Elizabeth Naaman v David Mwiti Mwarania & Lilian Gakii [2017] KEHC 2323 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

SUCCESSION CAUSE NO. 463 F 2011

In the Matter of the Estate of Naaman M’ Mwarania (Deceased)

ELIZABETH NAAMAN…………………………………………..PETITIONER

-Versus-

DAVID MWITI MWARANIA………………………………….RESPONDENT

LILIAN GAKII………………………..….INTRESTED PARTY/APPLICANT

RULING

Inheritance is God ordained

[1] This matter has a rather sad history. When I read the Bible, I understand inheritance to be God ordained. And I have always believed that it should excite joy and appreciation as opposed to animosity and hatred amongst the close family kindred. Deceased persons- and is also the case here- worked hard to accumulate property so as to ensure property was available for his children to inherit. Alas! in this case, I see close family members have continued with endless squabbles; they file applications upon applications which have thus delayed conclusion of this cause. Be that as it may, before me is a Chamber Summons Application dated 17th October 2013 brought pursuant to Section 47 of the Law of Succession Act, CAP 160 of the Laws of Kenya and Rules 49 and 73 of the Probate and Administration Rules in which the Applicant seeks the following orders:

1. ……………………………………………..spent

2. THAT this honourable court be pleased to make an order that the said Lillian Gakii be enjoined in these proceedings as an Interested Party and that she be allowed to file a Replying Affidavit to the Application by the Respondent dated 30th August 2013.

3. THAT pending the hearing of this application inter partes and/or pending any further orders and/or directions of this court, this honourable court be pleased to issue an order staying enforcement and/or implementation of its orders made on 5th September 2013 in as far as Plot No. 15 Kula Mawe is concerned.

4. THAT this honourab;e court do make any further orders and/or give directions as shall be deemed fair and just to prevent further destruction, wastage and damage on Plot No. 15 Kula Mawe pending the final determination of the Respondent’s Application dated 30th August 2013.

[2] The basis for the Application is that the Interested Party is the exclusive owner of Plot No. 15 Kula Mawe Isiolo (hereinafter the suit property), it having been allocated to her by the then Municipal Council (now defunct) in the year 1970. Thus, the said Plot is not part of the estate property herein. The Respondent herein misled the court on this fact and induced the court into issuing adverse orders on the said. The Interested Party further contended she was not party to these proceedings and was not given an opportunity to be heard before the orders were issued on 19th September 2013. Accordingly, she claims that it is necessary that she be made a party to these proceedings so that she can make an appropriate Application regarding the suit property.

[3] The Application was opposed via a Replying Affidavit filed in court by the Respondent on 5th November 2013, where it was deposed inter that  vide an Application dated 30th August 2013, he moved the court for orders to have water reconnected to his houses on the suit property and was issued with the said orders on 5th September 2013. The Respondent further contended that the Interested Party was her sister who has all along been aware of this cause and that similar to Plot No. 14 Kula Mawe within Isiolo County, the suit property belonged to their deceased father which was later transferred to his sister Lillian Gakii.

[4] The Respondent contended that it was surprising for the Applicant to state that she was the exclusive owner of the suit property, having been allocated the suit property by the now defunct Council of Isiolo in the year 1970, yet she annexed a latter of allotment dated 19th February 1999. The truth of the matter was that the Applicant got the suit property from their deceased father.

[5] The Interested Party via a Replying Affidavit filed in court on 26th February 2014 reiterated that the suit property belonged to her and that the same was never property of the deceased. She replied on the issue of the allotment letter issued on 19th February 1999, and contended that that was the date registration was done but allocation was done in 1970 when  she paid the requisite fee of Kshs 5/= in her name on 10th July 1970 and annexed receipts to this effect. She further contended that she had all along continued to pay the requisite land rent and rates to the council and all the receipts were issued in her name and not the deceased.

DETERMINATION

[6] I have carefully considered this application and the rival submissions by the parties. On 5th September 2013, this honourable court inter alia ordered as follows:

2. THAT an order be and is hereby issued restraining Japheth Muthee from preventing IWASCO (Isiolo Water and Sewerage Company Ltd) to reconnect a water metre to the Applicant’s houses on plot No. 15 Kula Mawe within Isiolo County.

3. THAT an order be and is hereby issued restraining Japheth Muthee from disconnecting electricity from Plot No. 14 and 15 Kula Mawe within Isiolo County.

[7] From the record, the suit property is not among those listed for distribution as estate property. Again, the contentions by the Interested Party in relation to the suit property are not trivial; they warrant proper evaluation by the court. Accordingly and in view of the foregoing, I find the Interested Party’s Application dated 17th October 201 to be merited is hereby allowed to the extent stated in the following specific orders:-

1. THAT Lillian Gakii be joined in these proceedings as an Interested Party. She shall file a Replying Affidavit to the Application by the Respondent dated 30th August 2013 within 21 days of today.

2. THAT parties shall enlighten the court on the import of its order of 5th September 2013 in as far as Plot No. 15 Kula Mawe is concerned. Thereafter, I shall give appropriate direction thereto.

3. THAT meanwhile, if at all, there shall be no further destruction, wastage and damage on Plot No. 15 Kula Mawe pending the final determination of the Respondent’s Application dated 30th August 2013.

4. This being a succession matter involving close family members, there will be no order as to costs.

Dated, signed and delivered in open court at Meru this  2nd  day of November 2017

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F. GIKONYO

JUDGE

In the presence of:

Kitheka advocate for Interested party

Nyakwaru advocate for Mutegi advocate for respondent

M/s, Thibaru advocate  for Rimita advocate for petitioner

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F. GIKONYO

JUDGE