[2022] KEHC 26998 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. 1292 OF 2017

IN THE MATTER OF THE ESTATE OF RUGA GITUKU (DECEASED)

HANNAH GATHONI RUGA............................................1ST PETITIONER/APPLICANT

VERSUS

JOYCE WANGECHI RUGA............................................2ND PETITIONER/APPLICANT

RULING

1. Before this Court for determination are two applications both filed by Joyce Wangechi Ruga (the 2nd Administrator) as follows:-

(1) Summons dated 8th July 2020.

(2) Summons dated 14th December 2020.

2. The court directed that the two applications would be heard together and would be canvassed by way of written submissions. The parties duly filed their written submissions. The 1st Administrator/Applicant filed the written submissions dated 17th October 2021 whilst the 2nd Administrator filed her written submissions dated 29th October 2021. The Objector also filed written submissions dated 29th October 2021.

BACKGROUND

3. This succession cause relates to the estate of RUGA GITUKU (hereinafter ‘the Deceased’) who died intestate on 3rd September 2017. The Deceased left behind a vast estate which comprised of several parcels of land. The Deceased in his lifetime had two wives. His 1st wife CECILIA WANGUI RUGA with who the Deceased sired twelve (12) children passed away in February 1994. Thereafter on 11th March 2002 the Deceased married his 2nd wife HANNAH GATHONI RUGA with whom he bore four (4) children. Letters of Administration Intestate were on 12th July 2019 issued to HANNAH GATHONI RUGA (1st Administrator) and JOYCE WANGECHI RUGA (2nd Administrator) representing the two houses left behind by the Deceased.

4. While this Succession Cause was winding its way through the court system hampered by numerous applications filed by the beneficiaries the Objector PHILLIP LEMEITEI SIRONKA filed an application dated 5th November 2020 objecting to the summons for confirmation of Grant on grounds that he had an interest in Title Number KAJIADO/KAPUTIEI/1076measuring approximately100 acres which parcel of land the Objector claimed had been illegally sub-divided by the Deceased giving rise to several other parcels of land. The 2nd Administrator filed the application dated 8th July 2020 seeking orders for the preservation of all the several parcels of land which are sub-divisions of Kajiado/Kaputiei/1076.

5. The 2nd Administrator also filed the summons dated 14th December 2020 seeking preservatory orders in respect of land Reference Number 12715/702 (IR 47972) which she alleges is being illegally disposed of by third parties to unsuspecting members of public. I will deal with each application individually.

