[2022] KEHC 10198 (KLR)

In re Estate of Geoffrey Israel Wandera (Deceased) (Succession Cause E526 of 2020) [2022] KEHC 10198 (KLR) (Family) (3 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10198 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause E526 of 2020

MA Odero, J

June 3, 2022

Between

Roselyn Akumu Ochumbo Wandera

Applicant

and

Elizabeth Achewa Muyonga

Respondent

Ruling

1. Before this court for determination is summons dated October 8, 2021 by which the Applicant Roselyn Akumu Ochumbo Wandera seek the following orders:-“1. Spent2. Spent3. Pending the hearing and determination of these proceedings the said Elizabeth Achewa Muyonga, her servants and/or agents be stopped and restrained from intermeddling with, tilling, felling trees, mining sand and soil and committing acts of waste on the deceased’s parcel of land number Kakamega/Nzoia/10/194 and trespassing upon, collecting rents and income from tenants on the deceased’s property namely plot No.162 Masaba ‘A’ area at Kiminini shopping centre in Trans Nzoia county and vandalizing and detaining vehicle number KBJ 530M Toyota Probox and interfering with the deceased’s unserveyed plot at Kiminini shopping centre on which is erected a stall.4. Officers Commanding Station Kiminini Police Station and Matunda Police Stations do oversee and supervise the enforcement of these orders.5. The costs of this application be provided for.”

2. The application was premised upon section 47, and 45 of the Law of Succession Act and rule 73 of the Probate and Administration Rules was supported by the affidavit of even date and the replying (further) affidavit dated 6th January 2022 sworn by the Applicant.

3. The respondent Elizabeth Achewa Muyonga filed an Affidavit in response to the summons dated November 13, 2021 in which she opposed the application. The application was canvassed by way of written submissions. The applicant filed the written submissions dated March 7, 2022 whilst the respondent relied upon her written submissions dated March 18, 2022.

Background 4. The Succession Cause relates to the estate of Geoffrey Israel Wandera (hereinafter ‘the Deceased’) who died intestate at the Aga Khan University Hospital on January 5, 2020. A copy of the certificate of death serial number 0821621 is annexed to the Applicants Supporting Affidavit dated October 8, 2021.

5. Following the demise of the deceased the applicant in her capacity as a widow to the deceased sought and obtained a grant of letters of administration intestate which was issued by the High Court on March 19, 2021.

6. The applicant alleges that the respondent has been intermeddling with the estate of the Deceased namely the property known as Kakamega/nzoia/10/194 a 10 acre piece of land in the Nzoia Settlement Scheme in Kakamega County. That the Respondent has invaded and trespassed on said land, has leased part of it to other parties and is cutting down trees and allowing people quarry sand from the land.

7. The Applicant further alleges that the Respondent is collecting rents from the Deceased’s property namely Plot No. 162 Masaba ‘A’ AREA at Kiminini Shopping Centre in Trans Nzoia County. That she has detained and vandalized a motor vehicle Registration KBJ 530M Toyota Probox and that the Respondent is interfering with an insurveyed plot belonging to the Deceased on which is erected a stall at the Kiminini Shoping Centre.

8. In opposing the application for presevartory orders the respondent claims that she is also a widow of the deceased having been married by the deceased under Luhya Customary Law in the year 2012. The respondent states that she bore one child out of her union with the deceased. She has annexed to her reply a copy of the childs birth certificate serial number 0470486 in which the deceased is indicated to be the father of Brivan Agape who was born on March 13, 2005.

9. According to the respondent the parcel of land Kakamega/Nzoia/194, Plot No. 162 Masaba and the Toyota Probox Registration KBJ 530M do not form part of the estate of the Deceased.

10. The Respondent avers that five (5) acres out of the land in Nzoia has been sold to a third party one Geoffrey Lutilo Yabuna. The Respondent asserts that Plot 162 Masaba ‘A’ at Kiminini Shopping Centre is her own property which she purchased with her own money. Further that the Toyota Probox KBJ 530M does not belong to the Deceased but belongs to a third party.

11. The Respondent states that she has filed a summons dated 11th November 2021 seeking revocation of the Grant issued to the Applicant. She prays that the same be heard first to determine the entitlement of herself and her son to a share in the estate of the Deceased.

Analysis and Determination 12. I have considered the summons filed in this court, the Replying Affidavit sworn by the Respondent as well as the written submissions filed by both parties. The main issue for determination is whether the preservatory orders being sought by the Applicant are warranted.

