[2021] KEELC 2567 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT

AT MILIMANI

ELC CIVIL NO. 1180 OF 2014

MUCHANGA INVESTMENTS LTD............................................................................................PLAINTIFF

- VERSUS -

HABENGA HOLDINGS LTD...............................................................................................1ST DEFENDANT

JINA ENTERPRISES LTD...................................................................................................2ND DEFENDANT

TELESOURCE COM LTD..................................................................................................3RD DEFENDANT

DIRECTOR OF SURVEYS.................................................................................................4TH DEFENDANT

DIRECTOR OF PHYSICAL PLANNING MINISTRY OF LANDS & HOUSING.....5TH DEFENDANT

REGISTRAR OF TITLES..................................................................................................6TH DEFENDANT

CHIEF LAND REGISTRAR..............................................................................................7TH DEFENDANT

JOHN MUGO KAMAU......................................................................................................8TH DEFENDANT

CATHERINE NGANGA FOR THE ESTATE OF CARMELINA MBURU.................9TH DEFENDANT

BARCLAYS BANK OF KENYA LTD................................................................1ST INTERESTED PARTY

RULING

1. This is a Ruling in respect of a Notice of Motion dated 10th November 2020 in which the Applicants seek to be enjoined in this suit as interested parties. The Applicants contend that they are executors of the estate of the late Carmelina Ngami Mburu (Deceased) who died on 24th October 2017 aged 90 years. The Applicants contend that the deceased left a will dated 26th January 2017 in which the deceased appointed them as executors.

2. The Applicants further contend that they have since obtained grant of letters of administration ad litem in respect of the estate of the deceased. The Applicants argue that the Respondent who is named as the 9th Defendant in this suit is purporting to represent the estate of the deceased pursuant to a power of attorney donated to her which power of attorney they argue automatically ceased to have any effect upon the demise of the deceased.

3. The Applicants argue that the grant of letters of administration ad litem which was granted to the Respondent was obtained through non-disclosure of material facts upon the termination of the power of attorney which had been granted to the Respondent. The Applicants argue that they have since moved to court seeking to revoke the grant issued to the Respondent and that the Respondent has no authority to continue representing the estate of the deceased.

4. The Respondent has opposed the Applicants’ application contending that this court has no jurisdiction to pronounce itself on which of the grants should prevail and that the Applicants have been less than candid as they obtained a grant when there was already another grant which is in place in favour of the Respondent which grant has never been revoked or appealed against.

5. The Respondent has also taken issue with the will which was allegedly executed by the deceased. The Respondent argues that the application by the Applicants is meant to delay the finalization of this case. The Respondent contends that she obtained grant of letters of administration ad litem after she disclosed to the Family Court that she had a power of attorney from the deceased and that as the deceased had died, she needed a grant to enable her proceed with this suit.

6. I have considered the Applicants’ application as well as the opposition to the same by the Respondent. I have also considered the submissions by the parties herein. The only issue for determination is whether the Applicants have demonstrated that they have interest in this matter to warrant them being enjoined in these proceedings as interested parties.

7. A look at the Applicants’ application and the Respondent’s opposition to the same shows that the issue in contention is on who is the rightful party to represent the estate of the deceased. There is no doubt that the Respondent who is the 9th Defendant in this case had a power of attorney donated to her by the deceased. The power of attorney was given to the Respondent in march 2014.

8. By operation law, this power of attorney ceased to be of no effect upon the demise of the deceased on 24th October 2017. The Respondent aware of this position moved the Family Division of the High Court and obtained grant of letter of administration ad litem on 15th January 2019. This was in High Court Succession Cause No.1130 of 2018.

9. The Applicants moved to the Family Division of the High Court and filed High Court Succession Cause No.1493 of 2018 in which they sought to have grant of probate in respect of the estate of the deceased. The petition for grant of probate was objected to by an Advocate called Nyamu who opposed the grant on the grounds that he was the deceased’s lawyer until her demise.

10. The Applicants then moved the Family Division of the High Court vide High Court Succession Cause No. E 098 of 2021 where they obtained Limited grant of letters of administration ad Litem in respect of the estate of the deceased on 27th January 2021. It is on the basis of this grant that the Applicants are seeking to be enjoined in this suit.

11. There is no doubt that there are two grants issued in respect of the estate of the deceased. This court has no jurisdiction to address the issue of which grant should prevail. This is a preserve of the Family Division of the High Court. This court cannot also comment on the validity or otherwise of the will which is alleged to have been executed by the deceased. It is therefore clear that unless the issue of which grant should prevail is determined by the court with jurisdiction to hear the same, there is no basis upon which I will allow the joinder of the Applicants as interested parties.

12. The issue of the power of attorney donated to the Respondent was not contested. It is this power of attorney which allowed the Respondent to be sued in this suit as the 9th Defendant. Upon the demise of the deceased, the Respondent moved to court and obtained grant of letters of administration ad litem. The Applicants were aware of the grant but they went and obtained another grant without first seeking to revoke the one held by the Respondent as they have done through summons for revocation of grant in favour of the Respondent through their application which was made on 9th March 2021.

13. It is therefore clear that unless the grant held by the Respondent is revoked, she is the one who is properly representing the estate of the deceased. I therefore find no merit in the Applicants’ application which is dismissed with costs to the Respondent.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 14TH DAY OF JUNE 2021

E. O. OBAGA

JUDGE

In the Virtual presence of:-

Mr Muller and Mr Wena for Plaintiff

Mr Musyoka for 3rd Defendant

Mr Amuyunzu for Mr Waweru for Applicants

M/s Murambi and M/s Kitenge for Mr Arusei for 9th Defendant

Mr Kamau for 4th to 7th Defendants

Court Assistant: Okumu

E. O. OBAGA

JUDGE