[2021] KEHC 3970 (KLR)
The court held that it could not determine, at the interlocutory stage, which party was entitled to use the estate land, as this was a substantive issue to be resolved at the hearing of the summons for confirmation of grant. To preserve the estate and prevent further disputes or possible prejudice, the court...
Source-derived case information.
- Citation
- [2021] KEHC 3970 (KLR)
- Parties
- Applicant: Applicants (names not specified); Respondent: Respondents (names not specified)
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 241 of 1999
- Procedural Posture
- Succession Cause / Ruling on Application for Conservatory Orders Pending Confirmation of Grant
- Outcome
- Interlocutory orders granted to maintain status quo; Deputy Registrar to ascertain and report on status quo.
- Judges
- DN Musyoka
- Legal Topics
- Succession of Estates, Confirmation of Grant, Conservatory Orders, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Applicants (names not specified)
Applicant
Respondents (names not specified)
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Conservatory Orders Pending Confirmation of Grant
Legal Issues
- 1 Whether conservatory orders should be granted to maintain the status quo regarding use of estate land pending determination of the summons for confirmation of grant.
- 2 Whether the court can determine entitlement to use of the land at the interlocutory stage.
Ratio Decidendi
The court held that it could not determine, at the interlocutory stage, which party was entitled to use the estate land, as this was a substantive issue to be resolved at the hearing of the summons for confirmation of grant. To preserve the estate and prevent further disputes or possible prejudice, the court directed that the status quo be maintained. To facilitate this, the Deputy Registrar was ordered to visit the land and ascertain the current state of affairs, with a report to be filed before the next hearing. The court emphasized that the maintenance of the status quo was necessary to allow for a fair and orderly determination of the parties' respective entitlements to the estate...
Court Disposition
Interlocutory orders granted to maintain status quo; Deputy Registrar to ascertain and report on status quo.
Orders
- The Deputy Registrar of the court shall visit the land on 27th September 2021 to ascertain the status quo.
- The police officer in charge of Matungu Police Station shall provide security for the exercise.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO. 241 OF 1999
IN THE MATTER OF THE ESTATE OF JOHANA OCHESO MBEBA (DECEASED)
RULING
1. This matter is part-heard on a summons for confirmation of grant, where a protest has been filed. Mid-stream, an application has been filed seeking conservatory orders relating to utilization of estate assets pending hearing and determination of the application on distribution of the estate. The applicants claim to be the ones entitled to use the land, and accuse the respondents of ploughing the land to their doorstep. The respondents contend that they were the ones entitled to use the same.
2. Issues as to who is entitled to use the land, are issues that are live in the ongoing proceedings. It is not an issue that I can deal with at this stage. I can only address the issue of maintenance of status quo pending finalization of the ongoing hearings, status quo should be maintained to allow the court conclude the hearings, and to make determinations as to who is entitled to which land. I have no way of telling, from the affidavits filed, who the status quo favours.
3. I shall accordingly direct that the Deputy Registrar of the court visits the land on 27th September 2021, for the purpose of ascertaining the status quo, to facilitate the making of conservatory orders. The police officer in charge of the local police station, which I believe to be Matungu Police Station, shall provide security for the purpose of that exercise.
4. The matter is due for hearing on 28th September 2021. The Deputy Registrar shall ensure that a report of the visit is filed before then. It is so ordered.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 17TH DAY OF SEPTEMBER 2021
W. MUSYOKA
JUDGE