In re Estate of John King’ang’i Thiong’o (Deceased) [2019] KEHC 11043 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO.793 OF 1985

IN THE MATTER OF THE ESTATE OF JOHN KING’ANG’I THIONG’O (DECEASED)

GRACE NJERI KINGANGI..........................................................APPLICANT

VERSUS

DEDAN THIONG’O JOHN................................................1ST RESPONDENT

WALTER GITAU JOHN....................................................2ND RESPONDENT

LIZIE NJOROGE..............................................................3RD RESPONDENT

RULING

1.  The deceased John King’ang’i Thiong’o died on 31st January 1975.  His estate comprised of LR No. Dagoretti/Uthiru/222 and Dagoretti/Uthiru/T.340-Kiambu. The grant was issued to the respondents on 3rd December 1987 and confirmed on 20th September 1988.  On 3rd May 2012, the applicant sought to have the grant revoked on the grounds that it was obtained fraudulently by making a false statement and concealment to court of something material to the cause. The application was dismissed on 10th May 2016.

2. The applicant filed summons dated 17th January 2017 seeking that the respondent, their servants and agents be restrained from interfering with the applicant’s use of the quarry already in use on Dagoretti/Uthiru/222 pending hearing and determination of the appeal to the court of appeal.

3.  The application was supported by the applicant’s affidavit dated 17th January 2017.  It was her case that during the deceased’s lifetime and during the proceedings of this case she was excavating stones for sale for her upkeep on Dagoretti/Uthiru/222. However, the respondents have now illegally stopped her from accessing the quarry as a result causing her great emotional and financial stress.

4.  The 3rd respondent filed the grounds of opposition on 17th May 2018, on the grounds that the parcel Dagoretti/Uthiru/222 was subdivided in 1992 and was transferred to 3rd parties.

5.  The 1st and 2nd respondents did not file their replying affidavit.

6.  I have considered the application, the response and the written submissions.  The question to be determined is whether the applicant has made a case for the grant of injunction pending the hearing and determination of the appeal that was preferred against the judgment dismissing her application for the revocation of the grant that had been issued to the respondents.

7. It is material that in the judgment it was pointed out that the deceased’s land parcel Dagoretti/Uthiru/222 was subdivided and respective portions sold and transferred to 3rd parties.  The 3rd parties were not made parties to these proceedings.  It is trite that an injunction cannot issue against an owner of land without reference to him.

8. Secondly, it is now law that negative orders are incapable of execution and hence cannot be stayed or injuncted (Raymond M. Omboga –v- Austine Ryan Maranga, HCCA No. 15 of 2010).  The judgment being appealed against was a negative one.  It dismissed the applicant’s application for revocation.

9. In conclusion, I find no merit in the application by the applicant.  I dismiss the same with costs.

DATED and SIGNED at NAIROBI this 5TH day of FEBRUARY 2019.

A.O. MUCHELULE

JUDGE

DATED and DELIVERED at NAIROBI this 12TH day of FEBRUARY 2019.

ALI-ARONI

JUDGE