[2022] KEHC 13685 (KLR)

In re Estate of Timotheo Karigi Lazarus alias Timotheo Karigi Lazaro Nyaga (Deceased) (Miscellaneous Succession Cause 156 of 2014) [2022] KEHC 13685 (KLR) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13685 (KLR)

Republic of Kenya

In the High Court at Embu

Miscellaneous Succession Cause 156 of 2014

LM Njuguna, J

October 5, 2022

N THE MATTER OF THE ESTATE OF TIMOTHEO KARIGI LAZARUS ALIAS TIMOTHEO KARIGI LAZARO NYAGA (DECEASED) RAHAB WAMWITHI KARIGI....................................APPLICANT (DECEASED) VERSUS STELLA WANYAGA MUNYI...............1ST INTERESTED PARTY/RESPONDENT JULIETTE NJURA MUNYI................2ND INTERESTED PARTY/RESPONDENT JOSPHINE WAWIRA MUNYI............3RD INTERESTED PARTY/RESPONDENT MARTIN MUTURA MUNYI................4TH INTERESTED PARTY/RESPONDENT FAITH IRENE WANJIRU MUNYI.......5TH INTERESTED PARTY/RESPONDENT CHRISTINE WEGANDU MUNYI........6TH INTERESTED PARTY/RESPONDENT ALEXANDER NJERU MUNYI............7TH INTERESTED PARTY/RESPONDENT ROSALYNE WANJUKI MUNYI..........8TH INTERESTED PARTY/RESPONDENT SUSAN WAMITI MUNYI................... 9TH INTERESTED PARTY/RESPONDENT FRANCIS NJAGI MURIUKI.............10TH INTERESTED PARTY/RESPONDENT REGINA MUTHONI KARIGI............11TH INTERESTED PARTY/RESPONDENT

Between

Rahab Wamwithi Karigi (Deceased)

Applicant

and

Stella Wanyaga Munyi

1st Interested Party/Respondent

Juliette Njura Munyi

2nd Interested Party/Respondent

Josphine Wawira Munyi

3rd Interested Party/Respondent

Martin Mutura Munyi

4th Interested Party/Respondent

Faith Irene Wanjiru Munyi

5th Interested Party/Respondent

Christine Wegandu Munyi

6th Interested Party/Respondent

Alexander Njeru Munyi

7th Interested Party/Respondent

Rosalyne Wanjiku Munyi

8th Interested Party/Respondent

Susan Wamiti Munyi

9th Interested Party/Respondent

Francis Njagi Muriuki

10th Interested Party/Respondent

Regina Muthoni Karigi

11th Interested Party/Respondent

Ruling

1. The applicant filed the application dated December 20, 2021 under certificate of urgency and wherein she sought for the following orders:i.spent.ii.that pending the hearing and determination of this application, a temporary injunction be issued against the respondents, their servants and /or agents from invading, trespassing, uprooting, planting or in any way interfering with the crops or performing any acts of wastage or destruction on LR Nos Gaturi/Weru/3638 and Gaturi/ Weru/2541. iii.That pending the hearing and determination of this application, the status quobe maintained being that the applicant be allowed to continue occupying and utilizing the two parcels of land being LR No Gaturi/ Weru/3638 and Gaturi/Weru/2541. iv.that pending the hearing and determination of the main suit, a temporary injunction be issued against the respondents, their servants and/or agents from invading, trespassing, uprooting, planting or in any way interfering with the crops or performing any act of wastage or destruction on LR No Gaturi/Weru/3638 and Gaturi/ Weru/2541. v.that pending the hearing and determination of the main suit, the status quo be maintained being that the applicant be allowed to continue utilizing the two parcels of land being LR No Gaturi/Weru/3638 and Gaturi/Weru/2541. vi.costs of the application be provided for.

