In re Kwambai Saina alias Joseph Kwambai alias Kwambai Arap Saina (Deceased) [2023] KEHC 24855 (KLR)

In re Kwambai Saina alias Joseph Kwambai alias Kwambai Arap Saina (Deceased) (Probate & Administration E015 of 2020) [2023] KEHC 24855 (KLR) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24855 (KLR)

Republic of Kenya

In the High Court at Eldoret

Probate & Administration E015 of 2020

JRA Wananda, J

November 3, 2023

Between

Prisca Yator

Applicant

and

Magrina J. Saina

1st Respondent

David Saina

2nd Respondent

Ruling

1. The deceased, Kwambai Saina alias Joseph Kwambai alias Kwambia arap Saina died on 18/01/2010. On 12/11/2020, the 1st and 2nd Petitioners/Respondents applied for Grant of Letters of Administration Intestate in respect of the estate in their capacities as widow and son of the deceased. However, to date, the Grant does not appear to have been issued.

2. Now before Court is the Application filed by the Applicant, acting in person, brought by way of the Notice of Motion dated 21/4/2022 and in which she seeks the following orders:i.Spent.ii.That the Respondents and the Department of Survey at the County of Uasin Gishu or their agents and are hereby restrained from conducting survey exercise upon all that parcel of land known as Eldoret Municipality/ Block 25 (Luliet) 3 until the probate proceedings and issue therein touching upon the Applicant are heard and determined.iii.That Director of Survey be and is hereby restrained from effecting the registration of any changes on the plan of all that parcel of land otherwise known as Eldoret Municipality/ Block 25 (Luliet) 3 until the probate proceedings herein are heard and determined.iv.That the Respondents/Petitioners herein be are hereby ordered to include the name of the Applicant in the list submitted by the Petitioners to this Honourable Court as a beneficiary with a purchaser’s interest.v.Costs of this Motion be provided for.

3. The Application is stated be brought under Section 47 of the Law of Succession Act (Cap 160 Laws of Kenya). It is premised on the grounds stated on the face thereon and is supported by the Affidavit sworn by the Applicant.

4. In the Affidavit, the Applicant deponed that she is a beneficiary of the estate as a purchaser of ½ acre which she purchased from the deceased, she has constructed a permanent home thereon where she lives with her family for the last 25 years, the probate process herein has been so rigorous as the Petitioners have from commencement hereof demonstrated absolute reluctance to take out Letters of Administration, she has realized that as this process is going on the Petitioners together with the Department of Survey in Uasin Gishu County have carried out a survey exercise in which she “does not see” her piece of land, the Petitioners have already submitted the Plan to the Director of Survey for registration and effecting the amendments thereof, with intent to deprive and disinherit her, the Applicants have submitted to this Court a list that they have described as final but without her name and acreage, besides her, there are other purchasers who, too, have been omitted from the purported final and that granting of the orders sought is meant to do justice hence will not prejudice the Respondents.

Response to the Application 5. The Application is opposed vide the Replying Affidavit sworn by the 2nd Petitioner, David Kipkoech Saina and filed on 16/5/2022 through Messrs J.K Kiplagat & Co. Advocates. In the Affidavit, the 2nd Petitioner deponed that the Court delivered a Ruling in this Cause on 28/9/2021, in accordance with the Ruling, the Petitioners have compiled a list of all the purchasers/creditors which includes the Applicant and have filed the same in Court, the Applicant is among the creditors who purchased but they are yet to confirm the acreage like other creditors, other allegations against the Petitioners are wrong and misleading in that the Petitioners have not filed and/or signed any other document/list to warrant such an Application at this juncture, the Court is yet to issue Grant of Letters of Administration, the Applicant ought to remain patient and wait for the mode of distribution stage before Confirmation of the Grant.

Applicant’s Further Affidavit 6. The Applicant swore the Further Affidavit filed on 5/5/2023 in which deponed that the Director of Survey under the County Government of Uasin Gishu has already approved mutation on 6/7/2021and registered numbers for the 45 purchasers and some have taken up other purchasers’ portions including the Applicant’s share, processes of survey at the lands office never ceased even after putting a caution and restriction in 2007, the survey is being done hurriedly so as to avoid claims from purchasers who might lose their plots, the self-chosen Committee who are also purchasers brought a private surveyor without consulting all members including her, a portion of a road reserve was taken from her share alone and neither was she allocated the remaining portion but it was transferred to somebody else, there is a case in the Environment and Land Court being Case No. 349 of 2016 between her and the County Government of Uasin Gishu, the County Government used an illegal document to take away her portion of land without compensation, the case 349/16 between her and the County Government will not determine the direction of this Succession Cause.

7. The Applicant deponed further that during the Court proceedings in case 349/16 on 20/2/2022, she was served with a Replying Affidavit from Kalya & Co Advocates who are representing the County Government, the Affidavit contained a copy of an order dated 31/7/2019 allegedly entered into by consent, on 16/7/2019 she was present in Court before Hon. Lady Justice Odeny but her Counsel was absent, she therefore never entered into any consent with anyone, she never knew of the existence of the said order and she was never served with the same, the concerned party took the order and served it upon at the Land Registrar and the Uasin Gishu Land Surveyor who approved and gave out numbers using the forged order to the 45 purchasers, she is only a purchaser/interested party and thus cannot give a consent for subdivision on another person’s land, the subdivision approved on 6/7/20221 was done hurriedly to avoid claims from some purchasers including herself, there is a hidden agenda to redo the survey and reduce the portions from their original measurements, as such litigation will never cease, Counsel for the Respondent delayed the case from 2001 until the deceased died in 2010, many purchasers have died and it seems many will still die without holding titles to what they rightfully own, and that the Court should involve all stakeholders (purchasers) directly to avoid misinformation, delay and further litigation.