(1) Summons dated 8th July 2020

6. By this application the 2nd Administrator sought the following orders:

“1. Spent

2. Spent

3. Spent

4. Spent

5. Spent

6. THATpending the hearing and determination of summons for confirmation for letters of administration issued on 12th July 2019, the Honourable court be pleased to issue presevatory orders to preserve the deceased’s Estate and more particularly land parcels knownLand Reference Number 209/5821/11, 209/5821/11, 209/4401/603, 209/4401/604, 209/4401/605, 209/4401/516, 209/4401/517, 209/4401/518, 209/4401/519, 36/11/1208, 336/111/1218, 209/7196, 36/1208/III, 36/V/III, 36/V82, 36/V100, 36/111/1207 (PLOT NO. 1207 EASTLEIGH SECTION THREE), 1116 SECTION NUMBER 111 EASTLEIGH, GIKONDO/KIIRUNGI/681, 12715/702, MAVOKO TOWN BLOCK 12/825, GIKONDI/KIIRUNGI/1003, GIKONDI/KIIRUNGI/128, GIKONDI/KIIRUNGI/1054, GIKONDI/ GIKONDI/1559, GIKONDI/ GIKONDI/1557, GIKONDI/ GIKONDI/1558, LOC.14/KIRU/4731, LOC.14/KIRU/4725, LOC.14/KIRU/4726, LOC.14/KAIRO/2524, LOC.14/KAIRO/2540, LOC.15/KIMATHE/1795,LOC.15/KIMATHE/1794, LOC.15/KIMATHE/1793, LOC.15/KIMATHE/1792, LOC.15/KIMATHE/1791, LOC.15/KIMATHE/1790, LOC.15/KIMATHE/1789, LOC.15/KIMATHE/1788, LOC.15/KIMATHE/1787, LOC.15/KIMATHE/1786, LOC.15/KIMATHE/1785, LOC.15/KIMATHE/1784, LOC.15/KIMATHE/1783, LOC.15/KIMATHE/1798, LOC.15/KIMATHE/2099, LOC.15/KIMATHE/1797, LOC.15/KIMATHE/1796, LOC.14/KIRU/4734, LOC.14/KIRU/4733, LOC.14/KIRU/4732, LOC.14/KIRU/4731, LOC.14/KIRU/4730, LOC.14/KIRU/4729, LOC.14/KIRU/4728, LOC.14/KIRU/4727, LOC.14/KIRU/4726, LOC.14/KIRU/4725, MUHITO/GATURIA/2033, MUHITO/NJIRUINI/393, THEGENGE/KARIA/151, MUHITO/KARIARA/170, AGUTHI/GATHAITHI/71, GITHI/IGANA/1209, NGONG/NGONG/29121, NGONG/NGONG/29128, NGONG/NGONG/29115, NGONG/NGONG/29119, NGONG/NGONG/29117, LAIKIPIA /TIGITHI MATANYA BLOCK 4/593( MWIREMIA), LAIKIPIA /TIGITHI MATANYA BLOCK 4/592( MWIREMIA), LAIKIPIA /TIGITHI MATANYA BLOCK 4/591( MWIREMIA), LAIKIPIA /TIGITHI MATANYA BLOCK 4/590( MWIREMIA), GIKONDI/KIIRUNGI/1077, GIKONDI/KIIRUNGI/1076, GIKONDI/THIMU/1065, GIKONDI/KIIRUNGI/1064, GIKONDI/KIIRUNGI/1013, ROC.15/MUGEKA/297, GIKONDI/KARINDI/583, GIKONDI/KIIRUNGI/974, GIKONDI/KIIRUNGI/437, GIKONDI/KARINDI/729, GIKONDI/KIIRUNGI/189, LOC.14/KIRU/4734, LOC.14/KIRU/4733, LOC.14/KIRU/4732, LOC.14/KIRU/4731, LOC.14/KIRU/4730, LOC.14/KIRU/4736, LOC.14/KIRU/4735, LOC.14/KIRU/4729, LOC.14/KIRU/4728, LOC.14/KIRU/4727, LOC.14/KIRU/4726, LOC.14/KIRU/4725, KAJIADO/KAPUTIEI-NORTH/1160, ISINYA PLOTS NUMBERS 175;178 and 305, PLOT NUMBER 37 KIAHUNGU , L.R. NO. 36/1/683 EASTLEIGH SECTION 1, L.R. NO. 209/2489/54 NGARA DESAI ROAD, KIAMBIU PLOT NUMBER 27 KIAMBIU SETTLEMENT SCHEME, KIAMBIU PLOT NUMBER 28 KIAMBIU SETTLEMENT