[2019] KEHC 7590 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

SUCCESSION CAUSE NO. 2 OF 2017

IN THE MATTER OF THE ESTATE OFJUMA KAMINZA KILUMBIDECEASED)

AND

IN THE MATTER OF MIRIAM KAELE KAMINZATHE DECEASED ADMINISTRATOR

RUKIA ABDALLAH...............................................................................CITOR/APPLICANT

VERSUS

ZUHURA JUMA KAMINZA......................................................1ST CITEE/RESPONDENT

REHEMA JUMA KAMINZA.....................................................2ND CITEE/RESPONDENT

HALIMA JUMA KAMINZA......................................................3RD CITEE/RESPONDENT

MUSA JUMA KAMINZA.........................................................4TH CITEE/RESPONDENT

AND

MARY NYAMBURA MAINA....................................................1ST INTERESTED PARTY

WAZIRI YUSUF..........................................................................2ND INTERESTED PARTY

TAWFIQ JUMA..........................................................................3RD INTERESTED PARTY

R U L I N G

1. Rukia Abdallahby way of Summons seeks preservation of properties parcel numbers Kyangwithya/Kaveta/1358, 1365, 1366, 1368, 1370, 1371, 1398, 1820, 1821 & 1822products of subdivision of Kyangwithya/Kaveta/303by issuance of temporary orders blocking, barring, prohibiting and/or inhibiting any registration of any transaction and/or dealings of whatsoever kind and/or nature against the titles pending hearing of the Application for revocation and annulment of the grant.

2. The Application is supported by an affidavit deponed by the Applicant where she avers that she filed an Application to annul the grant of Letters of Administration made on 24th February, 2009,to Mariam Kaele Kaminza,her mother-in-law now Deceased. On 22nd March, 2017she filed an Application citing the Respondents to either apply or accept to be appointed the Administrators or be substituted as the Respondents in the Application for revocation and/or annulment and/or show cause why the above-stated Certificate of Grant should not be nullified forthwith.

3. That she was excluded from the Estate although they knew that she was a wife to her Deceased son, Abdallah Juma Kaminza;she is entitled to the share of her late husband, she lodged a caution on learning of the subdivision which was removed. Mysteriously and without notice on 5th April, 2018while the Application was pending in Court; the portion she occupies was transferred to Rehema Juma Kaminzawho has subdivided the portion into several other units namely, 1820, 1821and 1822for purposes of selling. Parcel No. 1821has already been sold to Waziri Yusuf; 1820to Mary Nyambura Mainaand 1822to Tawfiq Juma,all Interested Parties, an act that has left her displaced.

4. That the Interested Parties have threatened to start construction on the land, to demolish her homestead an act that will render her and the children homeless.

5. The Application is unopposed.

6. This Court has been asked to grant conservatory orders. Therefore, I must consider whether:

(i) The Applicant’s Application has a probability of succeeding.

(ii) She will suffer irreparable loss that cannot be compensated by damages if the orders sought are not granted.

(iii) In case of any doubt arising the matter can be determined on a balance of probabilities (Also see Giella vs. Cassmanbrown Co. Ltd (1973) EA 358.

7. In the case of American Cyanamid vs. Ethicon Limited (1975) AC 396it was stated that:

“If there is no prima facie case on the point essential to entitle the plaintiff to complain of the defendant’s proposed activities, that is the end of any claim to interlocutory relief.”

8. In the case of Mrao Ltd vs. First American Bank of Kenya and 2 Others (2003) KLR 125,it was stated thus:

“A prima facie case in a Civil Case include but is not confined to a “genuine or arguable” case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”

9. It has been stated and not controverted that the Applicant was excluded from the Estate of the Deceased Juma Kaminza Kilumbiher father-in-law to which Mariam Kaele Kaminzaher mother-in-law and mother of her husband Abdallah Juma Kaminza(now deceased) was the Administratix. I have perused the affidavit in support of the Petition for Letters of Administration intestate. The name Abdallah Juma Kaminzaappears as one of the heirs though deceased. The Certificate of Confirmation of Grant does not have his name. In the premises this case is arguable. This is a case where damages cannot adequately compensate the Applicant if orders sought are not granted.

10. In the premises, I do issue temporary orders in preservation of Kyangwithya/Kaveta/1358, 1365, 1366, 1368, 1370, 1371, 1398, 1820, 1821 & 1822(formerly Kyangwithya/Kaveta/303)as prayed pending hearing of the Application for revocation and annulment of the grant.

11. Costs of the Application shall be in the cause.

12. It is so ordered.

Dated, Signedand Deliveredat Kituithis 25thday of April,2019.

L. N. MUTENDE

JUDGE