[2022] KEHC 11268 (KLR)

IN THE MATTER OF THE LAST WILL AND TESTAMENT OF ISABELLE WACHERA MURIU (DECEASED (Originating Summons E039 of 2021) [2022] KEHC 11268 (KLR) (Family) (3 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11268 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Originating Summons E039 of 2021

M Thande, J

June 3, 2022

Between

Michael Andrew Nduati

Applicant

and

Florence Wangari Kimani

1st Respondent

Joyce Wangechi Muriu

2nd Respondent

Peninah Wamuyu Thairu

3rd Respondent

Julie Wanjiru Muriu

4th Respondent

Ruling

1. The Application before me for consideration is dated 12. 8.21 in which the applicant Michael Andrew Nduati seeks orders that:1. Spent.2. Pending the hearing and determination of the Originating Summons filed for (sic) this matter and this application, a preservatory order be issued restraining the 1st and 2nd respondents, by themselves, their family members and/or their servants, agents or otherwise howsoever from disposing off and/or wasting the property and assets of the deceased, Isabelle Wachera Muriu in particular 2 houses at Rainbow Villa, Ruiru and Motor Vehicle Registration Number KCD 545T.3. Pending the hearing and determination of this suit, a restriction order be issued restricting the Director/Shareholders and employees of Cently Limited from wasting and/or disposing off the assets of the deceased Isabelle Wachera Muriuheld at various banks.4. The O.C.S Ruiru Police do ensure compliance.5. The O.C.S Parklands Police Station do ensure compliance.6. The costs of this Application be awarded to the Applicant.

2. The applicant’s case is that the deceased left a Will dated 1. 4.21 appointing the 1st and 2nd respondents as executors and trustees. In his application dated 12. 8.21, he challenges the validity of the Will as he believes that the same was executed by duress and coercion without the best interests of the minor children of the deceased. He averred that the Respondents have barred him from accessing the deceased’s home and property and from dealing with the affairs of her estate. He is apprehensive that the named executors will intermeddle and dispose of the assets of the estate unless restrained by this court.

3. The Application is anchored on the applicant’s Originating Summons dated 8. 12. 21 in which he challenges the validity of the Will of the deceased on the claim that she lacked the capacity to make the same on account of her illness. The applicant claims he is the husband of the deceased and has brought the Originating Summons and the present Application in that capacity.

4. The record does not appear to have any response from the respondents in respect of the present Application.

5. It is noted that the applicant has not brought the present Application in his capacity as administrator of the estate of Isabelle Wachera Muriu. No Grant of representation in respect of that estate was exhibited. It is trite law that any action brought on behalf of a deceased person by an applicant who is not a holder of a grant of representation is incompetent and bad in law. The Applicant claims he has filed this Application in his capacity as husband of the deceased. Relationship to a deceased person no matter how close, does not clothe a party with the locus standi to bring an action in respect of the estate of that deceased person. In the case of Virginia Edith Wambui Otieno v Joash Ochieng Ougo [1982-88] 1 KAR 1049, the Court of Appeal observed-“But an administrator is not entitled to bring an action as an administrator before he has taken out letters of Administration. If he does, the action is incompetent at the date of its inception…”And in Trouistic Union International & another CA Civil Appeal No 145 of 1990, Apaloo, C J held:“To determine who may agitate by suit any cause of action vested in him at the time of his death, one must turn to section 82 (a) of the Law of Succession Act. That Section confers that power on personal representatives and on them alone. As to who are personal representatives within the contemplation of the Act, Section 3, the interpretative Section, provides an all-inclusive answer. It says “personal representative means executor or administrator of a deceased person”.”

6. Without a grant of representation in respect of the estate of the deceased, the applicant has no capacity to bring an action in respect of the estate of the deceased. The applicant ought to have first obtained a grant of representation and only then would he have capacity to bring and agitate the present Application before court. In light of this, the applicant’s claim is rendered incompetent for want of a grant of representation, and as stated in the Virginia Edith Wambui Otieno, case, the Application incompetent from inception.

7. In view of the finding that the Application herein is incompetent, the court has no jurisdiction to entertain the same. Without jurisdiction, there would be no basis for a continuation of proceedings herein. Thelocus classicus on jurisdiction is the celebrated case ofOwners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 where Nyarangi, JA. stated that:Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.

8. Duly guided by the Court of Appeal in the Owners of the Motor Vessel “Lillian S” case, I have no power to take one more step and hereby down my tools. Accordingly, I am unable to delve into the submissions as to whether the applicant has satisfied the parameters of the grant of an injunction, or whether indeed the respondents have intermeddled with the estate of the deceased.

9. In the end, and in view of the foregoing, the decision this court arrives at is that the Application dated 12. 8.21 being incompetent, is hereby struck out. Costs in the cause.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS 3RD DAY OF JUNE 2022M. THANDEJUDGEIn the presence of: -…………………………………………………………… for the Applicant…………………………………………………………… for the Respondents……………………………………………………..…….. Court Assistant