[2014] KEHC 7828 (KLR)
The court found that a fence had been erected blocking the applicant's driveway, which was not done in furtherance of the confirmed grant's terms, as the certificate had not yet been collected. The respondents denied responsibility, but the court held that, as the estate vests in the administrator, the duty to...
Source-derived case information.
- Citation
- [2014] KEHC 7828 (KLR)
- Parties
- Applicant: [Name not provided]; Respondent: [Name not provided]
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 629 of 1993
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application for Removal of Fence
- Outcome
- Application allowed in part; order for removal of fence granted; no order as to costs.
- Judges
- DN Musyoka
- Legal Topics
- Administration of Estates, Confirmation of Grant, Distribution of Estate, Right of Access, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
[Name not provided]
Applicant
[Name not provided]
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application for Removal of Fence
Legal Issues
- 1 Whether the erection of a fence across the applicant's driveway was lawful and justified.
- 2 Whether the applicant is entitled to removal of the fence and restoration of access.
- 3 Whether the administrator of the estate is responsible for ensuring unobstructed access pending distribution.
Ratio Decidendi
The court found that a fence had been erected blocking the applicant's driveway, which was not done in furtherance of the confirmed grant's terms, as the certificate had not yet been collected. The respondents denied responsibility, but the court held that, as the estate vests in the administrator, the duty to remove the fence falls on the administrator. The court emphasized the need to maintain the status quo to facilitate the ongoing distribution of the estate and ordered the removal of the fence within 24 hours, with no order as to costs.
Court Disposition
Application allowed in part; order for removal of fence granted; no order as to costs.
Orders
- The administrator of the estate shall remove the fence blocking the applicant's driveway within 24 hours of the date of this ruling.
- No new structures shall be erected, nor existing structures removed, pending distribution of the estate.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
SUCCESSION CAUSE NO. 629 OF 1993
IN THE MATTER OF THE ESTATE OF KIGATHI NG’ANG’A – (DECEASED)
RULING
1. The applicant moved the court by an application dated 17April 2014 seeking several orders. In the main he would like a fence erected across his driveway removed.
2. The current disputes pits a son and a mother. The applicant is the son while the mother is the 2nd respondent. Both are said to reside on Muguga/Gitaru/726.
3. His case is that on 11th April 2004, the respondents, working with the officials of the local provincial administration and the police, moved to his gate, broke the padlocks, entered his compound and erected a permanent fence across the portion of Muguga/Gitaru/726 that he occupies. This had the effect and his family and denying him access to the outside world. He has annexed photographs to his affidavit sworn on 17th April 2014 to support his allegations. He says that he has been immobilized and frustrated from running his usual businesses. He also accused the respondents of causing damage to his property and is asking for compensation.
4. Both respondents have filed replying affidavits both sworn on 24th April 2014. The respondents deny the allegations made to the affidavit of the applicant. They allege that the photographs annexed to the affidavit of the applicant do not reflect what is on the ground.
5. Counsel for both parties addressed me orally on the said application on 25th April 2014. They gave vent to the allegations made their respective clients in their affidavits.
6. I have perused the court file. I have noted that certificate of confirmation of grant herein was issued on 3rd April 2014. This should pave way for the distribution of the estate. The principal property is Muguga/Gitaru/726. It is to be distributed amongst the (10) members of the family, practically all survivors of the deceased are to get a share. The administrator of the estate should in the near future move to distribute the estate in the terms of the certificate dated 3rd April 2014.
7. Since the process of distribution has started in the earnest, it is imperative that all concerned maintain status quoto facilitate it. No new structures should be erected on the ground, neither should any structure that has been on the ground be knocked or pulled down.
8. I am satisfied that there are structures that have been put up blocking the applicants drive way. This was not done in an effort to carry out into effect the terms of the certificate of confirmation dated 4th April 2014 as the parties had not yet collected the said certificate from the court registry. The respondents deny responsibility for the putting up of the said structure, and even depone that it is not erected on the part of the property adjourning the applicant’s homestead.
9. I here by order the removal of the said fence. As the respondent’s deny responsibility, I adjudge that the duty of removing the said fence shall fall on the shoulders of the administrator given that the entire estate vests in her by virtue of Section 79 of the Law of Succession. The said fence shall be removed within 24 hours of the date of this ruling. The matter shall be mentioned on 9th May 2014 for compliance. There shall be no order as to costs. It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI this 6th DAY OF May, 2014.
W. MUSYOKA
JUDGE
In the presence of Mr. Angwenyi advocate for the applicant.