Case ID:51854

WILSON KAMAU MUIGAI V NJERI KAMAU & ANOTHER [2013] eKLR

Case Metadata

Case Number:

Succession Cause 2346 of 2008

Parties:

WILSON KAMAU MUIGAI V NJERI KAMAU & ANOTHER

Date Delivered:

29 Apr 2013

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Judge(s):

W.M. MUSYOKA

Citation:

WILSON KAMAU MUIGAI V NJERI KAMAU & ANOTHER [2013] eKLR

Case Summary:

Reported by Teddy Musiga

Issues

I. Whether injunctions and other orders meant to restrain or prohibit certain acts are provided for under the Law of Succession and the Probate and Administration Rules.

II. What is the relevant remedy to an applicant for revocation of grant also seeking to restrain dealings in the estate property by the grant holders pending the determination of such application?

III. Whether section 45 of the Law of Succession Act could be invoked to seek restraining orders.

IV. Whether section 47 of the Law of Succession Act and Rule 63 of the Probate and Administration Rules could be invoked to seek remedies otherwise applicable under the Civil Procedure Rules.

V. Whether an order for the rendering of accounts of the estate can be granted pending the determination of the application for the revocation of grant.

Succession Law –

injunctions and restraining orders

-

injunctions under law of Succession -

whether injunctions and other orders meant to restrain or prohibit certain acts are provided for under the Law of Succession – what is the relevant remedy to an applicant seeking restraining orders to dealings in the estate by grant holders? – Section 45, 47 of the Law of Succession Act.

Probate and Administration

– grant – revocation of grant – application for revocation of grant also seeking restraining orders in the estate property.

Held:

1. Injunctions and other orders meant to restrain or prohibit certain acts were not provided for under the Law of Succession Act and the Probate and Administration Rules.

2. Section 45 of the Law of Succession Act was often cited by parties seeking restraining orders in succession causes. Yet section 45 merely criminalized acts that amounted to intermeddling. It did not provide a remedy against intermeddling.

3. Section 47 of the Law of Succession Act set out the jurisdiction of the High Court. It was often construed in the same way as section 3A of the Civil Procedure Act, as saving the inherent powers of the Probate court. However, that provision said no more than that the High court acting under that provision was only mandated to make orders and to pronounce decrees that it had power to under the Law of Succession Act. It did not say that the probate court could make orders and pronounce decrees in respect of matters that had not been provided for in the Law of Succession.

4. Rule 63 of the Probate and Administration Rules imported some provisions of the Civil Procedure Rules into Probate Practice. However, the provisions imported did not include the rules in the Civil Procedure Rules which availed the equitable remedy of injunction.

5. The Probate court being largely a court of equity, it was inconceivable that such a court of equity could leave a party with a genuine claim without a remedy. Rule 73 of the Probate and Administration Rules saved the inherent powers of the court to prevent abuse of the court process and to meet ends of justice. Justice and fairness would demand that the estate be preserved pending the outcome of the revocation application otherwise the court would act in vain to grant the revocation application after the estate had been completely alienated.

6. As to whether the court could grant an order for rendering accounts of the estate, the court declined to grant the order and urged the applicant to first prove that he was a child of the deceased and therefore entitled to a share of the estate. It is only after that that he would have locus to demand an account from the administrators of the estate.

ORDERS

Accordingly, the administrators of the estate are ordered to

preserve

the assets of the estate pending the hearing and disposal of the revocation application.

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

High Court at Nairobi (Nairobi Law Courts)

Succession Cause 2346 of 2008

IN THE MATTER OF THE ESTATE OF MUIGAI KAMAU (DECEASED)

AND

WILSON KAMAU MUIGAI…….....………........………APPLICANT

VERSUS

NJERI KAMAU………………………………...1

ST

RESPONDENT

KAMAU MUIGAI….....…………………...........2

ND

RESPONDENT

RULING

The applicants came to court by way of Summons dated 7

th

September 2013 praying in the main for an order prohibiting the respondents from transferring, charging, selling, alienating, or any dealing with the assets making up the estate of the deceased pending the hearing and determination of the summons for revocation. The applicants also seeks to have the respondents compelled to account for their dealings with the assets of the deceased. It also asks that costs of the application be provided for. The application is premised on Rules 49 and 73 of the Probate and Administration Rules and it is supported by the affidavit of Wilson Kamau Muigai.

The applicant alleges that the respondents are transferring the suit properties to their names. He also alleges that Dagoretti/Waithaka/173 has been subdivided into portions that are being secretly disposed of to third parties. The affidavit purports to annex a copy of a mutation form to support this allegation, yet the said annexture is not attached to the affidavit. Allegations such as these ought to be supported with documentary evidence. It is also alleged that the deceased operated various bank accounts; the respondents are said to have accessed and operated the said accounts. The implication is that moneys have been withdrawn from these accounts as the applicant is asking for accounts with respect to these accounts. The applicant is apprehensive that he and his part of the family are likely to be disinherited.

