[2022] KEHC 10195 (KLR)

In re Estate of Rosemary Wanjiku Kinyanjui (Deceased) (Succession Cause E1848 of 2021) [2022] KEHC 10195 (KLR) (Family) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10195 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause E1848 of 2021

MA Odero, J

June 17, 2022

Between

Monica Njeri Karimi

1st Applicant

Mercy Wanjiku Karimi

2nd Applicant

and

Anthony Mwaura Karimi

Respondent

Ruling

1. Before this Court for determination is the summons dated 17th August 2021 by which Monica Njeri Karimi And Mercy Wanjiku Karimi (hereinafter jointly referred to as ‘the Applicants) seek the following orders:-“1. Spent2. Spent3. That this Honorable court be pleased to grant a temporary order of injunction restraining the Respondent, his agent and/or servants from intermeddling, distributing and/or sharing the rental income from property Kasina Housing Scheme Society Share Certificate No. 001 for Plot Number 101 (Mlolongo) pending the taking out/issuance of the Grant of letters of Administration of the estate of Rosemary Wanjiku Kinyanjui (Deceased).4. That this Honorable court be pleased to issue such any directions or orders if may deem just and appropriate grant; and5. That the cost of this Application be provided for.”

2. The application was premised upon section 47 Law of Succession Act, Cap 160, Laws of Kenya, Rules 49, 59 and 73 of the Probate and Administration Rulesand all other enabling provisions of law and was supported by the Affidavit of even date sworn by the 1st Applicant.

3. The Respondent Anthony Mwaura Karimi despite having been properly served with the summons did not file any reply thereto. The Application was canvassed by way of written submissions. The Applicant filed the written submissions dated 13th April 2022. The Respondent did not file any submissions.

Background 4. The Succession Cause relates to the estate of Rosemary Wanjiku Kinyanjui (hereinafter ‘the Deceased’) who died intestate on 31st October 2011 in Athi River. It is averred that the Deceased was survived by only two (2) daughters being the two applicants herein. That despite the Applicants being the only persons entitled to the estate of the Deceased, neither has as yet filed a Petition for Grant of letters of Administration in respect of the estate of the Deceased.

5. It was further averred that the Estate of the Deceased comprises of the following properties –“a)Mwihike Farmers Company Limited – Plot Allocation Certificate Number 616 (Utawala) for L.R. No. 6845. b)Kasina Housing Scheme Society – Share Certificate No. 001 for Plot Number 101 (Mlolongo).c)Njemuwa Investments – Share Certificate No. 1119 for Plot Number 88 Muigai-Inn “B” Juja within L.R. No. 13136/16. d)Shares in Thika Muslim Housing Co-operative Society Ltd – Membership No. 1330/91. ”

6. The Applicants both reside and work outside of Kenya. The 1st Applicant lives in Switzerland whilst the 2nd Applicant resides in the Democratic Republic of Congo. It has come to the attention of the Applicants that the Respondent has been collecting and using for his own benefit the rental income from units erected on the property known as Kasina Housing Scheme Society Share Certificate No. 001 for Plot No. 101 (Mlolongo) (hereinafter referred to as the ‘Mlolongo Plot’) which property belonged to the Deceased.

7. The Applicants contend that the actions of the Respondent amount to intermeddling with the property of the Deceased. That if not restrained by this court through an injunction the Respondent will persist in his intermeddling to the prejudice of the estate of the Deceased and the Applicants who are beneficiaries thereof.

8. As stated earlier the Respondent did not file any reply to the application nor did he file any written submissions. I also note that the Respondent failed and/or declined to respond to a citation issued to him dated 7th October 2021.

Analysis and Determination 9. I have carefully considered the summons before this court as well as the written submissions filed by the Applicants. The two issues that arise for determination are –(i)Whether there has been intermeddling in the estate of the Deceased.(ii)Whether a temporary injunction ought to be issued.(i)Intermeddling

10. Section 45 of the Law of Succession Act Cap 160, Laws of Kenya provides as follows:-“(1)Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.(2)Any person who contravenes the provisions of this section shall—(a)be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and(b)be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.”

11. The fact of the death of the Deceased is not in any doubt. Annexed to the Supporting Affidavit to this summons is a Death Certificate Serial Number 11454 confirming that Rosemary Wanjiku Kinyanjui passed away in Athi River on 31st October 2017.

12. The Applicants have also annexed a copy of a letter of Allotment dated 1st January 2008 in respect of the Mlolongo Plot in favour of the Deceased (Page 15) as well as a copy of a share certificate No. 001 for the Kasina Housing Scheme issued in favour of the Deceased (Page 14). I am satisfied therefore that the property in question belonged to the Deceased and forms part of her estate

13. The Applicants who aver that they are the children of the Deceased and beneficiaries to her estate confirm that to date neither has sought and/or obtained a Grant of Representation in respect of the estate. The averments made by the Applicants have not been challenged and/or controverted by any party.

14. There is no evidence that any other party has been issued with a Grant to administer the estate of the Deceased. Specifically there is no evidence that any Grant has been issued to the Respondent authorizing him to deal in any manner with the property comprising the estate.

