[2006] KEHC 1554 (KLR)
The court found that the applicant had not complied with the spirit of the previous court order and the award regarding the subdivision and distribution of the estate land. The orders sought were discretionary, and the applicant, having failed to perform her part of the bargain, could not demand compliance from the...
Source-derived case information.
- Citation
- [2006] KEHC 1554 (KLR)
- Parties
- Applicant: Susan Mwitiabi; Respondent: Josphat Muthomi Mburugu; Respondent: Simon Mburugu
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 22 of 2005
- Procedural Posture
- Succession Cause / Ruling on Chamber Summons Application for Release of Proceeds
- Outcome
- application dismissed
- Legal Topics
- Administration of Estates, Distribution of Estate Assets, Interlocutory Applications, Discretion of Court
- 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
Susan Mwitiabi
Applicant
Josphat Muthomi Mburugu
Respondent
Simon Mburugu
Respondent
Procedural Posture
Succession Cause / Ruling on Chamber Summons Application for Release of Proceeds
Legal Issues
- 1 Whether the applicant is entitled to an order for release of proceeds held by KTDA to her.
- 2 Whether the applicant has complied with previous court orders and agreements regarding the distribution of the estate.
- 3 Whether the applicant has come to court with clean hands and is entitled to discretionary relief.
Ratio Decidendi
The court found that the applicant had not complied with the spirit of the previous court order and the award regarding the subdivision and distribution of the estate land. The orders sought were discretionary, and the applicant, having failed to perform her part of the bargain, could not demand compliance from the respondents. The court emphasized the principle that a party must come to court with clean hands and fulfill their obligations before seeking equitable relief. Consequently, the application for release of proceeds held by KTDA was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Succession Cause 22 of 2005
IN THE MATTER OF THE ESTATE OF MBURUGU MUNGANIA (DECEASED)
SUSAN MWITIABI …………..............…………………………………………….. PETITIONER/APPLICANT
VERSUS
JOSPHAT MUTHOMI MBURUGU ……………………….…….....................……….. 1ST RESPONDENT
SIMON MBURUGU ………………………………………....................………………. 2ND RESPONDENT
RULING OF THE COURT
The petitioner/applicant filed the chamber summons application dated 16. 6.2004 brought under sections 3 and 3A of the Civil Procedure Act and all other enabling provisions of the law in which she seeks the following orders:-
(a) That this honourable court be pleased to order the proceeds held by KTDA to be released to the applicant.
(b) Costs of this application be provided for.
The application is premised on four grounds that appear on the face thereof:-
(a) The tea leaves in issue were picked from the appellant’s tea bushes.
(b) The above is evidenced by a letter for (sic) KTDA annexed herein and marked SMII
(c) There is need for money to pay for school fees for one of the brothers to the respondents.
(d) No prejudice will be suffered as the tea picked is nieve (sic)
The application is also supported by the sworn affidavit of the applicant made on 16. 6.2004. She has deposed therein that after the death of her husband, one MBURUGU MUNGANIA, she gave each of the two respondents 2 acres of land on which they planted tea. That the 2nd respondent was assigned No. IM 240180 while the 1st respondent was given No. IM 240180 at Imenti Tea Factory. It is to be noted that both of these numbers are the same. According to annexture, SM II, the 2nd respondent’s number is IM 240204. She has deposed further that the two respondents delivered the tea leaves on the applicant’s behalf though the deliveries were made in their own names. The applicant produced a letter dated 11. 2.2002 from Imenti Tea Factory. She has also deposed that in the course of time, the two respondents neglected their own tea bushes and started picking her tea bushes. At paragraph 10 of the affidavit, she refers to the two numbers as her numbers and that she needs money therefrom for the education of her son, one MUTEMBEI MBURUGU who was by the time of swearing the affidavit a student at Mombasa Polytechnic. That on the application of the applicant, the two accounts at Imenti Tea Factory were frozen between February, 2002 and September 2003.
In her further affidavit sworn on 21. 2.2006, the applicant states that consequent upon the court order dated 26. 2.2003, the parties, under the chairmanship of the area chief, agreed that after subdivision of the land, the respondents would allow the applicant to pick the tea so that she could get money to pay fees for her son Mutembei Mburugu. She states further that because the respondents did not allow her to pick the tea bushes as agreed, she also could not comply with the spirit of the court order.
The application is opposed by the sworn affidavit of JOSPHAT MUTHOMI MBURUGU dated 13. 2.2006. He refers to the court order dated 26. 2.2003 which required the parties to convene a meeting to agree on the mode of distribution of LR NO. NKUENE/URUKU/294 which is the subject matter of this cause. That the intended meeting was held when it was agreed that the applicant would subdivide the suit land among her sons after which she would be allowed to pick the tea bushes which fell on the respondents’ respective portions. The award was duly filed in court on 9. 7.2003. That the applicant refused to comply with the spirit of the award, and that for her failure to comply with the spirit of the award, the applicant is not entitled to the orders she seeks.
During the hearing of the application, the parties wholly relied on their respective sworn affidavits.
The issue for determination is whether the applicant is entitled to the orders she seeks from this court? After carefully considering the respective contending views from both sides, I am not persuaded that the applicant has made out a case for the orders she seeks. The orders sought are discretionary in nature, and consequently, the applicant must show that he/she has come to court with clean hands. In this case, the applicant wants to have the cake and to eat it at the same time. Let the applicant perform her part of the bargain before she asks the respondents to do their part.
In the result, the application is found to have no merit. The same is dismissed. Each party shall bear their own costs.
Orders accordingly.
Dated and delivered at Meru this 17th day of July, 2006.
RUTH N. SITATI
J U D G E