[2011] KEHC 4111 (KLR)
The court found that the applicants, as beneficiaries and dependants of the deceased, were not consulted nor did they give their consent prior to the confirmation of the grant and distribution of the estate. This omission contravened mandatory legal requirements under the Law of Succession Act. The evidence showed...
Source-derived case information.
- Citation
- [2011] KEHC 4111 (KLR)
- Parties
- Applicant: Margaret Nyambura Wanjohi; Applicant: Stephen Gathumbi Wanjohi; Applicant: Salome Wangui Wanjohi; Respondent: Teresia Wambui Gitau; Respondent: Joshua Kibe Wanjohi; Respondent: Other Respondents (3 unnamed)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 143 of 1990
- Procedural Posture
- Succession Cause / Interlocutory Application for Injunction and Revocation of Grant
- Outcome
- interlocutory injunction granted; respondents restrained from interfering with estate property pending revocation hearing
- Judges
- LK Kimaru
- Legal Topics
- Probate and Administration, Revocation of Grant, Injunctive Relief, Beneficiaries Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Nyambura Wanjohi
Applicant
Stephen Gathumbi Wanjohi
Applicant
Salome Wangui Wanjohi
Applicant
Teresia Wambui Gitau
Respondent
Joshua Kibe Wanjohi
Respondent
Other Respondents (3 unnamed)
Respondent
Procedural Posture
Succession Cause / Interlocutory Application for Injunction and Revocation of Grant
Legal Issues
- 1 Whether the grant of probate was issued and confirmed without the consent and inclusion of all beneficiaries and dependants of the deceased.
- 2 Whether the respondents should be restrained from interfering with the subject parcels of land pending determination of the revocation application.
Ratio Decidendi
The court found that the applicants, as beneficiaries and dependants of the deceased, were not consulted nor did they give their consent prior to the confirmation of the grant and distribution of the estate. This omission contravened mandatory legal requirements under the Law of Succession Act. The evidence showed that some dependants were excluded from the distribution, and the 2nd respondent registered himself as sole proprietor of estate land contrary to the terms of the will, which required him to hold the property in trust for himself and other beneficiaries. The applicants established a prima facie case warranting injunctive relief. The court therefore restrained the respondents...
Court Disposition
interlocutory injunction granted; respondents restrained from interfering with estate property pending revocation hearing
Orders
- Respondents, jointly and severally, are restrained by injunction from interfering with the character and ownership of Githunguri/Githunguri/444 and the 26 acres at Ngeteti Farmers Company Limited, Gilgil pending hearing and determination of the application for revocation of grant.
- 2nd respondent is prohibited from transferring or otherwise adversely dealing with Githunguri/Githunguri/444 pending hearing and determination of the application for revocation of grant.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
SUCCESSION CAUSE NO.143 OF 1990
IN THE MATTER OF THE ESTATE OF WANJOHI KAMAU KIBE (DECEASED)
MARGARET NYAMBURA WANJOHI
STEPHEN GATHUMBI WANJOHI
SALOME WANGUI WANJOHI.............................................................APPLICANTS
VERSUS
TERESIA WAMBUI GITAU &
4 OTHERS......................................................................................RESPONDENTS
R U L I N G
There are two applications for determination by this court. The first application is dated 9th June 2010. In the said application, the applicants seek to revoke the grant of probate of written will that was issued to the 1st respondent on 7th May 1990. The same had been confirmed on 2nd November 1990. The applicants contend that the said grant was issued without taking into consideration the fact that all the beneficiaries of the deceased had not been provided for. The second application is dated 13th August 2010. In the said application, the applicants seek orders from the court to restrain the respondents by themselves or their agents from cutting or clearing trees in the applicants’ portion of land measuring 5 acres in the parcel of land previously owned by the deceased known as LR.No.Githunguri/Githunguri/444 pending the hearing of the application seeking the revocation of grant of probate. Both applications are opposed by the respondents.
At the hearing of the application, this court heard rival oral submissions made by Mr. Kinuthia for the applicants and by Mr. Muhoro for the 1st respondent. I have carefully considered the said submissions and the pleadings filed by the parties herein in support of their respective opposing positions. It clear from the said submissions that the applicants, who are beneficiaries and dependants of the estate of the deceased, were not consulted before the respondents applied for the grant of probate to be confirmed. It is also apparent that the applicants did not give their consent as mandatorily required by the law before the properties that comprised the estate of the deceased were distributed. Some of the dependants of the deceased were excluded during the distribution of the estate of the deceased. The 2nd respondent, Joshua Kibe Wanjohi registered himself as the sole proprietor of the parcel of land known as Githunguri/Githunguri/444 yet even the will which the respondents relied on to lay claim on the said parcel of land provided that the said Joshua Kibe Wanjohi was to hold the said parcel of land together with another parcel of land measuring 26 acres at Ngeteti Farmers Company Limited, Gilgil in trust for himself and some of the applicants who include Margaret Nyambura Wanjohi, Daniel Ruiru, Jacob Kuria and Isaac Kamau. It is therefore evident that the applicants have a case and indeed have established a prima facie case entitling this court to restrain the respondents from interfering with the subject parcels of land namely, Githunguri/Githunguri/444 and the 26 acres at Ngeteti Farmers Company Limited, Gilgil pending the hearing and determination of the application seeking the revocation of grant for the sole purpose of specifically addressing the question whether all the dependants of the deceased were provided for when the said grant was confirmed.
In the premises therefore, this court holds that the applicants have established a prima facie case. The respondents, both jointly and severally, are hereby restrained by means of an injunction from interfering with the character and ownership of the parcels of land known as Githunguri/Githunguri/444 and the 26 acres at Ngeteti Farmers Company Limited pending the hearing and determination of the application for revocation of grant. In particular, the 2nd respondent is prohibited from transferring or otherwise adversely dealing with the parcel of land known as Githunguri/Githunguri/444 pending the hearing and determination of the application for revocation of grant. The costs of the application shall abide the outcome of the application for revocation of grant. It is so ordered. The parties shall be at liberty to move the court for appropriate directions.
DATED AT NAIROBI THIS 21ST DAY OF JANUARY, 2011
L. KIMARU
JUDGE