[2022] KEHC 1857 (KLR)

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO 261 OF 2007

IN THE MATTER OF THE ESTATE OF MORRIS KILONZO MUSYIMI (DECEASED)

PRISCILLA MUMBUAKILONZO………......1ST ADMINISTRATOR/RESPONDENT

VERSUS

PHOEBE MBENEKA KILONZO..........................2ND ADMINISTRATOR/APPLICANT

AND

BENARD MUTETI MUNG’ATA.................INTERESTED PARTY/2ND RESPONDENT

RULING

1. By a Notice of Motion dated 26th August, 2021, the 2nd administrator/applicant seeks the following orders:

1) THAT this Application be certified urgent and be heard ex partein the first instance.

2) THAT this Honourable Court be pleased to issue conservatory orders restraining the 2nd Respondent/ Interested Party from doing any further demolitions and/or constructions on the suit property pending the hearing and determination of this Application inter-partes.

3) THAT the Honourable Court be pleased to grant a temporary injunction restraining the 2nd Respondent/ Interested Party either by himself, his agents and/or assigns from interfering and/or dealing with the suit property being MACHAKOS/KIANDANI/2783 by either demolition of any properties contained therein, fencing the suit premises, dumping of stones and clearing the said land for purposes of erecting structures of whatever nature, building, sale, transfer and/or dealing with the suit property in any manner that is prejudicial to the interest of the Applicant herein pending the hearing and determination of this Application inter-partes.

4) THAT upon grant of prayer (b) above, the Honourable Court be pleased to grant a temporary injunction restraining the 2nd Respondent/Interested Party either by himself, his agents and/or assigns from interfering and/or dealing with the suit property being MACHAKOS/KIANDANI/2783 by either demolition of any properties contained therein, fencing the suit premises, dumping of stones and clearing the said land for purposes of erecting structures of whatever nature, building, sale, transfer and/or dealing with the suit property in any manner that is prejudicial to the interest of the Applicant and the entire estate of the deceased herein pending the hearing and determination of the main suit.

5) THAT costs of this Application be provided for.

2. According to the Applicant, Syphurine & Partners Advocatesherein in appealing the decision of the high court, filed a Memorandum of Appeal and Record of Appeal dated 2nd July, 2021 on her instructions. The said advocates also filed a Notice of Motion Application under Certificate of Urgency dated 2nd July, 2021, an Application which is still pending determination.

3. In the meantime, the Application by the Respondents herein dated 22nd February, 2021 for the signature of all relevant documents by the Deputy Registrar to effect subdivision, transfer and/or transmission of the properties listed below is still pending in the High Court. The said properties were identified as follows:-

(a) Machakos/Kaliluni/1754

(b) Machakos/Kiandani/2784

(c) Machakos/Kiandani/2601.

4. According to the Applicant,the suit property is part of the property of the Morris Kilonzo Musyimi, the deceased. However, interested party herein demolished part of the suit property and continues to demolish houses that are in the suit premises without the requisite authority and is in the process of putting up a fence in the suit property.

5. It was averred that the Applicant is highly apprehensive that if the prayers sought herein are not granted, the appeal will be rendered nugatory.

6. According to the Applicant, she is in possession of the Original Title of the property and to date no transfer or transmission has ever been done over the property and the same remains to be part of the estate of the deceased.

7. It was submitted on behalf of the Applicant that in this cause, the Applicant and the 1st Respondent were confirmed as joint Administrators to the deceased’s estate, comprising of inter alia, the suit premises known as Machakos/Kiandani/2783. However, before the conclusion of the said Succession Cause, the 1st Administrator/1st Respondent, at her own liberty and without any lawful authority or consultation with the 2nd Administrator, disposed of the said suit premises to the Interested party/2nd Respondent contrary to law. The Applicant maintained that she has the original title deed of the suit property, and the same is already on the record of the court.

8. It was submitted that upon the above-stated developments, the decision in the said succession cause erred in failing to consider the suit property as part of the deceased’s estate, a decision which prompted an appeal lodged by the Applicant’s Counsel, in relation to the ownership of the suit property, which appeal is yet to be heard and determined.

9. However, despite their knowledge of the matters before the Court of Appeal regarding the suit property, and their corresponding obligation not to interfere with the suit premises in a manner that would undermine the said appeal, the Interested party, with the blessings of the 1st Administrator, proceeded to demolish buildings erected upon the property, and has threatened to dispose of the property altogether. The said action, it was submitted, prompted the Applicant to file the instant application.

