[2012] KEHC 2710 (KLR)
The court found that the respondent failed to establish any legitimate interest in the estate or the subject land, as he did not claim to be a beneficiary or provide evidence of authority to act on behalf of any beneficiaries. The respondent's affidavit did not address his status or rights in relation to the estate,...
Source-derived case information.
- Citation
- [2012] KEHC 2710 (KLR)
- Parties
- Applicant: Robert Mumina Samuel; Applicant: Elizabeth Mbatha Samuel; Respondent: Gideon Mbithi Wathi
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 126 of 2008
- Procedural Posture
- Succession Cause / Ruling on Chamber Summons
- Outcome
- Application allowed. Restraining order granted against the respondent. Costs awarded to the applicants.
- Judges
- GMA Dulu
- Legal Topics
- Intermeddling With Estate, Administration of Estate, Injunctive Relief, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Mumina Samuel
Applicant
Elizabeth Mbatha Samuel
Applicant
Gideon Mbithi Wathi
Respondent
Procedural Posture
Succession Cause / Ruling on Chamber Summons
Legal Issues
- 1 Whether the respondent has intermeddled with the estate of the deceased contrary to the Law of Succession Act.
- 2 Whether the respondent should be restrained from interfering with land parcel MACHAKOS/KIANDANI/1248.
- 3 Whether costs should be awarded to the applicants.
Ratio Decidendi
The court found that the respondent failed to establish any legitimate interest in the estate or the subject land, as he did not claim to be a beneficiary or provide evidence of authority to act on behalf of any beneficiaries. The respondent's affidavit did not address his status or rights in relation to the estate, nor did it rebut the applicants' evidence of trespass and interference. The court concluded that the applicants had made a prima facie case for protection of the estate property and that the respondent's actions amounted to intermeddling. Accordingly, the court granted the restraining order sought and awarded costs to the applicants.
Court Disposition
Application allowed. Restraining order granted against the respondent. Costs awarded to the applicants.
Orders
- The respondent, Gideon Mbithi Wathi, is restrained from in any way intermeddling and/or interfering with the deceased’s estate, including land parcel number MACHAKOS/KIANDANI/1248.
- The respondent shall pay the applicants’ costs of the application.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT MACHAKOS
Succession Cause 126 of 2008
IN THE MATTER OF THE ESTATE OF SAMUEL MUMINA KATUMO - DECEASED
ROBERT MUMINA SAMUEL
ELIZABETH MBATHA SAMUEL ……............…..…. PETITIONERS/RESPONDENTS
VERSUS
GIDEON MBITHI WATHI ………………………….. RESPONDENT/INTERMEDDLER
R U L I N G
Before me is a Chamber Summons dated 28th March 2011 filed by the Petitioner Robert Mumina Samuel and Elizabeth Mbatha Samuel. It was filed under sections 45(1) and 47 of the Law of Succession Act (Cap 160) and Rule 73 of the Probate and Administration Rules. It has four prayers, two of which have been spent as follows:-
1. (Spent).
2. That the respondent, GIDEON MBITHI WATHI be restrained from in any way interddling and/or interfering with the deceased’s estate, which includes land parcel number MACHAKOS/KIANDANI/1248.
3. (Spent).
4. That the costs of this application be paid by the respondent.
The application was filed with a supporting affidavit sworn on 28th May 2011 by Robert Mumina Samuel. It was deponed that the subject asset was one of the properties in the estate of SAMUEL MUMINA KATUMO. That on 22/2/2011, the respondent trespassed into the land and started shifting the boundary thereof and had refused to leave, and also become aggressive.
The application is opposed. The respondent filed a replying affidavit sworn by himself on 2nd November 2011. It was deponed that the respondent had never trespassed or interfered with the boundaries of the land and had infact sought to protect the status quo. That the applicants had failed to disclose the existence of Machakos Criminal Case No. 905 of 2011 Republic –vs- Robert Mumina and that the applicants had been using court proceedings to deny the beneficiaries the use and peaceful control of the land.
On the hearing date, Mr Ngolya, for the applicants attended court and made submissions. Mr Mutua, for the respondent did not attend court.
Having considered the application and submissions tendered before me, I am of the view that the orders sought are justified. Firstly, the respondent has not stated in the replying affidavit what interests he has in the subject land. He has not stated that he is a beneficiary or an interested party and whether or not he is on the land. He does not give the names of the beneficiaries for whom he claims to act. The letter from the chief dated 12th April does not infact list him as a survivor of the deceased. His contention in this application has therefore to fail.
Consequently, I allow the application and grant prayer 2. The respondent will also pay the applicants’ costs of the application.
Dated and delivered at Machakos this 2ndday of July2012.
George Dulu
Judge
In presence of:
N/A for parties
Nyalo – court clerk