[2017] KEHC 2378 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 474 OF 2011

In The Matter of the Estate of M’Muremera Iria Muguna alias Muremera Iria Muguna alias Muremera Iria (Deceased)

EDWARD MURIUKI.......................................1ST APPLICANT

FLORENCE MWARI MUREMERA...............2ND APPLICANT

GLADYS MUKUBA MUREMERA................3RD APPLICANT

JULIA MAKENA MUREMERA.....................4TH APPLICANT

-Versus-

DAVIS KIUMBE M’MUREMERA.....................RESPONDENT

RULING

[1] This decision relates to an application dated 16th August 2016 by way of chamber summons and which is expressed to be brought under sections 45 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. The Applicantsseeks the following orders:

a) That the application be certified urgent and heard forthwith.

b) That the court do stop any permanent developments or renovations/improvements of any structures on L.R.No. Kiirua/Ruiri/280 pending the determination of the cause.

c) That the court do issue an order of temporary injunction restraining the Respondent either by himself or anybody acting on his behest from evicting, chasing, threatening or in any way interfering with the occupation, user and possession of L. R. No. Kiirua. Ruiri/280 or any other estate of the Deceased pending the determination of the cause.

d) That the court do issue orders of mandatory injunction compelling the Respondent to allow the Applicants access, user, occupation and enjoyment of L. R. No. Kiirua/Ruiri/280 in equal shares pending the determination of the cause.

e) The costs of the application be in the cause.

Applicants’ Claim

[2] Their application is grounded upon the affidavit of Edward MuriukiMuremera dated 16th August 2016, which he has sworn on behalf of the other Applicants. He states that the Deceased had 6 beneficiaries namely:

a) Judith Mwariumwe (Deceased – survived by Gitobu, Karani&Gituma)

b) Edward Muriuki

c) Florence Mwari

d) Davis Kiumbe

e) Gladys Mukuba

f) Julia Makena

He states that their ancestral home in which they were born and bred is L.R. No Kiiru/Ruiri/280 (hereinafter Suit land) measuring 42 Acres. In 2011 after the death of the Deceased the Respondent secretly filed this cause with a will annexed which purported that the Respondent would solely and substantially benefit with 80% of the entire estate. This prompted them to challenge the grant. On 16th July 2016 Judith Mwariumwe, their sister, died and while her burial was being planned the Respondent filed a suit and an application at Meru E & L court (E& L Case No. 106 of 2016) seeking injunctive orders to bar the burial her in their father’s estate. The court dismissed the Respondent’s application but the Respondent connived with the police officer to misinterpret the court order with the intent of frustrating the funeral programme (annexure marked EEM2). However, the burial went on 4th August 2016 despite the chaosby the Respondent claiming that the Suit Land was solely his property and no one was entitled to occupy or use it. The Respondent has now deposited building materials on the Suit Land so that he can renovate and occupy it. He has gone ahead to cultivate almost the entire Suit Land without considering the interests of the rest. It is apparent that the Respondent is positioning himself so that he can benefit from the ancestral home at the exclusion of everyone else. The Applicant urged that pending the distribution of the estate, the courtshould order that all beneficiaries have equal priority to user, occupation, possession and enjoyment. It should also stop any further permanent development in the estate until this estate is distributed by the court.

Respondent’s Claim

[3] The Respondent opposes this application by way of a replying affidavit dated 27th September 2016. He states that contrary to the Applicants concerns of his entitlement to the entire estate of the Deceased, all the beneficiaries are in occupation of their respective shares as bequeathed to them in the will. The beneficiaries occupied their said respective shares during the lifetime of the Deceased when he made known his wishes to his beneficiaries. There are no major renovations on the houses on the Suit Land as alleged and the photographs attached by the Applicants do not show that any construction is ongoing. He only sought to improve the locks on the doors due to increasing insecurity cases. The Suit Land is not the ancestral land but rather a scheme land. The Deceased’s ancestral land was L.R. NO. NTIMA/IGOKI/1443 which was shared out between the 1st Applicant and himself. The Applicants are out to frustrate the distribution of the estate of the Deceased despite being aware of his wishes and that is one of the reasons he filed MERU E & L CASE NO. 106 OF 2016.

[4] The issue of the burial dispute arose because their deceased sister always lived on L. R. NO. NGUSHISHI SETTLEMENT SCHEME/443 which was bequeathed to her by the Deceased but there was an intention of burying her on the Suit Land which was bequeathed to him. He deposes that there was no misinterpretation of the ruling for it was clear that their sister should not be buried on the Suit Land. He asserts that the Applicants have always sought to interfere with the Suit Land even during the lifetime of the Deceased that necessitated him in filing MERU H.C.C.C NO. 140 OF 2009 in which he sued the Applicants for unlawfully encroaching on the Suit Land and denying him peaceful occupation. The Applicants have no developments or structures on the Suit Land. He prays that the application to be dismissed.

DETERMINATION

[5] On 30th May 2017 this court delivered a ruling with directions that the application dated 16th August 2016 shall be canvassed by way of written submissions. However none of the parties complied. Therefore, this court is forced to decide on the material filed in court. Only the court and the law determinesdistribution of the estate of any deceased person. And only such persons as shall be appointed under a grant of letters of administration or as executors of a will or by authority of written law, shall have the authority to administer the estate of the deceased. Any other person purporting to administer the estate of the deceasedwithout such authority I have mentioned above, is an intermeddler and shall be dealt with in accordance with Section 45 of CAP 160 which expressly provides that:

“(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.

(2) Any person who contravenes the provisions of this section shall—

(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and

(b) be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.”

Turning to the real issues; the Suit Land belonged to the Deceased. A will has been annexed which show that the suit land was bequeathed to the Respondent. However, the said will has been contested by the Applicants. Therefore, pending the determination of this cause, the court has an obligation to protect and preserve the estate of the Deceased in a way that will not prejudice the wishes of the Deceased; and alsothat prevents any intermeddling with the estate of the Deceased. Since it is alleged that the Applicants have no structures or developments on the Suit Land, I grant prayers (b), (c) and (e) of the application herein. In specific terms I order:-.

a) That no further permanent developments or renovations/improvements of any structures shall be carried out on L.R.No. Kiirua/Ruiri/280 pending the determination of the cause.

b) That I issues a temporary injunction restraining the Respondent either by himself or anybody acting on his behest from evicting, chasing, threatening or in any way interfering with the occupation, user and possession of L. R. No. Kiirua. Ruiri/280 or any other estate of the Deceased pending the determination of the cause.

c) That costs of the application shall be in the cause.

Dated, signed and delivered in open court at Meru this 1st day of November 2017

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F. GIKONYO

JUDGE

In the presence of:

Nyakwaru advocate for Rimita for petitioner

Muriuki for Kaumbi advocate for applicant

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F. GIKONYO

JUDGE