[2021] KEHC 4784 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

Coram: Hon. D. K. Kemei - J

SUCCESION CAUSE NO. 144 OF 1998

IN THE MATTER OF THE ESTATE OF STEPHEN SAITIEU KALOI (DECEASED)

ANGELLA SYOKWAA JACOB....................1ST OBJECTOR/APPLICANT

JAMES KALOI SAITIEU...............................2ND OBJECTOR/APPLICANT

BERNADETTE NKUNCHE SAITIEU..............3RD OBJECTOR/APPLICANT

JENNIFER WAIRIMU SAITIEU.....................4TH OBJECTOR/APPLICANT

CHRISTINE PERERUAN SAITIEU................5TH OBJECTOR/APPLICANT

FLORENCE SELEMA SAITIEU.....................6TH OBJECTOR/APPLICANT

LILIAN SOTIAN SAITIEU............................7TH OBJECTOR/APPLICANT

VERSUS

REBECCA NDINDA

STEPHEN SAITIEU KALOI.............1ST ADMINISTRATOR/RESPONDENT

JEREMIAH KALOI SAITIEU..........2ND ADMINISTRATOR/RESPONDENT

RULING

1. In an application brought by way of a Notice of Motion dated 25th February, 2021 and filed pursuant to section 1A and 3A of the Civil Procedure Act and section45, 47, 72(a) and Rules 7 (1), 49, 64 and 73 of the Probate and Administration Rules of the Law of Succession Act and all enabling provisions of the law. The Applicants seeking the following orders: -

a) Spent.

b) THAT pending the hearing and determination of this application this Honourable court be and is hereby pleased to issue conservatory orders in respect of the estate of the deceased conserving the following parcels of land:

i. Certificate of Title No. IR.64598 registered as Land Reference No. 19150/223 as delineated on survey plan No. 189325 measuring 0. 0226Ha.

ii. Certificate of Title No. IR.52844 registered as Land Reference No. 14757/5 as delineated on survey plan No. 155148 measuring 17. 37 Ha situated in Mavoko.

iii. Certificate of Title No. IR.48450 registered as Land Reference No. 14757 as delineated on survey plan No.139380 measuring 69. 9Ha situated in Athi River.

iv. Certificate of Title No. IR.64240 registered as Land Reference No 19150/3 as delineated on survey plan No. 189089 measuring 0. 2273Ha situated in Mavoko Municipality.

v. Certificate of Title No. IR.52843 registered as Land Reference No. 1475/4 as delineated on survey plan No. 155147 measuring 16. 51Ha situated in Athi River town.

c) THAT pending hearing and determination of this application this Honourable court be and is hereby pleased to order that all rental income collected from the estate of the deceased be henceforth be deposited in court and or a joint interest earning account.

d) THAT pending the hearing and determination of this application this Honourable court be and is hereby pleased to issue an order for temporary injunction restraining the Administrators/Respondents whether by themselves or acting through their children , agents, servants, employees, third parties or any other person acting under their authority restraining them from sub-dividing, selling, developing, transferring or registering any transfer arising from the estate of the deceased regarding the following parcels of land;

i. Certificate of Title No. IR.64598 registered as Land Reference No. 19150/223 as delineated on survey plan No. 189325 measuring 0. 0226Ha.

ii. Certificate of Title No. IR.52844 registered as Land Reference No. 14757/5 as delineated on survey plan No. 155148 measuring 17. 37 Ha situated in Mavoko.

iii. Certificate of Title No. IR.48450 registered as Land Reference No. 14757 as delineated on survey plan No.139380 measuring 69. 9Ha situated in Athi River.

iv. Certificate of Title No. IR.64240 registered as Land Reference No 19150/3 as delineated on survey plan No. 189089 measuring 0. 2273Ha situated in Mavoko Municipality.

v. Certificate of Title No. IR.52843 registered as Land Reference No. 1475/4 as delineated on survey plan No. 155147 measuring 16. 51Ha situated in Athi River town.

e) THAT upon hearing and determination of this application this Honourable court be and is hereby pleased to issue conservatory orders in respect of the estate of the deceased conserving the following parcels of land until summons for revocation of grant dated 25th February, 2021 is heard and determined;

i. Certificate of Title No. IR.64598 registered as Land Reference No. 19150/223 as delineated on survey plan No. 189325 measuring 0. 0226Ha.