13. Although the provisions of order 40 of the Civil Procedure Rules relating to grant of interlocutory injunctions have not been imported into the probate and Administration Rules it has been severally held that by virtue of Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules the Probate Court does not have power to issue injunctive orders in succession proceedings. In the case of Sophie Jeruto Jenes vs Nicholas Bitok Eldoret Succession No. 920, 2005, the court held as follows:-“The application before the High Court was for a 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 respondents took the contrary position. However, the High Court was persuaded that Rule 73 of the Probate and Administration Rules reserved the courts inherent jurisdiction to allow 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 wide jurisdiction 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 injunctions 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 of justice or to prevent abuse of the process of court. We would imagine such orders would also include injunctive orders.” (own emphasis)

14. Therefore I am satisfied that this court sitting as a Probate court does have the powers to issue any orders necessary to protect and/or conserve the estate of the Deceased pending the issuance of a Grant.

15. The Applicant has accused the Respondent of intermeddling with the property comprising the estate of the Deceased. The Respondent retorted that she too was a wife of the Deceased having married the Deceased under Luhya Customary Law in 2012. The Applicants position is that having married her under Statutory Law in the year 1998 the Deceased had no capacity to contract a second marriage.

16. The question of who is the legitimate widow of the Deceased is not one that can be determined in this application. That is a question that can only be determined at a full hearing where parties will be at liberty to call witnesses in support of their position.

17. In order to prove the allegation of intermeddling the Applicant must satisfy the court that the properties she has cited do in fact form part of the estate of the Deceased.

18. Regarding the land in the Nzoia Settlement Scheme which the Applicant alleges belongs to the Deceased no documentation was availed to prove that the property was vested in the Deceased as proprietor.

19. On the other hand the Respondent states that the land in question was sold by Deceased to a 3rd Party in March 2019. She has annexed to her replying Affidavit a copy of the sale Agreement (Annexture ‘EAM5’) between Deceased and one Geoffrey Lutilo Yabuna for sale by the Deceased of five (5) acres of parcel No. Kakamega/Nzoia/194.

20. The question of whether the 10 acres at the Nzoia Settlement Scheme belongs to the estate or to a 3rd party is one which by virtue of Article 162 of the Constitution of Kenya 2010 is to be determined by the Environment and Land Court.

21. Secondly the Applicant has alleged that Plot No. 162 Masaba ‘A’ area Kiminini Shopping Centre belongs to the Deceased. The Applicant has annexed an Affidavit dated 5th November 2020 sworn by one Paul Kilongi Wafula who averred that between 2011 – 2019 he sold land in Plot 162 Masaba ‘A’ area to the Deceased.

22. On her part the Respondent in her Replying Affidavit avers that the said Plot 162 belongs to her. She annexed a copy of a Sale Agreement between herself and one Paul Wafula (Annexture EAM’6’). The Applicant alleges that the sale Agreement attached by the Respondent is a forgery. This authenticity of the Sale Agreement cannot be determined in this application. Suffice to say the Respondent has availed prima facie proof of her ownership.

23. Once again the question of ownership of this plot in Kiminini can only be determined by the Environment and Land Court. Suffice to say the documentation availed by the Respondent does in my view raise sufficient question as to whether the land in Kiminini actually belongs to the estate. Again, this is a matter which cannot be determined at this interlocutory stage.

24. Regarding the Probox vehicle Registration KBJ 530M the Respondent has annexed a copy of a logbook (Annexutre EAM’7’) indicating that the vehicle is registered to one John Kimani Macharia not in the name of the Deceased. The Applicant in her Replying (Further) Affidavit claims that the ownership of the vehicle had not been officially transferred to the Deceased because the original logbook had gone missing. This again is a matter which can only be determined upon a full hearing of the suit. Needless to say a log book provides prima facie evidence of ownership of a motor vehicle.

25. From the material availed to this court I am not persuaded that the properties in question have been proved to be the property of the estate. In the circumstances, the Applicant has failed to show a ‘prima facie’ case to warrant the orders being sought.

26. Having said that I am of the view that the said properties ought to be preserved until the question of ownership is determined one way or another.

27. Section 47 of the Law of Succession Act Cap 160 provides that:-“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 appoint by the Chief Justice.”

28. Rule 73 of the Probate and Administration Rules provides that:-“Nothing in these Rules shall limited 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.”

29. In order to prevent any dissipation of the estate I make the following orders:-(1)THAT pending the hearing and determination of the summons for Revocation of Grant dated 11th November 2021 both Applicant Roselyn Akumu Ochumbo Wandera and the Respondent Elizabeth Achewa Muyonga be and hereby are restrained from felling trees, mining sand and soil and committing acts of waste on land parcel Number KAKAMEGA/NZOIA/10/194. (2)THAT each party shall meet its own costs.

DATED IN NAIROBI THIS 3RD DAY OF JUNE 2022. …………………………………MAUREEN A. ODEROJUDGE