SCHEME, NGONG/NGONG (RONGAI) 17471, KAJIADO/KAPUTIEI NORTH 2883, KAJIADO /KAPUTIEI NORTH 2882, KAJIADO KAPUTIEI NORTH 2881, KAJIADO /KAPUTIEI NORTH 2880, KAJIADO/ KAPUTIEI NORTH 2879, KAJIADO KAPUTIEI NORTH 2878, KAJIADO KAPUTIEI-NORTH 2877, KAJIADO KAPUTIEI NORTH 2876, L.R. NUMBER KAJIADO KAPUTIEI NORTH 2875, KAJIADO KAPUTIEI NORTH 2874, KAJIADO KAPUTIEI NORTH, KAJIADO KAPUTIEI NORTH 2872, KAJIADO KAPUTIEI NORTH 2871, KAJIADO KAPUTIEI NORTH 2870, KAJIADO KAPUTIEI NORTH 2869, KAJIADO KAPUTIEI NORTH 2868, KAJIADO KAPUTIEI NORTH) 2867, KAJIADO KAPUTIEI NORTH 2866, KIAHUNGI MUKURWEINI NYERI PLOT NO. 37, KIAHUNGI MUKURWEINI NYERI PLOT NO. 84, GIKONDI KIRUNGI 437, GIKONDI KIRUNGI 974, MUHITO GATURIA 2033, KAJIADO KAPUTIEI NORTH 31840, KAJIADO KAPUTIEI NORTH 31839, KAJIADO KAPUTIEI NORTH 31838, KAJIADO KAPUTIEI NORTH 31836, KAJIADO KAPUTIEI NORTH 31835, KAJIADO KAPUTIEI NORTH 31834, KAPUTIEI NORTH 31833, KAJIADO KAPUTIEI NORTH 31848, KAJIADO KAPUTIEI NORTH 31849, KAJIADO KAPUTIEI NORTH 31850, KAJIADO KAPUTIEI NORTH 31851, KAJIADO KAPUTIEI NORTH 31852, KAJIADO KAPUTIEI NORTH 31853 KAJIADO KAPUTIEI NORTH 31886, KAJIADO KAPUTIEI NORTH 31885, L.R. NO. KAJIADO KAPUTIEI NORTH 31883, KAJIADO KAPUTIEI 31884, KAJIADO KAPUTIEI NORTH 31876, KAJIADO KAPUTIEI NORTH 31875, KAJIADO KAPUTIEI NORTH 31874, KAJIADO KAPUTIEI NORTH 31873, KAJIADO KAPUTIEI NORTH 31872, KAJIADO KAPUTIEI NORTH 31870, KAJIADO KAPUTIEI NORTH 31869, KAJIADO KAPUTIEI NORTH 31868, KAJIADO KAPUTIEI NORTH 31867, KAJIADO KAPUTIEI NORTH 31864, KAJIADO KAPUTIEI NORTH 31866, KAJIADO KAPUTIEI NORTH 31863, KAJIADO KAPUTIEI NORTH 31865, KAMUCUNI MARKET STALL NO. 21 BLOCK 3, KAMUCUNI MARKET STALL NO. 17 BLOCK 3, LOC 15 KIMATHE 2567, LOC 15 KIMATHE 2568, LOC 15 KIMATHE 2569, LOC 15 KIMATHE 2570, LOC 15 KIMATHE 2571, LOC 15 KIMATHE 2572, LOC 15 KIMATHE 2573, LOC 15 KIMATHE 2574, LOC 15 KIMATHE 2775, LOC 15 KIMATHE 2576, LOC 15 KIMATHE 2577, LOC 15 KIMATHE 2578, LOC 15 KIMATHE 2579, LOC 15 KIMATHE 2580, LOC 15 KIMATHE 2581, LOC 15 KIMATHE, LOC 15 KIMATHE 2583, LOC 15 KIMATHE 2584, LOC 15 KIMATHE, L.R. NO. LOC 15 KIMATHE 2586, LOC 15 KIMATHE 2587, LOC 15 KIMATHE 2588, LOC 15 KIMATHE 2589, LOC 15 KIMATHE 2590, LOC 15 KIMATHE 2591, LOC 15 KIMATHE 2592, LOC 15 KIMATHE 2593, LOC 15 KIMATHE 2594, LOC 15 KIMATHE 2595, LOC 15 KIMATHE 2596, MURANGA LOC 14 KIRU 4735, MURANGA LOC 14 KIRU 4736, GIKONDI KIRUNGI/396 (KARINDI), TAMBAYA MUTHINGA GUTHI/71, GIATHUGU MWERU IGANA/1209, KAMUCUNI PLOT NUMBER 14, MUHITO GATURIA/1991, MUHITO GATURIA/1992, MUHITO GATURIA/1993, MUHITO GATURIA/1994, L.R. NO. MUHITO GATURIA/2033, KAJIADO/ KAPUTIEI NORTH/13837, KAJIADO/ KAPUTIEI NORTH/31837, KAJIADO/ KAPUTIEI NORTH/2889, KAJIADO/KAPUTIEI NORTH/13837.

