[2017] KEHC 5861 (KLR)
The court found that although interim restraining orders had been issued against Eliud Mwangi Macharia and Nairobi City County Government before they were formally joined as parties, the effect of those orders was to enjoin them to the proceedings, as they would be liable for contempt if they contravened the orders....
Source-derived case information.
- Citation
- [2017] KEHC 5861 (KLR)
- Parties
- Applicant: Hannah Mukami; Applicant: Milly Mukami; Respondent: Eliud Mwangi Macharia; Respondent: Nairobi City County Government; Applicant: Six individuals (names not specified)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1553 of 2011
- Procedural Posture
- Succession Cause / Ruling on Joinder and Interim Orders in Revocation Application
- Outcome
- Application for joinder allowed; interim orders confirmed and to remain in force pending determination of revocation application.
- Judges
- DN Musyoka, MW Muigai
- Legal Topics
- Grant Revocation, Joinder of Parties, Estate Administration, Sale of Estate Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hannah Mukami
Applicant
Milly Mukami
Applicant
Eliud Mwangi Macharia
Respondent
Nairobi City County Government
Respondent
Six individuals (names not specified)
Applicant
Procedural Posture
Succession Cause / Ruling on Joinder and Interim Orders in Revocation Application
Legal Issues
- 1 Whether Eliud Mwangi Macharia and Nairobi City County Government should be formally enjoined as respondents to the revocation application.
- 2 Whether interim restraining orders against the proposed respondents should be confirmed and maintained pending determination of the revocation application.
- 3 Whether the sale of estate property by the administrators was lawful and its effect on the estate.
Ratio Decidendi
The court found that although interim restraining orders had been issued against Eliud Mwangi Macharia and Nairobi City County Government before they were formally joined as parties, the effect of those orders was to enjoin them to the proceedings, as they would be liable for contempt if they contravened the orders. To regularize the position and ensure procedural fairness, the court formally enjoined both Eliud Mwangi Macharia and Nairobi City County Government as respondents to the revocation application. The court confirmed the interim orders previously granted and directed that they remain in force pending the hearing and determination of the revocation application. The court did not...
Court Disposition
Application for joinder allowed; interim orders confirmed and to remain in force pending determination of revocation application.
Orders
- Eliud Mwangi Macharia and Nairobi City County Government are formally enjoined as respondents to the revocation application dated 8th March 2016.
- The interim restraining orders made on 17th June 2016 are confirmed and shall remain in force during the pendency of the revocation application.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
SUCCESSION CAUSE NO. 1553 OF 2011
IN THE MATTER OF THE ESTATE OF WANJIRU KIMARI (DECEASED)
RULING
1. The deceased herein died on 14th August 1985. Represenatation was sought to her estate vide a petition lodged in this cause in an unknown date in 2011 by Hannah Mukami and Milly Mukami, in their alleged capacities as daughters and daughters-in-law of the deceased. A grant was made to them on on 7th February 2012. The grant was confirmed on 29th April 2013 and the estate devolved wholly upon Hannah Mukami.
2. A summons was lodged herein on 9th March 2016, dated 8th March 2016, at the instance of six individuals, seeking revocation of the confirmed grant, on the grounds that they too were survivors of the deceased, but had not been disclosed in the cause as such.
3. Simultaneously filed with the said revocation application was a summons, also dated 8th March 2016, naming the administrators as respondents, seeking restraining orders with respect to the estate assets. The application was placed before Muigai J. who ordered that the estate be preserved under section 45 of the Law of Succession Act until hearing and determination of the matter.
4. On 16th June 2016 another application was lodged at the registry seeking that a Eliud Mwangi Macharia and the Nairobi City County Government be joined to the proceedings as respondents, and restraining orders be granted against them with regard to the estate assets. The case for the applicants was that the property in question had been sold to Eluid Mwangi Macharia. Joinder was being sought on that basis. Temporary orders were granted on 4th July 2016 by Achode J. restraining Eliud Mwangi Macharia and the Nairobi City County Government pending hearing and determination of the application.
5. Eliud Mwangi Macharia responded to the application vide his replying affidavit sworn on 19th July 2016. He avers that the subject property, Plot No. 71 Huruma Site and Service Scheme was sold to him by the administrators vide an agreement dated 3rd December 2015. He asserts that he is now the owner thereof. He states that the administrators had by then competence to sell the property to him as they had been confirmed on 29th April 2013. He has attached a copy of the sale agreement of the subject property, and the certificate of confirmation of grant in the matter to support his case.
6. There is another reply to the application by the first administrator, Hannah Mukami, sworn on 30th September 2016. She asserts that she legally sold Plot No. 71 Huruma Site and Service Scheme to Eliud Mwangi Macharia, and therefore the same no longer formed part of the estate of the deceased. She dismisses the application as frivolous..
7. The application was argued orally before me on 26th October 2016. Mr. Mwangi urged it on behalf of the applicants, Mr. Michuki stated the case for Eliud Mwangi Macharia and Mr. Githinji argued the case for the first administrator.
8. Orders were made ex parte, although on interim basis, on 17th June 2016. As extracted, the orders were targeted at the parties sought to be enjoined to the proceedings. It would mean that there are orders in place in this cause against the said parties although they are yet to be formally enjoined to the proceedings. In my view the grant of the interim orders against the proposed parties had the effect of enjoining them to the proceedings for in the event of their contravention of the said orders they stood liable to prosecution, for contempt of court. Ideally, court orders can only bind persons against whom such orders are directed. Ideally, the orders target persons who are parties, and who should have right of reply.
9. In the circumstances, there is really little for me to do except to formally enjoin Eliud Mwangi Macharia and the Nairobi City County Government as respondents to the revocation application dated 8th March 2016. I shall confirm the orders made on 17th June 2016. The said orders shall remain in force during the pendency of the revocation dated 8th March 2016. It is so ordered.
DATED and SIGNED at NAIROBI this 3RD DAY OF MAY, 2017.
W. MUSYOKA
JUDGE
DELIVERED and SIGNED this 5TH DAY OF MAY, 2017.
M. MUIGAI
JUDGE