[2011] KEHC 2060 (KLR)
The court held that the application for a temporary injunction was incompetent because Order 39 of the Civil Procedure Rules is not applicable to succession proceedings, as confirmed by Rule 63 of the Probate and Administration Rules. The court further found that the succession cause had already been heard and...
Source-derived case information.
- Citation
- [2011] KEHC 2060 (KLR)
- Parties
- Applicant: Joseph Mbogo Muna; Respondent: Cyrus Muriithi Kiura; Respondent: Danson Njiru Kaboro; Respondent: Geoffrey Muriuki Muchiri
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 348 of 2002
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Interlocutory Injunctions, Probate and Administration, Applicability of Civil Procedure Rules, Estate Administration, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mbogo Muna
Applicant
Cyrus Muriithi Kiura
Respondent
Danson Njiru Kaboro
Respondent
Geoffrey Muriuki Muchiri
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether an interlocutory injunction under Order 39 of the Civil Procedure Rules is available in succession proceedings.
- 2 Whether the applicant established a prima facie case for the grant of a temporary injunction against the respondents.
- 3 Whether the respondents' occupation and use of the deceased's land was lawful or amounted to waste.
Ratio Decidendi
The court held that the application for a temporary injunction was incompetent because Order 39 of the Civil Procedure Rules is not applicable to succession proceedings, as confirmed by Rule 63 of the Probate and Administration Rules. The court further found that the succession cause had already been heard and determined, eliminating any legal basis for interlocutory relief. Even if the merits were considered, the respondents' evidence of lawful purchase and occupation of the land was unchallenged, as the applicant failed to file a further affidavit or rebut their claims. Consequently, the application lacked both procedural and substantive merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The chamber application for a temporary injunction is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION CAUSE NO. 348 OF 2002
(In the matter of the estate of MUNA MWARA …. Deceased)
JOSEPH MBOGO MUNA………...APPLICANT/ADMINISTRATOR
VERSUS
CYRUS MURIITHI KIURA……………..…………..1ST RESPONDENT
DANSON NJIRU KABORO……………………….2ND RESPONDENT
GEOFFREY MURIUKI MUCHIRI……....…………..3RD RESPONDENT
R U L I N G
This is a chamber application under Order 39 rules 1, 2, & 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act for a temporary injunction to restrain the Respondents, and all those claiming through them, from wasting, trespassing and/or farming on the deceased’s land until the dispute is heard and determined. The deceased was Muna Mwara who was the registered proprietor of NGARIAMA/NYANGENI/444. The grievance by the Applicant is that the Respondents are not beneficiaries of the estate of the deceased and yet they have trespassed on the land and are cutting down trees and thereby wasting it.
The Applicant was unrepresented whereas the 2nd Respondent was represented by Mr. Morris Njage.
The case by the 1st Respondent is that he is on ½ an acre of the deceased’s land because he bought the portion for KShs.130,000/= on 11th October 2000 from the Applicant following a written agreement (“CMK1a”) and that since 2003 he has cultivated tea bushes on the same. The 2nd Respondent has sworn that on 2nd April 2001 following agreement (“DNK1”) he bought a ¼ of an acre of the deceased’s land from Paul Muturi Muna for KShs.77,000/= and that the said Muna is a beneficiary of the estate.The 3rd Respondent has stated that on 5th September 2002 he bought a ¼ of an acre from the Applicant following agreement (“GMM1a”) and paid KShs.70,000/=. Since 2003 he has had coffee growing on the portion.
The Applicant is the legal administrator of the estate of the deceased who was his father. The initial administrator was the deceased’s widow Dorcas Muringo Muna who subsequently died on 7th April 2004. The Grant was confirmed on 21st May 2009.
Ideally, the Succession Cause has been heard and determined and therefore there would be no legal basis for the grant of an interlocutory injunction under Order 39. The application is consequently incompetent. Secondly, and I agree with Mr. Njage on this, Order 39 is inapplicable to succession proceedings. Rule 63 of Probate and Administration Rules does not import the Order. Even if the court were to consider the merits of the application despite this technicalities, the averments by the Respondents, that each is on his portion of the deceased’s land following purchase were not controverted. The Applicant did not swear any further affidavit to challenge what each Respondent stated.
The conclusion is that the application is not only incompetent but is also without merit. The same is dismissed with costs.
DATED, DELIVERED AND SIGNED AT EMBU THIS 30TH DAY OF JUNE 2011.
A.O. MUCHELULE
JUDGE