[2011] KEHC 1783 (KLR)
The court found that granting the injunctive orders sought by the applicant would amount to the court undertaking a double task, as the issues raised in the application are substantially the same as those pending in the objection proceedings. The court noted that the objection proceedings, which challenge the...
Source-derived case information.
- Citation
- [2011] KEHC 1783 (KLR)
- Parties
- Applicant: Gibson Gacheru Mwangi; Respondent: Tabitha Wangari Mwangi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 543 of 2009
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application for Injunction Pending Objection Proceedings
- Outcome
- application dismissed
- Legal Topics
- Succession Disputes, Administration of Estates, Beneficiary Rights, Land Subdivision, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gibson Gacheru Mwangi
Applicant
Tabitha Wangari Mwangi
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application for Injunction Pending Objection Proceedings
Legal Issues
- 1 Whether the applicant is entitled to injunctive orders restraining the respondent from interfering with specific parcels of land pending determination of objection proceedings.
- 2 Whether the delay in bringing the application affects the applicant's entitlement to relief.
- 3 Whether granting the orders would prejudice the pending objection proceedings regarding the estate's distribution.
Ratio Decidendi
The court found that granting the injunctive orders sought by the applicant would amount to the court undertaking a double task, as the issues raised in the application are substantially the same as those pending in the objection proceedings. The court noted that the objection proceedings, which challenge the distribution of the estate, are still pending and that granting interim relief would risk prejudicing the outcome of those proceedings. The court also observed that there was an unexplained delay of eight years in bringing the application, which undermined the applicant's claim to equitable relief. Furthermore, the court highlighted that the proper party to enforce compliance with...
Court Disposition
application dismissed
Orders
- The application for injunctive orders is dismissed.
- Costs to abide the objection proceedings.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
SUCCESSION CAUSE NO. 543 OF 2009
IN THE MATTER OF THE ESTATE OF PHARIS MWANGI NGIGE (DECEASED)
GIBSON GACHERU MWANGI…............................…...OBJECTOR/APPLICANT
VERSUS
TABITHA WANGARI MWANGI............................…PETITINER/RESPONDENT
RULING
Pharis Mwangi Ngige died intestate on 30th April, 1998. These proceedings were instituted by the deceased’s two widows Philis Kabura Mwangi and Tabitha Wangari Mwangi in Nyahururu PMCC No. 29 of 1999. The grant was confirmed on 15th July, 1999 and the deceased estate, which composed L.R. Nyandarua Kahuru 13294 was shared equally between the 2 widows which resulted in two parcels; 3343 and 3344. The 1st widow got parcel 3343 which she subdivided into 4 equal plots A, B, C, D and the Respondent who is a son of the 1st widow was given parcel A3343 but the Respondent’s mother insisted that it be registered in her name so as to protect the interests of the Respondent (Gibson Gacheru’s) children and wife who is currently estranged from the Respondent and as he would want to disinherit the wife contrary to the deceased’s wishes.
Sam Karuga Mwangi, a brother to the Respondent who swore the affidavit in support of the application, deponed that the mother subdivided the land into four parcels and each beneficiary was entitled to 8 acres, but the Respondent has been using the whole of the 32 acres to the exclusion of the other beneficiaries and has threatened to harm anybody who attempts to try to use their land. He has even been leasing the land to 3rd parties. Despite the fact that the Respondent filed objection proceedings vide application dated 2nd October, 2009, seeking to revoke the grant, the same has not been prosecuted. That is why the applicant filed this application pending the hearing and determination of the objection proceedings that the court do restrain the respondent by himself or his servants from entering, tilling or interfering with the applicant’s parcels B, C and D of parcel Nyandaru/Kahuru/3343 as was subdivided in 2003. Ms. Njoroge, counsel for the applicant submitted that it is in the 1st house that there is a dispute. The 2nd house has shared its portion without disagreement.
The Respondent opposed the application and filed grounds of objection and a replying affidavit. He was represented by Mr. Njuguna. His grounds of objection are that the application is misconceived; That the applicants herein are not party to the objection proceedings; That the subject matter of the objection is Plots 3346, 3342, 3348 and 3345 and the outcome of the objection proceedings is likely to affect the titles, and that his application should take precedence; That this application is meant to circumvent the objection proceedings. The objector claims to have filed the objection proceedings because him and his sister Irene Njeri Mwangi were left out of the distribution of the estate.
The Respondent has not denied the allegation made by the applicant that he has occupied the whole of Parcel 3343 comprising 32 acres which belongs to the 1st house or that he has denied his siblings their portions B,C and D.
Sam Karuga Mwangi is a beneficiary of the deceased’s estate and so is the objector. The two are brothers. The administrators of the estate of Pharis Mwangi are the two widows of the deceased. It has not been explained why the 1st administrator, Philis Kabura, the mother of the applicant did not file these proceedings. She is the one who was charged with the distribution of the estate and if one of the beneficiaries has not complied, she should move the court.
The subdivision of parcel 3343 is said to have been done way back in 2003. According to the Applicant, the Respondent has occupied the said parcel since. It has not been explained why the delay in bringing this application for the last 8 years. I question that delay because, similarly, the Respondent filed objection proceedings in 2009, 10 years after the grant was confirmed. The objection proceedings are still pending. Directions were given by the court on 21/6/2010, that the matter do proceed by way of viva voce evidence. To-date, none of the parties has sought a hearing date for the objection proceedings. After the directions were given, the Applicant then filed this application. The objection proceedings touch on the whole of the deceased’s estate including the share of the 2nd house, belonging to Tabitha Wangari Mwangi. If the objection were to succeed, the whole estate will be affected, including this portion which the Respondent is said to be holding to the exclusion of his siblings.
I find that granting any orders in this application may be asking this courts to do a double task. It is my view that the issue herein be determined alongside the objection proceedings. For the foregoing reasons, I decline to grant the order sought. The application is dismissed. Costs to abide the objection proceedings.
DATED and DELIVERED this 10th day of June, 2011.
R. P. V. WENDOH
JUDGE
PRESENT:
Ms Wanjiru holding brief for Ms Njihia Njoroge for Respondent
Ms Njoroge for Applicant
Kennedy – Court Clerk