[2020] KEHC 7539 (KLR)
The court held that it lacks the jurisdiction to direct police officers to investigate alleged fraud in succession proceedings, as such matters fall within the mandate of the police and should be pursued through the appropriate channels. The application seeking such orders was therefore misconceived and dismissed....
Source-derived case information.
- Citation
- [2020] KEHC 7539 (KLR)
- Parties
- Petitioner: Estone Nyangori Godfrey Sabuni; Objector: Hellen Nyaboke Sabuni
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2 of 2019
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application
- Outcome
- Application dismissed; restraining orders issued against intermeddling; cause to be gazetted; each party to bear own costs.
- Judges
- EM Muchoki
- Legal Topics
- Probate and Administration, Intermeddling With Estate, Grant of Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Estone Nyangori Godfrey Sabuni
Petitioner
Hellen Nyaboke Sabuni
Objector
Procedural Posture
Succession Cause / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the court can order the DCIO to investigate alleged fraud regarding signatures on Form 38 in a succession cause.
- 2 Whether the applicant and other beneficiaries gave consent to the filing of the succession cause and the validity of signatures on Form 38.
- 3 What remedies are available to prevent intermeddling with the estate pending confirmation of grant.
Ratio Decidendi
The court held that it lacks the jurisdiction to direct police officers to investigate alleged fraud in succession proceedings, as such matters fall within the mandate of the police and should be pursued through the appropriate channels. The application seeking such orders was therefore misconceived and dismissed. However, the court exercised its inherent powers to restrain all parties from intermeddling with the estate pending confirmation of grant, emphasizing that any such acts are offences under the Law of Succession Act. The court further directed that the cause be placed before the Deputy Registrar for gazettement to allow objections as per the law, and ordered each party to bear...
Court Disposition
Application dismissed; restraining orders issued against intermeddling; cause to be gazetted; each party to bear own costs.
Orders
- The application by the objector is dismissed.
- All parties are restrained from intermeddling with the estate of the deceased pending confirmation of grant.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
SUCCESSION NO: 2 OF 2019
IN THE MATTER OF THE ESTATE OF SABUNI MARITA GILBERT (DECEASED)
BETWEEN
ESTONE NYANGORI GODFREY SABUNI......PETITIONER
- VRS -
HELLEN NYABOKE SABUNI................................OBJECTOR
RULING
Before me is the General Summons dated 26th September, 2019 by which Hellen Nyaboke Sabuni, the applicant prays as follows: -
1. “(Spent)
2. THAT this honourable Court be pleased to issue orders against the DCIO BORABU directing him to investigate the claims of fraud concerning the signature of the beneficiaries herein contained in Form 38 and file a report within 30 days.
3. THAT costs of this application be provided for.”
The application is premised on five grounds which can be summarised into one ground vize that the applicant who is the widow of the deceased and the other beneficiaries of the deceased’s estate did not give consent to the petitioner to file this succession cause and so did not append their signatures in form 38 as purported by the petitioner. The applicant contends that granting this application is the only guarantee that this cause shall move forward.
The application is supported by an affidavit sworn by the applicant on 26th September, 2019 in which she reiterates the grounds on the face of the application.
The application was canvassed through written submissions. I have considered the application, the grounds thereof, the supporting and replying affidavits and the rival submissions of counsel for the parties. I am in agreement with counsel for the petitioner/respondent that it is not within the ambit of this court to order or direct police officers to carry out investigations. The applicant rather than filing this application should have been advised to lodge a complaint at the relevant police station and to follow the laid down mechanisms and chain of command should she be aggrieved by the manner her complaint is handled. The application is clearly misconceived as the only guarantee to move the cause is to follow the procedure provided in the Law of Succession Actand the Probate and Administration Rules. In the premises the application is dismissed but having perused the affidavit I find it necessary to, in exercise of the inherent powers vested upon this court under Rule 73 of the Probate & Administration Rules make the following orders: -
1. THAT the parties to this cause be and are hereby restrained whether by themselves or through their agents or proxies or anybody acting on their behalf, from in any manner intermeddling with the estate of the deceased whether by way of sale, gifting or in any other manner disposing the immoveable property of the deceased pending the issue and confirmation of the grant of letters of administration into the estate.
2. THAT the parties/beneficiaries are hereby informed that it is an offence to intermeddle with the estate of the deceased person and further that it is unlawful under Section 55 (1) of the Law of Succession Act to make any division or to dispose any portion of the immoveable property unless and until the grant has been confirmed and that any entity or person purchasing such land also commits an offence and acts at their own risk.
3. THAT this cause shall without delay and at the earliest opportunity be placed before the Deputy Registrar of this court to take the necessary steps to have it gazetted so as to give opportunity to those with objections to raise them as provided in the Act and Rules.
4. THAT given the nature of these proceedings each party shall bear their own costs.
Signed, dated and delivered in Nyamira this 27th day of February, 2020.
E. N. MAINA
JUDGE