ii. Certificate of Title No. IR.52844 registered as Land Reference No. 14757/5 as delineated on survey plan No. 155148 measuring 17. 37 Ha situated in Mavoko.

iii. Certificate of Title No. IR.48450 registered as Land Reference No. 14757 as delineated on survey plan No.139380 measuring 69. 9Ha situated in Athi River.

iv. Certificate of Title No. IR.64240 registered as Land Reference No 19150/3 as delineated on survey plan No. 189089 measuring 0. 2273Ha situated in Mavoko Municipality.

v. Certificate of Title No. IR.52843 registered as Land Reference No. 1475/4 as delineated on survey plan No. 155147 measuring 16. 51Ha situated in Athi River town.

f) THAT upon hearing and determination of this application this Honourable court be and is hereby pleased to issue and order for temporary injunction restraining the Administrators/Respondents whether by themselves or acting through their children , agents, servants, employees, third parties or any other person acting under their authority restraining them from sub-dividing, selling, developing, transferring or registering any transfer arising from the estate of the deceased regarding the following parcels of land until summons for revocation of grant dated 25th February, 2021 is heard and determined;

i. Certificate of Title No. IR.64598 registered as Land Reference No. 19150/223 as delineated on survey plan No. 189325 measuring 0. 0226Ha.

ii. Certificate of Title No. IR.52844 registered as Land Reference No. 14757/5 as delineated on survey plan No. 155148 measuring 17. 37 Ha situated in Mavoko.

iii. Certificate of Title No. IR.48450 registered as Land Reference No. 14757 as delineated on survey plan No.139380 measuring 69. 9Ha situated in Athi River.

iv. Certificate of Title No. IR.64240 registered as Land Reference No 19150/3 as delineated on survey plan No. 189089 measuring 0. 2273Ha situated in Mavoko Municipality.

v. Certificate of Title No. IR.52843 registered as Land Reference No. 1475/4 as delineated on survey plan No. 155147 measuring 16. 51Ha situated in Athi River town.

g) THATthe OCS Mavoko Police Station be ordered to safeguard and enforce the orders of this Honourable court.

h) THATthe costs of this application be paid by the Respondents.

2. The applicants swore two affidavits in support of the application dated 25th February, 2021 and further affidavit dated 8th April, 2021. The applicants case inter alia is that the respondents obtained letters of grant fraudulently as they did not secure the applicants consents and further that the respondents did not distribute the estate to the beneficiaries despite confirming the grant in the year 2000. It is further the applicants case that the respondents have been disposing the assets to third parties which is likely to seriously prejudice the beneficiaries. The applicants now seek conservatory orders to preserve the estate from further wastage and alienation.

3. The application was opposed by the Respondents who swore a replying affidavit dated 10th March, 2021 and a further affidavit dated 28th June, 2021. In a nutshell, their response is that they have not been intermeddling with the estate of the deceased, neither have they been selling portions of the properties as alleged to the detriment of the applicants. They averred that after the demise of the deceased the elders of the family called members of the three families and according to the Maasai customary law they distributed to the families the herds of cows, goats and sheep equally and that they further agreed on who was to be the administrators to which the applicants never objected.

4. It was averred further by the Respondents that they were appointed to be the two Administrators because the families had minors and that the advocates for the family then informed them that the law stipulated it had to be two Administrators. At the process for petitioning for the letters of administration the 5th, 6th and 7th Applicants did not sign the letter of no objection because they had not attained the age of 18 years and also the children of the 3rd family had not attained the age of 18 years.

5. The Respondents averred that with regard to the sale agreement, the same was for purposes of sourcing funds to follow up and claim back the properties and that the Applicants were given Kshs. 50,000/= in the presence of their uncles but that the purchasers failed to pay but which lapsed as it could not be enforced.

6. It was further averred by the respondents that the deceased had taken a loan from KCB Bank Machakos Branch with L.R No.14757/5as security and ICDC Nairobi against the title for L.R No. 14757/4 which they were not aware of at the time of petitioning for letters of administration. On confirmation of grant, the Administrators averred that they were assisted by David Holley to facilitate the loan at KCB Bank and ICDC in exchange for the respective titles to be released to him through his Advocates A.F. Gross.

7. The Respondent further averred that there arose other creditors who claimed the deceased had sold acres of his land to them but had not transferred to them prior to his demise. They also averred that there are other relatives who have been claiming that they had given the deceased 20 cows and were to be transferred a portion of 10 acres by the deceased.

