[2005] KEHC 151 (KLR)
The court found that the applicant, as a beneficiary of the deceased's estate who was deliberately left out of the succession proceedings, had established a prima facie case for interim relief. Allowing the respondent to sub-divide the only asset of the estate while his ownership was under challenge would be a...
Source-derived case information.
- Citation
- [2005] KEHC 151 (KLR)
- Parties
- Applicant: Teresia Wawira Nyaga; Respondent: Francis Njogu Nyaga
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 73 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Injunction Pending Annulment Proceedings
- Outcome
- Temporary injunction granted; costs in the cause.
- Judges
- I Lenaola
- Legal Topics
- Succession Proceedings, Grant Revocation, Injunctive Relief, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Teresia Wawira Nyaga
Applicant
Francis Njogu Nyaga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Injunction Pending Annulment Proceedings
Legal Issues
- 1 Whether a stay of execution and temporary injunction should be granted to restrain the respondent from sub-dividing the estate land pending determination of the application for annulment and revocation of grant.
- 2 Whether the applicant, as a beneficiary allegedly excluded from succession proceedings, has established a prima facie case for interim relief.
Ratio Decidendi
The court found that the applicant, as a beneficiary of the deceased's estate who was deliberately left out of the succession proceedings, had established a prima facie case for interim relief. Allowing the respondent to sub-divide the only asset of the estate while his ownership was under challenge would be a travesty of justice. The court was not shown any prejudice that would be suffered by the respondent if the status quo was maintained pending determination of the application for annulment and revocation of the grant. Accordingly, the court exercised its inherent jurisdiction to grant a temporary injunction restraining the respondent from sub-dividing the estate land until the...
Court Disposition
Temporary injunction granted; costs in the cause.
Orders
- A temporary injunction is issued restraining the respondent from sub-dividing parcel No.GATURI/WERU/499 until the hearing and determination of the application for annulment and revocation of grant in SPMC Succession Cause No.262 of 1995 (Embu).
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Misc Succ Case 73 of 2004
NYAGA KARIGE…………………….......................................................……………..DECEASED
AND
TERESIA WAWIRA NYAGA……………....................................................…………APPLICANT
FRANCIS NJOGU NYAGA ……………...........................................……………RESPONDENT
RULING
1. The Applicant herein is Teresia Wawira Nyaga and she beseeches this Court to invoke its inherent jurisdiction under S.3A of the Civil Procedure Act and grant “a stay of execution of the confirmed grant of representation” in Embu SPMCC Succession Cause No. 262 of 1995, “restraining the Respondent from sub-dividing the parcel of land No.GATURI/WERU/499 pending the hearing and determination of the Application for annulment and revocation of the confirmed grant”.
2. I have read the Supporting Affidavit of the Applicant and the one in reply by the Respondent, Francis Njogu Nyaga and the facts are that;
i) The parties are sister and brother respectively although the Respondent says that the Applicant is his step-sister not born of his father.
ii) The Respondent filed Succession Cause No. 262 of 1995 in SPM’s Court Embu but did not include the Applicant nor his sisters and beneficiaries of their late father.
iii) The Applicant filed an Application in this cause seeking that the grant be annulled or revoked for reasons that she and her sisters were unaware that the Succession Cause in the Lower Court had been finalized and that the land comprised in the estate had been given to the Respondent who was now planning to sub-divide it and in effect disinherit the Applicant and her sisters.
iv) The Respondent depones that the Applicant and her sisters are all married women, do not live on their late father’s land and have no lawful interest in it.
3. I have perused the application and although worded rather untidily, I see that what the Applicant seeks is that the land comprised in the Estate be retained as it is until the Application for Annulment is heard and determined. In matters of this nature, where the only asset is the parcel of land, then it would be a travesty of Justice to allow the Respondent to sub-divide it when his ownership is being challenged in Court. I have not been told what prejudice would be occasioned to the Respondent if matters remain as they are until this Court rules one way or the other.
4. Although as I said the Application is badly drafted, I should not punish an innocent litigant who in any event has shown that there is a prima facie case shown, as she is indeed a beneficiary of the estate, who it is admitted was deliberately left out for reasons that I cannot at present sustain.
5. I shall therefore and only for the ends of Justice to be met make the following orders;-
i) that a temporary injunction do issue restraining the Respondent from sub-dividing parcel No.GATURI/WERU/499 until the hearing and determination of the Application for Annulment and Revocation of grant in SPMC Succession Cause No.262 of 1995 (Embu).
ii) Costs shall be in the cause.
Orders accordingly.
Read in open court this 26th day of January 2005
I. LENAOLA
JUDGE
In presence of;
Mr. Utuku for Applicant
Mr. Okwaro for Respondent
I. LENAOLA
JUDGE