Case ID:180615

In re Estate of Milka Murugi Wangendo (Deceased) [2021] eKLR

Case Metadata

Case Number:

Succession Cause 1029 of 2016

Parties:

In re Estate of Milka Murugi Wangendo (Deceased)

Date Delivered:

30 Jul 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Maureen Akinyi Odero

Citation:

In re Estate of Milka Murugi Wangendo (Deceased) [2021] eKLR

Court Division:

Family

County:

Nairobi

Case Outcome:

Application allowed.

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

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. 1029 OF 2016

IN THE MATTER OF THE ESTATE OF MILKA MURUGI WANGENDO (DECEASED)

DIANA WANJIRU WANG’ENDO....................................................APPLICANT

V E R S U S

EDWARD GACHANGO WANG’ENDO......................................RESPONDENT

RULING

(1)

DIANA WANJIRU WANG’ENDO

(the Applicant herein) filed in the High Court this Notice of Motion dated

30

th

September 2020

seeking orders as follows:-

1.

SPENT

2. SPENT

3. THAT an order of inhibition be issued prohibiting any dealings either by way of sub-division, lease, charge, transfer or sale of the parcels of land known as land Reference Nos. GATAMAIYU/KAMBURU/3134 and GATAMAIYU/KAMBURU3135 pending the conclusion of succession proceedings herein.

4. THAT the costs of this application e borne by the Estate.

(2) The Motion which was premised upon

Section 45, 47 and 81

of the

Law of Succession Act, Rule 73

of the

Probate and Administration Rules

and all enabling provisions of aw was supported by the Affidavit of even date worn by the Applicant.

(3) The Respondent

EDWARD GACHAGO WANG’ENDO

opposed the application through the Replying Affidavit dated

23

rd

October 2020.

The Applicant then filed a Further Affidavit dated

9

th

November 2020.

The application as canvassed by way of written submissions. The Applicant filed her written submissions dated

22

nd

April 2021

whilst the Respondent relied upon his written submissions dated

10

th

May 2021.

BACKGROUND

(4) This Succession Cause relates to the estate of

MILKA MURUGI WANG’ENDO

(hereinafter the

‘Deceased’)

who died intestate on

5

th

June 2015.

One

ZEPHANIA WANYOIKE WANG’ENDO

and the Applicant herein

EDWARD GACHAGO WANG’ENDO

were appointed as the joint Administrators of the estate of the Deceased. The Applicant

DIANA WANJIRU WANG’ENDO

is a daughter of the Deceased and therefore a beneficiary of her estate.

(5) The Applicant contends that on

22

nd

June 2016

the court issued an

‘inhibition order’

prohibiting the transfer, sale , subdivision, lease, charge or any disposition of the assets comprising the estate of the Deceased. That amongst said assets affected by the inhibition order was the piece of land known as

GATAMAIYU/KAMBURU/186.

(6) The Applicant alleges that notwithstanding the orders of prohibition issued by the Court the Respondent and her co-Administrator

ZEPHANIA WANYOIKE WANG’ENDO

(now also Deceased) proceeded to subdivide the

Plot No. 186

into several portions being:-

(i) Gatamaiyu/Kamburu 3134

(ii) Gatamaiyu/Kamburu 3135

(iii) Gatamaiyu/Kamburu 3381

(iv) Gatamaiyu/Kamburu 3380

(7) That the Respondent and his Co-Administrator then sold and transferred two of the sub-divisions being

Gatamaiy/Kamburu 3381

and

Gatamaiyu/Kamburu/3380

to third parties. They then further caused the remaining two sub-divisions being

Gatamaiyu/Kamburu/3134

and

Gatamaiyu/Kamburu/3135

to be registered in the name of

Zephania Wanyoike Wang’endo.

(the Respondent herein).

(8) The Applicant expresses the apprehension that if the orders sought are not granted the Respondent (who is the only surviving Administrator of the estate of the Deceased) will continue to intermeddle in the estate and may proceed to sell, lease, charge and / or transfer the two remaining subdivisions under the guise that these were not subject of the prohibition order issued on

22

nd

June 2016

hence the present application.

(9) The Respondent vide his Replying Affidavit dated

23

rd

October 2020

opposed the Application. The Respondent averred that during their lifetime his parents had gifted various parcels of land to himself, his brothers and the first born unmarried sister as follows:-

(i) Gatamaiyu/Kamburu/186 –

to

Zephania Wanyoike Wang’endo

(ii) Gatamaiyu/Kamburu/1010 –

to

Harun Mbugua Wang’endo

(iii) Gatamaiyu/Kagaa/1057 –

to

Edward Gachago Wang’endo

(iv) Gatamaiyu/Kamburu/107 –

to

Jane Wanjiru Ngendo

(v) Gatamaiyu/Kamburu/T 210 & 212 –

jointly to

Zephania Wanyoike Wang’endo

and

Edward Gachago Wang’endo

(10) The Respondent confirms that he and

Zephania Wanyoike Wang’endo

(the now Deceased Co-Administrator) were issued with the Grant of Letters of Administration in respect of the estate of their late mother on

4

th

May 2016.