8. It was averred further that in settling the claim by David Holly, the Respondents had to sub-divide the property known as L.R No. 14757/5 in order to excise 10 acres for him and due to lack of money to facilitate the expenses they had to sell a portion of another 10 acres to pay the claim by another creditor Seline Pohland at the sum of Kshs. 3,000,000/=. They further sub-divided the reminder of L.R No. 14757/5 into portions.

9. It was contended that all the developments by the 2nd Respondents was from the proceeds of the sale of the portion of the 10 acres and has advanced the Applicants in 2018 with maintenance which can be accounted for.

10. Directions were taken on 12th March, 2021that the application be canvassed by way of written submissions. The applicants’ submissions are dated 8/4/2021 while those of the Respondents are dated 28/6/2021.

11. Counsel for the Applicants filed their submissions dated 8th April, 2021. Counsel submitted that, the Respondents have not given a reason why the estate of the deceased has never been distributed to the beneficiaries and this clearly is incriminating evidence adduced by the Applicants and reinforced by the Respondents demonstrating the nature and gravity of intermeddling with the estate of the deceased. Counsel further submitted that the Respondents’ conduct in fraudulently selling and/or gifting over 195 acres of the deceased estates to strangers and criminal associates has prejudiced the applicants and hence the need for conservatory orders to protect the estate of the deceased.

12. Counsel submitted that they have established a prima facie case to warrant issuance of the injunctive relief and that if the orders sought are not granted the Applicants will not only be disinherited but the estate will be fraudulently wasted.

13. Counsel for the Respondents submitted that, the Applicants reside on a portion of parcel of land which is part of L.R. No. 14757/5 which the Respondents sub-divided in order to account for the estate and mode of its distribution and this was done in good faith.

14. Counsel further submitted that the order with respect to IR No. 48450registered as L.R No. 14757 cannot be granted because the court cannot grant orders as the property does not exist.

15. Counsel submitted that the order to deposit rental income of unknown property and the amount of rent collected will not suffice as the properties whose rentals are sought are not mentioned and that there is no single evidence of rent collected by the Respondents.

16. Counsel further submitted that they have not yet distributed the estate and it had been agreed that sub-division of the remainder of the estate be done for purposes of distribution. Counsel contended that they have been providing for the Applicants and urges this Honourable court to dismiss the entire application.

17. Having looked at the application, the replying affidavit, the further affidavits by both parties, the submissions, the authorities cited therein as well as the entire record, it is my considered view that the issue for determination is whether the orders sought herein are merited.

18. It is noted that the grant herein has already been confirmed. However, it is noted that an application for revocation of grant dated 25/2/2021 is pending in court for determination.

19. In this regard, it is noted that the application has been brought pursuant to section47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. Section47 of the Law of Succession Act provides: -

“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.

Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.”

On the other hand, Rule 73 of the Probate and Administration Rules provides 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.”

20. The two provisions clothe the High Court with wide discretion to do what is necessary to ensure that the ends of justice are met. In Millicent Mbatha Mulavu & another v Annah Ndunge Mulavu & 3 others [2018] eKLR the court affirmed that the two provisions grant the High Court powers to issue protective measures including injunctions for purposes of preserving the estate of a deceased person.

21. I consider the decision in Floris Piezzo & Another –vs- Giancarlo Falasconi (2014) eKLR, where the Court of Appeal while considering whether an injunction can issue in a Succession Cause expressed itself as follows:

“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 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.”

22. The upshot of the foregoing is that the High Court has jurisdiction to issue all manner of orders including the issuance of conservatory and or injunctive orders where appropriate, to preserve and safeguard the estate of a deceased person. Indeed, it is common ground that for an injunction to be issued, the applicant must satisfy the three requirements settled in Giella v Cassman Brown [1973] EA 358 where the court held that an applicant must demonstrate that they have a prima facie case with a probability of success, demonstrate irreparable injury which cannot be compensated by an award of damages if a temporary injunction is not granted, and if the court is in doubt to show that the balance of convenience is in their favour.

23. In Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB CA Civil Appeal No. 77 of 2012 [2014] eKLR the Court of Appeal reiterated the three conditions to be fulfilled before an interim injunction is granted as set out in Giella v Cassman Brown (Supra) and further clarified that the conditions are to be applied as separate, distinct and logical hurdles which an applicant is expected to surmount sequentially. Consequently, if the applicant does not establish a prima facie case then irreparable injury and balance of convenience do not require consideration. On the other hand, if a prima facie case is established, then the court will consider the other conditions.

