[2010] KEHC 1607 (KLR)
The court found that, although the application was brought under inapplicable provisions of the Civil Procedure Act and Rules, this did not affect the substance of the dispute. The applicant, prima facie, demonstrated a proprietary interest in the suit property as evidenced by the funeral program. To preserve the...
Source-derived case information.
- Citation
- [2010] KEHC 1607 (KLR)
- Parties
- Applicant: John Maina; Respondent: Grace Nduta Kariuki; Respondent: Joseph Githua Kariuki
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 282 of 2008
- Procedural Posture
- Succession Cause / Interlocutory Application for Injunction Pending Summons for Revocation
- Outcome
- Interim injunction granted restraining the respondents from disposing of, transferring, or leasing the suit property pending hearing and determination of the summons for revocation. No order as to costs.
- Judges
- SP Ouko
- Legal Topics
- Succession Disputes, Grant Revocation, Injunctive Relief, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Maina
Applicant
Grace Nduta Kariuki
Respondent
Joseph Githua Kariuki
Respondent
Procedural Posture
Succession Cause / Interlocutory Application for Injunction Pending Summons for Revocation
Legal Issues
- 1 Whether the applicant is entitled to restraining orders to prevent the respondents from disposing of the deceased's property pending determination of the summons for revocation.
- 2 Whether the applicant has demonstrated a sufficient proprietary interest in the suit property to warrant interim protection.
Ratio Decidendi
The court found that, although the application was brought under inapplicable provisions of the Civil Procedure Act and Rules, this did not affect the substance of the dispute. The applicant, prima facie, demonstrated a proprietary interest in the suit property as evidenced by the funeral program. To preserve the property and maintain the status quo pending the hearing and determination of the summons for revocation or annulment of grant, the court exercised its discretion to grant restraining orders against the respondents from disposing of, transferring, or leasing the property. The court emphasized that it was not making a final determination on the rights of the parties at this stage,...
Court Disposition
Interim injunction granted restraining the respondents from disposing of, transferring, or leasing the suit property pending hearing and determination of the summons for revocation. No order as to costs.
Orders
- Respondents, their agents and servants are restrained from disposing of, transferring or leasing NAKURU/KAPSITA/540 until the summons for revocation is heard and determined.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Succession Cause 282 of 2008
JOHN MAINA……………………………………APPLICANT
VERSUS
GRACE NDUTA KARIUKI………………1ST RESPONDENT
JOSEPH GITHUA KARIUKI……………2ND RESPONDENT
RULING
The applicant has filed summons for revocation or annulment of the grant against the respondents. In the meantime he seeks in the instant application restraining orders to stop the respondents from disposing of, transferring or leasing out the deceased person’s only property, namely NAKURU/KAPSITA/540.
It is the applicant’s contention that in filing this cause, the respondents did not involve him yet he is the first born son to the deceased person with the latter’s first wife, Tabitha Wambui. That the respondents have threatened to evict him from the suit property. That they are also planning to sell the property.
The respondents on their part have denied that the applicant is related to the deceased. That he does not live on the suit property; that they have never threatened him and finally that they have nointention of selling the suit land. The advocate for the respondents did not attend the court to argue these grounds.
I have considered the arguments by both sides. First, I need to point out that the application is erroneously brought under section 3A of the Civil Procedure Act and Order 39 rules 1, 2, 3 and 9 of the Civil Procedure Rules. The latter is not one of the provisions imported into the Law of Succession Act by virtue of Rule 63 of the Probate and Administration Rules. Section 47 of the Law of Succession Act empowers the High Court to entertain any application and determine any dispute under the Act and to pronounce such decrees and make such orders therein as may be expedient. Although the provisions cited in support of the application are inapplicable, they do not go to the root of the dispute. The dispute is with regard to the distribution of the suit property and whether the applicant is related to the deceased.
In considering these questions, I am not expected to determine with finality the rights of the parties as that is the function of the court that will decide the summons for revocation or annulment. Prima facie from the annexed photocopy of the funeral program, I am satisfied that the applicant has demonstrated his propriatory interest in the property. That interest must be protected before the hearing and determination of the summons for revocation.
In order to maintain the status quo and to avoid wastage or alienation, the court in the exercise of its discretion, grants orders restraining the respondents, either by themselves and/or agents and servants from disposing of, transferring or leasing the suit property until the summons for revocation is heard and determined.
No orders as to costs.
Dated, Signed and Delivered at Nakuru this 30th day of April, 2010.
W. OUKO
JUDGE