[2019] KEHC 8692 (KLR)
The court found that the application for injunctive orders dated 27/02/2015 had already been heard and determined, with the court declining to grant the injunctive relief but declaring the chief's allocation of land to certain beneficiaries null and void. The court clarified that only proceedings conducted by an...
Source-derived case information.
- Citation
- [2019] KEHC 8692 (KLR)
- Parties
- Applicant: Sammy Mwiria Njerera; Respondent: Luca Nyaga Njerera
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 627 of 2013
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Applications and Directions for Hearing of Protest
- Outcome
- Application for injunctive orders previously determined; protest against confirmation of grant to be fixed for hearing.
- Judges
- FN Muchemi
- Legal Topics
- Succession Proceedings, Confirmation of Grant, Administration of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Mwiria Njerera
Applicant
Luca Nyaga Njerera
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Applications and Directions for Hearing of Protest
Legal Issues
- 1 Whether the respondent should be restrained from intermeddling with the estate of the deceased pending determination of the cause.
- 2 Whether proceedings conducted by an unqualified person should be nullified.
- 3 Whether the protest against confirmation of grant is properly before the court.
Ratio Decidendi
The court found that the application for injunctive orders dated 27/02/2015 had already been heard and determined, with the court declining to grant the injunctive relief but declaring the chief's allocation of land to certain beneficiaries null and void. The court clarified that only proceedings conducted by an unqualified person between 1/12/2014 and 6/12/2016 were nullified, and that the application dated 27/02/2015 and related submissions remained valid as they were filed by qualified advocates. The court directed that the pending protest against confirmation of grant be fixed for hearing within 30 days, emphasizing the need for orderly administration of the estate.
Court Disposition
Application for injunctive orders previously determined; protest against confirmation of grant to be fixed for hearing.
Orders
- The protest against confirmation of grant filed on 29/08/2016 shall be fixed for hearing within 30 days.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION CAUSE NO. 627 OF 2013
IN THE MATTER OF THE ESTATE OF NJERERA KAVANGUA (DECEASED)
SAMMY MWIRIA NJERERA....................................PETITIONER/APPLICANT
VERSUS
LUCA NYAGA NJERERA........................................OBJECTOR/RESPONDENT
R U L I N G
1. The applicant Sammy Mwiria Njererafiled the application dated 27/02/2015 seeking for injunctive orders against the respondent Luca Nyaga Njerera to restrain him. His agents, servants and his employees from intermeddling and/or interfering with the estate of the deceased pending disposal of the cause.
2. The application was heard and determined by this court vide its ruling delivered on 27/07/2016. The application was not successful but the illegal action by the chief of Kyeni Central Location of allocating some of the beneficiaries’ land to cultivate was declared null and void.
3. However, the court did not grant the prayer seeking for injunctive orders against the respondent for reasons given in the ruling.
4. The court invoked Rule 73 of the Probate and Administration Rules and granted several orders/directions for peaceful and orderly administration of the estate pending determination of this cause. Among the orders made was one directing the co-administrators jointly or any of them to file an application for confirmation of grant within 30 days.
5. The summons for confirmation dated 8/08/2016 was filed by one of the administrators Susan Wanja Ngochi through her counsel on record. The co-administrator Sammy Njerera filed a protest against confirmation dated 29/08/2016 through Albert Kamunde & Co. Advocates.
6. The court also heard the application brought by Sammy Mwiria dated 6/02/2017 seeking to nullify proceedings conducted by a person not qualified to be an advocate. In its ruling delivered on 14/12/2017 is very clear that this court only nullified proceedings where one Vincent Afande a person not qualified to act as an advocate had appeared before the court. These proceedings covered the period between 1/12/2014 to 6/12/2016.
7. Paragraph 26 of the said ruling is very clear that the application dated 27/02/2015 was not affected by the nullification order.
8. In effect, the application dated 27/02/2015, the submissions filed by the advocates on record remain valid and properly on record because they were filed by firms of advocates who were qualified to act as such at that time. The ruling of the court on the said application was therefore valid too and has not been challenged to date.
9. The application dated 27/02/2015 was heard and determined. I have perused this file carefully and I note that what is pending is the hearing of the protest against confirmation of grant.
10. It is hereby directed that the said protest filed on 29/08/2016 be fixed for hearing within 30 days.
11. It is hereby so ordered.
DELIVERED, DATED AND SIGNED AT EMBU THIS 1ST DAY OF APRIL, 2019.
F. MUCHEMI
JUDGE
In the presence of: -
Mr. Mugo Andrew for Mr. Kamunda for Petitioner/Applicant
Ms. Ngige for Guserwa for Respondent