24. What constitutes a prima facie case? The Court of Appeal in Mrao Ltd v First American Bank of Kenya Limited and 2 Others [2003] eKLR explained that it is,

“A case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.”

25. It is apparent then that a prima facie case is therefore one that is not frivolous but one which is easily discernable from the pleadings even before the party is heard as it will show a right exists which may be infringed if an injunction is not issued and the onus of establishing the existence of a prima facie case lies with the applicant.

26. In the instant application, the applicants’ main complaint is that the Respondents are intermeddling with the estate of the deceased by sub-dividing and selling portions therefrom to their detriment. According to them, the Respondents obtained letters of administration on 22/6/1999 and subsequently confirmed on 17/7/2000 without the knowledge, participation or consent of the Applicants. They further averred that the Respondents despite the existence of a trust as created in the certificate for confirmation of grant, the Applicants have recently learnt from third parties who came to claim land from them that the Respondents have acted in violation of the trust by secretly and fraudulently sub-dividing portions of the estate of the deceased and selling the same to third parties. That unless the court issues an injunction, the Respondent will proceed to secretly sub-divide and sell portions of the estate of the deceased to their prejudice.

27. In addition, the Applicants produced documents marked as ASJ1A, ASJ1B and ASJ1C that shows according to them that the Respondents obtained letters of administration and subsequently confirmed them without their knowledge, consent nor participation.

28. The persons who qualify to apply for administration in intestacy are set out in section66, which gives an order of priority to guide the court in exercising discretion in the matter of appointment of administrators. The provision states as follows: “66. Preference to be given to certain persons to administer where deceased died intestate:

“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—

(a) surviving spouse or spouses, with or without association of other beneficiaries;

(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

(c) the Public Trustee; and

(d) creditors: Provided that, where there is partial intestacy, letters of administration in respect.”

29. According to that provision, the court ought to be guided by Part V of the Act, which settles the order of priority in entitlement to a share in the estate of the deceased. Priority is given to the surviving spouse, followed by the children of the deceased, followed by parents of the deceased in the event that the deceased was not survived by a spouse or child, other relatives follow thereafter.

30. On the issue of consent, from the court records a letter stipulating the consent of the respective Applicants dated 14th July 2000 indicate that there was no fraud as they didn’t have any objections on the grant of the certificate of confirmation of grant to the Administrators/Respondents.

31. On the aspect of intermeddling with the estate of the deceased by sub-dividing and selling portions, upon a grant being made, it vests the estate of the deceased in the grant holder, so that they wear the shoes of the deceased property owner, with the powers to deal with the property in the manner stated in section82 of the Law of Succession Act, and they are under the duties specified in section 83 of the Law of Succession Act. As a personal representative is also defined as a trustee by the Trustee Act, Cap 167, Laws of Kenya, they have the same powers and are subject to the same duties as specified in the provisions of the Trustee Act. Since the assets vest in them, they have the power to sue and be sued over the assets, to enter into contracts with respect to them whether by way of sale or of lease, among others. Any other person apart from the administrator, has no such powers. For avoidance of doubt, sections 82 and 83 state as follows:

“82. Powers of personal representatives

Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers—

(a) to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;

(b) to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best: Provided that—

(i) any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and

(ii) no immovable property shall be sold before confirmation of the grant;

(c) to assent, at any time after confirmation of the grant, to the vesting of a specific legacy in the legatee thereof;

(d) to appropriate, at any time after confirmation of the grant, any of the assets vested in them in the actual condition or state of investment thereof at the time of appropriation in or towards satisfaction of any legacy bequeathed by the deceased or any other interest or share in his estate, whether or not the subject of a continuing trust, as to them may seem just and reasonable to them according to the respective rights of the persons interested in the estate of the deceased, and for that purpose to ascertain and fix (with the assistance of a duly qualified valuer, where necessary) the value of the respective assets and liabilities of such estate, and to make any transfer which may be requisite for giving effect to such appropriation:

Provided that except so far as otherwise expressly provided by any will—

(i) no appropriation shall be made so as to affect adversely any specific legacy;