7. THAT pending the hearing and determination of summons for confirmation for letters of administration issued on 12th July 2019,this Honourable court be pleased to issue a presevatory order to restrain against disposing, alienating, charging, or intermeddling in titles numberKajiado/Kaputiei-North 2866, 2867, 2868, 2869, 2870, 2871, 2872, 2874, 2876, 2877, 2878, 2879, 2880, 2881, 2882, 2883,31840, 31839, 31838, 31832, 31836, 31835, 31834, 31833, 31848, 31849, 31850, 31851, 31852, 31853, 31886, 31885, 31883, 31884, 31887, 31876, 31875, 31874, 31873, 31872, 31870, 31869, 31868, 31867, 31864, 31866, 31863, 31865, 31892, 31891, 31890, 31889,31888, 31882, 31881, 31879, 31878, 31871, 31870, 31861, 31860, 31859, 31858, 31857, 31856, 31855, 31854, 31847, 31846, 31845, 31844, 31843, 3184, 31841 and 32028.

8. THATpending the hearing and determination of the summons for confirmation for letters of administration issued on 12th July 2019, this Honourable Courts do order the 1st Administrator to file in court a full schedule of the estate title documents in her possession.

9. THAT pending the hearing and determination of the summons for confirmation for letters of administration issued on 12th July 2019, this Honourable Courts do order the Administrators to deposit the Original title documents in a document safe at Equity Bank (Kenya) Limited and both Administrators be the mandatory signatories to all withdraw instructions relating to the following original title deeds:-Land Reference Number 209/5821/11, 209/5821/11, 209/4401/603, 209/4401/604, 209/4401/605, 209/4401/516, 209/4401/517, 209/4401/518, 209/4401/519, 36/11/1208, 336/111/1218, 209/7196, 36/1208/III, 36/V/III, 36/V82, 36/V100, 36/111/1207 (PLOT NO. 1207 EASTLEIGH SECTION THREE), 1116 SECTION NUMBER 111 EASTLEIGH, GIKONDO/KIIRUNGI/681, 12715/702, MAVOKO TOWN BLOCK 12/825, GIKONDI/KIIRUNGI/1003, GIKONDI/KIIRUNGI/128, GIKONDI/KIIRUNGI/1054, GIKONDI/ GIKONDI/1559, GIKONDI/ GIKONDI/1557, GIKONDI/ GIKONDI/1558, LOC.14/KIRU/4731, LOC.14/KIRU/4725, LOC.14/KIRU/4726, LOC.14/KAIRO/2524, LOC.14/KAIRO/2540, LOC.15/KIMATHE/1795, LOC.15/KIMATHE/1794, LOC.15/KIMATHE/1793, LOC.15/KIMATHE/1792, LOC.15/KIMATHE/1791, LOC.15/KIMATHE/1790, LOC.15/KIMATHE/1789, LOC.15/KIMATHE/1788, LOC.15/KIMATHE/1787, LOC.15/KIMATHE/1786, LOC.15/KIMATHE/1785, LOC.15/KIMATHE/1784, LOC.15/KIMATHE/1783, LOC.15/KIMATHE/1798, LOC.15/KIMATHE/2099, LOC.15/KIMATHE/1797, LOC.15/KIMATHE/1796, LOC.14/KIRU/4734, LOC.14/KIRU/4733, LOC.14/KIRU/4732, LOC.14/KIRU/4731, LOC.14/KIRU/4730, LOC.14/KIRU/4729, LOC.14/KIRU/4728, LOC.14/KIRU/4727, LOC.14/KIRU/4726, LOC.14/KIRU/4725, MUHITO/GATURIA/2033, MUHITO/NJIRUINI/393, THEGENGE/KARIA/151, MUHITO/KARIARA/170, AGUTHI/GATHAITHI/71, GITHI/IGANA/1209, NGONG/NGONG/29121, NGONG/NGONG/29128, NGONG/NGONG/29115, NGONG/NGONG/29119, NGONG/NGONG/29117, LAIKIPIA /TIGITHI MATANYA BLOCK 4/593( MWIREMIA), LAIKIPIA /TIGITHI MATANYA BLOCK 4/592( MWIREMIA), LAIKIPIA /TIGITHI MATANYA BLOCK 4/591( MWIREMIA), LAIKIPIA /TIGITHI MATANYA BLOCK 4/590( MWIREMIA), GIKONDI/KIIRUNGI/1077, GIKONDI/KIIRUNGI/1076, GIKONDI/THIMU/1065, GIKONDI/KIIRUNGI/1064, GIKONDI/KIIRUNGI/1013, ROC.15/MUGEKA/297, GIKONDI/KARINDI/583, GIKONDI/KIIRUNGI/974, GIKONDI/KIIRUNGI/437, GIKONDI/KARINDI/729, GIKONDI/KIIRUNGI/189, LOC.14/KIRU/4734, LOC.14/KIRU/4733, LOC.14/KIRU/4732, LOC.14/KIRU/4731, LOC.14/KIRU/4730, LOC.14/KIRU/4736, LOC.14/KIRU/4735, LOC.14/KIRU/4729, LOC.14/KIRU/4728, LOC.14/KIRU/4727, LOC.14/KIRU/4726, LOC.14/KIRU/4725, KAJIADO/KAPUTIEI-NORTH/1160, ISINYA PLOTS NUMBERS 175;178 and 305, PLOT NUMBER 37 KIAHUNGU, L.R. NO. 36/1/683 EASTLEIGH SECTION 1, L.R. NO. 209/2489/54 NGARA DESAI ROAD, KIAMBIU PLOT NUMBER 27 KIAMBIU SETTLEMENT SCHEME, KIAMBIU PLOT NUMBER 28 KIAMBIU SETTLEMENT SCHEME, L.R. NUMBER NGONG/NGONG (RONGAI) 17471 – 0. 40Ha, L.R. NUMBER KAJIADO KAPUTIEI NORTH (ISINYA) 2883 – 2. 02 Ha, L.R. NUMBER KAJIADO KAPUTIEI NORTH (ISINYA) 2882 – 2. 02 Ha, L.R. NUMBER KAJIADO KAPUTIEI NORTH (ISINYA) 2881 – 2. 02 Ha, L.R. NUMBER KAJIADO KAPUTIEI NORTH (ISINYA) 2880 – 2. 02 Ha, L.R. NUMBER KAJIADO KAPUTIEI NORTH (ISINYA) 2879 – 2. 02 Ha, L.R. NUMBER KAJIADO KAPUTIEI NORTH (ISINYA) 2878 – 2. 02 Ha, L.R. NUMBER KAJIADO KAPUTIEI NORTH (ISINYA) 2877 – 2. 02 Ha, L.R. NUMBER KAJIADO KAPUTIEI NORTH (ISINYA) 2876 – 2. 02 Ha, L.R. NUMBER KAJIADO KAPUTIEI NORTH (ISINYA) 2875 – 2. 02 Ha, L.R. NUMBER KAJIADO KAPUTIEI NORTH (ISINYA) 2874 – 2. 02 Ha, L.R. NUMBER KAJIADO KAPUTIEI NORTH (ISINYA) 2873 – 2. 02 Ha, L.R. NUMBER KAJIADO KAPUTIEI NORTH (ISINYA) 2872 – 2. 02 Ha, L.R. NUMBER KAJIADO KAPUTIEI NORTH (ISINYA) 2871 – 2. 02 Ha, L.R. NUMBER KAJIADO KAPUTIEI NORTH (ISINYA) 2870 – 2. 