10. It was submitted that unless the application is granted, the entire exercise involving the appeal would be rendered nugatory and of null value, since the 2nd Respondent will deal with the suit property in a manner that is contrary to the interests of the Applicant, including but not limited to continued demolition of the buildings thereupon, and selling the property, hence defeating the whole purpose of the appeal, and ultimately causing injustice to the Applicant’s interests in the suit property.

11. According to the applicant, being an administrator of the estate of the deceased, she has the locus standi to bring the instant application based on the decision in Khelef Khalifa El Busaidy vs Commissioner of Lands & 2 others [2002] eKLR where the court observed as follows:

“…for an individual to have locus standi, he must have an interest either vested or contingent in the subject matter before the court, which interest must be a legal one. Such interest must be above that of other members of the public in general…”

12. According to the Applicant, she has the favour of competent order from this court vesting legal powers in her as an Administrator in charge of all of the deceased’s estate which legal interest transcends to all the property of the deceased, including the suit premise, whose ownership status is on appeal. In so far as the appeal has not been heard and determined, the said ownership remains unsettled, and the Applicant’s rights as Administrator of the same have not been extinguished. It therefore follows that the Applicant possesses the requisite locus standito institute the present suit.

13. Based on the decisions in Thika Workers Housing Co-operative Society Limited vs. Thika Christian Teachers Housing Cooperative Society Limited [2020] eKLR, Giella vs. Cassman Brown & Co. Ltd (1973) EA 358 and Nguruman Limited vs Ian Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR the Applicant submitted that her case is merited as she has established a prima facie case as pronounced in Mrao Ltd vs First American Bank of Kenya Ltd (2003) eKLR

14. It was submitted that whereas the Respondent has contended that the injunctive relief sought cannot be granted because the suit premises belongs to the interested party, and is therefore not part of the deceased’s estate, the Applicant submits that ownership of the suit premises forms the core of the disputed facts, and the same is now the substratum of appeal. As such, in granting the temporary relief sought, this court needs not to examine the said disputed ownership upon evidential merits, in ascertaining whether a prima facie casehas been established. The Applicant relied on Fredrick Nganga Thuo vs Peter Mungai Njuho [2019] eKLR.

15. It was the Applicant’s case that if the temporary injunction sought is not granted, the demolition will continue, and the unlawful sale of the suit premises will materialize, hence occasioning upon her and the deceased’s estate a serious instance of injustice that cannot be remedied by an award of damages. According to the Applicant, since the Applicant has preferred an appeal against the decision of this court regarding ownership of the suit property to appeal, it is in the interest of justice that the temporary injunction sought is granted pending the hearing and determination of the said appeal. To this end, the Applicant submits that if the temporary orders sought are not granted, and she succeeds on appeal, the effect of the appeal will be rendered nugatory and of no net value. In essence, it follows that the balance of convenience is in the Applicant’s favour.

16. According to the Applicant, her case has met the requisite threshold for the grant of the temporary orders sought.

17. As regards the contention that Counsel for the Plaintiff is improperly on record, it was submitted that there is a Notice of Change of Advocates dated 26th August, 2021 is on record, and the same was duly served upon the Respondents.

18. It was therefore the Applicant’s position that the present application has merits and should be granted.

19. In response to the Application, the interested party relied on an affidavit sworn by Benard Muteti Mung’ata on 16th September, 2021. According to him, the application is incompetent, fatally defective, an abuse of the court process, lacks merit and ought to be dismissed. He averred that this is a concluded matter, the final orders were granted on 7th November, 2019 and hence the firm of J.N Muema and Company Advocates is improperly on record making the application incurably defective. It was further averred that the application is also brought under the wrong provisions of the law which are not applicable in a succession cause and the court has no basis of issuing the orders sought.

20. According to the interested party, land number Machakos/Kiandani/2783 does not form part of the deceased estate because the same is registered in his name. It was averred that in the ruling delivered on 7/11/2019, the court correctly ruled that the said propertyMachakos/Kiandani/2783 does not form part of the deceased estate and therefore the orders sought cannot issue. The Court, however, granted stay to the applicant vide the ruling of 27/4/2020 on condition that the appeal is filed within 45 days which the Applicant did not and there is actually an application by the 1st respondent to strike out the notice of appeal for failure to file the appeal as directed by this court.

21. The interested party averred that the applicant is grossly abusing the court process by seeking injunction here when she has also filed an application dated 2/7/2021 before the Court of Appeal where she seeks stay of enforcement of an unspecified ruling of this court as well as stay of proceedings.

22. The interested party disclosed that he received notices from the ministry of health indicating that the buildings on his land were a health hazard and not habitable and in view of the said notice, he demolished them. the suit property Machakos/Kiandani/2783 is his private property, it was his position that the injunctive orders sought are unavailable and the application ought to be dismissed with costs.

