[2014] KEHC 5910 (KLR)
The court found that, following the consent order and issuance of a grant of Letters of Administration to the applicant, it was solely the applicant's duty to administer the estate. The objector's continued utilization of the estate without the applicant's consent constituted unlawful intermeddling under Section 45...
Source-derived case information.
- Citation
- [2014] KEHC 5910 (KLR)
- Parties
- Applicant: Jedidah Mathembu Ndunda; Respondent: Rael Mutunge
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 690 of 2009
- Procedural Posture
- Succession Cause / Interlocutory Application for Restraining Orders Pending Confirmation of Grant
- Outcome
- Application allowed. Restraining orders granted against the objector/respondent.
- Judges
- LN Mutende
- Legal Topics
- Administration of Estates, Intermeddling With Estate, Confirmation of Grant, Matrimonial Property, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jedidah Mathembu Ndunda
Applicant
Rael Mutunge
Respondent
Procedural Posture
Succession Cause / Interlocutory Application for Restraining Orders Pending Confirmation of Grant
Legal Issues
- 1 Whether the objector/respondent has unlawfully intermeddled with the estate of the deceased contrary to the Law of Succession Act.
- 2 Whether restraining orders should issue to preserve the estate pending confirmation of grant.
- 3 Whether the objector is entitled to utilize the estate pending distribution.
Ratio Decidendi
The court found that, following the consent order and issuance of a grant of Letters of Administration to the applicant, it was solely the applicant's duty to administer the estate. The objector's continued utilization of the estate without the applicant's consent constituted unlawful intermeddling under Section 45 of the Law of Succession Act. The court emphasized the need to preserve the estate pending confirmation of the grant and held that any dealings with the estate must be with the applicant's consent or court authorization. The objector was therefore restrained from further interference, and the matter was to be expedited for confirmation of the grant.
Court Disposition
Application allowed. Restraining orders granted against the objector/respondent.
Orders
- The objector/respondent is restrained from interfering with the estate of the deceased without court authorization.
- The application for confirmation of grant to be fixed for hearing within 21 days.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 690 OF 2009
IN THE MATTER OF THE ESTATE OFGIBSON KINUKA NDUNGA(DECEASED)
JEDIDAH MATHEMBU NDUNDA .........................PETITIONER/APPLICANT
VERSUS
RAEL MUTUNGE..................................................OBJECTOR/RESPONDENT
RULING
By an Application dated 20th May 2013, the petitioner herein seeks an order restraining the Objector from intermeddling with the deceased’s estate until proceedings herein are determined. Secondly, she seeks an order restraining the objector from entering the home of the deceased at Katwala in Kitui County.
The application is supported by an affidavit deponed by the petitioner where she deposes that she established with the deceased a matrimonial home at Katwalain Kitui County. After the demise of deceased, the objector who was a stranger to her invaded the deceased’s commercial properties at Katwala Marketin company of other strangers whom she came to learn that they were the objector’s adult children. They took possession of the properties and rented others out to third parties.
The objector and her children have now embarked upon leasing out the agricultural land to third parties and they have also invaded the matrimonial home. She prayed for the restraining orders for purposes of preserving the deceased’s estate until the grant of Letters of Administration issued to her is confirmed.
In her replying affidavit the objector denied having intermeddled with the estate of the deceased, she stated that she was utilizing it in her capacity as a widow to the deceased the way she used to do from the time she married the deceased in an endeavour to earn income and pursuant to the order of the court of status quo being maintained. She denied having sold any of the deceased’s property and argued that the applicant had not come to court with clean hands as she had not disclosed some of the properties of the deceased.
This is a case where the objector readily admits utilizing the estate of the deceased save that she does not view her action as an interference with the deceased’s free property. According to her, following the court order for status to be maintained she was eligible to continue earning an income from the estate of the deceased until distribution of the estate of the deceased.
When the order was made requiring status quo to be maintained the respondent was required to furnish the court with a full statement of account as from March 2009 with respect of all rents that she had collected from the estate of the deceased and she was not supposed to intermeddle with the estate. None of the parties herein were supposed to act in a manner that was detrimental to the estate of the deceased.
It is apparent that the Petitioner and Objector entered into a consent which stipulated as follows:
i) A grant of Letters of Administration do issue to the Petitioner.
ii) The Petitioner within 30 days after issue of grant to file and serve summons for the Confirmation of Grant thereof.
iii) The objector do within 30 days file an affidavit of protest.
iv) That the Petitioner may respond to such affidavit of protest within 14 days of service.
Having consented to the Grant of Letters of Administration Instate being issued to the Petitioner herein, it was solely the duty of the Petitioner to administer the estate of the deceased. It is therefore unlawful for the Objector herein to continue intermeddling with the estate of the deceased. What happens to the estate of the deceased must be with the consent of the applicant herein. The Objector must therefore be accountable for the damage she has caused so far to the estate.
This court has inherent powers to prevent abuse of the process of the court and also protect the estate of the deceased (vide Rule 73 of the Probate and Administration Rules and Section 45 of the Law of Succession Act).
Having noted the complexity of this matter justice would call upon the court to hear the Applicant and Protester (Objector) as soon as possible and have the grant of administration intestate confirmed as soon as possible. I will direct that the application be fixed for hearing within 21 days.
In the meantime, the Objector/Respondent is hereby restrained from interfering with the estate of the deceased without any authorization from the court.
It is so ordered.
DATED, SIGNED and DELIVEREDat MACHAKOSthis 3RD day of APRIL, 2014
L.N. MUTENDE
JUDGE