[2022] KEHC 1677 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MARSABIT

SUCCESSION CAUSE NO.E002 OF 2021

IN THE MATTER OF THE ESTATE OF MATAYO DAWAS (DECEASED)

RHODA MATAYO DAWAS .....................................................PETITIONER/APPLICANT

VERSUS

ARABU MATAYO DAWAS ...........................................................................RESPONDENT

RULING

The petitioner/applicant is a daughter and the executor of the will of her late father, Matayo Dawas. She has filed a notice of motion dated 6th October 2021 where she is seeking in prayer 3 for an order of temporary injunction to restrain the respondent from dealing in any manner with land parcel No. Marsabit/Mountain/338 pending the hearing and determination of this petition.

The grounds in support of the application are that the said land is registered in the name of the deceased and is a subject matter in this succession cause. That the respondent is the eldest son of the deceased. That he has commenced erecting a perimeter fence around a section of the said property and subdividing it with a view to appropriating the estate to himself and disinheriting the other beneficiaries of the estate. That his actions are contrary to the will of the deceased and against the interest of all the beneficiaries of the estate. That unless the orders sought are granted the respondent is likely to sell and dispose of the estate to third parties thus occasioning grave injustice to the applicant and other beneficiaries.

The application was opposed by the respondent who states that he is one of the beneficiaries of the estate of the deceased. That the alleged will is being contested. That he has been residing on a portion of Marsabit/Mountain/338 since the lifetime of the deceased. That he has constructed a dwelling house on the land. That the portion of the land that he occupies does not have a fence or a gate. That in light of the insecurity situation in Marsabit he intends to do a temporary fence and a gate. That he has no intention of subdividing the estate nor to dispose it of.

I have considered the grounds in support of the application and the grounds in opposition thereto. The applicant is seeking for an order of injunction pending the hearing and determination of the petition.

The conditions to be met before an interlocutory injunction can be granted are as was exposited in Giella v Cassman Brown Co. Ltd 1973 E.A. 358 that;

“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 harm which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.”

The applicant has filed a photocopy of the title deed to the subject parcel of land showing that it is registered in the name of the deceased. She has annexed a photocopy of a will to show that she is the executor of the will of the deceased. She has in addition annexed photographs showing that the respondent is erecting a fence on the property.

The respondent does not deny that the subject land belongs to the deceased. He does not deny that he is erecting a fence on the land. He admits that he is only a beneficiary to the estate of the deceased.

Section 45 (1) and (2) of the Law of Succession Act makes it an offence for a person not in possession of a grant of representation to intermeddle with the free property of a deceased person. The respondent does not possess a grant of representation on the estate of the deceased. His act of erecting a put it up on the land amounts to intermeddling with the estate. There is no urgency for him to erect the fence now after the death of the deceased and yet he never fenced it during the lifetime of the deceased. I find that the applicant has demonstrated that she has a prima facie case with a probability of success against the respondent.

The second condition for granting injunctive orders is that the applicant has to show that he/she will suffer irreparable loss that cannot be adequately compensated by way of damages. In view of the fact that the respondent has committed a criminal offence against the estate of the deceased, there is no need for me to consider whether the applicant can be compensated by an award of general damages. There is sufficient reason for the respondent to be restrained from interfering with the estate of the deceased whether or not the applicant can be compensated by way of general damages.

In the premises, I do grant orders of injunction against the respondent as prayed in prayer 3 of the notice of motion pending the hearing and determination of the petition herein. The OCS Marsabit police station to ensure compliance with the orders.

Orders accordingly. Costs in the cause.

DELIVERED, DATED AND SIGNED AT MARSABIT THIS 3RD DAY OF MARCH 2022.

J. N. NJAGI

JUDGE

IN THE PRESENCE OF:

MR. BEHAILU FOR PETITIONER/APPLICANT

N/A FOR RESPONDENT

COURT ASSISTANT: PETER

30 DAYS R/A.