[2009] KEHC 3497 (KLR)
The court found that the actions of the respondent, the Chief, and Victor Mbwii in entering land parcel number 557 and purporting to subdivide and allocate portions before the grant of letters of administration and before court-ordered distribution constituted unlawful intermeddling with the estate of the deceased....
Source-derived case information.
- Citation
- [2009] KEHC 3497 (KLR)
- Parties
- Respondent: Peter Nzwili Kitheka; Applicant: Ndeto Musevu
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 210 of 2007
- Procedural Posture
- Probate and Administration Cause / Ruling on Objection and Interlocutory Injunction Application
- Outcome
- Application allowed; injunction granted to restrain intermeddling with the estate; costs in the cause.
- Judges
- I Lenaola
- Legal Topics
- Succession of Estates, Intermeddling With Estate, Injunctive Relief, Distribution of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Nzwili Kitheka
Respondent
Ndeto Musevu
Applicant
Procedural Posture
Probate and Administration Cause / Ruling on Objection and Interlocutory Injunction Application
Legal Issues
- 1 Whether the actions of the respondent and others constituted intermeddling with the deceased's estate before grant and distribution.
- 2 Whether an injunction should issue to restrain further intermeddling with the estate pending determination of the cause.
Ratio Decidendi
The court found that the actions of the respondent, the Chief, and Victor Mbwii in entering land parcel number 557 and purporting to subdivide and allocate portions before the grant of letters of administration and before court-ordered distribution constituted unlawful intermeddling with the estate of the deceased. Section 45(1) of the Law of Succession Act expressly prohibits such acts unless authorized by law or a grant of representation. The presence of the Chief for security purposes did not legitimize the illegal activity. The court exercised its powers under section 47 of the Law of Succession Act to grant an injunction restraining further intermeddling and warned that continued...
Court Disposition
Application allowed; injunction granted to restrain intermeddling with the estate; costs in the cause.
Orders
- An injunction is issued restraining Peter Nzwili Kitheka, Victor Mbwii, and the Chief, Miu Location from intermeddling with the estate of Kitheka Kanee pending determination of the cause.
- Should intermeddling persist, criminal proceedings under section 45(2) of the Law of Succession Act may be commenced.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Probate & Admin. Cause 210 of 2007
PETER NZWILI KITHEKA ……………….….PETITIONER /RESPONDENT
VERSUS
NDETO MUTEVU……….....……………………….OBJECTOR/APPLICANT
RULING
1. Kitheka Kanee alias Musembi died on 3. 4.1978 but it was only on 10. 5.2007 that Peter Nzwilli Kitheka (who says that he is the only son of the deceased) petitioned for grant of letters of administration to the estate. In his Petition he listed the following as the deceased’s Assets;
i. L.R.No. Ngamba/Muthetheni/560
ii. L.R.No. Ngamba/Muthetheni/557
2. I note from a certificate of official search dated 27. 6.2007 that land parcel number 557 aforesaid is jointly owned in equal shares by Kitheka Kanee (deceased) and Kioka Kilonzo (deceased). It comprises 4. 8 hectares.
3. On 31. 10. 2007, one Ndeto Musevu filed an objection to the grant of letters to Peter Nzwilli Kitheka for reasons that he had allegedly purchased 6 acres out of land parcel numbers 557 and yet the petitioner who was aware of the purchase failed to disclose Ndeto’s interest in the land when he filed his Petition. On 29. 11. 2008 the said Ndeto pursuant to Rules 49, and 73 of the Probate and Administration Rules and predicated on the provisions of section 45 and section 47 of the Law of Succession Act filed an application in which he sought orders to stop Nzwilli, one Victor Mbwii and the Chief, Miu Location from intermeddling with the estate until the cause is determined. I ordered the latter two to be served with the summons but they failed to appear.
4. In any event, the complaint is that before the distribution of the estate, the Chief, Miu location and Victor Mbwii entered land parcel number 557 and purported to plant euphobia trees as boundary markers and thereby awarded Ndeto 3 acres and Mbwii 2 acres and that action amounts to intermeddling in a deceased person’s estate. The orders of injunction are therefore sought to stop them from continuing their illegal actions and to preserve the estate.
5. Nzwilli filed a Replying Affidavit on 9. 9.2008 and in it he deponed that Ndeto is indeed entitled to land from Kioka Kilonzo’s portion of number 557 and that it was the Akanga clan that sub-divided the said parcel of land on 15. 6.2002 and Kioka was given his half share comprising 2. 4 hectares. That thereafter the Chief, Miu Location was present when the land was being sub-divided between Ndeto and Mbwii to ensure security because Ndeto was making threats to Mbwii. That therefore no injunction should issue as prayed.
6. To my mind, what amounts to intermeddling in a deceased’s estate is precisely what is happening in this case. Section 45(1) of the Law of Succession Act provides as follows:-
“Except is 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.”
7. In the instant case it is admitted that before letters were issued and before distribution by this court, Nzwilli, the Chief, Miu Location and Mbwii entered land parcel number 557 and purported to determine what belongs to Kioka Kilonzo; what belongs to the deceased; what belongs to Ndeto and what belongs to Mbwii. Further, they proceeded to put Mbwii into possession of what they determined is due to him. That is an unlawful action however convenient it may seem to the parties that are involved. The Chief may have been there to enforce security but it matters not because the activity for which he gave security was illegal.
8. I am satisfied that there was intermeddling with the estate of Kitheka Kanee and I have powers under section 47 of the Law of Succession Act to issue an injunction in terms of prayers 3 of the Application with further orders that should intermeddling persist, criminal proceedings under section 45(2) of the Law of Succession Act may be commenced.
9. Costs shall be in the cause.
Dated and delivered at Machakos this 27th day of May 2009.
Isaac Lenaola
Judge
In the presence of: Mr. Kimeu h/b for Mrs Wambua for Applicant
No appearance for Respondent
Isaac Lenaola
Judge