[2014] KEHC 7426 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 885 OF 2010

IN THE MATTER OF THE ESTATE OFMARTIN MUTUKU KAINDI

(DECEASED)

JOICE LOKO KALOKI.....................................1ST ADMINISTRATOR/APPLICANT

PHILOMENA NGINA MAINGI............................ ADMINISTRATOR/APPLICANT

VERSUS

STEPHEN MUTHINI NZUKU .......................................OBJECTOR/RESPONDENT

RULING

The application dated 12th March, 2013 is brought pursuant to the provisions of Sections 45 and 47of the Law Succession Act, Rules 49 & 73 of the Probateand Administration Rules. It seeks orders restraining the Respondent from intermeddling and/or interfering with the property of the estate of the deceased herein by trespassing into, excavating, keeping or storing materials and constructing on land title No. Athi River/ Athi River Block 1/1617 and any other property belonging to the estate of the deceased. Secondly, that the court direct the DCIO, Machakos to commence investigations and prefer charges against the respondent for intermeddling and interfering with the property of the deceased.

The application is supported by an affidavit deponed by the Applicant, Joyce Loko Kaloki who depones that she is a wife to the deceased; the respondent claimed that the deceased jointly with his brother Loki Kathule sold to him Plot No.Machakos/Kiandani/2623 and 2624; then PlotNo. 620 at Makutano junction. That it was established that the Machakos/Kiandani/2623 and 2624 were non-existent as they belonged to the Estate of Robert Kaindi Kala(deceased) her father-in-law and the estate that was subject of Succession Cause No. 500 of 2008, where a grant had been issued and confirmed on 15th February, 2013. She stated further that the respondent fenced of a portion of Parcel No. Athi-River/Athi River Block 1/1617. He has started excavation work on the land. Unless restrained he will continue intermeddling with the Estate of the deceased.

In response, the Respondent stated that the application was supported by a defective affidavit that did not enjoin the 2nd Administratix as an Interested Party and/or having authorised the applicant to swear on her behalf. He stated that he bought Plot No. 620 at Kyumbi from the deceased therefore seeking restraining orders against him lacked merit. The application was premature as Loki Kathule had not supported the application. The application was brought in bad faith and the applicant stood to suffer no damages.

I have considered rival submissions of both counsels for the applicant and respondent.

The background of this matter is that the applicant and her sister-in-law Philomena Ngina Maingi took out Letters of Administration in respect of her deceased husband Martin Mutuku Kaindi. Assets listed as belonging to the deceased include- Athi River/Athi River Block 1/1617. A parcel of land registered jointly in the names of the deceased Loki Kathule Kaindi who is said to be his brother who is in custody (prison). A grant of Lettersof Administration Intestate was issued on the 25th March, 2011. On the 26th July, 2011 an application for confirmation of the grant was made notwithstanding that six (6) months had not lapsed. An application was made by the applicant seeking orders to withdraw Kshs. 1,500,000/=from the deceased’s account. At this juncture the respondent applied to come into the matter as an objector. In a replying affidavit to the application he deponed that the deceased sold to him properties which made him a beneficiary of the Estate of the deceased. He averred that monies in bank that the applicant sought were proceeds of the said sale of Plot Number Machakos/Kiandani/2623-2424 measuring 029-0. 010 Ha that belonged to him but was sold by the deceased without his knowledge. Parties negotiated and following a consent recorded, monies were released to the applicant through a court order on 13th July, 2012.

Thereafter the applicant filed the instant application.

According to Section 45 of the Law of Succession Act, no person is supposed to intermeddle with any free property of a deceased person. There must be legal authority from the court prior to any person dealing with the deceased person’s property. In the premises the deceased’s property must be preserved and/or protected prior to the beneficiaries being authorised to distribute it.

The orders sought are restraining orders to deter the respondent from intermeddling with the deceased’s property. He allegedly trespassed onto property Athi River/Athi River Block 1/1617 said to be part of the deceased’s property. A perusal of the affidavit in support of the petition for Letters of Administration Intestate (Form P&A 5) shows that the said property is included as an asset forming the deceased’s estate but it is indicated as having been registered in the joint names of the deceased and his brother Loki Kathule Kaindi. The Respondent has demonstrated that in the year2002 he purchased Land from the deceased, title Number Machakos/Kiandani 2623-2624 which does not seem to be in dispute. In the year 2005 he also bought from him and his brother Loki Kathule Plot No. 620situated at Makutano Market.

The applicant admits that the deceased sold some land to the Respondent but states that it was curved out of parcel number Athi River/Athi River Block 1/1727 that the deceased and his brother Loki Kathule inherited from their late father following distribution of property in SuccessionCause No. 500 of 2008. Annexture “JLK 2b” is a certificate of Official search for parcel No. Athi River/Athi River Block 1/1617. The proprietors are Loki Kathule Kaindi and Martin Mutuku Kaindi. In order to prove that the respondent was in occupation of the wrong parcel of land it was important for Loki Kathule to swear an affidavit to support the allegation. Without such evidence this court cannot tell whether or not the respondent is in occupation of what he indeed purchased from the deceased and his brother Loki Kathule or not. The applicant has therefore failed to demonstrate the alleged trespass.

Despite the fact that the applicant has not demonstrated a prima faciecase requiring issuance of orders sought, the court has a duty of protecting the deceased’s property. The only way this court can discharge that duty is to ensure the application for Confirmation of the Grant is heard and determined immediately. Parties herein are therefore directed to fix a date for hearing of the application on priority basis.

The upshot of the above is that the application dated 11th March, 2013 stands dismissed. Each party shall bear their own costs.

DATED, DELIVERED and SIGNEDthis 22ndday of JANUARY, 2014.

L.N. MUTENDE

JUDGE