[2015] KEHC 447 (KLR)
The court found the applicant's affidavit evidence credible and unchallenged, noting that she is a beneficiary who was excluded from the distribution of the estate by the respondent, who is her brother and the administrator. The court determined that unless a prohibitory order was issued, the applicant risked...
Source-derived case information.
- Citation
- [2015] KEHC 447 (KLR)
- Parties
- Applicant: Nazaria Kaari Njagi; Respondent: John Njeru Njagi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 148 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Prohibitory Order Pending Revocation of Grant
- Outcome
- prohibitory order granted in terms of prayers 3, 4, 5 and 6 of the chamber summons dated 4th August 2015; no order as to costs
- Legal Topics
- Succession Proceedings, Grant Revocation, Prohibitory Orders, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nazaria Kaari Njagi
Applicant
John Njeru Njagi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Prohibitory Order Pending Revocation of Grant
Legal Issues
- 1 Whether the applicant, as a beneficiary, was excluded from the distribution of the deceased's estate.
- 2 Whether a prohibitory order should issue to preserve the estate pending determination of the revocation application.
- 3 Whether the respondent fraudulently obtained the grant and distributed the estate without provision for the applicant.
Ratio Decidendi
The court found the applicant's affidavit evidence credible and unchallenged, noting that she is a beneficiary who was excluded from the distribution of the estate by the respondent, who is her brother and the administrator. The court determined that unless a prohibitory order was issued, the applicant risked eviction from the land she occupies and the estate could be distributed to her detriment before the revocation application is heard. The respondent's failure to respond or attend, despite proper service, further supported the applicant's case. Accordingly, the court held that it was necessary and just to issue a prohibitory order to preserve the estate and protect the applicant's...
Court Disposition
prohibitory order granted in terms of prayers 3, 4, 5 and 6 of the chamber summons dated 4th August 2015; no order as to costs
Orders
- A prohibitory order is issued in respect of land parcels Gaturi/Githimu/4231, 4232 and 4228 to preserve the estate pending determination of the revocation application.
- No order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
MISC SUCC CAUSE NO. 148 OF 2015
IN THE MATTER OF THE ESTATE OF NJAGI MUNGE (DECEASED)
NAZARIA KAARI NJAGI................................................................................................APPLICANT
VERSUS
JOHN NJERU NJAGI..................................................................ADMINISTRATOR/RESPONDENT
RULING
The applicant brought this application under certificate of urgency dated 4th August 2015 under Rules 49 and 73 of the Probate and Administration Rules. There is pending in court an application for the revocation of the grant.
The applicant has stated that she is the beneficiary of the estate of the deceased. It is also her contention that she was left out by the administrator of the estate which she alleges the respondent has fully administered in respect of land parcel Nos. Gaturi/Githimu/4232, 4231 and 4228. She fears that if the grant is fully implemented, the beneficiaries may evict the applicant and her family from land parcel No. Gaturi/Githimu/4232, which the applicant and her family are now occupying. It is for this reason that she seeks a prohibitory order to preserve the estate of the deceased pending the hearing and determination of the application for the revocation of the grant.
In support of that application, the applicant has filed a supporting affidavit dated 4th August, 2015. In that affidavit, she has stated that the respondent who is the administrator of the estate is her brother. She has also stated that she is a daughter of the late Njagi Munge. According to her, in paragraph 4 of the affidavit, the respondent secretly filed succession cause No. 64 of 2014 in the magisterial subordinate court at Runyenjes. Thereafter, he was granted letters of administration intestate. Upon being granted those letters, he proceeded to distribute the estate of their late father without making any provision for the applicant. She has also stated in paragraph 7 that the grant was fraudulently obtained by the respondent. Finally, she has stated that unless a prohibitory order is issued, the beneficiaries may evict her from the land that she now occupies with her family. It is for these reasons that she seeks a prohibitory order in respect of the land parcels stated above, which comprise the estate of the deceased.
The hearing of this application proceeded in the absence of the respondent. The respondent despite being given time to file a replying affidavit did not do so. The respondent also did not attend the hearing of this application. The respondent was properly served and had adequate notice. It is for this reason that these proceedings were conducted in his absence
I have considered the affidavit evidence of the applicant and I find it credible. Furthermore, I find that the issuance of a prohibitory order in respect of land parcel No. Gaturi/Githimu/4231, 4232 and 4228 is necessary to prevent the eviction of the applicant from the parcel of land, which is under her occupation namely land parcel No. Gaturi/Githimu/4232. Furthermore, I also find that unless a prohibitory order is issued, the estate of the deceased may be distributed to the detriment of the applicant.
In the circumstance, a prohibitory order will issue in terms of prayers No. 3, 4, 5 and 6 of the chamber summons dated 4th August, 2015.
I make no order as to costs as the matter involves members of the same family
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this.. 11th . day of NOVEMBER, .2015
In the presence of Ms Muthoni for the applicant and in the absence of the Respondent.
Court clerk Mr Nyaga
J.M. BWONWONGA
JUDGE
11. 11. 15