[2022] KEHC 14477 (KLR)
The court found that the evidence presented amounted to the applicant's word against the respondent's, with no conclusive proof on a balance of probabilities that the respondent was responsible for cutting down the tea bushes. Consequently, the applicant failed to meet the threshold for the grant of an injunction as...
Source-derived case information.
- Citation
- [2022] KEHC 14477 (KLR)
- Parties
- Applicant: Evangeline Nkatha Mugambi; Respondent: Morris Mutembei Mugambi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 361 of 2009
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Summons for Injunction and Directions on Estate Administration
- Outcome
- Application for injunction dismissed; orders issued to safeguard estate and restore assets to deceased's name.
- Judges
- TW Cherere
- Legal Topics
- Administration of Estates, Intermeddling With Estate, Injunctive Relief, Revocation of Grant, Estate Distribution, Probate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evangeline Nkatha Mugambi
Applicant
Morris Mutembei Mugambi
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Summons for Injunction and Directions on Estate Administration
Legal Issues
- 1 Whether the respondent intermeddled with the deceased's estate by cutting down tea bushes on LR. Nkuene/uruku/1020.
- 2 Whether the applicant is entitled to an injunction restraining the respondent from entering, selling, or interfering with the estate property pending determination of the suit.
- 3 Whether the administrators have acted contrary to their duties by dealing with the estate before distribution.
Ratio Decidendi
The court found that the evidence presented amounted to the applicant's word against the respondent's, with no conclusive proof on a balance of probabilities that the respondent was responsible for cutting down the tea bushes. Consequently, the applicant failed to meet the threshold for the grant of an injunction as set out in Giella v Cassman Brown. The court further observed that the administrators had failed in their duty to distribute the estate and had instead acted as though they could deal with the estate as they wished. To prevent further wastage and safeguard the estate, the court invoked its inherent jurisdiction to cancel all subdivisions arising from the deceased's assets and...
Court Disposition
Application for injunction dismissed; orders issued to safeguard estate and restore assets to deceased's name.
Orders
- Summons dated 21st April, 2022 is disallowed.
- Any and all subdivisions arising from the deceased's assets in the listed land parcels are cancelled.
Full Case Text
Judgment text and source record
25 paragraphs
In re Estate of Stanley Mugambi Muketha (Deceased) (Succession Cause 361 of 2009) [2022] KEHC 14477 (KLR) (27 October 2022) (Ruling)
Neutral citation: [2022] KEHC 14477 (KLR)
Republic of Kenya
In the High Court at Meru
Succession Cause 361 of 2009
TW Cherere, J
October 27, 2022
IN THE MATTER OF ESTATE OF STANLEY MUGAMBI MUKETHA (DECEASED)
Between
Evangeline Nkatha Mugambi
Applicant
and
Morris Mutembei Mugambi
Respondent
Ruling
Background 1. Letters of administration Intestate were issued on 05th March, 2019 to the parties herein in their capacities as daughter and son to the deceased respectively. To date, the estate has not been distributed. An application for confirmation dated 02nd April, 2019 remains undetermined after Applicant filed a protest on 08th July, 2019.
2. By summons dated 21st April, 2022 supported by Applicant’s affidavit sworn on even date, Applicant accused the Respondent of intermeddling with deceased’s estate comprised in LR. Nkuene/uruku/1020 by way of cutting down tea bushes and seeks an order restraining him from entering, selling or interfering with the said asset until the determination of the suit herein. Annexed to the affidavit are photos of the destroyed tea bushes and an OB by which a complainant was made against the Respondent to Nkubu Police Station on 23rd March, 2022.
3. By his replying affidavit sworn on 07th June, 2022, Respondent denied the Applicant’s claim and contended that Applicant sold a portion of LR. Nkuene/uruku/1021 and engaged surveyors who excised the sold land and a road and boundary which allegations were denied by the Applicant vide her supplementary affidavit sworn on 08th June, 2022.
4. From the parties’ affidavits and annexures thereto and written submissions, it is not disputed that some tea bushes have been cut out. Whereas the Applicant accused Respondent of cutting down the said tea bushes, Respondent on the other hand states that the tea bushes were cut by surveyors instructed by the Applicant to excise a portion of LR. Nkuene/uruku/1021 that she had sold and a road and boundary in respect thereof.
5. Clearly, there evidence on record is the Applicant’s word as against the Respondent’s word. I therefore find that it has not been demonstrated on a balance of probability that it was the Respondent that cut down the tea bushes in issue.
6. Consequently, I find that Applicant has not met the test in Giella vs Cassman Brown [1973] EA 358 and summons dated 21st April, 2022 is therefore disallowed.
7. Finally, it is on record that the estate of the deceased remains undistributed since letters of administration were issued to the administrators herein on 13th March, 2019.
8. It is also apparent that even after the grant dated 15th March, 2013 distributing the estate was revoked by an order dated 05th March, 2019, the Administrators have lived under a mistaken believe that they can deal with the estate of the deceased as they wish instead of distributing it to the rightful heirs.
9. In order to safeguard the estate from wastage, this court hereby invokes its inherent jurisdiction under Rule 73 of the Probate and Administration Rules provides that: - “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” and proceeds to make the following orders:1. Any and all subdivisions that arise from deceased’s assets comprised in L.R.Nkuene/Uruku/863(0. 81HA),L.R.Nkuene/Uruku/1714(0. 63HA),L.R.Nkuene/Uruku/1020(2. 27HA), L.R. Nkuene/Uruku/1711(0. 101HA), L.R. Ngobit/Supuko Block 5 /359 (0. 2813HA), L.R. Ngobit/Supuko Block 5 /339 (0. 9690HA), L.R. Ngobit/Supuko Block 5 /764(7. 583HA), L.R. Ngobit/Supuko Block 5 /764(7. 583HA) be and are hereby cancelled2. L.R.Nkuene/Uruku/863(0. 81HA),L.R.Nkuene/Uruku/1714(0. 63HA),L.R.Nkuene/Uruku/1020(2. 27HA), L.R. Nkuene/Uruku/1711(0. 101HA), L.R. Ngobit/Supuko Block 5 /359 (0. 2813HA), L.R. Ngobit/Supuko Block 5 /339 (0. 9690HA), L.R. Ngobit/Supuko Block 5 /764(7. 583HA), L.R. Ngobit/Supuko Block 5 /764(7. 583HA) shall be restored to the name of the deceased3. Mention on 15th December, 2022 to confirm compliance with orders issued on 29th September, 2021 and to take a date for hearing of the protest filed by the Applicant on 08th July, 2019
DELIVERED AT MERU THIS 27thDAY OF OCTOBER 2022T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiFor Applicant - Mr.Kariuki for Mithega & AdvocatesFor Respondent - Mr. Muthuri for Muthuri & Co. Advocates