[2023] KEHC 25612 (KLR)

In re Estate of Leonard Kibinge Kiruri (Deceased) (Succession Cause 626 of 2015) [2023] KEHC 25612 (KLR) (Family) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25612 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 626 of 2015

MA Odero, J

November 17, 2023

Between

Jane Wangari Gacheru

1st Applicant

Judy Wambui Nyambura

2nd Applicant

Geoffrey Ng’Ang’A Kiruri

3rd Applicant

and

Sheila Wanjiku Kinuthia

Respondent

and

Kenya Power and Lighting Co

Interested Party

Ruling

1. Before this Court for determination is the Notice of Motion application dated November 5, 2021 by which the Applicants Jane Wangari Gacheru, Judy Wambui Nyambura and Geoffrey Ng’ang’a Kiruri seek the following orders:-“1. Spent.2. Leave be granted to join Kenya and Lighting Co. Limited as an Interested Party in this application.3. Pending hearing and determination of this application an order of injunction to do issue restraining the Respondent by herself, or persons claiming through her from interfering with the management of B7, B8, B9, B10, B11, B12, B13, B14 and B15 erected on LR (MSA) No. Mainland, North Section 1/21799 original No. 973/202 and in particular desist from interfering with any arrangements for the supply of electric power to the premises by the Interested Party.4. Pending hearing and determination of this application the Interested Party be compelled to reconnect electric power to B7, B8, B9, B10, B11, B12, B13, B14 and B15 erected on LR (MSA) No. Mainland, North Section 1/21799 original No. 973/202. 5.That suitable orders be made to ensure that power supply to B7, B8, B9, B10, B11, B12, B13, B14 and B15 erected on LR (MSA) No. Mainland, North Section 1/21799 original No. 973/202 is not interfered with pending the hearing and determination of this succession cause.

2. The application which was premised upon Section 3A of the Civil Procedure Act and Sections 47, 82, 83 of the Law of Succession Act was supported by the Affidavit of even date sworn by the 2nd Applicant Judy Wambui Nyambura.

3. The Respondent Sheila Wanjiku Kinuthia opposed the application through her Replying Affidavit dated 7th November 2022. The matter was canvassed by way of written submissions. The Applicants filed the written submissions dated 30th December 2022 whilst the Respondents relied upon their written submissions dated 9th May 2023.

Background 4. This Succession Cause relates to the estate of the late Leonard Kibinge Kiruri who died testate having left a written Will dated 6th January 2010. That Will however is being challenged by the Applicants who claim to be the widows and son of the Deceased.

5. Following the demise of the Deceased Grant of letters of Administration Intestate was on 31st July 2018 made to the Applicants. The Respondent Sheila Wanjiku Kinuthia who also claimed to be a widow of the Deceased had been convicted of the murder of the Deceased. However, that judgement was overturned and the Respondent was acquitted by the Court of Appeal vide a judgement delivered on 24th May 2019 in Criminal Appeal No. 71 ‘A’ of 2017.

6. The Respondent then filed a summons for revocation of Grant dated 11th July 2019. That summons is yet to be heard. In the mean time the Applicants who are the current Administrators of the estate filed the application dated 5th November 2021 seeking various orders.

7. The Applicants allege that the Respondent has maliciously instigated Kenya Power and Lighting Company (KP&L Co. to disconnect the supply of power to properties (flats) which they claim belong to the estate of the Deceased. That this has caused great inconveniences to the tenants who are opting to move out thereby depriving the estate of much needed income.

8. The Applicants further claim that the Respondents actions amount to a blatant contempt of conservatory orders which were issued by the High Court in this matter. They seek re-connection of the power supply and orders restraining KP&L Co. from further disconnecting power.

9. The Respondent in her Replying Affidavit states that the power connection to the said properties is in her own name and the name of the Deceased. That in any event the tenants in the flats are all on pre paid electricity supply therefore power supply will depend on whether one purchases tokens.

10. The Respondent insists that she is the sole proprietor of the properties in question. She urges the court to dismiss this application with costs.

Analysis and Determination 11. I have carefully considered the application before this court, the Reply filed thereto as well as the written submissions filed by the parties.

12. The Applicants have sought for leave to enjoin KP&L Co. as an Interested Party in this matter. The law relating to joinder of parties is to governed by order 1 of the Civil Procedure Rules 2010. Order 1 rule 10 (2) provides as follows:-“The court may at any state of the proceedings either upon, or without the application of either parties and on such terms as my appear to the court to be just order that the name of any party improperly joined, whether as a Plaintiff or Defendant be struck out, and that the name of any person who ought to have been joined, whether as a Plaintiff or Defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon or to settle all questions involved in suit be added.”

13. In Trusted Society of Human Rights Alliance v mumo Matemo & 5 Others [2014] eKLR the Supreme Court of Kenya defined an Interested Party as:-“…one who has a stake in the proceedings, though he or she was not party to the cause at initio. He or she is one who will be affected by the decision of the court when it is made either way. Such a person feels that his or her interests will not be well articulated unless he himself or she herself appears in the proceedings and champion his or her cause.”

