[2022] KEHC 16698 (KLR)

Munyi & 2 others v Kivuti & 3 others (Civil Appeal E050 of 2021) [2022] KEHC 16698 (KLR) (14 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16698 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E050 of 2021

LM Njuguna, J

December 14, 2022

Between

Anisia Marigu Munyi

1st Applicant

Erastus Nyaga Kivuti

2nd Applicant

Duncan Nyaga Kivuti

3rd Applicant

and

Francis Njiru Kivuti

1st Respondent

Jane Njoki Kivuti

2nd Respondent

Rosemary Wanja Njeru

3rd Respondent

Sammy Njue Kivuti

4th Respondent

(An appeal from the Ruling/Judgement of Hon. S. Ouko – RM in Runyenjes Succession Cause No. 24 0f 2020 delivered on 4. 11. 2021)

Ruling

1. The matter before the court is an application dated March 15, 2022 and wherein the applicants sought for orders that:i.Spent.ii.Spent.iii.That this Honourable Court be pleased to grant an order of temporary injunction restraining the respondents whether by themselves, their agents or servants from alienating, completing by conveyance or transfer of any parcel of land concluded by illegal sub division, leasing, letting or otherwise howsoever evicting, interfering with the applicants current possession and occupation of some areas of land of the main parcel of land known as Kyeni/ Mufu/1380 pending the hearing of this application and prohibiting the 1st, 2nd, 3rd and 4th respondents from registering any part of land parcel Nos. Kyeni/Mufu/1380 and Nthawa/Siakago/1365 pending the hearing and determination of the appeal.iv.Costs of the application be borne by the respondents.

2. The application is premised on the grounds on its face and it’s supported by the affidavit of the applicants.

3. The applicants state that on the December 3, 2021, the respondents secretly and unlawfully caused the clan land Kyeni/Mufu/1380 to be illegally sub divided into several parcels of land and some beneficiaries have been moved from their parcels and relocated to different parcels of land without any consultations within the families. That pending the determination of appeal before the court herein, the court be pleased to issue conservatory orders to preserve the suitland herein. That the suitlands Kyeni/ Mufu/1380 and LP Nthawa/Siakago/1365 were transferred to the respondents in an illegal manner with an intention to relocate the applicants from their part of land where they currently reside with their families. That the parts occupied by the applicants have developments and if the same is not protected by this court, there is a likelihood of irreparable loss and damage on the part of the applicants. It was stated that the respondents caused land parcel Kyeni/Mufu/1380 to be illegally subdivided during the pendency of the appeal herein which was a clear breach of the law and that if the order sought herein is not issued by this court, then they stand to suffer immensely.

4. The 1st respondent on his own behalf and on behalf of the other respondents swore an affidavit on March 30, 2022 opposing the said application and prayed that the application be dismissed for being incompetent and that the same has been brought in bad faith to defeat justice. That sometime in the year 2020, they filed a succession cause for the estate herein being Runyenjes Succession Cause No 24 of 2020 and that the letters of administration dated June 17, 2020 were later issued and the same was confirmed on November 15, 2020 to which, the protest, the genesis of the matter herein was filed. It was deponed that when the matter came up for hearing, the 1st applicant withdrew the protest and for purposes of clarity, the suitland forming the estate herein had been subdivided by the deceased during his lifetime; and that none of the family members is to be evicted or disinherited. That the said grant was confirmed in line with the deceased’s wishes and in any case, the 1st applicant currently has leased her portion of the inherited estate to a church in order to collect rent; the 2nd applicant is hell bent on disinheriting a sibling stating that she is married and thus should not get a portion of the estate herein. That, the 3rd applicant in fact got a larger portion (1 acre) of the estate compared to any other beneficiaries who only acquired half an acre of the estate of the deceased. It was deponed that the orders sought herein should not issue as the application is aimed at holding the beneficiaries hostage.

5. The applicants filed a further affidavit in which they reiterated the averments contained in their application as supported by the annexed supporting affidavit. That the application herein has been made in good faith and therefore this court was urged to issue the orders as prayed for.

6. The court gave directions that the application be canvassed by way of written submissions which directions were complied with by both parties.

7. The applicants submitted that given that there is a pending appeal before the court herein, it was important for the court to grant conservatory orders to preserve the suitland herein. That the suitlands Kyeni/Mufu/1380 and LP Nthawa/Siakago/ 1365 were transferred to the respondents in an illegal manner with an intention to relocate the applicants from their part of land where they currently reside with their families. That the parts occupied by the applicants have developments and if the same is not protected by this court, there is a likelihood of irreparable loss and damage suffered by the applicants. It was stated that the respondents caused land parcel Kyeni/Mufu/ 1380 to be illegally subdivided during the pendency of the appeal herein which was a clear breach of the law and that they fear that if a conservatory order is not issued by this court, then they stand to suffer immensely. Reliance was placed on the case of Joseph Siro Musioma v HFCK & 3 Others, Nairobi HCC No 265 of 2007. It was their case that this court is clothed with the power to serve substantial justice and, therefore, if the orders sought herein are not granted, then the applicants stand to suffer irreparably. In regards to cost, it was their submission that the same follows the event and as such, the situation that the parties currently find themselves in, has been precipitated by the respondents and therefore, they should be condemned to bear the costs.

8. The respondents on the other hand submitted that the application herein seeks injunctive orders and reliance was placed on the case of Giella v Cassman Brown & Co Ltd (supra). It was their case that the applicants must demonstrate a prima facie case with a high probability of success, demonstrate irreparable damage if the injunction is not granted and where the court is in doubt, it must decide on a balance of convenience. Additional reliance was placed on the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others, CA No 77 of 2012. Further, it was submitted that these pillars ought to be satisfied by the applicants herein sequentially. That the application herein has been made in bad faith and its aim is to punish the respondents/beneficiaries from enjoying their inheritance. That during the trial in the lower court, the applicant filed a protest which she later withdrew and thereafter, the grant herein was confirmed.