Injunctions and other orders meant to restrain or prohibit certain acts are not provided for under the Law of Succession Act and the Probate and Administration Rules. Section 45 of the Law of Succession Act is often cited by parties seeking restraining orders in succession causes. Yet section 45 merely criminalises acts that amount to intermeddling. It does not provide a civil remedy against intermeddling. Section 47 of the Law of Succession Act is another provision that is often cited. It sets out the jurisdiction of the High Court. It is often construed in the same way as section 3A of the Civil Procedure Act, as saving the inherent powers of the Probate court. However the provision says no more than that the High Court may make orders and pronounce decrees that it has power to under the Law of Succession Act. It does not say that the probate court can make orders and pronounce decrees in respect of matters that have not been provided for in the Law of Succession Act.

Rule 63 of the Probate and Administration Rules has imported some provisions of the Civil Procedure Rules into probate practice. The provisions imported do not include the rules in the Civil Procedure Rules which avail the equitable remedy of injunction. If it was intended that such remedy would be available in the probate process then the Rules Committee would have adopted the relevant rule on injunctions from the Civil Procedure Rules.

In probate matters where administrators obtain grant and have the same confirmed paving way for the distribution of the estate, such as in the instant one, what remedy does a person who has filed an application for the revocation of the grant to restrain dealings in the estate property by the grant holders that are likely to render the revocation application nugatory. That appears to be the challenge that the applicant is throwing before the court.

The administrators herein obtained representation to the estate on 31

st

March 2009. They had the grant confirmed on 2

nd

November 2010. On 7

th

February 2013, the applicant moved to court alleging that the grant was obtained behind his back and without his being consulted and included, yet he and his mother’sfamily were survivors of the deceased. He wants the grant revoked and his side of the family taken into consideration in the administration. He fears that the assets of the estate may be alienated before the revocation application is heard, and that his side of the family may get nothing from the estate should that happen before the revocation application is heard.

The probate court is largely a court of equity. It is inconceivable that such court of equity can leave a party with a genuine claim without a remedy. The applicant alleges to be a son of the deceased and therefore a person entitled to a share in the deceased’s estate. He has filed papers where he seeks to prove this allegation. That application is pending. If the application is allowed, he will be entitled to a share in the estate. The respondents, as administrators, have a confirmed grant. It gives them power to distribute the estate. If the estate is distributed before the revocation application is disposed of, should it be successful, the applicant will be exposed to prejudice as there would be nothing for him in the estate to share. A court of equity ought to intervene in fairness to ensure that the applicant’s possible interests in the estate are not frustrated.

The applicant has cited rule 73 of the Probate and Administration Rules. The rule saves the inherent powers of the court to prevent abuse of the court process and to meet the ends of justice. Justice and fairness would demand that the estate be preserved pending the outcome of the revocation application, otherwise the court would act in vain should it grant the revocation application after the estate has been completely alienated.

I am persuaded that this is a proper case for the grant of the orders preserving the estate pending the determination of the Summons for Revocation or Annulment of Grant dated 7

th

February 2013. The administrators are hereby ordered to preserve the assets set out in the Summons dated 7

th

February 2013 pending the hearing and disposal of the revocation application of even date. For the avoidance of doubt, the assets to be preserved are:

a) Dagoretti/Waithaka/173, Loitokitok/Ol Karia/228 and Plots Nos. 50, 89, 91 and 104 Emali Trading Centre;

b) Shares in the Industrial and Commercial Development Corporation Ltd (ICDC),Safaricom Ltd, Standard Chartered Bank Ltd and Kengen Ltd; and

c) Funds held in the bank accounts at Equity Bank Ltd (Kawangware Branch), CFC Bank Ltd (Chiromo Branch) and National Bank Ltd (A/C 0124302786000).

The applicant is also asking for the rendering of accounts with respect to the said bank accounts. I understand him to be saying that the respondents have or likely to have withdrawn and expended funds from the said accounts. This is an order I cannot make before the revocation application is determined. The applicant has first to prove that he is a child of the deceased and therefore entitled to a share in the estate. It is only after that that he would have locus to demand an account from the administrators of the estate.

Should the exigencies of the administration of the estate demand disposal of assets or the doing of something that has been restrained by this order; the administrators shall be at liberty to apply. There will be no order as to costs.

DATED, SIGNED and DELIVERED at NAIROBI this 29TH DAY OF APRIL, 2013.

W.M. Musyoka

Judge