02 Ha, L.R. NUMBER KAJIADO KAPUTIEI NORTH (ISINYA) 2869 – 2. 02 Ha, L.R. NUMBER KAJIADO KAPUTIEI NORTH (ISINYA) 2868 – 2. 02 Ha, L.R. NUMBER KAJIADO KAPUTIEI NORTH (ISINYA) 2867 – 2. 02 Ha, L.R. NUMBER KAJIADO KAPUTIEI NORTH (ISINYA) 2866 – 2. 02 Ha, KIAHUNGI MUKURWEINI NYERI PLOG NO. 37, KIAHUNGI MUKURWEINI NYERI PLOT NO. 84 , L.R. NO. GIKONDI KIRUNGI 437 - 3 ACRES, L.R. NO. GIKONDI KIRUNGI 974 – 0. 282 Ha , L.R. NO. MUHITO GATURIA 2033 – 0. 10 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31840 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31839 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31838 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31836 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31835 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31834 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31833 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31848 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31849 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31850 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31851 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31852 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31853 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31886 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31885 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31883 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31884 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31876 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31875 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31874 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31873 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31872 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31870 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31869 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31868 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31867 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31864 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31866 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31863 – 0. 042 Ha, L.R. NO. KAJIADO KAPUTIEI NORTH (ISINYA) 31865 – 0. 042 Ha, KAMUCUNI MARKET STALL NO. 21 BLOCK 3, KAMUCUNI MARKET STALL NO. 17 BLOCK 3, L.R. NO. LOC 15 KIMATHE 2567 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2568 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2569 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2570 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2571 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2572 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2573 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2574 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2775 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2576 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2577 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2578 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2579 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2580 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2581 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2582 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2583 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2584 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2585 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2586 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2587 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2588 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2589 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2590 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2591 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2592 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2593 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2594 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2595 – 0. 035 Ha, L.R. NO. LOC 15 KIMATHE 2596 – 0. 035 Ha, L.R. NO. MURANGA LOC 14 KIRU 4735 – 0. 042 Ha, L.R. NO. MURANGA LOC 14 KIRU 4736 – 0. 042 Ha, L.R. NO. GIKONDI KIRUNGI/396 (KARINDI) – 3 Acres , L.R. NO. TAMBAYA MUTHINGA GUTHI/71 – 2 Acres, L.R. NO. GIATHUGU MWERU IGANA/1209 – 3 Acres, L.R. NO. KAMUCUNI PLOT NUMBER 14 – 100 x 50, L.R. NO. MUHITO GATURIA/1991 – ¼ Acre, L.R. NO. MUHITO GATURIA/1992 – ¼ Acre, L.R. NO. MUHITO GATURIA/1993 – ¼ Acre, L.R. NO. MUHITO GATURIA/1994 – ¼ Acre, L.R. NO. MUHITO GATURIA/2033, L.R. NO. KAJIADO/ KAPUTIEI NORTH/13837, L.R. NO. KAJIADO/ KAPUTIEI NORTH/31837, L.R. NO. KAJIADO/ KAPUTIEI NORTH/2889, L.R. NO. KAJIADO/ KAPUTIEI NORTH/13837.

