[2023] KEHC 24987 (KLR)

In re Estate of Teresia Gathoni Mungai (Deceased) (Succession Cause 2275 of 1994) [2023] KEHC 24987 (KLR) (Family) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24987 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2275 of 1994

MA Odero, J

November 3, 2023

IN THE MATTER OF THE ESTATE OF TERESIA GATHONI MUNGAI (DECEASED)

Between

John Njenga Mwaura

1st Applicant

Samuel Njenga Gacheni

2nd Applicant

Peter Kimuyu Njonjo

3rd Applicant

Esther Wanjiku Chege

4th Applicant

and

John Njogu Kimani

1st Respondent

James Mungai

2nd Respondent

Sophia Wairimu

3rd Respondent

Mary Njeri Mungai

4th Respondent

Louis Njonjo Mungai

5th Respondent

Ruling

1. Before this Court for determination is the Chamber Summons dated 16th December 2022 by which the Applicant seeks the following orders:-“1. Spent.2. That an order of permanent injunction do and is hereby issued to restrain the Respondents by themselves, their agents, servants, employees or anyone under their instruction or authority from entering, trespassing, taking possession of, destroying crops and structures, farming, selling, transferring, assigning, developing, or in any manner whatsoever dealing with the property of the Applicants being 0. 4816 Ha each of the property of the Deceased known as LR No. 1556/65 Naivasha and the Officer Commanding Naivasha Police Station to supervise and ensure compliance.3. That this Honourable Court be pleased to issue an Order directing the Administrators of the Estate of the Late Teresia Gathoni Mungai to complete the administration of the Estate and sign the transmission forms in favour of the Applicants within the next 21 days, failure to which the Deputy Registrar of this Honourable Court be directed to sign the transmission forms in place of the Administrators.4. That costs of this application be provided.

2. The Application is premised upon Sections 45 of the Law of Succession Act, Rule 49 of the Probate and Administration Rules, Section 1A, 1B and 3A of the Civil Procedure Act, Order 40 Rule 1 (a) (b) and 4 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law and is supported by the Affidavit of even date sworn by Peter Kimuyu Njonjo.

3. The Respondents opposed the application through the Replying Affidavit dated 14th March, 2023 sworn by the 1st Respondent John Njogu Kimani.

4. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated 8th May 2023 whilst the Respondent relied upon their written submissions dated 9th May 2023.

BACKGROUND 5. This Succession Cause relates to the estate of the late Teresia Gathoni Mungai (hereinafter ‘the Deceased’) who died intestate on 21st September 1993.

6. A copy of the Death Certificate serial No. 383917 is annexed to the Petition for Grant of letters of Administration Intestate dated 7th November 1994.

7. The Deceased is said to have been survived by the following persons:-i)Sophie Wairimu - daughterii)Louis Njonjo Mungai - soniii)Mary Njeri Mungai - Daughteriv)John Njenga Mwaura - purchaserv)Samuel Njenga Gachemi - purchaservi)Peter Kimunyu Njonjo - purchaservii)Esther Wanjiku Chege - purchaser

8. The estate of the Deceased comprised the following assets:-a.Land Reference No.1556/65 Naivasha;b.Kabete/Lower/Kabete/831;c.Kenya Post Office Saving Bank Account No. KLW 5090;d.Kiambu Dairy & Pyrethrum Farmers Co-operative Union Ltd;e.Kenya Commercial Bank Ltd Kikuyu;f.Savings Account No. 100-157-444.

9. Following the demise of the Deceased Grant of letters of Administration was on 26th January 1995 issued to Mary Njeri Mungai, John Njenga Mwaura, Esther Wanjiku Chege And Louis Njonjo Mungai. The Grant was duly confirmed on 3rd October 1997. In the confirmed Grant the Property Known as LR No. 1556/65 Naivasha (hereinafter ‘the suit property’) was to be distributed as follows:- Mary Njeri Mungai - 0. 4816 Hectares

Samuel Njenga Gachemi - 0. 8094 Hectares

John Njenga Mwaura - 0. 8094 Hectares

Peter Kimuyu Mwaura - 0. 8094 Hectares

Esther Wanjiku Chege - 0. 8094 Hectares

10. The Applicants state that the suit land is farm land and they purchased their portions from the Deceased during her life time. That the Applicants have developed the suit property, put up houses and have farmed on their respective portions for over twenty (20) years.

11. It is stated that the 1st Respondent and the Deceased were owners in common of the suit property. That the 2nd Respondent is a grandson of the Deceased whilst the 3rd Respondent is the daughter of the Deceased.

12. The Applicants allege that the Respondents have now joined hands in an effort to evict the applicants from the suit land. That the Respondents have been showing the land to prospective buyers.

13. The Applicants state that they are yet to be issued with Title Deeds because the Administrators have declined and/or neglected to sign the requisite transmission forms despite the mode of distribution set out in the confirmed Grant dated 3rd October 1997.