2. The application is premised on the grounds that the applicant is an adopted daughter of the deceased and his wife; that since 1965, she has lived and depended on the estate of the deceased and more particularly that she has been occupying land parcel number Gaturi/Weru/3638 and has been utilizing land parcel number 2541. That on October 27, 2021, the respondents and /or their agents entered her house and tore all her clothes into pieces, took one and half bags of maize and eight tins of beans with the sole intention of forcefully evicting her from the said land. That on December 2, 2021, the court directed the respondents to file a fresh petition since the grant issued to the late Fredrick Munyi Timothy was revoked. The applicant has urged the court to issue the orders sought so that she is not rendered homeless.

3. The 1st interested party on her part filed a replying affidavit on her own behalf and that of 2nd to 9th interested parties/ respondents in which she deponed that the application herein is defective and an abuse of the court process. It was her case that the deceased herein was the grandfather to the 2nd – 9th interested parties and herself; father in law to Juliette Njura Munyi who substituted Fredrick Munyi Timothy (deceased). It was deponed that the applicant is not an adopted daughter of the deceased as alleged in that the applicant is a daughter to one Josephine Wanjoka who was a sister to Rahab Wamwitha (deceased). That even if the applicant was adopted as alleged, she can only be a dependant who cannot have rights that are superior to theirs. It was her case that the applicant inherited land from her father, Bedan Njagi and therefore, she should not inherit from the estate herein as that would lead to double benefit. She denied the allegation that the respondents broke into the applicant’s house and stole her properties. She averred that, to the contrary, she is the one who used to take care of their grandparents.

4. She further deponed that, the house in which the applicant lives is not onLR No Gaturi/weru/3638 or what was LR NoGaturi/weru/2541 or any other land previously belonging to the deceased herein contrary to what the applicant has alleged. She averred that the applicant has prevented them from accessingLR No Gaturi/weru/2541, the suit land herein. It was deposed that it is their right to benefit from the estate as the same belongs to their grandfather and their right is superior to that of the applicant. That this court is functus officio and as such, no other application should be entertained and specifically an application for injunction. In the end, it was prayed that the application herein be dismissed as the same has no merit.

5. The 9th interested party/respondent filed an affidavit of reply sworn on April 20, 2022 and wherein he deponed that he is the registered proprietor of LR NoGaturi/weru/2541 which is the subject matter of revocation herein. That he purchased the land from the administrator, one Fredrick Munyi who is the only biological child of the deceased and that the land has since been sub divided into three resultant parcels being LR Nos Gaturi/ Weru/9706, 9707 and 9708. That the applicant and Fredrick Munyi (deceased) approached him with an intention to be assisted with filing a succession cause in court and that Regina Muthoni Karigi was not present and was not involved in the negotiations. It was his case that the deceased never introduced the applicant as a daughter and that Rahab Wamwitha (deceased) gave his son Fredrick Munyi (deceased) the authority to go ahead and sell the land parcel to him to facilitate the filing of a succession cause in court and further, the implementation of the grant.

6. He further deponed that the applicant herein is in a crusade to forcefully reap off the rightful beneficiaries their inheritance. That after carrying out due diligence, he discovered that the applicant herein is a daughter to one Bedan Njagi Nthiga (deceased) and Josphine Wanjoka who is the sister to Rahab Wamwitha (deceased). It was his case that the applicant misled this court into issuing orders restraining him from utilizing his land and further that, if the orders sought herein are granted, he will suffer immense loss. In the end, it was averred that this court is functus officio and as such, the application herein is misplaced.

7. The court has considered the application herein and the responses by the respective parties. This court forms the view that it has been called upon to determine whether the application has merits.

8. Section 47 of the Law of Succession Act vests the court with wide discretion in granting protective powers for 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.”

9. In the same breadth, 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.”

10. My understanding of the above section and rule is that this court is bestowed with wide powers to do what is necessary to ensure that the ends of justice are met. [see Millicent Mbatha Mulavu & another v Annah Ndunge Mulavu & 3 others[2018] eKLR] where the court affirmed the powers of the High Court to issue injunctions for purposes of preserving the estate of a deceased person. It therefore means that, this court has jurisdiction to issue orders including the issuance of protective orders against the wrongful disposal and/or intermeddling with the estate/free property of the deceased. [see section 45 of the LSA].

