[2014] KEHC 5946 (KLR)
The court found that the land in dispute forms part of the estate of the deceased, and a grant of letters of administration had not yet been issued. The purported sale agreement between the applicant and respondent was not honoured and amounted to intermeddling with the estate. The court held that each party should...
Source-derived case information.
- Citation
- [2014] KEHC 5946 (KLR)
- Parties
- Applicant: Watuka Mbithi; Respondent: Ngave Mbithi; Petitioner: Maithya Mbithi; Petitioner: Watuka Mbithi; Petitioner: Ngave Mbithi; Petitioner: Kyengo Mbithi
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 816 of 2012
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Injunction Application
- Outcome
- Application partly allowed.
- Judges
- BT Jaden
- Legal Topics
- Succession Disputes, Intermeddling With Estate, Injunctive Relief, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Watuka Mbithi
Applicant
Ngave Mbithi
Respondent
Maithya Mbithi
Petitioner
Watuka Mbithi
Petitioner
Ngave Mbithi
Petitioner
Kyengo Mbithi
Petitioner
Procedural Posture
Succession Cause / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the respondent should be restrained from interfering with the applicant's quiet enjoyment of his allocated share of land pending determination of the succession cause.
- 2 Whether the purported sale of the applicant's share to the respondent constituted intermeddling with the estate of the deceased.
- 3 Whether the applicant is entitled to injunctive relief before the grant of letters of administration is issued.
Ratio Decidendi
The court found that the land in dispute forms part of the estate of the deceased, and a grant of letters of administration had not yet been issued. The purported sale agreement between the applicant and respondent was not honoured and amounted to intermeddling with the estate. The court held that each party should respect the boundaries of the portions they occupy pending the issuance and confirmation of the grant. The application for an injunction to restrain the respondent from interfering with the applicant's quiet enjoyment of his allocated share was merited and granted. The request for police enforcement was deemed premature. Costs were ordered to be in the cause.
Court Disposition
Application partly allowed.
Orders
- An order of injunction is issued restraining the respondent, his agents, or any person claiming under him from encroaching on, entering upon, or interfering with the applicant's quiet enjoyment of his 5.44 acres within land parcel No. Makueni/Mubau/285 pending hearing and determination of the succession cause.
- The prayer for police enforcement is premature and not granted at this stage.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 816 OF 2012
IN THE MATTER OF THE ESTATE OF MBITHI MBAI (DECEASED)
MAITHYA MBITHI
WATUKA MBITHI
NGAVE MBITHI
KYENGO MBITHI ............................................................... PETITIONERS
AND
WATUKA MBITHI ……………………………….......…….……… APPLICANT
VERSUS
NGAVE MBITHI ………………………………………………… RESPONDENT
R U L I N G
The Application dated 14/9/2012 is made under section 48 Law of Succession Act and Rule 73 Probate and Administrate Rules and seeks orders that:-
“Spent).
THATan order of injunction against the Respondent, his agents and/or any other person claiming under him to restrain him from encroaching on, entering upon and/or in any other way interfering with the Applicant’s quiet enjoyment of his 5. 44 acres piece of land within land parcel No.Makueni/Mubau/285pending hearing and determination of the said application.
THATtheO.C.S. Makueni Police Station, be ordered to ensure the Respondent’s compliance with the order made in 2 above.
THATcosts of this application be in the cause.”
The application is supported by the affidavit of the Applicant, Watuka Mbithi, an affidavit by one John Muli Nduva and another affidavit by Maithya Mbithi. The thrust of the said affidavits is that the late Mbithi Mbai died intestate on 31/03/1973. The estate of the deceased to wit L.P. No. Makueni/Mubau/285 was amicably subdivided amongst the surviving beneficiaries of the deceased. The Applicant’s complaint is that the Respondent had in the year 1994 agreed to buy the Applicant’s share for the sum of Kshs.70,500/= but the agreement failed as the Respondent only paid Kshs.18,800/= of the purchase price leaving a balance of Kshs.51,700/=. The Respondent was to be refunded the Kshs.18,800/= but instead the Respondent uprooted the boundary marks for the parcel of land allocated to the Applicant.
In opposition to the application, the Respondent swore a replying affidavit. According to the said affidavit, after the subdivision of the deceased’s land, each son was entitled to 5. 44 acres. That the three sons from the first house sold their shares to the Respondent, making the Respondent’s share 21. 77 acres. The Respondent averred that after entering into a sale agreement with the Applicant he paid the Applicant a total of Kshs.18,000/= then thereafter the Respondent refused to accept any further payments. However, the Respondent continued using the land and developed the same by digging trenches, cultivating the land and planting trees. The Respondent expressed his surprise at his name being reflected as a Petitioner herein, stating that he never consented to being a co-petitioner.
The application was canvassed by way of written submissions which I have considered.
It is common ground that the land the subject matter of these proceedings forms part of the estate of the late Mbithi Mbai. A grant of Letters of Administration is yet to be issued. However, it seems the beneficiaries of the deceased have sub-divided the land and distributed it amongst themselves, hence the tussle over the purported sale of part of the estate.
The Applicant claims to be the beneficial owner of a share of the parcel of land while the Respondent claims to have bought the same from the Applicant. The major difference in opinion is who caused the sale agreement to flop and who is the rightful occupier of the share allocated to the Appellant.
The land in question is part of the estate of the deceased. It is clear there are boundaries and each of the parties knows the portion of the land that they occupy. These are the boundaries that each of the parties ought to respect pending the issuance of the grant and confirmation of the same. The sale agreement was not honoured. The purported sale however amounts to intermeddling with the estate of the deceased. Consequently, the application has merits and succeeds in prayer No. 2. Prayer No. 3 is premature at this stage. Costs in cause.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 6thday of March 2014.
………………………………………
B. THURANIRA JADEN
JUDGE