That later on

30

th

April 2018

the applicant and another sibling

HARUN MBUGUA WANG’ENDO

were enjoined as Co-Administrators. The Respondent claimed that the Applicant has generally been unco-operative in matters relating to the distribution of the estate of their late mother.

(11) The Respondent stated that sometime in the year

2017,

one of the Co-Administrators

Zephania Wanyoike Wang’endo

fell ill and sought to sell the piece of land which had been gifted to him being

Gatamaiyu/Kamburu/186

(the subject land) in order to meet his medical expenses. The Respondent stated that all the beneficiaries except the Applicant herein gave their consent for the sale of the land. Accordingly the parcel of land known as

Gatamaiyu/Kamburu/186

was sub-divided and sold to willing buyers.

(12) The Respondent went on to state that the said Co-Administrator

Zephania Wanyoike Wang’endo

passed away on

30

th

June 2020.

That to date no Letters of Administration have been taken out in respect of his estate. That by this application the Applicant is effectively seeking to disinherit the widow and children of ‘

Zephania Wanyoike’.

He urged the Court to dismiss this application.

(13) By the Further Affidavit dated

9

th

November 2020

the Applicant retorts that the Replying Affidavit contains an admission that the subject land was sub-divided and sold. She asserts that the medical needs of the Co-Administrator do not provide justification or disobedience of Court Orders. The Applicant reiterates that without further orders the Respondent will continue to intermeddle with the estate of the Deceased.

ANALYSIS AND DETERMINATION

(14) I have carefully considered this Application, the Affidavits in Reply as well as the written submissions of both parties. It is not in dispute that the Deceased whose estate forms the subject of these proceedings one

Milka Murugi Wang’endo

passed away intestate on

5

th

June 2015.

A copy of her Death Certificate Serial No.

[particulars withheld]

is annexed to the Affidavit in Support of the Petition for Grant of Letters of Administration filed at the

Kiambu Law Courts.

(15) It is also not disputed that Letters of Administration in respect of the estate of the Deceased were initially issued on

4

th

May 2016

to

Zephania Wanyoike Wang’endo

and

Edward Gachago Wang’endo

(the Respondent herein). A copy of this Grant of Letters of Administration Intestate is annexed to the Supporting Affidavit dated

30

th

September 2020

(Annexture

‘DWW-1’).

It is not disputed that on

30

th

April 2018,

the Applicant and

Harun Mbugua Wang’endo

were enjoined as Co-Administrators.

(16) The Applicant stated that the High Court on

22

nd

June 2016

issued an inhibition order in respect of the parcel of land known as

Gatamaiyu/Kamburu/186,

which the Applicant alleges is one of the assets belonging to the estate of the Deceased. Annexed to the Applicant’s Supporting Affidavit is a copy of the relevant order (Annexture

‘DWW-2’

).

(17) The said Order which was made by

Hon. Lady Justice Margaret Muigai

read inter alia as follows:-

3. THAT the estate of the Deceased shall be preserved under Section 45 Law of Succession Act Cap 160 until the hearing and determination of the application.

4. THAT the Respondents shall file the Replying Affidavits and serve.

5. THAT status quo be maintained pending interpartes hearing and determination of this application,

inhibition order be and is hereby issued forbidding and/or any prohibiting any transfer, sale, sub-division, lease, charge and/or any disposition, further dealings and/or registration of any instrument whatsoever on the following properties

:-

a) GATAMAIYU/KAMBURU/T.210

b) GATAMAIYU/KAMBURU/1057

c)

GATAMAIYU/KAMBURU/186

d) GATAMAIYU/KAMBURU/T.212

e) GATAMAIYU/KAMBURU/407.” [own emphasis]

(18) The Respondent in his Replying Affidavit it claims that the parcel of land in question had been ‘

gifted’

to the Co-Administrator

‘Zephania Wanyoke’

by their parents. The Respondent produces no documentary evidence to prove that said ‘

gift’

was actually made. There is no Will written by the Deceased, no document indicating her intention to gift

Plot 186

to

‘Zephania Wanyoike’

and no evidence of a transfer of the said parcel of land executed in favour of the said ‘

Zephania Wanyoike.’

(19) Indeed a look at the original Title Deed for Title Number

Gatamaiyu/Kamburu/186

filed at

Kiambu Law Courts

on the

9

th

April 2016

indicates that the property is registered to

MILKA MURUGI WANG’ENDO

of I.D

No. 4316864,

who was the Deceased. There is no evidence to show that the Deceased ever transferred that property during her lifetime. I therefore reject the contention by Respondent that this parcel of land had been gifted to ‘

Zephania Wanyoike.’