10. THATpending the hearing and determination of the summons for confirmation for letters of administration issued on 12th July 2019 this Honourable Courts be pleased to allow the administrators to dispose ofLand Reference Number 12715/702 (I.R 47972) to clear the outstanding loan of Kshs. 39, 632,175. 50 as at 20th February 2020 with Equity Bank (Kenya) Limited.

11. Cost of the application”.

7. The application which was premised upon section 45, 79and82 of the Law of Succession Act, Cap 160, Laws of Kenya, and Rules 49and73 of the Probate and Administration Rules was supported by the Affidavit of even date sworn by the 2nd Administrator.

8. The 2nd Administrator contends that Parcel Number Kajiado/Kaputiei/1076forms part of the estate of the Deceased. That the Deceased subdivided said parcel of land into several plots that were registered in his name.

9. The 2nd Administrator avers that it has come to her attention that the 1st Administrator and the objector applied for and obtained consent to subdivide Kajiado/Kaputiei/1076intofour (4)portions which she asserts amounts to intermeddling with the estate of the Deceased.

10. The 2nd Administrator further avers that the estate is desirous of selling land Reference Number 12715/702 (IR 47972)and using the proceeds to offset a debt of Kshs 77 million owed to EQUITY BANK. She urges that in the best interest of all concerned the original title documents which are currently in the possession of the 1st Administrator ought to be deposited with Equity Bank for safekeeping pending the hearing and determination of the summons for confirmation of Grant.

11. The 1st Administrator filed a Replying Affidavit dated 28th October 2020 in which she alleges that it is the 2nd Administrator who has been colliding with officials of Equity Bank to intermeddle with the estate and hence the prayer that the original Title be deposited with the Bank.

12. The Objector Phillip Lemeita Sironka in Reply to the summons dated 8th July 2020 filed an ‘objection’ dated 2nd November 2020. The Objector asserts that he is the genuine proprietor of Kajiado/Kaputiei/1076and still holds the original Title thereto. He denies having ever sold the said parcel of land and alleges that the said parcel comprising 100 acres was illegally, wrongfully and/or irregularly subdivided by the Deceased giving rise to six parcels being Kajiado/Kaputiei North/ 2881, 2882. 2883, 2867, 2868and2869respectively.

13. Both the Objector and the 1st Administrator state that the subject parcel of land being Kajiado/Kaputiei/1076is the subject of an ongoing case before the Kajiado Environment and Land Court being ELC No 15 of 2019 which was withdrawn on 13th October 2020. However, another suit being ELC No. E007 of 2020 in which the 2nd Administrator sued both the 1st Administrator and the Objector amongst others is still ongoing before the Kajiado ELC. That the case in Kajiado raises the same issues which have been raised in the summons dated 8th July 2020. The Objector and the 1st Administrator urge this court to recuse itself and allow the matter to be adjudicated to its logical conclusion before the Kajiado ELC.

14. Having analysed the summons dated 8th July 2020 the replies filed thereto as well as the written submissions filed by the parties. The following are the matters which arise for determination.

(i) Whether the summons dated 8th July 2020 is sub-judice.

(ii) Whether the presevatory orders sought ought to be

granted.

Sub-Judice

15. The Objector and the 1st Administrator submit that the issues raised by the 2nd Administrator in the summons dated 8th July 2020 being the parcel of land known as Kajiado/Kaputiei/1076and the subdivisions thereto is the subject of ELC No. E007 of 2020 currently pending at the Kajiado ELC.

16. The sub judice Rule is codified in Section 6of the Civil Procedure Act Cap 21, Laws of Kenyaas follows:.

“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”

17. Therefore in order to establish the subjudice rule it must be shown that-

· There exist two suits

· The matter in both suits must be directly and/or substantially the same.

· The parties in the two suits are the same or are parties under whom they claim.

· The suits must be pending before courts having jurisdiction in Kenya to grant the same relief.

18. In the case of KENYA BANKERS ASSOCIATION – VS KENYA REVENUE AUTHORITY [2019] eKLR Hon Justice Mativo defined the underlying objective of the subjudice rule in the following terms:-

“The basic purpose and the underlying object of Section 6 is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the parties to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to prevent multiplicity of proceedings.”

…

“The key words in Section 6 are "the matter in issue is directly and substantially in issue in the previously instituted suit."The test for applicability of Section 6 is whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. However, when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit”. [own emphasis]

19. Likewise in the case of Kinatwa Co-operative Savings & Credit Society Limited v Kinatwa Prestige Ltd [2021] eKLR Hon Justice R.K Limoheld as follows:-

“… The rationale behind sub-judice rule is to prevent the situation of having conflicting orders emanating from two or more different courts over the same subject matter. That situation has obtained in this instance because, court issued injunctive orders on 22nd April, 2021 unbeknown to it that a different court had issued a conflicting order. That is exactly the mischief section 6 of the civil procedure act is supposed to cure” (own emphasis)

20. The learned Judge cited with approval the holding in David Ndii & others versus Attorney General & others 2021 eKLR, in which a bench of five Judges stated inter alia that:-

“…The rationale behind this provision (Section 6 of the Civil Procedure Act) is that it is vexatious and oppressive for a claimant to sue concurrently in two courts. Where there are two courts faced with substantially the same question or issue, that question or issue should be determined in only one of those courts, …..” (own emphasis)

21. It is not in dispute that there exists another suit No. E007 of 2020 filed by the 2nd Administrator before the Environment and Land Court sitting in Kajiado. The parties in that ELC suit are the 2nd Administrator against the Objector and the 1st Objectors who are the same as the parties in the present succession cause.

22. By this application the 2nd Administrator seeks preservatory orders in respect of Kajiado/Kaputei/1076. The Objector submitted that the ELC court in Kajiado did issue an inhibition order in respect of the parcels of land listed in the summons dated 8th July 2020.

