[2022] KEHC 15101 (KLR)

In re Estate of Phinius Nyaga Njeru (Deceased) (Succession Cause 182 of 2008) [2022] KEHC 15101 (KLR) (9 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15101 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 182 of 2008

LM Njuguna, J

November 9, 2022

Between

Eunice Wakabari Manga

Applicant

and

Ephantus Kariuki Nyaga

Petitioner

Ruling

1. The matter for determination before this court is the application dated 28. 06. 20222 wherein the applicant sought for orders that;i)Spent.ii)This Honourable court be pleased to issue a prohibitory order against LR Kabare/Kiritine/2517 and Kabare/ Kiritine/2518 pending the hearing and determination of the application for revocation/annulment of grant.iii)This Honourable Court be pleased to stay any sale, sub division, transfer, dealing or any alteration of LR Kabare/Kiritine/2517 and Kabare/Kiritine/2518 pending the hearing and determination of the application for revocation/annulment of grant.iv)That the grant of letters of administration intestate issued to Ephantus Kariuki Nyaga on October 6, 2008 and confirmed by this Honourable Court on September 5, 2013 be revoked and /or annulled.

2. The applicant submitted that the application seeks a prohibition order over land parcel Nos. LR Kabare/Kiritine/ 2517 and Kabare/Kiritine/2518 pending the hearing and determination of the application herein. It was submitted that the respondent despite being served with the said application through their lawyer on record, and despite the court having granted him fourteen (14) days to file his response, did not file any.

3. It was her case that she is the daughter in law of the deceased due to the fact that she was married to one Fredrick Manga Nyaga, a deceased son to the deceased herein. She stated that the respondent herein secretly instituted succession proceedings without inviting or informing her; neither were her children included in the succession proceedings as beneficiaries of the deceased’s estate. That the original land LR No. Kabare/Kiritine/180 was subdivided into two portions hence LR. Nos. Kabare/Kiritine/2517 and Kabare/Kiritine/2518 and thereafter the respondent caused the same parcels to be registered under his name thus depriving the applicant of her rightful share of the estate of the deceased.

4. I am alive to the fact that there is pending application before this court for revocation brought by the applicant where she has raised the same issues of her and her children having been left out in this matter. Once that summons is canvassed, I am sure the issues regarding the beneficiaries of the deceased and the property forming the estate of the deceased will be sorted out. Before then, it is upon this court to determine whether or not the applicant deserves the orders she is seeking in this application.

5. Has the Applicant satisfied this court that the orders she is seeking ought to issue?

6. I note that the court had previously issued interim orders in terms of prayers 2 and 3 to last until September 26, 2022 when the matter was to be listed for further directions.

7. As for the order of inhibition, the same is provided for under Section 68(1) of the Land Registration Act 2012. This section gives the court discretion to inhibit registered dealings on land for a particular time or until the occurrence of a particular event.

8. As such, an inhibition order is an order which is in the nature of a prohibitory injunction restraining dealings on land pending further orders by the court. The purpose of the said order is to preserve the property from acts that would otherwise render a court order incapable of being executed and/or to give an opportunity to hear and decide the matter.

9. Issuance of prohibitory orders pursuant to Order 22 Rule 48 (1) of the Civil Procedure Rules, 2010 and further, Section 68(1) of the Land Registration Act provide: -“The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.(2)A copy of the inhibition under the seal of the court, with particulars of the land, lease or charge affected, shall be sent to the Registrar, who shall register it in the appropriate register.”

10. The conditions for granting of an order of inhibition are now settled. In an application for orders of inhibition, in my understanding, the applicant has to satisfy the following conditions: -1)That the suit property is at the risk of being disposed of or alienated or transferred to the detriment of the applicant unless preservatory orders of inhibition are issued.2)That the refusal to grant orders of inhibition would render the applicant’s suit nugatory.3)That the applicant has arguable case.”(See the case of Japhet Kaimenyi M’ndatho v M’ndatho M’mbwiria [2012] eKLR and //In re Estate of Paul Kimeu (Deceased) [2020] eKLR which authorities I find persuasive)

11. In Philip Mwangi Githinji v Grace Wakarima Githinji [2004] eKLR) Okwengu J (as she then was) held that before the court can issue such an order, it must be satisfied that the person moving the court for such orders has good grounds for requesting such an inhibition, such grounds would normally be in the form of a sustainable claim over the suit land.

12. The applicant’s contention for which she desires this court to issue the orders prayed for, is pegged on the fact that she alleges that she, together with her children, have been left out in this matter yet they are beneficiaries of the estate herein.

13. In the instant case, the applicant seeks for orders to inhibit any transaction against LR Kabare/Kiritine/2517 and Kabare/ Kiritine/2518 pending the hearing and determination of the application for revocation/annulment of grant.

14. As to whether the refusal to grant orders of inhibition would render the applicant’s suit nugatory is supported by the fact that there still pending before this court an application to revoke the grant issued to the respondent which is yet to be heard and determined and so in my view, there is need for this court to grant orders sought.

15. The application is hereby allowed.

16. The summons for revocation of the grant be prosecuted within ninety (90) days failing which the orders issued herein shall automatically lapse.

17. No orders as to costs.

18. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 9TH DAY OFNOVEMBER, 2022. L. NJUGUNAJUDGE……………………………………………..…..for the Applicant……………………………………………….for the Respondent