Instead I find that

Plot 186

was one of the assets forming the estate of the Deceased. No doubt this is why the Honourable Judge ordered for the preservation of the said property pending the final determination of the Succession Cause.

(20) As pointed out by the Applicant, the Respondent in his Replying Affidavit basically admitted that

LR Number

Gatamaiyu/Kamburu/186

was sub-divided and sold despite the order which had been made by the Court for its preservation.

(21) The Applicant alleged that

Plot 186

was sub-divided into several portions which included:-

(i)

Gatamaiyu/Kamburu/3381

(ii) Gatamiyu/Kamburu/3380

which two subdivisions were sold to third parties. Annexed to the Supporting Affidavit are copies of official Searches dated

18

th

September 2020

for sub-division

Number 3381

showing that the same is now registered to one

STEPHEN KAMAU KIMANI

whilst sub-division

Number 3380

is now registered to one

PETER GACHODE MUNGAI.

None of the above registered owners of the said sub-divisions of

Plot 186

is a beneficiary to the estate of the Deceased.

(22) From the above it is manifestly clear that even in the face of a court Order expressly prohibiting any interference in the estate of the Deceased, the Respondent allowed, participated in and/or sanctioned the sale by his Co-Administrator of

Plot 186

to third parties. It is trite law that Courts do not make orders in vain. All parties have an obligation to obey Court Orders.

(23) In

TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE –VS- CABINET SECRETARY FOR DEVOLUTION AND PLANNING & 3 OTHERS [2017]eKLR

the Court stated as follows:-

“

It is plain and unqualified obligation of every person against, or in respect of whom, an order is made by a Court of competent jurisdiction, to obey it unless and until that order is discharged …..

The Court does not, and ought not to be seen to make orders in vain; otherwise the Court would be exposed to ridicule, and no agency of the constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.” [own emphasis]

(24) Likewise in

SHIMERS PLAZA LIMITED –VS- NATIONAL BANK OF KENYA LIMITED [2015]eKLR the Court of Appeal stated as follows:-

“We reiterate here that court orders must be obeyed. Parties against whom such orders are made cannot be allowed to trash them with impunity.

Obedience of Court orders is not optional, rather, it is mandatory and a person does not choose whether to obey a Court Order or not

.” [emphasis added]

(25) The Respondents argument that the sale of the said land was necessitated by the need to secure funds for the treatment of

Zephania Wanyoike

who was ailing is

not

persuasive. The parties had the option of returning to Court and seeking orders for the sale of

Gatamaiyu/Kamburu/186

to cater for the required medical costs. They opted instead to defy a Court Order prohibiting any interfere with the assets of the estate.

(26) Given this history it is manifest Court orders are required in order to preserve the remaining sub-divisions which came out of

Plot 186

being

L.R. Gatamaiyu/Kamburu/3134

and

L.R. Gatamaiyu/Kamburu/3135. Section 68(1)

of the

Land Registration Act

provides that:-

“The Court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.

(2) A copy of the inhibition under the seal of the Court, with particulars of the land, lease or charge affected, shall be sent to the Registrar, who shall register it in the appropriate register.”

This provision gives the Court the discretion to make orders restraining any dealing on land in order to preserve a property pending the hearing and determination of a matter.

(27) In

PHILLIP MWANGI GITHINJI –VS- GRACE WAKARIMA GITHINJI (2004)eKLR, Hon. Lady Justice Hannah Okwengu

(as she then was) stated as follows:-

“An order of inhibition issued under Section 128 of the Registered Land act is a kin to an order of prohibitory injunction for it restricts the registered owner and any other person from having their transaction regarding the land in question registered against the Title.

Before the Court can issue such an order it must be satisfied that the person moving the Court for such orders has good grounds for requesting such an inhibition, such grounds would normally be in the form of a sustainable claim over the suit land

.” [own emphasis]

(28) The Applicant herein being a beneficiary of the estate of the Deceased has a claim which is yet to be determined by the Court. She therefore has sufficient grounds and has requisite

locus standi

to seek the orders prayed for in this application. Given that the estate of the deceased is yet to be distributed amongst the beneficiaries it is essential that the parcel of land known as

Gatamaiyu/Kamburu/3135

and

3134

which were derived from the unlawful subdivision of

Gatamaiyu/Kamburu/186

be preserved pending the determination of this Succession Cause. Accordingly I do allow the Notice of Motion dated

30

th

September 2020

and I make the following orders:-

(i) An order of inhibition be and is hereby issued prohibiting any dealings either by way of sub-division, lease, charge, transfer or sale of the parcels of land known as Land Reference Numbers

GATAMAIYU/KAMBURU/3134

and

GATAMAIYU/KAMBURU/3135

pending the final determination of this Succession Cause.

(ii) This being a family matter each party will bear its own costs.

DATED IN NAIROBI THIS 30TH DAY OF JULY, 2021.

............................................

MAUREEN A. ODERO

JUDGE