Daniel Wambua Nzove & Francis Kivuitu Nzove v Kivindyo Nzove, Kivindyo Mutinda & Mutua Kivindyo [2014] KEHC 4775 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 265 OF 2013

IN THE MATTER OF THE ESTATE OFNZOVE MUU (DECEASED)

DANIEL WAMBUA NZOVE……….....1st PETITIONER/APPLICANT

FRANCIS KIVUITU NZOVE……......2nd PETITIONER/APPLICANT

VERSUS

KIVINDYO NZOVE……………………………………...1ST RESPONDENT

KIVINDYO MUTINDA…………………………………2ND RESPONDENT

MUTUA KIVINDYO ...............................................3RD RESPONDENT

RULING

By an application dated 27th August, 2013, the applicant seeks a temporary injunction to restrain the respondents from trespassing, disposing or dealing with Muthetheni/Kionyweni/179 occupied by the 1st applicant pending hearing and determination of the cause.

The applicant is based on grounds that;-

The respondents are beneficiaries of the estate of the deceased and prior to his demise, the deceased had subdivided his property amongst children;

The applicant in particular was given parcel No. Muthetheni/Kionyweni/179 which he was already in possession of;

The respondents are interfering with the parcel of land deterring him to cultivate it;

It would be in the interest of justice to have status quo maintained pending hearing and determination of the cause.

In a response thereto, the respondents deponed that the deceased had three (3) wives, the applicants are from the 2nd house while they (respondents) are from the 1st house and they have lived on the disputed parcel of land since birth.  The parcel of land was divided equally amongst the three houses prior to the deceased’s demise.

The applicants petitioned for Letters of Administration without the knowledge or consent of the 1st and 3rd houses, therefore the application does not qualify for issuance of an injunction sought.

Rival submissions by both counsels for the applicants and respondents have been considered. The parcel of land, the subject of this application forms part of the estate of the deceased.  It has been demonstrated that at the  time of petitioning for Letters of Administration the  applicants did not obtain consent and/or notify most beneficiaries to the estate of the deceased which  was deceitful on their part.

Further it is established that prior to the deceased’s demise he purported to distribute his properties.  This was however not documented.  This resulted into the beneficiaries having a dispute over the estate of the deceased.

No. person ought to intermeddle with the estate of the deceased.  The court has a duty of ensuring such property is preserved. It is alleged without certainty that the respondents have intermeddled with the parcel of land purportedly distributed to the applicants. There is however no iota of proof of the allegation.  The court cannot grant injunctive orders unless a prima facie case is established.  In the premises it would call for the status quo that was maintained at the time of the demise of the deceased to prevail.

However, this is a case where a temporary grant of Letters of Administration was issued on the 11th July, 2013.  Nine(9) months have elapsed since then.  It would be in the interest of justice that the estate be distributed.  It is therefore ordered that status quo be maintained pending confirmation of the grant issued. The applicants/petitioners are directed to file the application for Confirmation of the Grant within one (1) month.  In default the order for status quobeing maintained shall lapse.

It is so ordered.

DATED, SIGNEDand DELIVERED at MACHAKOS this 23RD day ofMAY 2014.

L.N. MUTENDE

JUDGE