[2015] KEHC 5642 (KLR)
The court found that the applicant, as a son of the deceased and a potential beneficiary, had raised credible concerns regarding his exclusion from the distribution of the estate and the risk of the estate property being disposed of before the revocation application could be heard. The respondent's assertion that...
Source-derived case information.
- Citation
- [2015] KEHC 5642 (KLR)
- Parties
- Applicant: Julius Mbogo Kathara; Respondent: Obadia Muthee Njiru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 14 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Prohibition and Stay Pending Revocation Proceedings
- Outcome
- Application allowed; orders of prohibition and stay granted as prayed.
- Judges
- FN Muchemi
- Legal Topics
- Succession Proceedings, Revocation of Grant, Interlocutory Injunctions, Preservation of Estate Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Julius Mbogo Kathara
Applicant
Obadia Muthee Njiru
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Prohibition and Stay Pending Revocation Proceedings
Legal Issues
- 1 Whether the court should grant orders of prohibition to preserve LR. No. Gaturi/Nembure/2069 pending determination of summons for revocation of grant.
- 2 Whether the applicant has established sufficient grounds for stay of implementation of the grant to prevent sub-division, transfer, or other dealings with the estate property.
Ratio Decidendi
The court found that the applicant, as a son of the deceased and a potential beneficiary, had raised credible concerns regarding his exclusion from the distribution of the estate and the risk of the estate property being disposed of before the revocation application could be heard. The respondent's assertion that the applicant had already inherited another parcel did not negate the need to preserve the disputed property. The court held that, in the interests of justice and to avoid rendering the revocation proceedings nugatory, it was appropriate to grant the orders of prohibition and stay as sought by the applicant. The preservation of the estate property was necessary until the...
Court Disposition
Application allowed; orders of prohibition and stay granted as prayed.
Orders
- Orders of prohibition to be registered against LR. No. Gaturi/Nembure/2069 pending hearing and determination of summons for revocation of grant.
- Stay of implementation of the grant by way of sub-division, transfer, waste or any other dealings including alteration of the current registration of LR. Gaturi/Nembure/2069.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
MISC. APPLICATION NO. 14 OF 2014
(IN THE MATTER OF THE ESTATE OF NJIRU KATHARA - DECEASED)
JULIUS MBOGO KATHARA......................APPLICANT
VERSUS
OBADIA MUTHEE NJIRU......................RESPONDENT
R U L I N G
The application dated 20/1/2014 seeks for orders of prohibition to be registered against LR. No. Gaturi/Nembure/2069 pending hearing and determination of summons for revocation of grant issued to the respondent in Runyenjes Succession Cause No. 125 of 2012. It also seeks to stay implementation of the grant by way of sub-division, transfer, waste or any other dealings including alteration of the current registration of LR. Gaturi/Nembure/2069.
The grounds supporting the application are threefold. Firstly, that the applicant is the son of the deceased Njiru Kathara and therefore a beneficiary in the estate. Secondly, the respondent was excluded in the distribution he has now filed summons for revocation which may be rendered nugatory if the orders sought are not granted. Thirdly, that the respondent is already in the process of implementing the grant he obtained in Runyenjes Succession Cause No. 125 of 2012.
The respondent filed a replying affidavit opposing the application. He argues that the respondent had already inherited from the deceased land reference No. Gaturi/Nembure/2542 measuring 5 acres and has already settled on the land.
By consent of the parties the application was disposed of by way of written submissions. The applicant was represented by the firm of Njeru Ithiga & Co. while Beth Ndorongo & Co. represented the respondent. The counsels filed written submissions on behalf of the parties.
I have carefully considered the application and the replying affidavit as well as the arguments of the parties in their submissions. It is not in dispute that the respondent in the Runyenjes Succession cause inherited all the assets of the deceased and excluded the applicant. The applicant has now applied for revocation of the said grant citing several grounds which include the jurisdiction of the court. The fear of the applicant is that the respondent is likely to dispose of the land which would render the summons for revocation useless.
Although the respondent argues that the applicant was aware of the succession cause, the allegations of disinheriting the applicant will only be decided upon determination of the summons for revocation. It is therefore appropriate to preserve the property in the interests of justice.
I find th application merited and I allow it as prayed.
It is hereby so ordered.
DATED, SIGNED AND DELIVERED AT EMBU THIS 12TH DAY OF MARCH, 2015.
F. MUCHEMI
JUDGE
In the presence of:-
Mr. Ithiga for Applicant
Mr. Nganga for Ndorongo for Respondent