14. This is a Family Court dealing with a Succession Cause. The duty of this court is to oversee and supervise the distribution of the estate of the Deceased to the genuine heirs. In a Succession Cause the only interested parties would be the beneficiaries, spouses, children, creditors and any other person having a legal claim to the estate.

15. KP&L Co. is not beneficiary to the estate of the Deceased and has no interest whatsoever in how the estate is distributed or to whom.

16. KP&L Co. is a supplier of electric power who provides electric power to Kenyans based on a contract with each individual consumer. If the Applicants wish to be supplied with power then they must move and engage with KP&L Co. directly and enter into a contract for supply of power to the flats in question.

17. Courts will not enjoin a party who has no discernible interest in a suit merely because a request has been made.

18. In Re Estate John Mutio Mutua (Deceased) [2021] eKLR it was stated that:-“…An interested party is one who has a stake in the proceedings, though he was not a party to the cause at initio. He is one who will be affected by the decision of the court when it is made, either way. The court should not act in vain by enjoining a party that clearly would have no interest in the subsequent proceedings.” [own emphasis]

19. KP&L Co. has no stake in this Succession Cause. The company will not in any way be affected by whatever decision the court makes regarding distribution of an estate. It would be a waste of time to enjoin KP&L Co. in these Succession Cause. I therefore dismiss Prayer (2) of this application.

20. The Applicants sought order to restrain the Respondent from interfering with the management of the properties in question. I note that on 15th March 2018 the Hon. Lady Justice Muigai made orders that the Public Trustee shall manage the estate until the issue of the identity of beneficiaries is determined.

21. Further on 14th November 2018 the court appointed Administrators were directed to take over the collection of rents in respect of the properties comprising the estate. These orders have not been varied and/or set aside. They remain binding on all parties.

22. The Respondent was not one of the persons appointed to manage the estate or to collect rents. As such she must desist from interfering with the management of the estate in any way. Any claim the Respondent may have to the cited properties may be ventilated during the hearing of the summons for revocation of Grant. I therefore grant Prayer (3) of this application.

23. By prayer (4) and (5) Applicants seek interim orders to compel KP&L Co. to reconnect power supply to the suit properties pending determination of this Succession Cause. The conditions for the granting of an interlocutory injunction were set out in Giella v Cassman Brown & Co., Ltd. [1973] E.A 358 which case has been widely and generally accepted by our courts where at Pg. 360 it was stated as follows:-“First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience (E.A. Industries v Trufoods [1972] E.A. 420)

24. The Applicants have claimed that the Respondent maliciously instigated KP&L Co. to disconnect power supply to the suit properties. I find this to be a totally hilarious claim. The Respondent is not an employee, manager or Director of KP&L Co. How could she possibly influence the decision of the company to supply or disconnect power?

25. As stated earlier KP&L Co. is only obliged to supply power to consumers with whom the company has contract and who have made the requisite payments for such supply of power. If the Applicants wish to have power supplied to the suit properties then they must approach KP&L Co. enter into a contract for supply of power and make the necessary payments.

26. The prayer to have KP&L Co. reconnect power is in effect a prayer seeking a ‘mandatory injunction’. An interim mandatory injunction may only be granted in very clear cases. Such injunctions are normally granted in situations where the case has been fully heard.

27. In the case of Malier Unissa Karim v Edward Oluoch [2015] eKLR the court held as follows:-“The test for granting a Mandatory Injunction is different from that enunciated in the Giella v Cassman Brown Case which is the locus classicus case of Prohibitory Injunctions.” The threshold in a mandatory Injunction is higher than in the case of Prohibitory Injunction another Court of Appeal in the case of Kenya Breweries Ltd v Washington Okeyo [2002] EA 109 had the occasion to discuss and consider the principles that govern the grant of a Mandatory Injunction was correctly stated in Vol. 24 Halbury laws of England, 4th Edition paragraph 948 which states as follows:-“A Mandatory Injunction can be granted on an interlocutory application as well a at the hearing but in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once or if the act done is simple and summary one which can be easily remedied, or if the Defendant attempts to steal a match on the Plaintiff, a Mandatory Injunction will be granted on a interlocutory application” [own emphasis]

28. I do not find that any special circumstance exist in this matter to warrant the grant of an interim Mandatory Injunction. Nor is this a clear cut dispute. For that reason I decline to grant prayers (4) and (5) of this application.

Conclusion 29. Finally this court now makes the following orders:-1)Prayer (2) seeking to enjoin Kenya Power and Lighting Company as an Interested Party in this Succession Cause is declined.2)Orders be and are hereby issued restraining the Respondent by herself, or through her agents, assignee or persons claiming through her interfering with the management of B7, B8, B9, B10, B11, B12, B13, B14 and B15 erected on LR (MSA) No. Mainland, North Section 1/21799 (Original No. 973/202).3)Prayers (4) and (5) are dismissed.4)Each Party to meets it own costs.

DATED IN NAIROBI THIS 17TH DAY OF NOVEMBER, 2023. ......................................MAUREEN A. ODEROJUDGE