[2014] KEHC 1214 (KLR)
The court found that the applicants' claim to be beneficiaries of the deceased's estate is a substantive issue yet to be determined, as the summons for revocation/annulment of grant remains pending. To prevent possible injustice and preserve the subject matter of the dispute, the court held that it is necessary to...
Source-derived case information.
- Citation
- [2014] KEHC 1214 (KLR)
- Parties
- Respondent: Lucas Kiliku Ndolo; Respondent: Philomena Mukonyo Muthengi; Applicant: David Musyoka; Applicant: Joseph Munyao; Applicant: James Kimeu; Applicant: Peter Mutunga; Applicant: Ann Ndululu
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 63 of 2006
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Injunction Application
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Injunctive Relief, Preservation of Estate, Revocation of Grant, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucas Kiliku Ndolo
Respondent
Philomena Mukonyo Muthengi
Respondent
David Musyoka
Applicant
Joseph Munyao
Applicant
James Kimeu
Applicant
Peter Mutunga
Applicant
Ann Ndululu
Applicant
Procedural Posture
Succession Cause / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether a temporary injunction should issue to restrain the respondents from interfering with the applicants' possession and occupation of the disputed land pending determination of the succession cause.
- 2 Whether the applicants are beneficiaries to the estate of the deceased and entitled to protection of their interests pending hearing of the summons for revocation/annulment of grant.
Ratio Decidendi
The court found that the applicants' claim to be beneficiaries of the deceased's estate is a substantive issue yet to be determined, as the summons for revocation/annulment of grant remains pending. To prevent possible injustice and preserve the subject matter of the dispute, the court held that it is necessary to maintain the status quo by granting a temporary injunction restraining the respondents from evicting or interfering with the applicants' possession and occupation of the disputed land until the substantive issues are resolved. The court emphasized the need to avoid prejudicing the applicants' potential rights as beneficiaries before their claim is adjudicated.
Court Disposition
application allowed
Orders
- A temporary injunction is issued restraining the respondents and their agents from evicting, interfering, or otherwise dealing with the applicants' possession and occupation of Mbuini/Kabaa/308 pending hearing and determination of the cause.
- Costs in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 63 OF 2006
IN THE MATTER OF THE ESTATE OF MUTHENGI MULUNGU MASYUKO (DECEASED)
1. LUCAS KILIKU NDOLO
2. PHILOMENA MUKONYO MUTHENGI .................... PETITIONER/RESPONDENT
VERSUS
1. DAVID MUSYOKA
2. JOSEPH MUNYAO
3. JAMES KIMEU
4. PETER MUTUNGA
5. ANN NDULULU ……………………………………….OBJECTORS/APPLICANTS
R U L I N G
The application dated 18th December 2012 seeks orders that a temporary injunction do issue restraining the Petitioner/Respondent by themselves and/or by their authorized agents, servant, employee and/or any person acting under their authority from evicting, interfering and/or in any other manner dealing with the Objectors’ possession and occupation of that parcel of land known as Mbuini/Kabaa/308 initially registered in the names of Muthengi Mulungu Masyuko (deceased) pending the hearing and determination of this cause.
According to the affidavit in support, the deceased, Muthengi Mulungu Masyuko had two wives.That when the Respondents petitioned the court for a grant of Letters of Administration, they concealed the existence of the Applicants who are one of the widows and her four children. Consequently, the Applicants were excluded from the inheriting the estate of the deceased.
The application is opposed. According to the replying affidavit sworn by the Respondents, the Applicants are neither wife nor children of the deceased. That the grant of the Letters of Administration was obtained in accordance with the laid down procedures. That the grant has since been confirmed and the land the subject matter of this cause subdivided and new title deed issued.That the land parcel No. Mbiuni/Kabaa/308 has been the subject of litigation in HCCC 63/2008 (Machakos) and the Objectors had been restrained from interfering with the same pending the hearing and determination of the suit.
Parties took directions that the application be canvassed by way of written submissions. The Applicants filed their submissions but the Respondents did not file any. I have considered the submissions filed.
It is observed that the summons for revocation/annulment of grant dated 1/3/2012 is yet to be heard. The Applicants contention is that they are beneficiaries to the estate of the deceased. This is an issue that is yet to be determined by the court. In the meantime, there is need to preserve the status quo. The application is therefore allowed with costs in cause.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 26th day of November, 2014.
………………………………………
B. THURANIRA JADEN
JUDGE