23. Indeed on 21st September 2021 Lady Justice Christine Ochieng in Kajiado ELC No. E007 of 2020 issued inhibition orders in respect of the following properties. –

Kajiado/Kaputiei/North/1076: Kajiado/Kaputiei North 2866, 2867, 2869, 2870, 2871, 2872, 2873, 2874, 2876, 2877, 2878, 2879, 2880, 2881, 2882, 2883, 31840, 318839, 31838, 31832, 31836, 31835, 31834, 31833, 31848, 31849, 31850, 31851, 31852, 31853, 31886, 31885,31867, 31864, 31866, 31863, 31863, 31863, 31865,31892, 31891, 31890, 31889, 31888, 31882, 31881, 31879, 31878, 31871, 318870, 31861, 31860, 318859, 318858, 31858, 31857, 31856, 31855,31854, 318847, 31846, 318845, 31844, 31843, 3184, 31841and32028pending outcome of the suit before the ELC.

24. It is not lost on this court that at the heart of the dispute between the parties herein is the question of ‘ownership’of Kajiado/Kaputiei/1076and the resultant sub division. The duty of the Probate Court is to oversee the distribution of an estate to the legitimate heirs. Article 162 of the Constitution of Kenya 2010 and Section 13(2)(d) of the Environment and land court Act vests in the Environment and Land Court the exclusive jurisdiction to determine questions relating to the use, ownership and occupation of land.

25. In the case of JOSEPH KABERIA KUMARI VS TONY MWENDA MUTHAURA [2021] eKLR the court held that-

“What resonates from the Constitution, the relevant statutes and case law is that issues appertaining to user occupation and title to land and environment are in the domain of an Environment and land Court. Even when such issues arise in relation to the estate of a Deceased person concerning third parties (as is the case here) they still remain in the domain of the aforementioned court and not the Probate Court” (own emphasis)

26. It is manifest therefore that determination or the dispute over ownership of Kajiado/Kaputiei/1076is vested in the ELC. As such the matter is properly before the ELC Kajiado and I find that the summons dated 8th July 2020 is subjudice. The same is therefore struck out in its entirety. This being a family matter each side shall meet its own costs.

(ii)Summons dated 14th December 2020

27. This was yet another summons filed by the 2nd Administrator in which she sought the following orders: -

“1. Spent

2. Spent

3. Spent

4. That pending the hearing and determination of summons for confirmation for letters of Administration issued on 12th July 2019, the Honourable Court be pleased to issue preservatory orders to preserve the Deceased’s Estate and more particularly Land Parcels known as Land Reference Number 12715/702 (IR 47972).

5. That pending the hearing and determination of summons for confirmation for letters of Administration issued on 12th July 2019, the Honourable Court be pleased to issue a preservatory order to restrain against disposing, alienating, charging or intermeddling in Land Reference Number 12715/702 (IR 47972).

6. Cost of the application”

28. The Application which was premised upon sections 45, 79and82 of the Law of Succession Act, Cap 160 Laws of KenyaandRules 49and73 of the Probate and Administration Rules was supported by the Affidavit of even date sworn by the 2nd Administrator.

29. The 1st Administrator HANNAH GATHONI RUGA filed a Replying Affidavit dated 9th February 2021 in which she opposed the summons dated 14th December 2020.

30. The 2nd Administrator averred that she was appointed as one of the Administrators of the estate of the Deceased vide the Grant issued by the High Court on 12th July 2019.

31. The 2nd Administrator further avers that the parcel of land known as LR Number 12715/702 (IR 47972)forms part of the estate of the Deceased the same having been transferred to the Deceased on or about 10th April 1990. It is alleged that certain third parties are in the process of disposing of 12715/702 (IR 47972)to unsuspecting members of public which actions are illegal, detrimental to the estate and amount to intermeddling. The 2nd Administrator alleges that the 1st Administrator illegally transferred the said parcel of land to herself on or about 19th August 2018 which was one (1) years after the demise of the Deceased. That the actions of the 1st Administrator are detrimental to the other beneficiaries and amounts to intermeddling with the estate.

32. For this reason the 2nd Administrator prays that the court issue orders to preserve said parcel of land pending determination of the summons for confirmation of Grant.

33. In her Replying Affidavit the 1st Administrator denies that LR No 12715/702 (IR 47972)comprises part of the estate of the Deceased herein. She avers that she is the registered owner of the said parcel of land. The 1st Administrator denies having in any way intermeddled with the estate of the Deceased.

34. The key question raised in the Application dated 14th December 2020 is whether the preservatory orders sought are merited. In the case of JAPHET KAIMENYI M’NDATHO –VS M’NDATHO M’MBWIIRIA [2012] eKLR, it was held that an applicant seeking preservatory orders in a Succession Cause would have to prove the following -

“a) 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.

b. That the refusal to grant orders of inhibition would render the applicants suit nugatory.

c. That the applicant has arguable case.”

