[2013] KEHC 5909 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

SUCCESSION CASE NO. 533 OF 2012

CHARLES MWANIKI KAMARA .................…........................DECEASED

AND

MARY WANGECHI KAMARA........…..................................PETITIONER

RULING

By a notice of motion dated 4th February 2013 brought under rule 73 Probate and Administration Rules and sections 68(1) of Cap 160 Laws of Kenya the Applicants moved this court to orders THAT

a) The application dated 4th February 2013 be certified urgent and be herd on priority basis.

b) The Respondent be restrained from selling or alienating the estate pending hearing and determination of his cause.

c) the time to file objection and cross petition be extended.

d) This court do make such other necessary orders as it may be just to facilitate hearing and determination of this cause.

It was supported by the affidavit of RAHAB WANJIKU KAMARA wherein she deponed that she is the daughter of the deceased and the petitioner her step mother.

That the deceased had two houses of which she is the eldest in her house and that the will dated 22nd October 2010 had not made provisions for her being unmarried and that the purported signature on the said will did not belong to the deceased.

That the land where the cultural centre is situated had been allocated already and that the purported will in paragraph 4 refers to his daughter called Rahab Wanjira Mwaniki while they do not have a sister by that name.

That she came to hear of the petition on 29th January 2013 and has reliable information that the petitioner is disposing of the school and is about to receive over Fifty Million Shillings. She therefore want time extended to enable her lodge an objection and file cross petition.

There was also an affidavit by ROSE MUTHONI KAMARA who is a daughter of the petitioner who deponed that she was also not provided for in the will by the deceased and that she is conversant with her late fathers signature and the alleged signature on the will is not his and that she believes that her father did not leave any will.

That the deceased used to support her and her children and that the time for lodging objection has since expired and it is therefore only fair and just that the said time be extended.

Nelson Kamara Mwaniki also filed an affidavit in support of the application wherein he deponed that the petitioner had called him on several occasions informing him that she wanted to lodge the petition I court.

That on 3rd January 2013 heard that the grant had been issued on 27th July 2012 to the Respondent who is his step mother.

He further deponed that the signature on the purported will does not belong to the deceased. That he had been appointed to be a role model of one Ngeche who died on 16th November 2008 and his uncle Paul Njeri referred to in the purported will died in the year 2003.

That his sisters Wanjiku and Muthoni referred to as married daughters have never been married and that they do not have a sister called RAHAB WANJIRU MWANIKI.

When this matter came before me exparte on 5th February 2013 I certified the same urgent and granted a temporary injunction restraining the Respondent from selling or alienating the estate pending the interpartes hearing herein.

The Respondent in response to the application filed a replying affidavit on 15th February 2013 wherein she deponed that the Applicants have not given any reason for extension of time to file objection and cross petition and have not even attempted to file submissions seeking to revoke the grant issued on the basis of the invalidity of the written will.

The Respondent herein on 11th February 2013 filed summons under section 45 and 47 of the Succession Act for the discharge of the exparte order issued herein on the basis that the Respondents in the application had not demonstrated any locus standi per se to entitle them for the orders granted.

That the Respondent did not demonstrate any plausible reason as to why they have not/did not exercise their rights as objectors and that there was no evidence placed before the court to support the alleged purported sale.

The applicant was supported by the affidavit of the Respondent /applicant MARY WANGECHI KAMARA in which she deponed that Nelson Kamara Mwaniki is an inciter and the author and mastermind of all the issues herein and that he has on several occasions tried to falsify documents and forge the same to claim some properties belonging to the deceased.

That Rose Muthoni Kamara was never a Dependant of the deceased and is married to Eliud Munene Irio and with two children and that Rahab Wanjiku Mwaniki is an independent lady who never sought their assistance at any time.

She further deponed that the prayers granted by the court to the Respondent were not sought and therefore the court could not grant them and that there was no evidence to prove that she was in the process of selling alienating property with over fifty million which property is not described.

When the said application came before me I directed that it be heard together with the application for injunction and the Respondent s duly filed affidavits in reply thereto.

Rahab Wanjiku Kamara deponed that if the applicant is not disposing the property then she will suffer no harm by the orders granted herein. She annexed a letter from the Ministry of Local Government in support of other allegations on sale together with the deceased purported signature.

Rose Muthoni Kamara deponed that there was no loan out standing at Eco Bank and that the money collected from the estate was enough to offset any outstanding loan.