(ii) no appropriation shall be made for the benefit of a person absolutely and beneficially entitled in possession without his consent, nor for the purpose of a continuing trust without the consent of either the trustees thereof (not being the personal representatives themselves) or the person for the time being entitled to the income thereof, unless the person whose consent is so required is a minor or of unsound mind, in which case consent on his behalf by his parent or guardian (if any) or by the manager of his estate (if any) or by the court shall be required.”

and

“83. Duties of personal representatives

Personal representatives shall have the following duties—

(a) to provide and pay out of the estate of the deceased, the expenses of a reasonable funeral for him;

(b) to get in all free property of the deceased, including debts owing to him and moneys payable to his personal representatives by reason of his death;

(c) to pay, out of the estate of the deceased, all expenses of obtaining their grant of representation, and all other reasonable expenses of administration (including estate duty, if any);

(d) to ascertain and pay, out of the estate of the deceased, all his debts; (e) within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;

(f) subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be;

(g) within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration;

(h) to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;

(i) to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.”

32. The deceased herein died in 1997 and the sub-division and sale of the portions of land sale transaction occurred after his death. All this time the Respondents have been administrators of the estate of the deceased and still are. The assets of the estate did vest in them by virtue of section 79 of the Act, and they did have the powers vested by section 82 of the Act. The transaction, therefore, fell within the ambit of section 45 of the Act.

33. In Re Estate of Simon Kimendero (Deceased) [2020] eKLR, the court noted that of specific significance to preservatory order in respect of estate property is that: -

a. The applicant has an arguable case;

b. The property is estate property; and

c. The property is likely to be dissipated or wasted away.

34. In the instant application and as noted above, prima facie, the Applicants have no arguable case, but it is essential to note that the Respondents were not aware of most of the liabilities the estate bore on application of the application for confirmation of grant. Further, as the respondents have a confirmed grant, sections 82 and 83 of the Law of Succession Act empowers them to dealt with the estate in the best way possible for the benefit of the beneficiaries. Already, there are claims that some of the assets have been sold off to third parties and in which the respondents have rendered an explanation thereof though brushed off by the applicants. As there is evidence that there are third parties who are yet to be enjoined, I find the request for an order of injunction is not merited at this stage as the said parties will have been condemned unheard. The issue could still be canvassed during the hearing of the pending summons for revocation of grant. The only viable order that could be issued at this stage will be an order of status quo pending the determination of the summons for revocation of grant as sought vide prayer No. 5 of the present application.

35. It is my considered view that the applicants have not satisfied the principles for granting injunctions as set out in the celebrated case of Giella v Cassman Brown & Co. Ltd 1973 (Supra). In considering the pleadings, there does exist a serious issue to be looked into, one that forms the subject matter of this suit and in preserving it, would only culminate in meeting the ends of justice as sought by the parties. The Applicants seek an injunction against the Respondents so as to preserve the property of the deceased pending the hearing and determination of the summons for revocation. As noted above, a prima facie case has not been made by the applicants to warrant the grant of an order of an injunction pending determination of the summons for revocation. It transpired that some of the applicants herein were minors at the time the grant was issued and confirmed and hence the lack of consent from them did not prejudice them as they were being represented by their respective households. Again, the respondents being administrators serve for the benefit of the beneficiaries and that they are liable to be called upon by them and the court to render accounts as and when called for and also to indemnify the estate in the event of loss or damage. Hence, the applicants’ concerns will be taken care of. I find the only relief available to the applicants is an order for status quo for the purposes of preserving the estate pending determination of the summons for revocation of grant.

36. After analyzing the prayers sought in the application, I find that prayers number 1, 2, 3and4are already spent leaving only prayers5, 6 and 7. As noted above, prayer5 seeking conservatory orders of preservation of the assets of the deceased is merited. Prayer 6 on injunction is not merited. Prayer 7 wherein the OCS Mavoko police station is required to enforce the orders is not merited because an order of status quo does not require enforcement thereof by the police.

37. In the result, it is my finding that the application dated 25/2/2021 only succeeds to the extent that an order of status quo regarding the assets of the deceased as disclosed shall be maintained pending determination of the summons for revocation of grant in terms of prayer No. 5 and that the other prayers stand dismissed. The parties should now set down the summons for revocation of grant dated 25/2/2021 for hearing on priority basis. Each party to meet their own costs.

It is so ordered.

DATED AND DELIVERED AT MACHAKOS THIS 29TH DAY OF JULY, 2021.

D. K. Kemei

Judge