[2013] KEHC 4279 (KLR)
The court found that the petitioners, despite being served, failed to respond to allegations of construction on the suit land while a summons for revocation of grant was pending. The court was persuaded that such actions amounted to intermeddling with the deceased's estate, especially since the individual shares of...
Source-derived case information.
- Citation
- [2013] KEHC 4279 (KLR)
- Parties
- Respondent: Mary Kemunto Musa; Respondent: Felix Musa; Objector: Irene Kemunto Musa; Applicant: Kennedy Bosire Gichana
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 215 of 2011
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Injunction Application
- Outcome
- Application allowed; injunction granted.
- Legal Topics
- Injunctive Relief, Intermeddling With Estate, Pending Revocation of Grant, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Kemunto Musa
Respondent
Felix Musa
Respondent
Irene Kemunto Musa
Objector
Kennedy Bosire Gichana
Applicant
Procedural Posture
Succession Cause / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the petitioners should be restrained from dealing with the suit land pending determination of the summons for revocation of grant.
- 2 Whether the actions of the petitioners amount to intermeddling with the deceased's estate.
- 3 Whether the court should preserve the estate to protect the interests of beneficiaries and interested parties.
Ratio Decidendi
The court found that the petitioners, despite being served, failed to respond to allegations of construction on the suit land while a summons for revocation of grant was pending. The court was persuaded that such actions amounted to intermeddling with the deceased's estate, especially since the individual shares of beneficiaries had not yet been identified. To prevent further interference and to preserve the estate for the benefit of all interested parties, the court exercised its jurisdiction under section 47 of the Law of Succession Act and its inherent powers under Rule 73 of the Probate and Administration Rules to grant an injunction restraining the petitioners from dealing with the...
Court Disposition
Application allowed; injunction granted.
Orders
- The petitioners, their agents, servants, workmen or any other person or persons claiming through them are restrained from entering, disposing of, alienating, constructing or in any other manner whatsoever interfering with land parcel NO. KISII MUNICIPALITY/BLOCK I/126 until further orders of the court.
- Costs of the application are awarded to the applicant and the objector.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
High Court of Kisii
Succession Cause 215 of 2011 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
MARY KEMUNTO MUSA ………….……. 1ST PETITIONER/1ST RESPONDENT
FELIX MUSA ………………..……………. 2ND PETITIONER/2ND RESPONDENT
VERSUS
IRENE KEMUNTO MUSA …………………………………………….. OBJECTOR
AND
KENNEDY BOSIRE GICHANA ………….. INTERESTED PARTY/APPLICANT
RULING
1. The Interested Party herein, Kennedy Bosire Gichana has moved this court by Summons dated 14th September 2012 and filed in court on 17th September 2012 for an order of injunction restraining the Petitioners, their agents, servants, workmen or any other person or persons claiming through them from entering, disposing of, alienating, constructing or in any other manner whatsoever interfering with land parcel NO. KISII MUNICIPALITY/BLOCK I/126 (the suit land). The applicant also prays that costs of and incidental to the application be provided for.
2. The application is premised on the grounds on the face and is also supported by the affidavit sworn by Kennedy Bosire Gichana on 17th September 2012. The deponent contends that he bought a portion of the suit land from the late Peter Omurwa for Kshs.1,500,000/= and that the deceased owed him a sum of Kshs.360,000/= for the intended sale of plot No. KISII MUNICIPALITY/BLOCK I/135 which sum the deponent says can be treated as a set off from the balance of the purchase price for the suit property. According to paragraphs 2, 3 and 4 of the supporting affidavit, the sum of Kshs.360,000/= was made up of Kshs.200,000/= paid by the deponent to facilitate the process of obtaining grant of letters of administration and Kshs.110,000/= for extension of the lease instrument. The deponent avers that the affidavit in support of the petition, that is to say Form P&A5 does not indicate that he has an interest in the suit property, hence this application.
3. The application though served is not opposed. When the application came up for hearing Mr. Momanyi Aunga for the objector submitted that they supported the application because the objector also seeks to annul the grant that was issued to the petitioners in her capacity as widow of the deceased. Mr. Momanyi submitted that the acts by the petitioner of carrying on with construction on the suit property when the application for revocation is pending amounts to intermeddling with the deceased’s estate and should not be condoned by this court. Counsel urged the court to allow the petition since the shares for the individual beneficiaries have not been identified. Counsel urged court to preserve the deceased’s estate awaiting the hearing of the summons for revocation.
4. The sections of the law cited by the applicant herein give power to the court to ensure that there is no intermeddling with a deceased’s estate. Undersection 47of the Law of Succession Act, Cap 160 Laws of Kenya,this court has jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decrees and make such orders therein as may meet the ends of justice.Rule 73of theProbate and Administration Rulessaves the inherent powers of court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court.
5. In the instant case, there is a pending application seeking revocation of grant issued to the Petitioner herein. That application has been duly served upon the Petitioner and is awaiting hearing and final determination. In the meantime, there are allegations that the petitioner is carrying out construction on the suit land first before individual shares of beneficiaries have been identified and secondly despite the pendency of the summons for revocation. The petitioners though served have chosen not to respond to the allegations that they are constructing on the suit land despite protestations from the beneficiaries.
6. In the circumstances, I am persuaded that the petitioners are intermeddling in the deceased’s estate, and their actions must be halted until the respective beneficiaries’ interests are clearly identified. For this reason, the application dated 14th September 2012 be and is hereby allowed in terms of prayer 2 thereof. Costs of this application to the applicant and the objectors.
7. It is so ordered.
Dated and delivered at Kisii this 21st day of March, 2013
RUTH NEKOYE SITATI
JUDGE.
In the presence of:
Mr. Minda (present) for Interested Party/Applicant
Mr. Momanyi Aunga (absent) for Objector
M/s Mbicha (absent) for Petitioners
Mr. Bibu - Court Clerk
RUTH NEKOYE SITATI
JUDGE.
HC (KISII) SUCCESSION CAUSE NO.215 OF 2012
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