[2015] KEHC 6140 (KLR)
The court found that the purported sale of the estate property to the respondent constituted intermeddling with the free property of the deceased, as prohibited by section 45 of the Law of Succession Act. The applicants, having petitioned for a grant of letters of administration, had no authority to dispose of the...
Source-derived case information.
- Citation
- [2015] KEHC 6140 (KLR)
- Parties
- Applicant: Mutio Kamota Mbila; Applicant: Muia Kamota; Respondent: Mutie Mutua
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1120 of 2012
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application and Preliminary Objection
- Outcome
- Application allowed; respondent barred from intermeddling with estate property.
- Judges
- BT Jaden
- Legal Topics
- Intermeddling With Estate, Grant of Letters of Administration, Sale of Estate Property, Trespass on Estate Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutio Kamota Mbila
Applicant
Muia Kamota
Applicant
Mutie Mutua
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application and Preliminary Objection
Legal Issues
- 1 Whether the respondent intermeddled with the estate of the deceased contrary to section 45 of the Law of Succession Act.
- 2 Whether the purported sale of the estate property to the respondent was lawful.
- 3 Whether the applicants are estopped from seeking relief due to their alleged involvement in the sale.
Ratio Decidendi
The court found that the purported sale of the estate property to the respondent constituted intermeddling with the free property of the deceased, as prohibited by section 45 of the Law of Succession Act. The applicants, having petitioned for a grant of letters of administration, had no authority to dispose of the estate property prior to the grant. The respondent's reliance on the sale agreement and the alleged consent of family members and local authorities did not cure the illegality, as only a grant of representation confers authority to deal with estate assets. The court rejected the preliminary objection and allowed the application, barring the respondent from further interference...
Court Disposition
Application allowed; respondent barred from intermeddling with estate property.
Orders
- The respondent, Mutie Mutua, is barred from entering, trespassing, constructing, or interfering with land parcel Muputi/Kiima-Kimwe/1102 until determination of the matter.
- Costs in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 1120 OF 2012
IN THE MATTER OF THE ESTATE OF KAMOTA MBILA NZAU
MUTIO KAMOTA MBILA
MUIA KAMOTA ............................................ PETITIONERS/APPLICANTS
VERSUS
MUTIE MUTUA …………………………………………….…………. RESPONDENT
R U L I N G
The application dated 30/11/2012 is brought under section 45 of the Law of Succession Act, Rule 49 and 73 of the Probate and Administration Rules and all other enabling provisions of the law.
The application seeks orders that the Honourable Court be pleased to bar the Respondent, Mutie Mutuafrom intermeddling with the deceased’s estate by way of entering, trespassing, constructing and or interfering with land parcel Number Muputi/Kiima-Kimwe/1102 in any manner howsoever, until this matter is heard and determined.
The Applicants have petitioned the court for a grant of Letters of Administration intestate in the estate of Kamota Mbila Nzau. According to the Applicants, land parcel No. Muputi/Kiima-Kimwe/1102 which forms part of the estate of the deceased is being wasted by the Respondent Mutie Mutua. It is averred that the Respondent has trespassed into the said parcel of land and is in the process of putting up a construction on the same. The Applicants have termed any purported sale to the Respondent as having been made contrary to the provisions of the law.
The application is opposed. According to the replying affidavit sworn by the Respondent, he purchased the parcel of land in question from the Petitioner who had the consent of the other beneficiaries. That the family of the deceased was facing financial difficulties and the sale agreement had the blessings of the area District Officer, the chief and the clan elders. The Respondent has accused the Applicants of coming to court with dirty hands after selling the property to him and receiving the purchase price of Kshs.95,000/=.
The Respondent has also filed a Preliminary Objection on the grounds that the Applicants are in breach of section 45(1) of the Law of Succession Act Cap 160 Laws of Kenya and are therefore estopped from filing the present application.
Both the application and the Preliminary Objection were heard simultaneously. The same were canvassed by way of written submissions which I have duly considered.
Section 45 of the Law of Succession Act Cap 160 Laws of Kenya provides as follows:-
“Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.”
The purported sale of the property in question amounted to intermeddling in the estate of the deceased.
Consequently, I allow the application with costs in cause.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 5thday of February 2015.
………………………………………
B. THURANIRA JADEN
JUDGE