[2023] KEHC 25644 (KLR)
The court found that there exists a substantive dispute as to whether the deceased left a valid oral will, who is entitled to apply for the grant of representation, and who the rightful beneficiaries are. In the absence of clear evidence regarding the petitioner's entitlement and in light of the applicants'...
Source-derived case information.
- Citation
- [2023] KEHC 25644 (KLR)
- Parties
- Petitioner: Edwin Kimathi; Applicant: Edith Kendi M’Maingi; Applicant: Naomi Kathure M’Maingi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause E019 of 2022
- Procedural Posture
- Succession Cause / Interlocutory Application (ruling on Preservation Orders and Preliminary Issues)
- Outcome
- Preservation orders granted; confirmation proceedings stayed; preliminary issues to be determined by viva voce evidence; costs in the cause.
- Judges
- TW Cherere
- Legal Topics
- Probate and Administration, Oral Wills, Estate Preservation, Grant of Probate, Beneficiary Identification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin Kimathi
Petitioner
Edith Kendi M’Maingi
Applicant
Naomi Kathure M’Maingi
Applicant
Procedural Posture
Succession Cause / Interlocutory Application (ruling on Preservation Orders and Preliminary Issues)
Legal Issues
- 1 Whether the deceased left a valid oral will.
- 2 Who is entitled to apply for the grant in the estate of the deceased.
- 3 Who are the rightful beneficiaries of the deceased's estate.
Ratio Decidendi
The court found that there exists a substantive dispute as to whether the deceased left a valid oral will, who is entitled to apply for the grant of representation, and who the rightful beneficiaries are. In the absence of clear evidence regarding the petitioner's entitlement and in light of the applicants' objection, the court determined that it is just and necessary to preserve the estate assets pending the hearing and determination of these preliminary issues. The court therefore issued comprehensive preservation orders, including staying confirmation proceedings, inhibiting dealings with immovable property, freezing bank and investment accounts, and prohibiting transactions involving...
Court Disposition
Preservation orders granted; confirmation proceedings stayed; preliminary issues to be determined by viva voce evidence; costs in the cause.
Orders
- Summons for confirmation dated October 19, 2023 are stayed.
- Inhibition order issued restricting dealings with LR Laikipia/Sosiani Sosian Block 2/11xxx and LR Laikipia/Sosiani Sosian Block 2/5xxx or any other immovable asset in the name of the deceased.
Full Case Text
Judgment text and source record
25 paragraphs
In re Estate of Salome Gaki Maingi (Deceased) (Succession Cause E019 of 2022) [2023] KEHC 25644 (KLR) (16 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25644 (KLR)
Republic of Kenya
In the High Court at Meru
Succession Cause E019 of 2022
TW Cherere, J
November 16, 2023
Between
Edwin Kimathi
Petitioner
and
Edith Kendi M’Maingi
1st Applicant
Naomi Kathure M’Maingi
2nd Applicant
Ruling
1. Salome Gakii Maingi (Deceased) died sometimes on August 29, 2022. Petitioner who describes himself as son to the deceased petitioned the court for grant of probate of an oral will and was on March 30, 2023 issued with Grant of Probate.
2. Subsequently by chamber summons dated October 16, 2023, applicants moved the court seeking orders that:1. That service of this application be dispensed with due to the nature of urgency and grant interim orders at 1st instance2. That the court be pleased to allow the petitioner herein to account for the sale of proceeds on parcel No Ntima/Igoki/55 until the case is heard and determined.3. That the court do appoint Edith Kendi M’maingi and Naomi Kathue M’maingi as administrators in this case.4. That the court be pleased to restrain the petitioner herein from planting more fruit trees, coffee on suit land, from taking over the use of the suit land, from cutting trees, selling bananas and fruits, from making new developments or interfering with suit land in any until this application is heard and determined and until this suit is heard and determined5. The court to grant any other orders for ends of justice to be met6. The costs of this application be granted.
3. The application is supported by an affidavit sworn by the 1st Applicant on October 16, 2023 and the grounds on its face the main grounds being that Petitioner is neither a relative nor dependent of the deceased and additionally that deceased did not leave any will.
4. By his replying affidavit sworn on October 27, 2023, Petitioner avers that deceased left an oral will and that Applicants are neither relatives of nor dependents of the deceased. Petitioner does not however explain his relationship with the deceased but avers that he used to take care of her as a result of which she bequeathed her estate to him.
Analysis and determination 5. I have considered the application in the light of the supporting and replying affidavit and it is apparent that there is a dispute concerning whether Deceased made a will, who among the parties should apply for the grant in the estate of the deceased and the identification of the beneficiaries of deceased.
6. The application by the Applicants is in my considered view though muddled up is in the form of an objection and it is only just that the court determines the aforementioned preliminary issues after which the administration of the estate will proceed in the normal manner.
7. Whereas there is no evidence that the Petitioner has disposed off land parcel No Ntima/Igoki/55 which is in the name of M’Maingi Thuranira, I find that it would be in the interest of justice to preserve the estate pending the hearing and determination of the cause.
8. Consequently, the orders that commend to me and which I hereby issue are as follows:1).Pending the hearing and determination of the dispute concerning the right person to apply for the grant in the estate of the deceased, who the heirs of deceased are and whether Deceased left an oral Will, it is hereby ordered:(a).The summons for confirmation dated October 19, 2023 are stayed.(b).An inhibition order is hereby issued restricting any dealings whatsoever with LR Laikipia/Sosiani Sosian Block 2/11xxx (Narok Ranch) and LR Laikipia/Sosiani Sosian Block 2/5xxx (Narok Ranch) or any other immovable asset in the name of the Deceased(c).Freezing order restricting any withdrawal, transfer, assignment or dealing whatsoever with funds held in the following accounts:i.Central Depository settlement (CDS) A/C No xxxii.Absa Bank Kenya PLC A/C No xxxiii.Equity Bank Kenya Limited A/C No xxxiv.Equity Bank Kenya Limited A/C No xxxd.Prohibition order restricting any transfer, sale, assignment or any dealings whatsoever with the following shares:iShares in Meru Central Coffee Co-op Union Limited.iiShares in the Co-operative Bank of Kenya Limited (Share A/C No xxx)iii.Shares in Absa Bank Kenya PLCiv.Shares in Housing Finance Company of Kenya Ltd.vShares in Agricultural & Industrial holdings Limitedvi.Shares in Capital Sacco limitedvii.Shares in United Star Sacco Limitedviii.Shares in Mwendantu Housing Limitede.Prohibition order is issued restricting use, transfer, sale, assignment or any dealings whatsoever with motor vehicle KXC xxx Nissan Datsunf.The preliminary issues identified herein or any other that might arise shall be determined by viva voce evidenceg.Parties are directed to file and serve witness statements and or affidavits with each party having 30 days from today starting with the applicants.h.Mention on January 18, 2024 to confirm compliance with these orders and for further orders and/or directionsi.Costs shall be in the course
DATED AT MERU THIS 16TH DAY OF NOVEMBER 2023WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneFor Applicants - Mrs. Kaume for M.G.Kaume &Co. AdvocatesFor Respondent - Ms. Chai for Mwamunye,Kimathi & Kimani AdvocatesPage 7 of 7