23. In his submissions, the interested party stated that while the applicant has filed another application before the court of appeal dated 2/7/2021 which is pending determination, the interested party has similarly filed an application to the court of appeal which is pending determination. On the other hand, the respondents have an application dated 22/2/2021 before this court for the Deputy Registrar to sign the transmission forms.

24. It was submitted that the court determined this matter with finality after it distributed the estate on 7/11/2019. The court also granted the applicant stay 27/4/2020 on condition that the intended appeal with respect to the contested properties is filed within 45 days. This court granted stay because no appeal had been filed. The appeal having been filed and the matter having been fully determined then this court is functus officio. The applicant can only move the court of appeal for any further stay. In fact the applicant admits she has filed another application for stay of execution of the final orders distributing the estate at the court of Appeal. In support of his submissions the interested party relied on ICEA Lion General Insurance Co. Ltd vs. Julius Nyaga Chomba [2020] eKLR.

Determination

25. I have considered the foregoing.

26. As indicated above, in this application the substantive relief sought by the Applicant is that pending the hearing and determination of the main suit this Court be pleased to grant a temporary injunction restraining the 2nd Respondent/Interested Party either by himself, his agents and/or assigns from interfering and/or dealing with the suit property being Machakos/Kiandani/2783 by either demolition of any properties contained therein, fencing the suit premises, dumping of stones and clearing the said land for purposes of erecting structures of whatever nature, building, sale, transfer and/or dealing with the suit property in any manner that is prejudicial to the interest of the Applicant and the entire estate of the deceased herein.

27. However, on 27th April, 2020, this Court stayed the decision made on 7th November, 2019 in which the Court directed that the estate of the deceased ought to be distributed in the manner proposed by the 1st administrator. In granting the said stay the Court expressly stated that the stay would only issue in so far as the decision affected Plots at Kativani and Masimba and Machakos/Kiandani/2783 and that the status quo in so far as the said properties were concerned would be maintained on condition that the intended appeal would be filed within 45 days from the date of the said ruling and in default, the stay would lapse.

28. By an application dated 2nd July, 2021, filed before the Court of Appeal in Civil Application No. E351 of 2021, the Applicant herein sought inter alia an order staying this Court’s said ruling and an order of injunction against the sale, transfer and/or subdivision of the estate lands of the deceased.

29. In my view, the substance of the orders sought herein may, if the application before the Court of Appeal application is properly drafted, be sought thereat. In other words, what the Applicant is seeking before this Court, she may if properly advised, seek before the Court of Appeal.

30. My view is therefore that since the Court of Appeal is seized of the subject matter, it would not be proper for this Court to entertain this application as there is a possibility of this Court’s decision going contrary to the decision that the Court of Appeal may arrive at.

31. Parties, it is my view, ought not to make different applications before different Courts with a view to obtaining substantially the same or similar reliefs. To do that amounts to playing lottery with judicial process and may well constitute an abuse of the Court process. In Mitchell and Others vs. Director of Public Prosecutions and Another (1987) LRC (const) 128,it was held that:

“….in civilized society legal process is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties. It can be used properly, it can be used improperly, and so abused. An instance of this is where it is diverted from its proper purpose, and is used with some ulterior motive, for some collateral one or to gain some collateral advantage, which the law does not recognize as legitimate use of that process. But the circumstance in which abuse of process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes extrinsic evidence only. But if and when it is shown it happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instance. Others attract the res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop proceedings, or put an end to it. This inherent power has been used time and again to put a summary end to a process which seeks to raise and have determined an issue which has been decided against the party issuing it in earlier proceedings between the parties.”

32. Where the law permits a party to seek remedy before more than one forum such as applications for stay pending appeal, it amounts to an abuse of the Court process to file simultaneous applications before both forums. Whereas on occasions, the law permits a person who has made an application before the trial court to make a similar application before the appellate Court when dissatisfied with the outcome before the trial court, without the necessity of filing an appeal against that decision, it is my view that where the party makes an application before the appellate court, it is impermissible to abandon the same and return to the trial court for a similar remedy. Worse still, the party cannot leave the application pending before the appellate court and without having it terminated, return to the trial court to seek the same or similar remedy. To do so, in my view, amounts to turning the judicial process into a circus.

33. In the premises, I find no merit in this application which I hereby dismiss with costs to the interested party.

34. It is so ordered.

RULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 7TH DAY OF MARCH, 2022

G V ODUNGA

JUDGE

IN THE PRESENCE OF:

MS MUEMA FOR THE APPLICANT

CA SUSAN