[2023] KEKC 27 (KLR)

Mamo v Mamo (Succession Cause E009 of 2023) [2023] KEKC 27 (KLR) (1 September 2023) (Ruling)

Neutral citation: [2023] KEKC 27 (KLR)

Republic of Kenya

In the Kadhis Court at Moyale

Succession Cause E009 of 2023

G Adan, PK

September 1, 2023

Between

Quresho Hassan Mamo

Petitioner

and

Adan Hassan Mamo

Respondent

Ruling

1. The applicant filed this notice of motion dated 8th August 2023, under certificate of urgency seeking for the court:a.to certify this application as urgent and fit to heard on ex-parte in the first instance,b.to issue a temporary injunction restraining the respondent whether acting by himself, her agents, employees, servants, or whosoever from selling, transferring, subdividing or leasing or plot No, 131 in Moyale Town, and unregistered ancestral land in Mansile within Moyale Sub county, pending the hearing and determination of the application.c.Also seeking an order do issue against the respondent ordering him to declare the total rent received from the said rental plot,d.and further the proceeds be deposited with the court or in a joint account to be opened by the applicant and the respondent pending the hearing and determination of this suit.

2. When the matter came before the court on 8th August 2023, both the parties were absent, and the same not been certified as urgent due to not disclosing further details rendering its urgency and grounds to be heard on ex-parte in the first instance.

3. The applicant was directed by the court to serve the respondent with the notice of motion, supporting affidavit and with the petition papers, then to file proof of the same in the court.

4. The issue of determination is, whether the applicant’s prayers are granted pending the hearing and the determination of the suit.

5. On 28th August 2023, the matter came up for mention, where with leave of court, parties were allowed to present oral submission. The respondent admits been served on 11th August 2023, but he gave reason for not filling the response against the prayers sought and to the main suit, due to delay of proceeding he requested through his counsel, which was not admitted to the satisfaction of the court as the valid ground of not responding to the same. However, he was also allowed to make verbal response against the prayers, after the applicant’s counsel made his oral submission.

6. The respondent admitting not having any problem with the orders sought regarding the unregistered parcel of land, but opposing issuing the orders for a joint account opening for purpose of depositing rent collected from the plot no. 131 of Moyale town.

7. His arguments is that the same matter has been withdrawn from this court by the petitioner herself after they have resolve with the elders. He further avers, he has given the shares of the estate to the respective heirs. He said by purchasing their shares, but the applicant and her siblings (three beneficiaries) refused to take their shares. He said their mother have already taken her share long time ago before the Kadhi of that time. He said to have bought almost ¾ of the shares and if the rent collected deposited in a joint account he will suffer lose. But he as well admits to disclose the details of rent he has been receiving for the period from the year 2016 up to date.

8. The respondent’s counsel Mr. Kiogora Mugambi, late after the case has taken off, sent M/s Odoyo Advocate to hold brief on his behalf, which however, the court admit counsel’s holding representation to do so. The said counsel opposes the prayers before the court without disclosing further grounds apart from the one disclosed by the respondent for saying to oppose.

9. Upon heard oral submission from both sides, and upon considering their evidences, it is evident that respondent has no problem with the prayers seeking preservation of the deceased’s estate with regard to issuing orders restraining him whether acting by himself, his agents, employees, servants, or whosoever from selling, transferring, subdividing or leasing or plot No, 131 in Moyale Town, and unregistered ancestral land in Mansile within Moyale Sub county, pending the hearing and determination of the application.

10. Also, he admits to declare the total rent he received from the said rental plot, since his inception in the year 2017, the role to collect the said rent from the estate property plot no. 131 in Moyale town.

11. As he said before him the rent were collected by the applicant’s mother as from 1993 -1997, and then his mother up to 2016. Neither the applicant nor her counsel disagreed with him over the period he admits collecting the said rental proceeds from the estate and that which he will going to declare its detail.

12. Again, it was evident that the similar matter was filed in this court constituting the same subject matter and the same parties, and was then later withdrawn upon reconciliation. As this also not been opposed by the applicant, despite the applicant denying other claims alleged by the respondent about whether the estate has been distributed and some shares were sold to him, how it was distributed, according to which law? Which the questions pending for determination in the main suit.

13. It is also evident that the applicant refused to take whatever he gave him as her share, which the cause prompted again to the filing of this suit.

14. Nonetheless, the respondent opposes the proceeds be deposited with the court or in a joint account to be opened by the applicant and the respondent pending the hearing and determination of this suit.

15. Here the court considered whether the applicant’s ground on seeking this specific order is to the satisfaction of the court. Whether there is existence of fear of respondent may or will misappropriate the estate to the disadvantageous of the applicant and her sibling. Or whether if the orders sought may or will impact negatively on the side of the respondent.

16. As well this matter was on before filed in this court between the two parties and other beneficiaries from the applicant’s side. But on this second time, it is only appearing as between the two; the applicant and the respondent. On the same, the applicant filed this matter while claiming to represent her other siblings including her mother four heirs in total. She said preserving her shares and that of her mother and of her siblings in the said estate.

17. Therefore, to my view, if the shares of the applicant together with that of her mother and sibling is well secured, preserved and protected. Thus, I find the respondent to ensure preserving the estate, as required of him, he should be in mind that he will be accountable of what he had already collected and continue to collect and should keep good record of the rent collected.

18. In the end, I order the following:a.That the respondent is hereby restrained, whether acting by himself, her agents, employees, servants, or whosoever from selling, transferring, subdividing or leasing or plot No, 131 in Moyale Town, and unregistered ancestral land in Mansile within Moyale Sub county, pending the hearing and determination of the application.b.That the respondent should declare the total rent he received from the said rental plot, since his inception in the year 2017, to the role of collecting the said rent from the estate property plot no. 131 in Moyale town.c.That the other prayer on cost of the application will be dealt with at the end of the matter.d.That the respondent is given leave to respond to the main suit and will be mention for next cause of action.

DATED AND DELIVERED AT MOYALE ON THIS 1ST DAY OF SEPTEMBER 2023BY HON. GALGALO ADANPRINCIPAL KADHIIn the presence of:Mr. Behailu - The Counsel for the ApplicantQuresho Hassan - The ApplicantMr. Kiogora Mugambi - The Counsel for the respondentAdan Hassan - The respondentAdho - The court Assistant II