[2012] KEHC 4163 (KLR)
The court found that the Respondent, as administrator, held the estate property in trust for named beneficiaries, excluding the Applicant. There was no evidence that the Applicant was ever allocated Plot 5/182 or that the other beneficiaries consented to such allocation. The absence of the Applicant's name from the...
Source-derived case information.
- Citation
- [2012] KEHC 4163 (KLR)
- Parties
- Applicant: SKK; Respondent: AHK
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 249 of 2010
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application (chamber Summons)
- Outcome
- Application allowed; restraining order granted.
- Judges
- MJA Emukule
- Legal Topics
- Grant of Letters of Administration, Intermeddling With Estate, Trusts in Succession, Restraining Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
SKK
Applicant
AHK
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application (chamber Summons)
Legal Issues
- 1 Whether the Respondent obtained the Grant of Letters of Administration irregularly and fraudulently.
- 2 Whether the Applicant is entitled to a restraining order to prevent the Respondent from intermeddling with or disposing of land parcel Mau Summit/Molo Block 5/181.
- 3 Whether the Applicant was properly included as a beneficiary of the estate.
Ratio Decidendi
The court found that the Respondent, as administrator, held the estate property in trust for named beneficiaries, excluding the Applicant. There was no evidence that the Applicant was ever allocated Plot 5/182 or that the other beneficiaries consented to such allocation. The absence of the Applicant's name from the Certificate of Confirmation of Grant and the lack of proof of transfer or consent raised doubts about the Respondent's assertions. The court concluded that the Applicant had established a prima facie case for a restraining order to prevent the Respondent from intermeddling with or disposing of Plot 181, as he would likely suffer loss if the order was not granted. The balance of...
Court Disposition
Application allowed; restraining order granted.
Orders
- The Respondent is restrained from intermeddling with, selling, transferring, or dealing in any manner with land parcel Mau Summit/Molo Block 5/181 pending determination of the succession cause.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
28 paragraphs
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REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAKURU
Succession Cause 249 of 2010
IN THE MATTER OF THE ESTATE OF KM - DECEASED
SKK…………………...……………………...........………………….APPLICANT
VERSUS
AHK………………………………………………………………..RESPONDENT
RULING
This Ruling relates to a Chamber Summons dated and filed on 20th January 2011 brought under the provisions of Section 45 and 47 of the Law of Succession Act(Cap. 166, Laws of Kenya)and Rule 73 of the Probate and Administration Rules for ordersinter alia- to restrain the Respondent from intermeddling and/or selling, transferring or dealing in any other way with land parcel Title Number Mau Summit/Molo Block 5/181.
The Applicant and Respondent are son and mother. The Applicant claims that the mother obtained the Grant of Letters of Administration irregularly and fraudulently. The Applicant claims that he was all along in possession of the original Death Certificate of his late father KM and does not know how or where his mother obtained the other Certificate of Death she used in applying for the Grant of Letters of Administration, hence the claim of irregular and fraudulent obtention of the Grant.
The mother, the Respondent, admits that the Applicant is her son, but avers that he has been irresponsible, he was given a parcel of land known as Mau Summit/Molo/Block 5/182(Molo), and that the Applicant sold the Plot to one DG, and that having sold his plot he was now encroaching upon his sister\'s Plot No. 181.
Family disputes are hard to resolve and more so if they are between child and parent. One would expect respect for the parent from the child - but as this application shows, that expectation cannot be assumed or taken for granted in our society today.It is rare for a child to charge its parent of a fraudulent act, particularly in relation to the family estate.
It is therefore easy to disregard such disputes as acts of a disrespectful child, or son s in this case. There is however some curiosity in this matter.
The deceased had two houses. The Respondent depones in her Replying Affidavit of 17th January 2011 that she could not have disregarded her son as she had even brought in the distribution, the children of her co-wife, and had included the Applicant as one of the survivors of the estate of her late husband.
Whereas the Respondent\'s Affidavit sworn on 31st August 1999 in support of the Confirmation for Grant of Letters of Administration in Molo SRMC Succession Cause No. 4 of 1997 does indeed include the Applicant in para. 2 thereof and does further make reference to Plot No. 5/182(Molo)the Certificate of Confirmation of the Grant issued on 31st August 1999 that plot along with Plots Nos. 5/182, and 5/5(Molo)and Molo South/Ikumbi 3/73(Molo)are stated to be held in the name of AHK(the Respondent)in trust for JM, MK, PM and SM. The Applicant\'s name SKK is conspicuously absent.
If the Respondent gave Plot 5/182 to the Applicant, there was no evidence of how that plot was given to the Applicant. And since it was held in trust for children other than the Applicant, there would be need to show that the named beneficiaries were informed and agreed to the allocation of Plot 5/182 to the Applicant. There was no indication of such consent in the Replying affidavit.
For those reasons, the applicant\'s contention for restraining order has a high probability of success, and since the Respondent is currently holding(according to the Certificate of Confirmation of the Grant)all the properties including Plot 181 in trust for other children, except the Applicant, the applicant is likely to suffer loss and damage if the restraining orders are declined. I think it is also on the balance of convenience for both the Applicant and Respondent that restraining orders pending the determination of the whole question of succession to the estate of the late KM, father to the Applicant, and husband to the Respondent is made.
The Chamber Summons of 20th January 2011 therefore succeeds in terms of paragraph 3 thereof. I direct that costs be in the cause.
There shall be orders accordingly.
Dated, signed and delivered at Nakuru this 8th day of June, 2012
M. J. ANYARA EMUKULE
JUDGE