[2012] KEHC 3981 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT ELDORET

Probate & Administration 6 of 1983

IN THE MATTER OF THE ESTATE OF KAMAU NGANGA

RULING

I have before me an application by way of summons by Margaret Wanjiku Mwaura (hereinafter “the applicant”) expressed to be brought under the provisions of Section 47 of the Law of Succession Act (Cap 160) and Rules 59 and 73 of the Probate and Administration Rules. The applicant seeks the following main orders of the court:-

“1) That Paul Nyoro Nganga (hereinafter“the respondent”) either by himself, hisfamily, his agents and or servants bepermanently restrained from trespassing,cultivating occupying grazing and or in anyother manner from interfering with parcelNo. Uasin Gishu Kondoo Settlement Scheme183 (herein after “the suit land”)

2) That the Officer Commanding Station(O.C.S) at Tarakwa Police Station do ensurethe full compliance of this order.

3) That the respondent be compelled torender a full time and accurate account andto deposit such sums that he has earned onaccount or in the form of income derivedaccrued from the cultivation of crops in thesuit land to date for onward transmissionof such income to the applicant.

The application is based on the following grounds:-

(i)That the applicant and her sons JosephNganga Kamau and Peter Njoroge Kamau(hereinafter “co-proprietors”) were registeredas owners of the suit land pursuant to a courtorder dated 4th February, 2002,

(ii)That the respondent has persisted in his Illegal trespass and cultivation of the suit landto which he has no claim and has not accountedor remitted the income derived to the applicant.

(iii) That at no time did the applicant or theco-proprietors allow, authorize or permitthe respondent to ingress or cultivate thesuit land.

(iv)That the respondent’s conduct is patentlyillegal and wrongful hence it is necessarythat restraining orders be granted.

(v)That unless the respondent is retrained asprayed then the applicant and or theco-proprietors stand to suffer immense lossand damages as the respondent is likely tocontinue unfairly and unjustly enrichinghimself to the detriment of the applicantand her co-proprietors.

(vi)That the court has unfettered jurisdictionand discretion to grant the reliefs soughtto prevent further hardship and miscarriageof justice.”

There is an affidavit in support of the application sworn by the applicant which in the main reiterates the above grounds. When the respondent was served he filed no response. The application therefore proceeded ex-parte on 14th May, 2012.

I have considered the application, the supporting affidavit and the annextures thereto. Having done so I take the following view of the matter. As the heading shows, the parent proceedings commenced by way of a petition for letters of administration intestate to the Estate of Kamau Nganga (deceased). The applicant would appear to have objected to the grant made to the respondent which grant was annulled and/or revoked. The applicant and the co-proprietors were then eventually registered as proprietors of the suit land.

On the conclusion of those objection proceedings and the eventual registration of the applicant and the co-proprietors as owners of the suit land, the administration of the estate of the Late Kamau Nganga (deceased), in my view, came to an end. The applicant does not suggest that any part of the estate of the deceased remained unadministered after the objection proceedings were concluded. Indeed the claim made against the respondent in this application is not for the benefit of the estate of the deceased but for the benefit of the applicant and her co-proprietors as owners of the suit land since the same is no longer an asset of the estate of the deceased. The applicant and the co-proprietors have rights as proprietors of the suit land which rights may be enforced by them in their own right by way of an ordinary suit.

The provisions invoked by the applicant apply when the dispute the court is called upon to resolve falls under the purview of the Law of Succession Act aforesaid. The dispute between the applicant and the respondent is not such a dispute. It is a dispute purely between registered proprietors and the respondent as a trespasser. It is not a dispute in the administration of the estate of Kamau Nganga (deceased). The applicant appreciates this position and that is the reason why her application is not an interlocutory application. The orders sought are final and definitive and are not dependent on the succession cause already concluded.

For those reasons, and even though the application was not contested, I must decline the applicant’s application dated 24th April, 2012. It is dismissed.

I make no order as to costs.

It is so ordered.

DATED AND DELIVERED AT ELDORET

THIS 11TH DAY OF JUNE, 2012.

F. AZANGALALA

JUDGE

Read in the presence of:

Ms. Karuga H/B for Mr. Njuguna for the Applicant.

F. AZANGALALA

JUDGE

11TH JUNE, 2012