus making the prayers sought in the 2nd application moot.

28. Be that as it may and even assuming that the 1st application was successful, which it is not, this court cannot fail to comment that the action taken by the Applicant’s Lawyer, to purport to interpret the status quo orders issued on May 23, 2023 to mean that the court had issued an order stopping all transactions on the listed bank accounts to be misleading. I am of the humble view that the parties should have sought clarifications from the court, regarding the import of the said order instead of giving it their own interpretation.

29. In sum, having found that the application dated May 9, 2023 is not merited, I will for clarity purposes, allow the prayers sought in the application dated June 5, 2023. I grant the respondent the costs of the applications.

30. It is so ordered.

RULING DATED, SIGNED AND DELIVERED AT NYAMIRA VIA MICROSOFT TEAMS THIS 29TH DAY OF JUNE 2023. W. A. OKWANYJUDGE