9. Further, the properties herein had been sub-divided during the lifetime of the deceased and to buttress the same, that the 1st applicant currently has leased her portion of the inherited estate to a church in order to collect rent; the 2nd applicant is hell bent to disinherit a sibling stating that she is married and thus should not get a portion of the estate herein while the 3rd applicant got a larger portion (1 acre) of the estate compared to any other beneficiaries who only acquired half an acre of the estate of the deceased. That the same was as per the directions of the deceased and that they should let the same remain and therefore, granting the orders herein would lead to the beneficiaries being held hostage for no reason.

10. That the application herein is compounded with fabrications that are not a true reflection of the happenings on the ground and that this court should not entertain the same. It was contended that he who seeks equity must do equity and he who comes for an equitable remedy must do so with clean hands and therefore, the orders sought herein are not deserved. Reliance was placed on the case of Showind Industries v Guardian Bank Limited & Another (2002)1 EA 284; in the end, this court was urged to decline the issuance of the sought orders.

11. The court has considered the application and the submissions by the respective parties and this court forms the view that it has been called upon to determine whether the orders sought herein can issue.

12. Section 47 of the Law of Succession Act vests the court with wide discretion in granting orders for purposes of safeguarding the estate of a deceased person. It provides:'The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.'

13. In the same breadth, Rule 73 of the Probate and Administration Rules provides that: -'73 Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.'

14. My understanding of the above provisions is that this court is bestowed with wide powers to do what is necessary to ensure that the ends of justice are met. [See Millicent Mbatha Mulavu & another v Annah Ndunge Mulavu & 3 others [2018] eKLR] where the court affirmed the powers of the High Court to issue injunctions for purposes of preserving the estate of a deceased person. It therefore means that this court has jurisdiction to issue orders including the issuance of preservatory orders against the wrongful disposal and or intermeddling with the estate/free property of the deceased’s estate. [See Section 45 of the LSA].

15. In Re Estate of Jeremiah Ngiri Kibati (Deceased) [2019] eKLR and Re Estate of Elijah Ngari (Deceased) [2019] eKLR, the court in dealing with the issue of issuance of conservatory orders in succession matters cited with approval the decision of this court in Japhet Kaimenyi M’ndatho v M’ndatho M’mbwiria [2012] eKLR noting that an applicant in an application for preservatory orders: -'Has to satisfy the following conditions: -a.That the suit property is at the risk of being disposed of or alienated or transferred to the detriment of the applicant unless Preservatory orders of inhibition are issued.b.That the refusal to grant orders of inhibition would render the applicant’s suit nugatory.c.That the applicant has arguable case.'

16. Similarly, In the Matter of the Estate of Paulo Kiplagat Boiwo (Deceased) (2012) eKLR, the court while affirming that preservatory orders are similar to injunctive orders noted that applicants have to abide by the conditions set out in the celebrated case of Giella v Cassman Brown (1973) EA 358 namely the applicant must make out a prima facie case and show that they will suffer irreparable loss which loss cannot be compensated by damages and lastly that the balance of convenience should tilt in their favour where doubt exists.[ also See the Court of Appeal decision in Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB CA Civil Appeal No 77 of 2012 [2014] eKLR].

17. What constitutes a prima facie case? The Court of Appeal in Mrao Ltd v First American Bank of Kenya Limited and 2 Others [2003] eKLR explained that it is,'A case in which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.'

18. It is apparent then that, a prima facie case is therefore one that is not frivolous but one which is easily discernable from the pleadings even before the party is heard as it will show a right exists which may be infringed if an injunction is not issued. The onus of establishing the existence of a prima facie case lies with the applicant.

19. Further, In the Nguruman case (supra), the court stated as follows;'On the second factor, that the applicant must establish that he 'might otherwise' suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima facie, the nature and extent of the injury.Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot 'adequately' be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.'

20. In the instant application and as noted above, it is incumbent upon the applicants to establish a prima facie case. I have had a chance to peruse the record herein more so the lower court record and I find that the matter herein was filed at Runyenjes as Succession Cause No 24 of 2020 and wherein letters of administration was issued to the 1st respondent/the petitioner herein. Later, the applicant registered a caution on the suit land and thereafter, filed a protest dated March 9, 2020 when the grant was due for confirmation. The court therefore directed that the petitioner files a replying affidavit and that the matter was to be canvassed by way of oral evidence. I further note that on November 4, 2021, when the matter came up for hearing, the petitioner herein made an application to withdraw the previous petition and the same be replaced with the petition dated July 19, 2021 of which, he prayed that the same be confirmed. In the same breadth, the record shows that the protestor withdrew her protest and the court noted that there being no objection, the grant was thus confirmed.

21. It is not clear why the protestor withdrew her protest and thereafter moved this court via an appeal; no reason has been presented before this court to show that in deed, the applicants deserve the orders being sought and in that regard, no substantial reason has been presented before this court to explain the applicants action before the trial court and the change of heart in filing the appeal and consequently the orders sought herein. Further, the respondents having submitted that the applicants herein already benefitted from the alleged sub division carried out by the deceased during his lifetime, no affidavit or evidence has been produced before this court to disprove the averments.

22. In my view therefore, I find and hold that the applicants have not established a prima facie case to enable this court grant the orders sought herein. Consequently, I dismiss the application herein with no order to costs.

23. It is so ordered.

Delivered, dated andsigned at Embu this14th day ofDecember, 2022. L. NJUGUNAJUDGE………………………………for the Applicant………………………………………for the Respondent