[2018] KEHC 6724 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

SUCCESSION CAUSE NO. 561 OF 2013

IN THE MATTER OF THE ESTATE OF HERMAN GICHANGA (DECEASED)

JIMNAH MWANGI GICHANGA..................................................APPLICANT

VERSUS

MARGARET WAGATHAIRU GICHANGA..............................RESPONDENT

RULING

1. The applicant has presented summons dated 11th June 2012. The application is expressed to be brought under Rule 49 of the Probate and Administration Rules.

2. The applicant craves an injunction to restrain the respondent from entering or trespassing into the property known as Loc. 14 Kagumo-ini 741 “pending the hearing and determination of this application”.

3. The applicant is lay. It may partly explain the poor draftsmanship above. For if the order is to last until the hearing and determination of the application, it will be futile. That is precisely the point in the preliminary objection dated 5th December 2013 taken out by the respondent’s learned counsel.

4. However, the court is enjoined by Article 159(2) (d) of the Constitution to do substantial justice to the disputants. See Edward Steven Mwiti v Peter Irungu & 2 others (No. 2) Nairobi High Court ELC 105 of 2011[2012] eKLR. This overriding principle is a guiding beacon for the court:

“The principal aims of the overriding objective include the need to act justly in every situation; the need to have regard to the principal of proportionality and the need to create a level playing ground for all the parties coming before the courts by ensuring that the principle of equality of arms is maintained and that as far as it is practicable to place the parties on equal footing”.

Harit Sheth Advocate v Shamas Charania Nairobi, Court of Appeal, Civil Appeal 68 of 2008 [2010] eKLR.

5. I will thus dig a little deeper into the merits of the application. The gravamen is that the respondent has denied the applicant access to buildings erected on the suit property; that she is wasting the property; and, that she has permitted strangers to enter the land. The latter have committed wanton destruction of buildings and trees. Those matters are bolstered by a deposition sworn by the applicant on 11th June 2012.

6. The applicant also filed lengthy submissions on 15th May 2018. At the hearing of the summons on 17th May 2018, the applicant largely relied on his deposition and the written submissions. It is however instructive that the submissions at paragraph 2 to 5 delve into historical matters that permeate the borders of the present application.

7. Like I stated, the respondent has raised a preliminary objection. She has also filed grounds of opposition dated 21st November 2013. The pith of the objection is that the application does not lie; and, it is an abuse of court process. Learned counsel submitted that final judgment was delivered on 13th March 2015; and, a decree issued on 2nd December 2015. Accordingly, the application has been overtaken by events.

8. I have considered the pleadings and deposition. I have also paid heed to the written and oral arguments.

9. The present application was presented before the final judgment and decree. It was an interlocutory motion. From the records before me, the parties would seem to have abandoned interlocutory applications and proceeded to full hearing. A final judgment was delivered on 13th March 2015; and, the decree issued on 2nd December 2015. The respondent, who is the applicant’s step mother, was granted a life interest in the suit land.

10. The substratum of the present application for injunction was swept away by that decree. It is overtaken by events. A final judgment can only be revisited by an action in review or appeal. My finding on that point is sufficient to dispose of this matter.

11. The upshot is that the applicant’s summons dated 11th June 2012 is dismissed.Considering the predicament that the applicant has fallen into; and, in the interests of justice, I make no order on costs.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’Athis 31st day of May 2018.

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of:

Applicant (in person).

Mr. J. Kimwere for the respondent instructed by Kimwere Josphat & Company Advocates.

Mr. Kiberenge and Ms. Dorcas, Court Clerks.