14. The Applicants allege that the Respondents have cunningly obtained a new title to the suit property all in in attempt to defeat the Applicants rights to said land.

15. The Applicants state that they are apprehensive that unless restrained by way of an injunction the Respondents will move to evict them and/or interfere with their peaceful enjoyment of the suit land. Hence the present application.

16. The Respondents in reply confirm that the 1st Respondent was a Co-owner of the suit land owning 54% of the property. It is conceded that the Deceased sold her 46% share in the property to the Applicants herein.

17. The 1st Respondent avers that sometime in October 2018 the 2nd Respondent informed him that the original Title Document to the suit land had been misplaced. That they made a report at Kikuyu Police Station. However, the Respondents deny the claim by the Applicants that they have secured a replacement title for the suit land.

18. The Respondents deny interfering with the Applicants occupation of the suit land and deny any intention to evict them therefrom. Instead the Respondents allege that it is the Applicants who have been encroaching on their portion of the land and have removed and destroyed beacons. The Respondents pray that the Applicants be ordered to produce the original Title to the suit land and be ordered to restore the beacons.

Analysis and Determination 19. I have carefully considered the application before this court, the Reply filed thereto as well as the written submissions filed by both parties.

20. The Applicants have prayed that a permanent injunction issue to restrain the Respondent from dealing with the property known as LR No. 1556/65 Naivasha.

21. A permanent injunction is ordinarily an order requiring a party to do or to cease from a specific act and such order is normally given as a final order upon conclusion of hearing. As a general rule court do not issue permanent injunctions at the interlocutory stage.

22. In Kenya Power & Lighting Company Limited -vs- Sheriff Molana Habib [2018 eKLR, the court stated that:-“… A permanent injunction which is also known as a perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the defendant in order for the rights of the Plaintiff to be protected. A permanent injunction is different from a temporary/interim injunction since a temporary injunction is only meant to be in force for a specified time or until the issuance of a further orders from the court. Interim injunctions are normally meant to protect the subject matter of the suit as the court hears the parties….”

23. This suit has no been heard inter parties and in the circumstances it would be premature to issue a permanent injunction. I do believe that what the Applicants are actually seeking is interim injunction pending distribution of the estate.

24. The Grounds upon which an interim injunction can be granted were set out in the oft cited case of Giella – vs- Casman Brown [1973] EA. As follows:-“1)The Applicant must show a prima facie case with a probability of success.2)The Applicant must demonstrate that he/she is likely to suffer irreparable harm if the injunction sought is not issued.3)That damages would not be adequate compensation.4)If in doubt the court will decide the matter on a balance of convenience.”

25. The Applicants herein are all parties to this Succession Cause. John Njenga Mwaura (the 1st Applicant) and Esther Wanjiku Chege (the 4th Applicant) are appointed by the court as Administrators of the estate of the Deceased vide the Grant issued on 3rd October, 1997.

26. Samuel Njenga (the 2nd Applicant) and Peter Kimuyu Njonjo (the 3rd Applicants) are both beneficiaries of the estate in terms of the confirmed Grant dated 3rd October 1997. The Applicants have therefore established a prima facie case.

27. I note that the Grant herein was confirmed way back in October 1997. To date the estate has not been distributed. The Applicants have not yet secured Title Documents for the portions of land which were allocated to them in the confirmed Grant.

28. Section 47 of the Law of Succession Act vests court with wide discretion in granting protective powers of purposes of safeguarding the estate of a deceased person. It 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.”

29. Likewise, 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 the justice or to prevent abuse of the process of the court.”

30. This is a Probate Court and the duty of the Probate Court is to ensure that the estate of the Deceased is distributed to the genuine beneficiaries. It is my view that the Administrators have been lax in carrying out their duties. Why has the estate not been distributed twenty-six (26) years after the Grant was confirmed.

31. Finally, I find merit in this application and I hereby issue the following orders:-(1)An interim injunction be and is hereby issued to restrain the Respondents by themselves their agents, employees or any other person acting under their instructions from trespassing selling transferring, charging or in any other manner whatsoever interfering with the land being portions of LR No. Naivasha/1556/65 allocated to the Applicants under the terms of the Certificate of Confirmed Grant dated 3rd October, 1997 pending final distribution of the estate.(2)The Administrators to conclude distribution of the estate by signing all requisite transfer Document to transmit the various parcels of lands to the beneficiaries within Sixty (60) days.(3)In the event the Administrators fail to comply with (2) above then the Hon. Deputy Registrar is authorized to sign the requisite forms on behalf of the Administrators.(4)Each party to meet is own costs.

DATED IN NAIROBI THIS 3RD DAY OF NOVEMBER, 2023. …………………………………..MAUREEN A. ODEROJUDGE