[2009] KEHC 2210 (KLR)
The court held that Order XXXIX of the Civil Procedure Rules is not applicable to succession proceedings, as it has not been incorporated into the Law of Succession Act. Even if the merits of the application were considered, the applicant failed to demonstrate sufficient cause for the grant of an injunction. The...
Source-derived case information.
- Citation
- [2009] KEHC 2210 (KLR)
- Parties
- Applicant: Wilson Kariuki Nguru; Respondent: Peris Wamugo Njeru; Respondent: Justin Njeru Nguru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 42 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs in the cause
- Judges
- J Karanja
- Legal Topics
- Injunctions in Succession, Confirmation of Grant, Proprietary Rights of Beneficiaries, Applicability of Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Kariuki Nguru
Applicant
Peris Wamugo Njeru
Respondent
Justin Njeru Nguru
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the Civil Procedure Rules, specifically Order XXXIX, apply to succession proceedings under the Law of Succession Act.
- 2 Whether the applicant has established sufficient cause for an injunction restraining the respondents from dealing with the subject property.
- 3 Whether the respondents, as registered absolute owners, can be restrained from dealing with their respective portions of land.
Ratio Decidendi
The court held that Order XXXIX of the Civil Procedure Rules is not applicable to succession proceedings, as it has not been incorporated into the Law of Succession Act. Even if the merits of the application were considered, the applicant failed to demonstrate sufficient cause for the grant of an injunction. The grant of representation had already been confirmed, and the property distributed among the beneficiaries, each of whom was registered as absolute owner of their respective portions. There was no evidence that any of the respondents held their portions in trust for others, nor was there any indication in the land register to that effect. The respondents, therefore, could not be...
Court Disposition
application dismissed with costs in the cause
Orders
- The Chamber Summons dated 20/11/2008 is dismissed.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
MISCELLANEOUS APPLICATION 42 OF 2004
IN THE MATTER OF THE ESTATE OF THE LATE NGURU NYAGA…DCD
AND
WILSON KARIUKI NGURU…………………………………………………………APPLICANT
VERSUS
PERIS WAMUGO NJERU……………………………..ADMINISTRATIX/RESPONDENT
JUSTIN NJERU NGURU……………………………..INTERESTED PARTY/RESPONDENT
RULING
The Chamber Summons dated 20/11/2008 is seeking orders of injunction against the respondents Peris Wamugo Njeru and Justin Njeru Nguru. They are supposed to be restrained from alienating, sub-dividing, selling, charging etc. LR No. NGANDORI KIRIARI/279 pending hearing and disposal of the suit or unless otherwise directed by the Honourable Court. The same is premised on the 7 grounds on its face and the supporting affidavit of the applicant Wilson Kariuki Nguru. It is opposed vide the grounds of opposition dated 12/6/2009. I have considered the application; along with said grounds and the supporting affidavits and grounds of opposition. I have indeed perused the entire file and noted the contents.
From the outset, I wish to agree with Mr. Okwaro for the Respondents that Order XXXIX is not one of the orders of the Civil Procedure Rules that have been imported into the Law of Succession Act. The same does not therefore apply and to that extent, this application is bad in law and calls for striking out. Be that as it may however, I have decided to look at the merits or otherwise of the said application. From the annexed proceeding of the lower court, I have noted that the grant was confirmed on 1/11/1999 and the beneficiaries as listed were given their due shares. This was in the presence of the Applicant Wilson Kariuki, interested party Justin Njeru Nguru and one Ephantus Amos Njeru- another beneficiary. They did not protest. Then 3 years later, the parcels of land were transferred to the beneficiaries as an extract of the Title will show each of the parties herein is therefore registered as absolute owner of their portion. There is therefore no estate left for the 1st Respondent to administer. If she is selling any portion, it would be the one that is in her name. If on the other hand the 2nd Respondent is selling any land, it is the 0. 8 Ha registered in his name. I do not see how this affects the applicants 0. 8 Ha. The respondents cannot be injuncted from dealing with their land. Indeed, the register does not show that the 1st Respondent is holding the 0. 4 Ha as trustee for anybody. She is holding the same as an absolute owner. That is a fact that should not even be in dispute or entangled with the 2nd Respondent’s portion. If she was meant to hold the same in trust, the register would have clearly indicated so. The applicant has in my considered view failed to show sufficient cause why the Respondents should be restrained from dealing with the said property. I have looked at the summons for revocation and without intending to pre-empt the outcome, the pendency of the same on record should not act as a bar against the Respondent enjoying their proprietory rights over the plots in question. In the event that the grant is revoked, the land can still be retraced.
In sum therefore, I find that the application both fails in substance and in form. I dismiss the same with costs in the cause.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 27th day of July, 2009
In presence of:- Mr Mugo for the applicant