[2019] KEHC 7309 (KLR)
The court declined to determine the application for injunction at this stage, citing two procedural deficiencies: (1) the interested party/applicant had not sought leave to be formally joined as a personal representative or beneficiary of the deceased 1st objector, and (2) there was no notice or memorandum of appeal...
Source-derived case information.
- Citation
- [2019] KEHC 7309 (KLR)
- Parties
- Respondent: Silas Ruguaru M’ Itambu; Respondent: Gedion Mutwiri M’Atambu; Respondent: Grace Kagwiria John; Applicant: Zipporah Mukomarangu Mutwiri
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 45 of 2002
- Procedural Posture
- Succession Cause / Partial Ruling on Interlocutory Injunction Application
- Outcome
- Application for injunction not determined; directions issued for procedural compliance.
- Judges
- F Gikonyo
- Legal Topics
- Succession Proceedings, Injunctions in Estate Matters, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silas Ruguaru M’ Itambu
Respondent
Gedion Mutwiri M’Atambu
Respondent
Grace Kagwiria John
Respondent
Zipporah Mukomarangu Mutwiri
Applicant
Procedural Posture
Succession Cause / Partial Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the interested party/applicant has locus standi to seek orders in the succession cause as personal representative of the deceased 1st objector.
- 2 Whether the court should grant a temporary injunction restraining interference with the applicant's occupation of the suit land pending appeal.
Ratio Decidendi
The court declined to determine the application for injunction at this stage, citing two procedural deficiencies: (1) the interested party/applicant had not sought leave to be formally joined as a personal representative or beneficiary of the deceased 1st objector, and (2) there was no notice or memorandum of appeal on record to substantiate the existence of Nyeri Appeal No. 1 of 2018. The court directed that the applicant must first regularize her status by seeking joinder, and must provide evidence of the appeal by affidavit. Only upon compliance with these directions would the court consider and determine the substantive application for injunction. The ruling underscores the necessity...
Court Disposition
Application for injunction not determined; directions issued for procedural compliance.
Orders
- The interested party/applicant to seek leave of the court to be joined as personal representative or beneficiary of the deceased 1st objector forthwith.
- The applicant to provide evidence of the alleged appeal (Nyeri Appeal No. 1 of 2018) by affidavit.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO. 45 OF 2002
IN THE MATTER OF THE ESTATE OF JONATHAN M’ITAMBU M’ MUGAMBI (DECEASED)
SILAS RUGUARU M’ ITAMBU.....................................PETITIONER/RESPONDENT
VERSUS
GEDION MUTWIRI M’ATAMBU….........................1ST OBJECTOR/RESPONDENT
GRACE KAGWIRIA JOHN………………….......…2ND OBJECTOR/RESPONDENT
AND
ZIPPORAH MUKOMARANGU MUTWIRI….INTERESTED PARTY/APPLICANT
PARTIAL RULING
1. The Interested Party/applicant herein is the widow of the 1st Objector herein (now deceased).She took out Limited Grant of letters of Administration- Ad litem in Meru Misc. Succession Cause No. 101 of 2018 In the Matter of the Estate of Gedion Mutwiri M’ Tambu hence competent to institute the aforesaid application.
2. She seeks an orders of;
a. Temporary injunction to restrain the petitioner/ Respondent, one Misheck Mwenda M’Tambu their agents, personal representatives, workers or any one acting at their behest from interfering with the applicant occupation on L.r. No. Abothuguchi/Ruiga/1987 & 1988 subdividing it, cutting down, selling sawing or ferrying trees and /or timber, cultivating, demolishing the applicants houses evicting the applicant’s or constructing any structure on the portion occupied by the applicant her family on the suit land pending the hearing and determination of Nyeri Appeal No. 1 of 2018.
3. Before I can determine the application for injunction, I wish to tackle some important issues. I see a legal hitch; the interested party never sought leave of the Court to be joined in this proceeding as personal representative or beneficiary of the deceased 1st Objector. I direct that be done forthwith. Second, she has talked of Nyeri Appeal No. 1 of 2018 against the decision herein. I have looked everywhere in these proceedings and I have not seen a notice of appeal or memorandum of appeal. I direct the appeal to be provided through and affidavit. Once these two matters are accomplished I will consider the application for injunction and determine it at a date to be appointed by the court. It is so ordered.
Dated, signed and delivered in open court on 23rd May 2019
.........................
F. GIKONYO
JUDGE
IN PRESENCE OF
Kiogora for petitioner
M/s Kiome holding brief or Mbaabu for applicant
..........................
F. GIKONYO
JUDGE