11. In re Estate of Jeremiah Ngiri Kibati (deceased) [2019] eKLR and Re Estate of Elijah Ngari (deceased) [2019] eKLR, the court in dealing with the issue of issuance of conservatory orders in succession matters cited with approval the decision of the court in Japhet Kaimenyi M’ndatho v M’ndatho M’mbwiria [2012] eKLR noting that an applicant in an application for preservatory orders: -“has to satisfy the following conditions: -a.That the suit property is at the risk of being disposed of or alienated or transferred to the detriment of the applicant unless preservatory orders of inhibition are issued.b.That the refusal to grant orders of inhibition would render the applicant’s suit nugatory.c.That the applicant has arguable case.”

12. Similarly, In the Matter of the estate of Paulo Kiplagat Boiwo (Deceased) (2012) eKLR, the court while affirming that preservatory orders are similar to injunctive orders noted that applicants have to abide by the conditions set out in the celebrated case of Giella v Cassman Brown (1973) E.A 358 namely the applicant must make out a prima faciecase and show that they will suffer irreparable loss which loss cannot be compensated by damages and lastly that the balance of convenience should tilt in their favour where doubt exists.[ also See the Court of Appeal decision in Nguruman Limited v Jane Bonde Nielsen and2 others NRBCA Civil Appeal No 77 of 2012 [2014] eKLR].

13. 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.”

14. It is apparent that 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. The onus of establishing the existence of a prima facie case lies with the applicant.

15. In the instant application, and as noted above, the applicant has an arguable case considering that she is the adopted daughter of the deceased and therefore having an interest in the property of the deceased. Further that, she has deposed that she has been in occupation of land parcel number 3638 and that the respondents have threatened to evict her.

16. On whether the applicant will suffer irreparable injury which cannot be compensated by damages unless injunction is granted, consideration should be had on the implication of the respondent’s actions.

17. In the Nguruman case (supra), the court stated as follows;“On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima facie, the nature and extent of the injury.Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”

18. The applicant in her supporting affidavit has further indicated that she lives with her children in the suit property, and has been cultivating the land since 1984. That she stands to suffer irreparably should this court not issue the said orders, in that, they are likely to be evicted from the said land and lose all that she has worked for all those years. [see In re Estate of Kaleb Mwangi Hezekiah Muchoki (Deceased) [2021] eKLR]. In that regard, if the applicant were to be evicted together with her children, in my view, they cannot be compensated for the loss if the suit eventually succeeds and the property ends up being transferred to third parties.

19. Regarding balance of convenience, this court has to ask itself which party will suffer greater harm if the court grants the orders sought herein pending the hearing and determination of the succession cause. In the case of Paul Gitonga Wanjau v Gathuthis Tea Factor Company Ltd & 2 others (2016) eKLR, the court dealing with the issue on balance of convenience expressed itself thus:-“Where any doubt exists as to the applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which injury the applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance on convenience lies."

20. In the end, I agree with the applicant that she stands to suffer greatly if the orders herein sought are not granted and as such, the balance of convenience tilts in her favour. [also see In re Estate of Gideon Kibitok Tarus (Deceased) [2021] eKLR].

21. Consequently, to meet the ends of justice, it is imperative and indeed merited that the orders as sought by the applicant are granted. In the end, the following orders are issued;i.A temporary injunction restraining the respondents, their servants and/or agents from invading, trespassing, uprooting, planting or in any way interfering with the crops or performing any acts of wastage or destruction on LR No Gaturi/Weru/3638 and Gaturi/Weru/2541 pending the hearing and determination of this succession cause in order to protect and preserve the estate of the deceased.ii.That pending the hearing and determination of the succession cause, the status quo be maintained being that the applicant be allowed to continue utilizing the two parcels of land being LR No Gaturi/Weru/3638 and Gaturi/Weru/ 2541. iii.Each party to bear its own costs of the application.

22. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 5TH DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE....................for the Applicant............for the Interested Parties