[2012] KEHC 131 (KLR)
The court found that the respondent's affidavit evidence regarding ownership of the vehicle, maintenance of minor children, and use of withdrawn funds was uncontroverted, as the applicants did not file a further affidavit in response. However, the court determined that it was imperative to preserve the estate...
Source-derived case information.
- Citation
- [2012] KEHC 131 (KLR)
- Parties
- Applicant: Tabitha Vodembeke; Applicant: Elizabeth Jorono Yator; Applicant: Julia Muthoni Theuri; Respondent: Emmy Agisu
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 505 of 2012
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application for Injunction
- Outcome
- injunction granted in part
- Legal Topics
- Injunctive Relief, Preservation of Estate, Succession Disputes, Distribution of Estate, Status of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tabitha Vodembeke
Applicant
Elizabeth Jorono Yator
Applicant
Julia Muthoni Theuri
Applicant
Emmy Agisu
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the respondent should be restrained by temporary injunction from disposing of or selling motor vehicle KAQ 859R Mitsubishi Van pending determination of the succession cause.
- 2 Whether the motor vehicle forms part of the deceased's estate subject to distribution among beneficiaries.
- 3 Whether the respondent's affidavit evidence regarding ownership and use of the vehicle and withdrawal of funds is uncontroverted.
Ratio Decidendi
The court found that the respondent's affidavit evidence regarding ownership of the vehicle, maintenance of minor children, and use of withdrawn funds was uncontroverted, as the applicants did not file a further affidavit in response. However, the court determined that it was imperative to preserve the estate pending the hearing and determination of the summons for revocation of grant. Therefore, the court granted the injunctive orders sought in prayers 2 and 4 of the application, restraining the respondent from disposing of the motor vehicle until further orders. The request to place the vehicle in police custody was denied as unreasonable in the circumstances. Costs were ordered to be...
Court Disposition
injunction granted in part
Orders
- An order of temporary injunction restraining the respondent, her servants, employees, agents or anyone purporting to act on her behalf from disposing of and/or selling motor vehicle reg. No. KAQ 859R Mitsubishi Van is granted and to remain in force until further orders of the court.
- The prayer for safe custody of the motor vehicle at Serem Police Station is denied.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
Succession Cause 505 of 2012
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IN THE MATTER OF THE ESTATE OF JOHN MMBWANGA (DECEASED)
BETWEEN
TABITHA VODEMBEKE ………………..……………… 1ST APPLICANT
ELIZABETH JORONO YATOR …….…………………. 2ND APPLICANT
JULIA MUTHONI THEURI ………..…………………… 3RD APPLICANT
AND
EMMY AGISU ……………………………………………. RESPONDENT
RULING
The Notice of Motion application dated 28. 6.12 seeks orders that:-
“1. Spent.
2. Pending the hearing and determination of this application there be an order of temporary injunction restraining the respondent, her servants, employees, agents or anyone purporting to act on her behalf from disposing off and or selling motor vehicle reg. No. KAQ 859r Mitsubishi van.
3. The motor vehicle Reg. No. KAQ 859R Mitsubishi Van registered in the names of JOHN MMBWANGA, be taken for safe custody at the Serem Police Station and the Officer Commanding Station to ensurecompliance.
4. The orders prayed for in paragraph 2 and 3 herein (if granted) be confirmed until the hearing and determination of this Successioncause.
5. Costs of this application be provided for.”
The application is supported by the affidavit of the 1st applicant, TABITHA VODEMBEKE sworn on 28. 6.12.
According to the said affidavit, the respondent obtained a grant from Vihiga SRM’s court without the consent of the applicants who also claim to be wives of the deceased. It is averred that the respondent used the said grant to withdraw some undisclosed amount of money from the account of the deceased at K.C.B. Serem Branch A/C No.110650583 and that the respondent is in the process of disposing motor vehicle reg. No. KAQ 859R Mitsubishi Van which is registered in the name of the deceased.
In opposition to the application, the respondent filed a replying affidavit sworn on 21. 8.12. The respondent has contended that the motor vehicle in question is her property and that it is not subject to distribution. According to the respondent, she takes care of three minor children who were left behind by the deceased. That she has no intention of disposing of the said motor vehicle as she uses the same to generate income for the maintenance of the said children.
The respondent also relied on her replying affidavit sworn on 21. 8.12 in support of the Chamber Summons application herein. In the said affidavit, it is averred that the 1st applicant ceased to be a wife to the deceased 14 years ago and that the applicants never contributed towards the acquisition of the property that they claim. It is also averred that the money from the K.C.B. account was applied to meet the deceased’s medical bills, pay funeral expenses and to offset liabilities.
Nyanga & Company advocates appeared for the applicants while the firm of Nandwa & Co. Advocates appeared for the respondent. The application proceeded by way of written submissions.
I have considered the application, the reply to the same and the written submissions.
No further affidavit was filed by the applicants in response to the issues raised in the replying affidavit relating to the alleged divorce, the maintenance of the minor children and the ownership of the motor vehicle. The affidavit evidence by the respondent in respect of the said issues therefore remains uncontroverted. It would therefore not be reasonable in the circumstances to place the vehicle in the custody of the Police Station.
This court however finds it imperative to preserve whatever is remaining of the estate of the deceased pending the hearing and determination of the summons for revocation. Consequently, prayers No. 2 & 4 which are for issuance of injunctive orders are allowed. Orders in prayer No. 2 to remain in force until further orders of this court. No. 3 for detaining of motor vehicle at the police station is not allowed.
Costs in the cause.
Dated, delivered and signed at Kakamega this 29th day of November, 2012
B. THURANIRA JADEN
J U D G E