15. In the case of Benson Mutuma Muriungi Vs Ceo Kenya Police Sacco & Another [2016] eKLR the Court stated as follows: -“(5)There is no specific definition of the term intermeddling provided in the Law of Succession Act. The Act simply prohibits taking possession of or disposing of, or otherwise intermeddling with, any free property of a deceased person by any person unless with the express authority of the Act, any other written law or a grant of representation under the Act. But in my understanding, the use of wide and general terms such as; ‘’for any purpose’’ and “or otherwise intermeddle with’’ in the Act portends that the category of the offensive acts which would amount to intermeddling is not heretically closed or limited to taking possession and disposing of the property of the deceased. I would include in that category such acts as; taking possession, or occupation of, disposing of, transferring, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with existing lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act or any other written law. I do not pretend to close the list either or make it exhaustive. The list could be long. However, any act or acts which will dissipate or diminish or put at risk the free property of the deceased are acts of intermeddling in law.” (own emphasis)

16. At the present time no party has been vested with legal authority to deal with any of the assets comprising the estate of the Deceased in any manner whatsoever. The Actions of the Respondent in collecting, utilizing and failing to account for the rental income collected in respect of the Mlolongo Plot amounts to intermeddling. Such acts of intermeddling which prejudice the interest of the other beneficiaries to the estate, are punishable by law.

Injunctive orders 17. The Applicants have prayed for orders of injunction to prevent the Respondent from further intermeddling with the estate. The first question that arises is whether this court sitting as a probate court has power to issue injunctive orders.

18. Although the provisions of order 40 of theCivil Procedure Rules relating to grant of interlocutory injunctions have not been imported into the probate and Administration Rules it has been severally held that by virtue of Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules the Probate Court does not have power to issue injunctive orders in succession proceedings. In the case of Sophie Jeruto Jenes vs Nicholas BitokEldoret Succession No. 920, 2005, the court held as follows:-“The application before the High Court was for a temporary injunction to restrain the appellants from dealing with the suit premises in a manner inimical to the estate of the deceased. The question which arose and had to be determined first was whether the court had jurisdiction to grant an injunction in a succession cause.The appellants took the position that the court had no such jurisdiction whereas the respondents took the contrary position. However, the High Court was persuaded that Rule 73 of the Probate and Administration Rules reserved the courts inherent jurisdiction to allow the grant of injunctions in deserving cases. We are in total agreement with this conclusion. We have no doubt at all that the Law of Succession Act gives wide jurisdiction dealing with testamentary and administration issues of an estate. Indeed Section 47 of the said Act gives the court jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decree and orders as may be expedient. It cannot be said that such decrees and orders would exclude injunction orders. In other words, we are of the same view that Section 47 of the Act gives the court all-embracing powers to make necessary orders including injunctions where appropriate to safeguard the deceased’s estate. This section must be read together with Rule 73 of the Probate and Administration Rules which further emboldens court’s jurisdiction to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court. We would imagine such orders would also include injunctive orders.” (Own emphasis)

19. Therefore I am satisfied that this court sitting as a Probate court does have the powers to issue any orders necessary to protect and/or conserve the estate of the Deceased pending the issuance of a Grant.

20. The principles for grant of interlocutory injunctions were set out in the celebrated case of Giella vs Cassman Brown & Company Ltd [1973] G.A as follows:-(i)The Plaintiff must establish a prima facie case with a probability of success.(ii)The Plaintiff must demonstrate that he stands to suffer irreparable harm if the orders being sought are not granted.(iii)If the court is in any doubt the matter is to be decided on a balance of convenience.

21. As stated earlier the Applicants have availed sufficient proof that the Mlolongo Plot forms part of the estate of the Deceased. This court has found that collection of rental income by a third party from that property amounts to intermeddling. The respondent has not accounted to any person for the rental income he has been collecting. The Applicants as beneficiaries to the estate stand to suffer substantial loss if the Respondent is not restrained from intermeddling with the estate.

22. Accordingly, I find that the principles for Grant of injunctive orders have been met.

23. I note that the Deceased died in October 2011 almost eleven (11) years ago. It is prudent that one or both of the Applicants petition for letters of Administration to the estate in order to proceed with the distribution of the estate.

24. In conclusion I do allow the summons dated 17th August 2021 and make the following orders;-

(a)An injunction be and is hereby issued restraining the Respondent, his agents, servants and/or employees from further intermeddling, distributing, and/or sharing the rental income from all the property known as Kasina Housing Scheme Society – Share Certificate No. 001 for plot Number 101 (Mlolongo) pending the taking out and issuance of a Grant of Letters of Administration intestate in respect to the deceased’s estate.(b)Within 45 days of this Ruling the Applicants are directed to petition this court for a Grant of Letters of Administration Intestate in order to preserve the estate of the Deceased.(c )No orders on costs.

DATED IN NAIROBI THIS 17TH DAY OF JUNE 2022. …………………………………..**MAUREEN A. ODEROJUDGE