[2014] KEHC 4814 (KLR)
The court found that both the applicant and respondents had engaged in acts amounting to intermeddling with the estate of the deceased, which is prohibited under Section 45 of the Law of Succession Act. Since the grant of letters of administration had not been confirmed, neither party was entitled to deal with the...
Source-derived case information.
- Citation
- [2014] KEHC 4814 (KLR)
- Parties
- Applicant: Nthemba Kilonzo; Respondent: Kisue Kilonzo; Respondent: Mutheke Kilonzo; Respondent: Kioko Kilonzo
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1077 ‘A’ of 2011
- Procedural Posture
- Succession Cause / Interlocutory Application for Restraining Orders Pending Confirmation of Grant
- Outcome
- Restraining orders granted; status quo to be maintained; applicant directed to file for confirmation of grant within 21 days.
- Judges
- LN Mutende
- Legal Topics
- Administration of Estates, Intermeddling With Estate, Confirmation of Grant, Preservation of Estate, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nthemba Kilonzo
Applicant
Kisue Kilonzo
Respondent
Mutheke Kilonzo
Respondent
Kioko Kilonzo
Respondent
Procedural Posture
Succession Cause / Interlocutory Application for Restraining Orders Pending Confirmation of Grant
Legal Issues
- 1 Whether restraining orders should issue to prevent interference with the deceased's estate pending determination of the succession cause.
- 2 Whether the applicant and respondents have intermeddled with the estate contrary to the Law of Succession Act.
- 3 Whether the status quo should be maintained until confirmation of grant.
Ratio Decidendi
The court found that both the applicant and respondents had engaged in acts amounting to intermeddling with the estate of the deceased, which is prohibited under Section 45 of the Law of Succession Act. Since the grant of letters of administration had not been confirmed, neither party was entitled to deal with the estate property. The court determined that it was necessary to protect the estate by maintaining the status quo and restraining all parties from further interference until the succession cause is concluded. The applicant was further directed to move the process forward by filing for confirmation of grant within 21 days, in accordance with Section 73 of the Law of Succession Act.
Court Disposition
Restraining orders granted; status quo to be maintained; applicant directed to file for confirmation of grant within 21 days.
Orders
- All parties, their servants, agents or employees are restrained from interfering with the estate of the deceased, particularly land parcel Kiteta/Kiambwa/343, until the succession cause is heard and determined.
- Status quo regarding the suit premises shall be maintained.
Full Case Text
Judgment text and source record
24 paragraphs
NO. 264/2014
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
SUCCESSION CAUSE NO. 1077 ‘A’ OF 2011
IN THE MATTER OF THE ESTATE OF KILONZO MUTHEKE MUTHAMA (DECEASED)
NTHEMBA KILONZO.......................................PETITIONER/APPLICANT
VERSUS
KISUE KILONZO.......................................................1ST RESPONDENT
MUTHEKE KILONZO.................................................2ND RESPONDENT
KIOKO KILONZO......................................................3RD RESPONDENT
R U L I N G
1. The applicant, the administrator of the Estate ofKilonzo Mutheke Muthama filed an application dated 24th June 2013 seeking issuance of restraining orders against the Respondents, their servants, agents or their employees from interfering with the Estate of the deceased generally and in particular, land parcel number Kiteta/Kiambwa/343; (suit premises), planting euphorbia grass or other boundary marks in furtherance of the said interference, putting up structures on such parcels or in any other manner until the Succession Cause is heard and determined.
2. The application is premised on grounds that, the proceedings herein are still pending and the respondents have started to interfere with a portion of the suit premises; the respondents have been warned against intermeddling with the deceased’s estate, but have ignored the said warnings. The order sought is necessary to preserve the status quo until these proceedings are concluded; and that the applicant as the petitioner has the duty to protect and/or preserve the deceased’s estate until the cause is concluded.
3. In an affidavit in support of the application, the applicant stated that the Estate of the deceased is yet to be distributed; the respondents have interfered with the estate of the deceased by carrying out a portion of the suit premises by erecting the boundary and now wanted to embark on construction on the suit premises.
4. In a response thereto, the 1st respondent on behalf of the rest stated that the applicant asked the respondents to help her plant Euphorbia grass to mark the boundary for a portion of land she sold to one Mary Ngatia having sold the land in 2004. She has also sold land to some other people, transactions that were witnessed by all the beneficiaries. They denied having uprooted the Euphorbia trees.
5. The applicant herein petitioned for letters of administration intestate in respect of the deceased’s estate in her capacity as the widow. The respondents are her sons. She was granted the said letters of administration intestate on the 7th, May 2012. She filed an application for confirmation of the grant on the 28th January, 2013.
6. The suit premises (Kiteta/Kiambwa/343) is listed as one of the assets forming the estate of the deceased. No liability has been listed. The deceased died on the 2nd October, 1993. The alleged interference is said to have taken place on the 12th June 2006. Letters of administration intestate having not been confirmed, nobody is allowed to interfere with the property. The law criminalizes such an act. (See Section 45 of the Law of Succession Act.)
7. The applicant herein being an administrator of the Estate of the deceased has a duty of ensuring the Estate is preserved pending distribution. The applicant has been accused of intermeddling with the Estate of the deceased. It was alleged that a sale agreement was signed, all beneficiaries having consented. In his submission counsel for the applicant Mr. Muithyaalludes to the fact of somebody having benefited and having an interest in the deceased’s land. The applicant did not file any response refuting the allegations. This would suggest that both the applicant and respondents are intermeddling with the Estate of the deceased. This is an offence. In the premises it would call upon this court to protect the property. Consequently, status quo shall be maintained.
8. Further, pursuant to the Provision of Section 73 of the Law of Succession Act, the applicant is hereby notified to file the application for hearing of confirmation of grant within 21 days hereof.
9. It is so ordered.
DATED, SIGNEDand DELIVERED at MACHAKOS this 21ST day of MAY, 2014.
L.N. MUTENDE
JUDGE