[2015] KEHC 2712 (KLR)
The court found that both the applicant and the 1st respondent are beneficiaries of the deceased's estate and that the evidence did not establish clear demarcation or occupation of the disputed land. The 2nd respondent's rights as a purchaser are secondary and lie against the 1st respondent, not the estate. Since...
Source-derived case information.
- Citation
- [2015] KEHC 2712 (KLR)
- Parties
- Applicant: Mule Kyalo; Respondent: Peter Kyalo; Respondent: Mulei Mutweiya
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 943 of 2009
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application for Injunction
- Outcome
- application dismissed with costs in cause; status quo to be maintained
- Judges
- BT Jaden
- Legal Topics
- Injunctive Relief, Estate Administration, Beneficiary Rights, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mule Kyalo
Applicant
Peter Kyalo
Respondent
Mulei Mutweiya
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the respondents should be restrained from interfering with parcel No. Masii/Vyulya/585 pending determination of the succession cause.
- 2 Whether the applicant and 1st respondent are beneficiaries entitled to protection of the estate property before confirmation of grant.
- 3 Whether the 2nd respondent, as a purchaser, has rights against the estate or only against the 1st respondent.
Ratio Decidendi
The court found that both the applicant and the 1st respondent are beneficiaries of the deceased's estate and that the evidence did not establish clear demarcation or occupation of the disputed land. The 2nd respondent's rights as a purchaser are secondary and lie against the 1st respondent, not the estate. Since the grant of representation had not yet been confirmed, the court held that the status quo should be maintained to protect the interests of all beneficiaries. The application for an injunction was dismissed, but the court ordered that the status quo be preserved until confirmation of the grant, which should be prioritized to allow for proper distribution of the estate.
Court Disposition
application dismissed with costs in cause; status quo to be maintained
Orders
- The application for injunction is dismissed with costs in the cause.
- Status quo to be maintained pending confirmation of grant.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 943 OF 2009
IN THE MATTER OF THE ESTATE OF ANNAH KALUNDE KYALO (DECEASED)
MULE KYALO ......................................................................... PETITIONER
VERSUS
1. PETER KYALO
2. MULEI MUTWEIYA ……………………………………… RESPONDENTS
R U L I N G
The application dated 19/3/2010 seeks orders that the Respondents, his agents, servants and whomsoever be restrained by an order of this Honourable Court from interfering in any manner with the family property known as parcel No. Masii/|Vyulya/585 until this petition is heard and determined.
It is stated in the replying affidavit that the Respondents are interfering with the suit property by causing destruction and threatening to sell the same.
The application is opposed. It is deponed that the suit property belongs to the 1st Respondent who was given the same as compensation for inheriting a smaller portion of land parcel No. Masii/Vyulya/417. That the 2nd Respondent is a purchaser of the same. That the petition herein was filed without the consent of the Respondents, hence the objection filed herein. It is further stated that some of the properties of the deceased and in particular land parcel No. Masii/Vyulya/417 were left out of the list of assets reflected in the petition.
Directions were given that the application be canvassed by way of written submissions. The Applicants filed theirs but the Respondents did not file any. I have considered the submissions filed.
The affidavit evidence from both sides reflects that the Applicant and the 1st Respondent are beneficiaries in the state of the deceased. The evidence on record fails to establish whether the land is demarcated on the ground and who occupies which portion on the ground.
The 2nd Respondent is a purchaser from the 1st Respondent. His cause of action would probably lie against the 1st Respondent.
The grant is yet to be confirmed. This should be done on a priority basis so that each of the beneficiaries get their shares. In the meantime, the status quo to remain. The application has merits and is dismissed with costs in cause.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 19thday of March 2015.
………………………………………
B. THURANIRA JADEN
JUDGE