[2009] KEHC 362 (KLR)
The court held that since the grant of representation had not been confirmed and the estate had not been distributed, the petitioner had no authority to determine the applicant's status as a beneficiary or to evict her from the property. The applicant, as a widow of the deceased and mother of his children, retains...
Source-derived case information.
- Citation
- [2009] KEHC 362 (KLR)
- Parties
- Petitioner: Margaret Tatayo; Applicant: Evaline Nyangai Pandi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 227 of 2005
- Procedural Posture
- Succession Cause / Interlocutory Application for Injunction Pending Confirmation of Grant
- Outcome
- interlocutory injunction granted; applicant protected from interference pending final determination
- Legal Topics
- Succession Rights, Widows Entitlement, Interlocutory Injunctions, Beneficiary Status
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Tatayo
Petitioner
Evaline Nyangai Pandi
Applicant
Procedural Posture
Succession Cause / Interlocutory Application for Injunction Pending Confirmation of Grant
Legal Issues
- 1 Whether the applicant, as a widow of the deceased, is entitled to occupy and use a portion of the estate land pending confirmation of grant.
- 2 Whether the petitioner can lawfully evict or interfere with the applicant's occupation before the estate is distributed.
- 3 Whether remarriage extinguishes the applicant's rights to the deceased's property prior to confirmation of grant.
Ratio Decidendi
The court held that since the grant of representation had not been confirmed and the estate had not been distributed, the petitioner had no authority to determine the applicant's status as a beneficiary or to evict her from the property. The applicant, as a widow of the deceased and mother of his children, retains the right to occupy and use the portion of land she currently occupies until the court determines the final distribution of the estate. The issue of remarriage does not, at this interlocutory stage, extinguish her rights or those of her children. The court found it necessary to preserve the status quo and protect the applicant from eviction or interference by the petitioner...
Court Disposition
interlocutory injunction granted; applicant protected from interference pending final determination
Orders
- The petitioner is restrained from interfering with the applicant's occupation and use of a portion measuring three acres or thereabout comprised in plot No. SOUTH KABRAS/LUKUME/1814 pending the hearing and final disposal of this cause.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA Succession Cause 227 of 2005 IN THE MATTER OF THE ESTATE OF TATAYO WELAVISIA WASIA (DECEASED) MARGARET TATAYO ………………………………. PETITIONER V E R S U S EVALINE NYANGAI PANDI ………………..…..…… APPLICANT R U L I N G
In her application dated 20th March, 2009 the applicant is seeking orders to the effect that the petitioner be restrained from interfering with her occupation and use of a portion of a plot measuring 3 acres comprised in plot No. SOUTH KABRAS/LUKUME/1814 pending the hearing and final disposal of the succession cause.
Mr. Amasakha, counsel for the applicant relied on the applicant’s supporting affidavit sworn on 20th March, 2009. The applicant contends that she is one of the widows of the late GABRIEL INDANA WASIA and that she occupies part of plot No. SOUTH KABRAS/LUKUME/1814 where she lives with her children. The deceased left her on that portion of land and the petitioner intends to lease that portion to strangers. The applicant contends that she has not remarried.
Mr. Kiveu, counsel for the petitioner opposed the application. Counsel relied on the petitioner’s replying affidavit sworn on 21st July, 2009. The petitioner acknowledges that the applicant is a widow of the deceased but contends that she has remarried and has four children with one Samson Lishindu whom she has brought into the deceased’s property. The petitioner would like the applicant to move out of the deceased’s property and join her new husband as her rights have been extinguished by her re-marriage. The grant has not been confirmed.
From the record, the grant has not been confirmed. An application for confirmation of the grant dated 5th December, 2006 is still pending. From that application for confirmation of the grant, the petitioner’s supporting affidavit include the applicant herein, Everlyn Nyangi Pandi, as one of the beneficiaries. The petitioner concedes that the applicant had children with the deceased and contends that she has no problem with the applicant’s children.
Since the estate has not been distributed, the petitioner should not determine who is a proper beneficiary at this time. Further, the applicant’s children have a right to live with their mother on their share of the estate should it be established that the applicant has remarried. Other than plot No. SOUTH KABRAS/LUKUME/1814, the deceased left plot No. SOUTH KABRAS/LUKUME/1811and1813. Plot 1814 measures 4. 74 Hectaes, Plot 1813 measures 1. 19 Hectares while Plot No.1811 is 3. 47 Hectares.
I do find that the petitioner has no reason to evict the applicant from plot 1814 whether the applicant has remarried or not. The petitioner is hereby restrained from interfering with the applicant’s occupation and use of a portion measuring three acres or thereabout comprised in plot No. number SOUTH/KABRAS/LUKUME/1814 pending the hearing and final disposal of this cause. There shall be no order as to costs.
Delivered, Dated and Signed at Kakamega this 26th day of November, 2009
SAID J. CHITEMBWE
J U D G E