[2022] KEHC 76 (KLR)

Muithathi v Nyaguthii & 2 others (Succession Cause 30 of 1986) [2022] KEHC 76 (KLR) (4 February 2022) (Ruling)

Neutral citation: [2022] KEHC 76 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause 30 of 1986

A Mshila, J

February 4, 2022

IN THE MATTER OF THE ESTATE OF GEORGE WAMAI HINGA (DECEASED)

Between

Vanessa Wangui Muithathi

Applicant

and

Lydia Nyaguthii

1st Respondent

Joseph Wangai Wamai

2nd Respondent

Ruth Wanjiru Mungai

3rd Respondent

Ruling

1. The application is dated 14/12/2020 and is premised under the provisions of Section 47 of the Law of Succession Act and Rules 49, 59 and 73 of the Probate and Administration Rules; the application was supported by the grounds on the face of the application and the Supporting Affidavit and a Further Affidavit; the Applicant seeks the following orders that;a.Spentb.The Respondents, by themselves, their agents, servants and/or employees be and are hereby prevented by injunction from alienating, sub-dividing, transferring, transmitting or in any other way interfering with L.R.No.6324/11 in Nanyuki Municipality, LR.Nos. Konyu Baricho/832 822, 823, 824, 825, 833, 642, 634, 826, 830, 831, 838, 795/41, Plot No. B225 – Karatina Plot No. B34, LR. No.12312 Nanyuki Municipality, and all other properties of the estate as enumerated in the Certificate of Confirmation of Grant dated 25th September, pending the hearing and determination of this application;c.The Respondents, by themselves, their agents, servants and/or employees be and are hereby prevented by injunction from alienating, sub-dividing, transferring, transmitting or in any other way interfering with L.R.No.6324/11 in Nanyuki Municipality, LR.Nos. Konyu Baricho/832 822, 823, 824, 825, 833, 642, 634, 826, 830, 831, 838, 795/41, Plot No.B225 – Karatina Plot No. B34, LR. No.12312 Nanyuki Municipality, and all other properties of the estate as enumerated in the Certificate of Confirmation of Grant dated 25th September,2015 pending the hearing and determination of the main suit.d.Orders of inhibition/caveats be placed on Nanyuki Municipality, LR.Nos. Konyu Baricho/832 822, 823, 824, 825, 833, 642, 634, 826, 830, 831, 838, 795/41, Plot No. B225 – Karatina Plot No. B34, LR. No.12312 Nanyuki Municipality, shares in ICDC and any money held by the Public Trustee.

2. The Directions were given on the 10/03/2021 that the matter be canvassed by way of written submissions and the parties were directed to file and exchange their respective submissions; hereunder is a summary of their rival submissions.

The Applicants Case 3. The Applicants case is that the respondents embarked on distributing the estate to the listed dependants and also to strangers after learning of the summons for Revocation of Grant.

4. It was trite law that where an intestate left a spouse and children, the spouse had a life interest which devolves upon the children equally upon death. It is not disputed that Mercy Wanja Muithathi died after the deceased herein. The estate of the late Mercy Wanja Muithathi was therefore supposed to have been distributed equally. The estate comprises of over 235 acres but the applicants and her siblings were given a mere 0. 5 acres which is to be held in trust for them by the 1st Respondent. Her contention was that she was discriminated and disinherited without her consent or knowledge.

5. The distribution of the estate as per the Certificate of Confirmation of Grant was clearly contrary to the law. For those reasons, the Applicant submitted that she had made out a prima facie case with a probability of success as was set out in the renowned case of Giella vs Cassman Brown Ltd (1973) EA 358.

6. Since the bulk of the estate remains undistributed the applicant sought for the preservation of the estate in order that justice be done for the estate of the deceased and the Applicant.

The Respondent’s Case 7. In response the Respondent contended that the Applicant was guilty of misleading the court as she had failed to acknowledge the fact that the properties known as KONYU/BARICHO/828 and KONYU/BARICHO/837 under item (viii) of the Certificate of Confirmation of Grant dated 24th September, 2015 are held in trust for her and her siblings by the 1st respondent.

8. The bulk of the estate has already been distributed to the respective beneficiaries and titles issued and therefore the application was overtaken by events. Only LR No.6324/11 Nanyuki Municipality and LR.No.12312 Nanyuki Municipality remain undistributed reason being that LR No.6324/11 Nanyuki Municipality requires a lengthy process of sub-division and transfer due to the number of beneficiaries while and LR.No.12312 Nanyuki Municipality has a civil matter in court.

9. The Respondent deposed that the Grant herein was issued on 16/05/1986 to the Public Trustee No Grant was ever made to the respondents directly and no application for the Confirmation of Grant was made by the respondents; in the circumstances there was therefore no consent required to be sought from the applicant or any beneficiary.

10. Any sale alluded to was done by the Public Trustee long before the Respondents were appointed as trustees and there is no evidence provided by the applicant that the respondents have entered into any Sale Agreement in their current capacity.

