[2019] KEHC 982 (KLR)
The court held that the Law of Succession Act is a self-contained statute and that the provisions of the Civil Procedure Act and Rules, unless specifically imported by Rule 63 of the Probate and Administration Rules, do not apply to succession proceedings. The orders sought by the applicants were premised on...
Source-derived case information.
- Citation
- [2019] KEHC 982 (KLR)
- Parties
- Applicant: Iddi Okayana Keya; Applicant: Miriam Wesonga Akumu; Applicant: Getrude Wesonga; Applicant: Hussein Saidi Wesonga; Respondent: Milton Okwayo
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 367 of 2014
- Procedural Posture
- Probate and Administration / Ruling on Interlocutory Application for Injunction
- Outcome
- application struck out with costs to the respondent
- Judges
- KW Kiarie
- Legal Topics
- Injunctive Relief, Applicability of Civil Procedure Act, Succession Proceedings, Ancestral Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Iddi Okayana Keya
Applicant
Miriam Wesonga Akumu
Applicant
Getrude Wesonga
Applicant
Hussein Saidi Wesonga
Applicant
Milton Okwayo
Respondent
Procedural Posture
Probate and Administration / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the provisions of the Civil Procedure Act and Rules apply to succession proceedings under the Law of Succession Act.
- 2 Whether the applicants are entitled to a temporary injunction restraining the respondent from dealing with land parcel MARACH/BUJUMBA/382 pending determination of the succession cause.
- 3 Whether the application is competent and properly before the court.
Ratio Decidendi
The court held that the Law of Succession Act is a self-contained statute and that the provisions of the Civil Procedure Act and Rules, unless specifically imported by Rule 63 of the Probate and Administration Rules, do not apply to succession proceedings. The orders sought by the applicants were premised on provisions of the Civil Procedure Act that have not been imported into the Law of Succession Act. Consequently, the application was incompetent for want of form and was struck out with costs to the respondent.
Court Disposition
application struck out with costs to the respondent
Orders
- The application dated 25th January 2018 is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
PROBATE & ADMINSTRATION NO. 367 OF 2014
IN THE MATTER OF THE ESTATE OF: PIO MUSEBE & WESONGA MUSEBE NAMUGINA ......DECEASED
BETWEEN
IDDI OKAYANA KEYA
MIRIAM WESONGA AKUMU
GETRUDE WESONGA
HUSSEIN SAIDI WESONGA.......PETITIONERS/ APPLICANTS
AND
MILTON OKWAYO...........................OBJECTOR/RESPONDENT
RULING
1. The applicants herein moved the court by way of Notice of Motion dated 25th January 2018 under section 3A and under Order 40 Rule 1,35,7 (sic) CAP. 21 Laws of Kenya. They are seeking the following orders:
a. That this honourable court do issue a temporary injunction against the respondent in dealing whatsoever with land parcel number MARACH/BUJUMBA/382.
b. That the costs be borne by the applicants.
2. The application is premised on the following grounds:
a. That the applicant is the son to Wesonga Musebe Namugina who was the brother to P10 Musebeboth deceased who had a joint title deed on the above captioned parcel MARACH/BUJUMBA/382 on equal share which parcel is an ancestral land.
b. That the Respondent/Defendant has illegally encroached on the above parcel of land knowing very well that the suit is still pending in court.
c. That the applicant wants to have the matter finalized in court before any progress takes off on the particular land.
3. The application was opposed on the following grounds:
a. That the cause herein is irregular.
b. That the orders are sought in the wrong forum.
c. That this court is handicapped in determining the application without all the facts being heard.
4. It is trite law that unless some provisions of the Civil Procedure Act are specifically imported into the Law of Succession Act, they are inapplicable. In the case of Priscilla Vugutsa Kamaliki vs. Mary Runyanyi Ochieng [2016] eKLR where similar Order and section of Civil Procedure Act, had been cited, Sitati J. observed:
It is worth noting that the Law of Succession Act is a self-contained Act and provisions of the Civil Procedure Act, unless specifically imported into it are not applicable. A look at Rule 63 of the Law of Succession Act reveals that the provisions under which the present application is brought are not some of the provisions imported into the Law of Succession Act. What this means therefore is that the instant application is incompetent for want of form and is therefore fit for striking out.
The instant application will suffer the same fate and be struck out with costs to the respondent.
DELIVEREDandSIGNEDatBUSIAthis18thday of December, 2019
KIARIE WAWERU KIARIE
JUDGE