Ali Juma Gangu v Mwalimu Rashid Jepher,Rashid Juma Mwakulonda & Hassan Omari Hamisi [2014] KEHC 3145 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

SUCCESSION CAUSE NO. 297 OF 2005

IN THE MATTER OF THE ESTATE OF ALI BAKARI MWADZINYETO ALIAS ALI BAKARI HARRY (DECEASED)

ALI JUMA GANGU………………….………………………...APPLICANT

VERSUS

1. MWALIMU RASHID JEPHER

2. RASHID JUMA MWAKULONDA

3. HASSAN OMARI HAMISI………………………………..OBJECTORS

RULING

Before this court is the Notice of Motion application dated 6th May, 2014 by which the applicant seeks inter alia the following orders

“2.   THAT the applicant herein be granted leave to substitute the applicant.

3.      THAT the applicant be allowed to prosecute the applicant’s case in place of ALI JUMA GANGU as the legal administrators.

4.     THAT the Honourable Court be pleased to issue a temporary injunction restraining the objectors either by themselves or their authorized servants, agents, employees and/or any other person acting under their instructions from purporting to trespass to the applicant’s property known as Plot No. KWALE/WAA/79 and/or in any way trespassing into and/or dealing with and/or interfering with the aforesaid property pending the hearing and determination of the instant application.

5.      Any other relief the court may deem fit.

6.     THAT costs be in the cause.”

The application was opposed by way of a replying affidavit filed on 25th June, 2014 sworn by the 1st objector MWALIMU RASHID JEPHER.  The court heard oral submissions from both parties on 26th June, 2014.

Mr. Mwinyi counsel for the objectors stated in court that the objectors do not oppose prayers (2) and (3) of the Notice of Motion seeking to replace the original applicant one Ali Juma Gangu with the present applicant HARRY BAKARI SHAFFI.  These prayers were necessitated by the death of the original applicant before the conclusion of the hearing.  Annexed to the supporting affidavit is the death certificate serial number xxxxx confirming the death of Ali Juma Gangu on 1st January, 2014.  Also annexed thereto is a Grant of letters of administration ad litem dated 15th April, 2014 to the present applicant which Grant is limited only to pursuance of a civil suit.  I am therefore  satisfied that sufficient ground has been shown to merit the award of prayers (2) and (3) of this Notice of Motion and I accordingly do allow these prayers.

By prayer (4) the applicant seeks a temporary injunction to prevent the objectors from entering upon, interfering with and in any way dealing with plot No. Kwale/Waa/79.  This prayer for an injunction is to say the least mischievous.  Plot No. 79 is the plot in dispute in this suit. The hearing of the objection commenced on 17th April, 2013.  The crux of the matter is whether or not plot No. 79 forms part of the estate of the late NDUGU MWAGUZO GWAYA.  To grant an injunction as prayed would be akin to prejudging the issue.  I therefore decline to grant interim orders in terms of prayer (4).  However in order not to prejudice any party I do direct that the current status quo be maintained pending the full hearing and determination of this objection.   Costs in the cause.

Dated and delivered in Mombasa this 15th day of August, 2014.

M. ODERO

JUDGE

In the presence of:

Mr. Mutugi h/b Mr. Mwinyi for Objectors

Applicant in Person

Court Clerk Mutisya