[2011] KEHC 90 (KLR)
The court found that the applicant's supporting affidavit lacked sufficient particulars, such as the date, time, number, and type of trees allegedly cut, and did not provide adequate material to substantiate the claim of intermeddling or waste. The respondent's denial, supported by explanation of possession and use...
Source-derived case information.
- Citation
- [2011] KEHC 90 (KLR)
- Parties
- Respondent: William Kambere Kimani; Applicant: Teresia Njeri Magu
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 68 of 2010
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Intermeddling With Estate, Injunctive Relief, Administration of Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Kambere Kimani
Respondent
Teresia Njeri Magu
Applicant
Procedural Posture
Succession Cause / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the respondent intermeddled with the estate of the deceased by committing acts of waste on the specified parcels of land.
- 2 Whether the applicant is entitled to injunctive relief restraining the respondent from interfering with the estate before confirmation of grant.
Ratio Decidendi
The court found that the applicant's supporting affidavit lacked sufficient particulars, such as the date, time, number, and type of trees allegedly cut, and did not provide adequate material to substantiate the claim of intermeddling or waste. The respondent's denial, supported by explanation of possession and use of the parcels, went unchallenged as the applicant did not file a further affidavit. Consequently, the court held that the applicant failed to discharge the burden of proof required for the grant of injunctive relief and dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Succession Cause 68 of 2010
IN THE MATTER OF THE ESTATE OF:
DAVID KIMANI KABATA :::::::::::::::: DECEASED
AND
WILLIAM KAMBERE KIMANI :::::::::::::::: PETITIONER/RESPONDENT
VRS
TERESIA NJERI MAGU :::::::::::::::: APPLICANT
RULING
The deceased David Kimani Kabata died intestate on 20/1/2009 following which the Respondent, being one of the sons, filed this petition for letters of administration. Subsequently, the family consented to having joint letters issued to the Applicant , Nancy Njeri Kimani and Elizabeth Waithera Macharia. The deceased had three wives and each administrator represented each house. The estate of the deceased comprised land parcels nos. Inoi/Ndimi/1645, 1644, 537 and 327. The Applicant filed this application under section 3A of the Civil Procedure Act seeking that the court restrains the Respondent, and all those acting under him, from committing acts of waste on parcels 327 and 537, or from interfering with the deceased’s estate until the grant has been confirmed.
In the supporting affidavit, the Applicant alleged that the Respondent is;
“intermeddling with the estate of the deceased by committing acts of waste on our father’s parcel of land by wantonly cutting down trees.”
The Respondent swore a replying affidavit to say that parcel 537 is in the possession and occupation of his step-brother Peterson Kabata Kimani and one Nancy Njeri Kimani and there is no way he can access it, leave alone cutting trees thereon or damaging it. The other parcel, he stated, was being used by the three houses and that he had not interfered with it in any way. The Applicant did not swear any further affidavit to challenge the averments contained in the replying affidavit.
Further, it is clear to me that the supporting affidavit lacks particulars. For instance, the date and time when the alleged intermeddling and cutting of the trees were done were not indicated. It was not indicated how many trees were cut, or which type. In short, there is insufficient material to back the orders sought.
The application is therefore dismissed with costs.
Dated and signed at Bungoma on this 31st day of October, 2011.
A.O. MUCHELULE
JUDGE
Signed and delivered at Embu on this 15th day of November 2011.
ONG’UDI
JUDGE