35. The 2nd Administrator by this application seeks the preservation of LR Number 12715/702 (IR 47972)alleging that the 1st Administrator caused the same to be transferred to herself illegally. She states that the estate has a loan with Equity Bank which loan it desires to offset using the proceeds of sale of the said parcel of land.

36. On the other hand the 1st Administrator asserts that LR. Number 12715/702 (IR 47972) is her property having been transferred to her by the Deceased prior to his demise. Annexed to the Replying Affidavit dated 28th October 2020is a certificate of official search dated 29th August 2019 indicating that the property in question had been transferred to the 1st Administrator Hannah Gathoni Ruga (Annexture ‘HGR1 ‘a’)

37. However it is pertinent to note that neither party was able to avail in court the original Title Deed for the disputed parcel of land. According to the 2nd Administrator the original Title Document is currently being held by the Kenya Deposit Insurance Corporation after Nairobi Finance Corporation in whose favour the Deceased had charged the property for a sum of Kshs 350,000 went into liquidation.

38. The determination of who is the lawful owner of this L.R. Number 12715/702 (IR 47972)is not one which this court sitting as a Probate Court has jurisdiction to make. Article 162of the Constitution of Kenya 2010 and Section 13(2)(d)of theEnvironment and Lands Court Act gives exclusive mandate to the Environment and Land Court to determine question of use, ownership and occupation of land. As such, this court will not make any pronouncement regarding the ‘ownership’ of said parcel of land.

39. Similarly the question of whether or not LR No. 12715/702 (KR47972) ought to be sold in order to offset the loan with Equity Bank can only be settled once the question of ownership of the above parcel of land has been conclusively settled. Accordingly, that prayer is premature.

40. Suffice to say there exists a dispute between the two Administrators regarding the question of whether or not L.R. No. 12715/702 (IR 47972)forms part of the estate of the Deceased or not. This is a matter which cannot be determined at this interlocutory stage. That being said this court is persuaded that he 2nd Administrator does have an arguable case.

41. A look at the record in this Succession Cause reveals that there have been disputes each step of the way. The two houses of the Deceased are not in agreement and neither is there unanimity between the two Administrators of the estate. In short, this is an estate, which is greatly contested by both the Beneficiaries to the estate as well as outsiders. In the circumstances, it is my view is that the estate ought to be preserved until such time as the critical issues are determined through a full hearing.

42. Section 47 of the Law of Succession Act provides as follows:-

“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.”

43. Likewise, Rule 73 of the Probate and Administration Rules proves that:-

“73. Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

44. Therefore the High Court is vested with wide powers under the Law of Succession Act to make such orders as may be necessary to preserve the estate pending distribution to the legitimate heirs and to ensure that the ends of justice are met.

45. In the case of FLORIS PIEZZO & Another – vs GIAN CARLOS FALASCONI [2014] eKLR the Court of the Appeal held thus:-

“We have carefully considered the grounds of appeal, rival written and oral submissions, and the law. The application before the high Court was for 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 Respondent took the contrary position. However, the High Court was persuaded that Rule 73 of the Probate and Administration Rules reserved the Court’s inherent jurisdiction to allow for 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 the Court wide jurisdiction in 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 Rule 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 order.” (own emphasis)

46. In RE ESTATE OF STONE KATHULI MUINDE (Deceased) [2016] eKLR Hon Justice William Musyokaobserved as follows:-

“Such claims to ownership of alleged estate property, as between the estate and a third party, should be resolved through the civil process in a civil suit properly brought before a civil court in accordance with the provisions of the Civil Procedure Act and the Civil Procedure Rules. This could mean filing suit at the magistrates’ courts, or at the Civil or Commercial Divisions of the High Court, or at the Environment and Land Court. If a decree is obtained in such suit in favour of the claimant then such decree should be presented to the probate court in the succession cause so that that court can give effect to it.” (own emphasis)

47. Pending a pronouncement from the Environment and Land Court concerning ownership of LR Number 12715/702 (IR 47972)and in order to prevent any dissipation of the estate which would be detrimental to the beneficiaries. I am of the view that the said parcel of land ought to be preserved pending final determination and distribution of the estate. Accordingly, I do allow this present application and make the following orders:-

(1) THAT pending the hearing and determination of the summons for confirmation of Grant preservatory orders are hereby issued restraining any party from disposing alienating, charging or intermeddling with the parcel of and known as Land Reference Number 12715/702 (IR 47972).

(2)This being a family matter each side shall met its own costs.

DATED IN NAIROBI THIS 4TH DAY OF MARCH 2022.

.......................................

MAUREEN A. ODERO

JUDGE