Nelson Kamara Mwaniki also deponed that the will is a forgery as page one is dated in Nyeri 22nd October 2010 and last page dated at Nairobi on the same date. That Kenya gazette dated 27th July 2012 clearly stated that the deceased died intestate and therefore there is no good ground to set aside the order.

SUBMISSIONS

At the hearing herein Mr. Mungai appeared for the applicant and submitted that the applicants did not seek any order of a temporary nature and therefore the court granted an order which had not been prayed for.

It was submitted that the Respondent/Applicant did not provide any material to demonstrate any apprehension on their part of any purported sale neither was the property described and that until such a time when the Applicants demonstrate that the will was not valid and that they have a claim under section 11 of the Act they do not have locus to gag the estate.

It was further submitted that the Applicants did not come to court with clean hands since there are documents to show that MARY KAMARA executed document to transmit some shares to Nelson Kamara which was not true and that ROSE MUTHONI who claims to be unmarried and lives in the premises of the deceased which was also not true.

Mr. Mungai urged the court to discharge the orders since they prejudice the execution of the estate by virtue of a will.

Mr. G. Mwangi for the Applicants submitted that it is true that the Respondent is disposing of property known as AGUTHI/GATITU/332 to the Government as affirmed by annexed letter from the Ministry of Local Government.

On the issue of the temporary order grated he submitted that Article 159 of the Constitution require that the court determine matters without undue regard to technicalities and that in their prayer number 4 they had sought any necessary order to facilitate the hearing.

He submitted that the alleged will therein at page 1 is signed at Nyeri while last page is signed at Nairobi and that since the Probate has not been confirmed it would not be appropriate for the Respondent to dispose of the property of the estate.

ISSUES

From the affidavits and submissions herein there are only two issues for determination herein.

1) Whether the court was right to grant interlocutory injunction which is not specifically prayed for in the application.

2) Whether the orders granted should be discharged.

It is well settled principle of law that a person who makes an exparte application to court that is to say in the absence of the person who will be affected by that which the court is asked to do is under obligation to the court to make the fullest possible disclosure of all the material facts within his knowledge and if he does not make the fullest possible disclosure then he cannot obtain advantage from the proceedings and he will be derived of any advantage he may have already obtained.

The applicant is only required to make full disclosure of all material facts within his knowledge as at the time of making the application.

The principles upon which interlocutory injunctions are granted are well set in the case of GIELLA V CASSMAN BROWN & CO. ltd [1973] EA 358 which are:

a) Prima facie case with probability of success.

b) Unless the orders sought are granted the plaintiff will suffer irreparable loss and damages.

In case of doubt the court decides on a balance of convenience.

On the other hand for the court to exercise its discretionary powers to discharge and or set aside an order of injunction as was stated by RINGERA J. as He then was in the case of REEAF BUILDING SYSTEMS LTD VS NAIROBI CITY COUNCIL MILIMANI HCCC NO. 1357 OF 2001 the following circumstances must exist.

a) If it is shown that the order was obtained irregularly.

b) There was a subsequent change of circumstances that it was unjust to maintain it in force.

It is otherwise unjust and irregular to let the order remain.

I have therefore been asked to exercise my discretion on the basis of material non disclosure on the part of the applicants to set aside the interlocutory order but I have noted from the affidavits before me that the alleged materials which were not disclosed are contested and they were not material to the grant of the orders issued herein.

I am satisfied that the applicants had placed enough material before me for the grant of the interlocutory orders of injunction having established a prima facie case with probability of success.

The final issue is whether the court was right in granting orders not prayed for. On this it should be noted that the Applicants main prayer was for injunction and the overriding objective of the court is to do justice and though the court has powers to grant the order of injunction it could not do so at the interlocutory stage and therefore the justice of this matter required the court to grant interim order of injunction to preserve the status quo pending interpartes hearing.

It should be noted that the Respondent /applicant did not and has not suffered any prejudice by the said order since the grant of probate herein has not been confirmed.

I therefore find no merit on the application to discharge the interim orders granted herein at this stage and hereby order that the status quo prevailing be maintained pending the hearing and determination of the intended objection and cross petition which must be filed within the next 14 days from the date herein.

Cost of the application shall be in the cause this being a family dispute.

Dated and delivered at Nyeri this 6th day of June 2013.

J. WAKIAGA

JUDGE

Mr. G. Mwangi for the applicant.

No appearance by the Respondent.

Court: Ruling is read in open court in the presence of Mr. G. Mwangi for the applicant and in the absence of Mr. Mungai for the Respondent.

J. WAKIAGA

JUDGE