11. The application lacks merit and the Respondents prayed for it to be dismissed with costs.

Issues For Determination 12. Counsels filed and exchanged written submissions and from the submissions tendered only one issue has been framed for consideration;

i.Whether the applicant has satisfied the conditions for the grant of injunctive/preservatory orders.

Analysis 13. The Applicant seeks preservatory orders under the provisions of Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules pending hearing and determination of her application for Revocation of Grant. These two provisions grant this court powers to issue protective preservatory orders including injunctions for the purposes of safeguarding the subject properties.

14. The principles for granting preservatory orders are similar to those set down for injunctive orders which principles are set out in the renowned case of Giella vs Cassman Brown Ltd (supra). Before granting such orders the court will seek to establish whether the Applicant has satisfied the three (3) principles set out in the above referenced case being that the Applicant must demonstrate that they have made out a prima facie case with a probability of success; they must show that they are likely to suffer irreparable loss which may not be compensated by an award for damages and where the court is in doubt it must make a decision based on a balance of convenience.

15. The Applicant submitted that the deceased died intestate and left a spouse and children (including the applicants mother); and she argued that the spouse has a life interest and upon her demise the life interest devolves upon the children in equal shares. That it was not disputed that Mercy Wanja Muithathi died after the deceased herein and the Applicants’ contention was that the estate of the late Mercy Wanja Muithathi was then supposed to have been shared equally within the estate of the deceased.

16. But that was not case as the Applicant submitted that out of an estate that comprises over 235 acres she and her siblings were given a paltry 0. 5 acres which is held in trust by the 1st Respondent. Her grounds are that the bulk of the estate still remains undistributed and she is apprehensive of being discriminated in the process of distribution.

17. The Respondent does not deny that the bulk of the estate has not been distributed and the reasons given is that there is on-going civil litigation in LR No. 12312 Nanyuki Municipality as LR No.6324/11 Nanyuki Municipality the delay in distribution is attributed to a lengthy process of sub-division and transfer owing to the number of beneficiaries.

18. The questions posed are has the Applicant made out a prima facie case? And what then is a prima facie case? The definition of a prima facie case was stated in the Court of Appeal case of; Nguruman Limited vs Jan Bonde Nielsen & 2 Others [2014] eKLR it stated that.‘The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of parties are not to be proved in such manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the court takes the view that on the face of it the applicants case is more likely than not to ultimately succeed.’

19. The Applicant had expounded that the deceased died intestate and had left a spouse and children, and that her mother was one of such children. This makes the Applicant a grandchild of the deceased and nowhere is it disputed in the response by the Respondent that the Applicant is not a beneficiary to the deceased’s estate. In the light of the material presented to the court placed before it by the Applicant this court is satisfied that has demonstrated that she ‘has a fair and bona fide question to raise as to the existence of a right which apparently has been infringed upon by the opposite party as to call for an explanation or rebuttal from the latter.’; as reiterated in the case of; Mrao vs First American Bank of Kenya Limited & 2 Others (2003) KLR125l. This court finds that she has made out a prima facie case with a reasonable probability of success.

20. The second test for determination is whether the Applicant will suffer irreparable loss if the order is not granted. In order to show irreparable harm, the moving party must demonstrate that it is a harm that cannot be quantified in monetary terms or which cannot be cured. In this instance the Applicant submitted that her mother was a child of the deceased and is entitled to an equal benefit from the estate of the deceased and it was for this reason the Applicant had filed a summons for Revocation for Grant as the final distribution of the estate is likely to be prejudicial to her if the Respondents activities are not restrained. This court is inclined to find that the subject properties having belonged to a parent or grandparent carries ‘a certain intrinsic sentimental value and emotional attachment that cannot be adequately compensated for by an award of damages’; as was held in Re: Estate of Gideon Koibitok Tarus (Deceased) [2021]eKLR.

21. In this instance the applicant has established the she has a ‘prima facie’ case and has also demonstrated that she will suffer irreparable harm in the event the remaining properties are sold or unfairly distributed and it is therefore imperative that the subject properties set out in prayer (b) of the application be persevered pending the hearing and determination of the main application.

Findings and Determination 22. From the afore-going reasons this court makes the following findings and determinations;i.This court finds that the application is partially meritorious and it is hereby allowed;ii.The Respondents, by themselves, their agents, servants and/or employees be and are hereby prevented by injunction from alienating, sub-dividing, transferring, transmitting or in any other way interfering with L.R.No.6324/11 in Nanyuki Municipality, LR.Nos. Konyu Baricho/832 822, 823, 824, 825, 833, 642, 634, 826, 830, 831, 838, 795/41, Plot No.B225 – Karatina Plot No. B34, LR. No.12312 Nanyuki Municipality, and all other properties of the estate as enumerated in the Certificate of Confirmation of Grant dated 25th September,2015 pending the hearing and determination of the application for Revocation of the Grant.iii.Each party shall bear their own costs.Orders accordingly.

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 4THDAY OF FEBRUARY, 2022. HON.A.MSHILAJUDGEIn the presence of;Mr. Macharia for the ApplicantsMiss Maina for the RespondentsKinyua.................Court Assistant