Case ID:173781
Parties: None
Date Delivered: None
Case Type: None
Court: None
Judges: None
Citation: None
Elizabeth Wanjiru Mburu v Johnson Kamau Njunguna [2021] eKLR
Case Metadata
Case Number:
Civil Application 300 of 2017
Parties:
Elizabeth Wanjiru Mburu v Johnson Kamau Njunguna
Date Delivered:
16 Apr 2021
Case Class:
Civil
Court:
Court of Appeal at Mombasa
Case Action:
Ruling
Judge(s):
Roselyn Naliaka Nambuye, Sankale ole Kantai, Fatuma sichale
Citation:
Elizabeth Wanjiru Mburu v Johnson Kamau Njunguna [2021] eKLR
Case History:
(Being an application for temporary injunction pending the hearing and determination of the ruling of the High Court of Kenya (Hon. R.E. Ougo, J.) dated 10th November 2017 in Nairobi Civil Appeal No. 12 of 2006)
Court Division:
Civil
County:
Mombasa
History Docket No:
Civil Appeal No. 12 of 2006
History Judges:
Rose Edwina Atieno Ougo
History County:
Nairobi
Case Outcome:
Strucked out
Disclaimer:
The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE COURT OF APPEAL
AT MOMBASA
(CORAM: NAMBUYE, SICHALE & KANTAI, JJ.A.)
CIVIL APPLICATION NO. 300 OF 2017
BETWEEN
ELIZABETH WANJIRU MBURU ....................................................................APPLICANT
VERSUS
JOHNSON KAMAU NJUNGUNA ................................................................RESPONDENT
(Being an application for temporary injunction pending the hearing and determination of the ruling of the High Court of Kenya (Hon. R.E. Ougo, J.) dated 10
th
November 2017
in
Nairobi Civil Appeal No. 12 of 2006)
******************
RULING OF THE COURT
Before us, is a Notice of Motion dated 20th December 2017 under
Article 40
of the
Constitution of Kenya, Order 40 Rules 2(1), (2), (3), 4(1)
and
Order 51
Rule 1
of the
Civil Procedure Rules
,
Section 3, 3A
and
63(e) o
f the
Civil Procedure Act (Revised Edition) 2010
and any other enabling provisions of law, substantively seeking orders that an order for temporary injunction do issue restraining the respondent, his servants and agents from trespassing, entering, occupying, evicting or doing any other act of waste upon the suit premises, all that parcel of land known as
Limuru/Bibirioni/138
, pending the hearing and determination of this application
inter partes
; that the appeal herein attached be dispensed with expeditiously so to avert the perpetual attrition vented upon the applicants’ larger family together with an attendant order that costs be in the cause.
It is supported by grounds on its body and a supporting affidavit of
Elizabeth Wanjiru Mburu
, the applicant herein together with annextures thereto. It has not been opposed.
The background to the application albeit in summary form is that
Joshua Mburu
filed Succession Cause No. 4 of 1997 to which the respondent objected. After a merit trial of the objection proceedings, the trial Judge
Onyancha, J.
(as he then was) then granted orders for a joint grant to be issued to both the petitioner and objector.
Joshua
died before distribution of the estate.
Sarah Wangari Kuria,
the mother of
Joshua Mburu Gathu
, deceased, and one of the beneficiaries in
Succession Cause No. 4 of 1997
, filed an application for revocation/annulment of the joint grant issued by
Onyancha, J.
to
Joshua Mburu
and the respondents under
section 76
of the
Law of Succession Act
dated 16th January 2009 on grounds highlighted in the ruling intended to be impugned.
Sarah Wangari Kuria
who described herself in the deposition before the High Court as
Mburu’s
mother did not exhibit proof that she was the administrator of
Mburu’s
estate.
Sarah
passed on before the conclusion of the appellate process before the High Court.
The applicant herein successfully applied and was substituted in the place of
Sarah Wangari Kuria
, but she too did not exhibit proof that she was the legal representative of the estate of either
Joshua Mburu
or
Sarah Wangari Kuria
. The respondent objected to the applicant’s participation in the appellate proceedings citing lack of
locus standi
on her part to do so. The learned Judge
R.E. Ougo, J.
sustained the respondent’s objection that the applicant herein had no
locus standi
in the matter before Court and ruled in so far as she purported to champion the interests of either
Mburu
or
Sarah Wangari
and dismissed her application together with an order that the administrators do proceed to confirm the grant and distribute the estate.
It is against the above uncontroverted position that the applicant intends to champion her intended appellate rights before this Court. She intends to fault the learned Judge on the basis of the grounds set out in the home grown draft memorandum of appeal annexed to the supporting affidavit.
We have considered the record in light of the above sole pleadings. Our invitation to intervene on behalf of the applicant has been invoked under the provisions of law cited in the heading of the application, all of which with the exception of
Article 40
of the Constitution of Kenya, 2010 do not guide determination of matters falling for consideration by this Court. However, going by the content of prayer 2 of the applicant’s notice of motion and considering that the relief sought is meant to cushion the applicant’s pending appeal, we have no doubt the injunction relief meant to be sought though framed as an original relief was meant to be accessed under
Rule 5(2)(b)
of the Court’s
Rules
donating mandates to the Court to issue injunction relief to an aggrieved party subject to satisfaction of the prerequisites governing the exercise of such a mandate under the said
Rule
.
Lack of proper citing of the relevant access provision and proper framing of the relief sought notwithstanding the inherent power of the Court enshrined in
Rule 1(2)
of the
Rules
of the Court,
sections 3A
and
3B
of the
Appellate Jurisdiction Act
enshrining the overriding objective principle giving the Court greater latitude in the discharge of its mandate under the said
Act
, and
Article
159
of the Constitution of Kenya enshrining the nontechnicality principle enjoins us to refrain from striking out the application for either want of citing the correct access provisions of law for the relief sought, or want of form of the content of the
relief sought, hence the merit determination that follows.
However, before we deal with the merits of the application, we find it prudent to deal with the issue of lack of applicant’s
locus standi
to champion the intended appellate right because if we were to agree with the learned judge that the applicant herein does not have
locus standi
in the matter, there will be no need for us to delve into the merits of the application.
It is common ground that
Sarah
moved the High Court to champion the interests of
Joshua Mburu
in the application for revocation of grant proceedings. She passed on before those rights were actualized. The applicant purported to step into the shoes of
Sarah
to champion
Mburu’s
rights. The law mandating one to champion rights of a deceased person is that provided for in the
Law of Succession Act
,
Cap 60 Laws of Kenya
. In summary, according to the prerequisite in the above
Act
, an administrator is defined as a person to whom a grant of letters of administration has been made under the
Act
while a personal representative is defined as an executor or administrator of a deceased person’s estate. Powers and duties of a personal representative are provided for in
sections
82
and
83
of the
Act
respectively. These include championing of litigation in courts of law on behalf of estates of the deceased persons in their capacity as either holders of a full grant or ad colligenda bona. Neither of which the applicant has exhibited.
In light of the conclusion we have reached above, the application is a proper candidate for striking out which we hereby do with no order as to costs since it is not defended.
DATED
and
DELIVERED
at
NAIROBI
this
16
th
day of April, 2021.
R. N. NAMBUYE
..................................
JUDGE OF APPEAL
F. SICHALE
..................................
JUDGE OF APPEAL
S. ole KANTAI
...................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR