[2007] KEHC 1853 (KLR)
The court declined to grant the injunction sought by the applicant, finding it unnecessary given that the estate land remains registered in the name of the administrator and there is no evidence of imminent threat of alienation. However, to ensure that the applicant’s interests are protected and to prevent any...
Source-derived case information.
- Citation
- [2007] KEHC 1853 (KLR)
- Parties
- Applicant: Janerose Anyango Washiku; Respondent: Nicholas K. Okello; Petitioner: Kalori Washiku Mumbatsi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 263 of 1995
- Procedural Posture
- Succession Cause / Ruling on Application for Injunction Pending Determination of Revocation of Grant
- Outcome
- Application for injunction declined; inhibition order granted to preserve estate property.
- Legal Topics
- Succession, Grant of Letters of Administration, Revocation of Grant, Injunctions in Succession, Inheritance Rights, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Janerose Anyango Washiku
Applicant
Nicholas K. Okello
Respondent
Kalori Washiku Mumbatsi
Petitioner
Procedural Posture
Succession Cause / Ruling on Application for Injunction Pending Determination of Revocation of Grant
Legal Issues
- 1 Whether the applicant is entitled to an injunction to prevent dealings with the estate land pending determination of the revocation application.
- 2 Whether the applicant risks being disinherited from her late husband’s share in the estate of her father-in-law.
- 3 Whether the court should issue an inhibition order to preserve the estate property.
Ratio Decidendi
The court declined to grant the injunction sought by the applicant, finding it unnecessary given that the estate land remains registered in the name of the administrator and there is no evidence of imminent threat of alienation. However, to ensure that the applicant’s interests are protected and to prevent any dealings with the estate property pending the hearing of the revocation application, the court exercised its inherent jurisdiction to order an inhibition to be registered against the title to the estate land. This preserves the status quo and ensures that the estate is not dissipated before the substantive issues are determined. The parties are directed to set down the pending...
Court Disposition
Application for injunction declined; inhibition order granted to preserve estate property.
Orders
- An inhibition order to be registered forthwith by the Land Registrar against land title No. North Wanga/Mayoni/209 prohibiting registration of any dealing in the title until succession to the deceased’s estate is determined.
- The parties shall proceed to set down the pending application(s) for hearing without undue delay.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Succession Cause 263 of 1995
IN THE MATTER OF THE ESTATE OF MATAYO KAVEYI - DECEASED
BETWEEN
KALORI WASHIKU MUMBATSI…….…….PETITIONER/DECEASED
A N D
JANEROSE ANYANGO WASHIKU………………………..APPLICANT
A N D
NICHOLAS K. OKELLO……………......PETITIONER/RESPONDENT
RULING
I have perused the application by Janerose Onyango Washiku, the applicant, seeking injunction. I have also perused the replying affidavit of the Respondent, Nicholas K. Okello.
The application was made during the pendency of the Applicant’s earlier application dated 29. 7.2004 seeking revocation of the Grant now held by the Respondent whose name has been registered qua administrator in the title to the suit land No. N.Wanga/Mayoni/209. The estate herein is of the late Matayo Keveyi, who was survived by two sons one of whom was Kalori Washiku Mumbatsi, the husband of the Applicant, who has since died and the other is Nicholas K. Okello. Karoli Washiku Mumbatsi held the Grant of Letters of Administration but when he died, his brother Nicholas K. Okello is alleged to have moved swiftly and applied for substitution as a result of which he became the new administrator of the estate of his deceased father. The Applicant, who is the sister-in-law of the Petitioner and who is entitled to the share of her husband in the estate of her father-in-law is apprehensive that the she might be disinherited. It is for this reason that she has sought injunctive orders.
Mr. Akwala, learned counsel for the Applicant, urged me to grant the order sought in terms of prayer (ii) of the application as the averments in support of the application were not contested as his client was apprehensive she might be disinherited. Mr. Onido, learned counsel for the Petitioner/Respondent, submitted that his client has no wish to disinherit the Applicant.
This is a succession cause and the administration of the estate of the deceased who died on 25. 12. 1970 is governed by the Provisions of the Law of Succession Act Cap. 160. The land comprising the estate of the deceased is still held by the Petitioner qua administrator of the estate. I decline to grant the injunction sought. But so that ends of justice are not defeated and pursuant to the inherent power of this court, I order that an inhibition order do issue to be registered forthwith by the Land Registrar against land title No. North Wanga/Mayoni/209 prohibiting registration of any dealing in the title until succession to the deceased’s estate is determined. The parties shall proceed to set down the pending application/s for hearing without undue delay. For the avoidance of doubt, the parties shall continue to occupy and use the land as they have done in the past and status quo shall therefore be maintained. There will be no order as to costs.
Dated at Kakamega this 25th day of October, 2007.
G. B. M. KARIUKI
J U D G E