[2022] KEHC 13251 (KLR)

Munyinyi & another v Munyinyi & 2 others (Miscellaneous Application 99 of 2015) [2022] KEHC 13251 (KLR) (Family) (3 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13251 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Miscellaneous Application 99 of 2015

AO Muchelule, J

October 3, 2022

Between

Judy Wairimu Munyinyi

1st Applicant

Morris Kungu Munyinyi

2nd Applicant

and

Elizabeth Nyariara Munyinyi

1st Respondent

Glenwood Gardens Limited

2nd Respondent

David Karanja Karau

3rd Respondent

Ruling

1. This dispute relates to the estate of Moses Memia Munyinyi who died intestate on June 4, 1992. The widow Elizabeth Nyariara Munyinyi went to the Chief Magistrate’s Court at Kiambu in Succession Cause No 654 of 1994 and obtained a grant of letters of administration intestate. The grant was confirmed, and the only property of the estate (LR No Kiambaa/Ruaka/674) was transferred to Glenwood Gardens Limited (the 2nd respondent).

2. The applicants Judy Wairimu Munyinyi and Morris Kungu Munyinyi are daughter and son, respectively, of the deceased. When they discovered what had happened, they applied to have the grant as confirmed revoked. The 1st respondent was shareholder and director of the 2nd respondent. The objection was filed in the subordinate court. The applicants were advised that the application for revocation should be filed before the High Court. They came before this court seeking the transfer of the succession cause to this court to determine the application. It was at that stage that the parties entered into a consent. The 2nd respondent was developing apartments on the property. It was agreed that the applicants should each get a three bedroomed apartment from the project, and also get Kshs 9,000,000/= to be paid in three equal instalments on given dates. The 2nd respondent should then pay their legal fees of Kshs 800,000/=. The consent was endorsed as order of the court to compromise the application for revocation.

3. The instant motion is dated February 3, 2021 and was brought by the applicants asking that the 3rd respondent Major (Rtd) David Karanja Karau be ordered to come to court to show cause why he should not be committed to civil jail for six (6) months for failing to honor the terms of the consent order. The consent had a default clause: that if the above terms would not be obeyed the 2nd respondent would pay Kshs 21,000,000/= plus interest to the applicants. It was the applicants’ case that the 2nd respondent had defaulted on all the terms. In the application, the 3rd respondent had been brought in on the basis that he had undertaken to honor the terms of the consent if the 2nd respondent did not; that he was the 2nd respondent’s guarantor.

4. The 3rd respondent opposed the application through grounds of opposition dated May 31, 2021 and replying affidavit dated July 5, 2021.

5. This application can be disposed of quite easily. The 3rd respondent states correctly that the decree that was extracted following the consent order was against the 1st and 2nd respondents. It was not against him, and up to that point he was not a party to these proceedings and had no obligation to honour any of the terms of the decree. No application was made under section 34 of the Civil Procedure Act to have him settle the decree. He was not a judgment debtor to the claim.

6. Secondly, no leave was sought or obtained to join him in the execution proceedings to have him satisfy the decree, or at all.

7. But more important, the claim that the 3rd respondent had guaranteed to honour the decree, which claim he has denied in the sworn affidavit in response, was not substantiated. It was not indicated how he was related to the 2nd respondent who is the judgment debtor. He did not sign any guarantee, and the consent did not mention him.

8. The result is that the application dated February 3, 2021 has no merits and is dismissed with costs.

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 3RD DAY OF OCTOBER 2022A.O. MUCHELULEJUDGE