Hearing of the Application 8. On 9/05/2023, the Petitioner’s Counsel, Ms Cherop informed the Court that the Petitioners would not be filing any written Submissions and would rely entirely on their Replying Affidavit. Pursuant thereto, only the Applicant filed Written Submissions.

9. However, on 4/07/2023, a person allegedly from the Petitioner’s Advocates attempted to hand over some Submissions to my Court Assistant. When the same was drawn to my attention, I declined to receive the same because it did not seem to bear a Court stamp as evidence of filing. I therefore made an order that I would only consider receiving the same if I was furnished with evidence that the same had been formally filed in Court and also served upon the Applicant. I never heard from the Petitioner again regarding this issue.

Applicant’s Submissions 10. The Applicant basically reiterated the matters already deponed in her Supporting Affidavit and added that a Proposed Development Plan (PDP) and the subdivision Mutation Plan have already been approved by the Uasin Gishu County Government, the map has also already been submitted at the Survey department, the Petitioners are working behind the Court to defraud the 64 purchasers, the agents of the Petitioners fabricated a Court Order in Case No. 349/2016 which is being used for the above purpose, the survey plan presented by the Petitioners to the Director of Survey does not include the Applicant’s ½ acre, the Applicant purchased the plot from the deceased in the year 1998/1999, in 2001 she sued the deceased but the case abated when the deceased died, she lodged a Caution, in 2008/2009 the deceased had given power of attorney to his Advocate to transfer portions of the land to the purchasers but the Advocate delayed until the deceased died.

11. On whether a temporary injunction should be issued, the Applicant cited the case of Giella vs Cassman Brown. In regard to whether there is a prima facie case, she cited the case of Moses C. Muhia Njoroge & 2 Others v Jane W. Lesaloi and 5 others [2014] eKLR and Margaret Njeri Wachira v Eliud Waweru Njenga [2018] eKLR. She then submitted that as a beneficial interested holder and a purchaser, she has a right to peaceful and quiet occupation thereof in accordance with the Land Registration Act.

12. On whether she will suffer irreparable damage which cannot be compensated by damages, the Applicant cited the cases of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR and Rose Wakanyi Karanja & 3 Others V Geoffrey Chege Kirundi, Civil Appeal No. 172 of 2010.

13. The Applicant submitted further that she and her family have been living in the subject land for the last 25 years and that they are likely to be rendered landless and also lose her matrimonial home if the Respondents or Surveyor or Land Registrar of the County Government are not restrained from conducting survey exercises or from effecting the registration and issuing of titles or making changes on the plan for the land plan, she and other purchasers will also be denied the right to be compensated, she is likely to be subjected to endless expensive litigation which will deny her the right to just and expeditious trial and that the damage she is likely to suffer is irreparable such that she cannot be compensated even in equity.

14. On balance of convenience, the Applicant cited the cases of Chebii Kipkoech vs. Barnabas Tuitoek Bargoria & Another [2019] eKLR and Paul Gitonga Wanjau vs. Gathuthis Tea Factory Company Ltd & 2 Others [2016] eKLR and submitted that while she stands the chance of losing her matrimonial home, the Petitioners have nothing to lose since the deceased had already sold all the property to the 109 purchasers including her.

Analysis and Determination 15. Upon examination of the Pleadings, Affidavits, Submissions and the entire Record, I find the issue that arises for determination in this matter to be as follows:“Whether the Applicant has presented sufficient material to warrant granting of orders restraining survey exercise over the subject property and for recognition of the Applicant as beneficiary with a purchaser’s interest”

16. I now proceed to analyze and answer the said Issue.

17. What the Applicant is seeking are basically orders of interlocutory injunction. It is now agreed, as was held in the case of Floris Piezzo & Another –vs- Giancarlo Falasconi (2014) eKLR, that a Probate Court has powers under Section 47 of the Law of Succession Act and also Rule 73 of the Probate and Administration Rules to grant temporary injunctions.

18. Section 47 provides as follows:“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.

19. On its part, Rule 73 of the Probate and Administration Rules provides as follows:“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

20. The principles guiding the handling of Applications for temporary injunctions are now well settled and are as was set out in the case of Giella vs. Cassman Brown & Co. Ltd [1973] EA 358 and also in American Cyanamid Co. v Ethicom Limited (1975) A AER. Following the said cases, the Court of Appeal in Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR stated as follows:“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;(a)establish his case only at a prima facie level,(b)demonstrate irreparable injury if a temporary injunction is not granted, and(c)ally any doubts as to (b) by showing that the balance of convenience is in his favour.These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between. It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.”

21. The important consideration before granting a temporary injunction is proof that the property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit or that the defendant threatens or intends to remove or dispose the property. The question that therefore arises is whether the present Application meets the threshold laid for the granting of orders of temporary injunction.

22. The Court of Appeal, in Mrao Ltd v First American Bank of Kenya and 2 others, (2003) KLR 125, which it also cited with approval in its subsequent case of Moses C. Muhia Njoroge & 2 others v Jane W Lesaloi and 5 others, (2014) eKLR, defined a prima facie case as follows:“A Prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later”.

23. Applying the above principles to the facts of this case, I note that the Applicant has filed numerous Applications in this matter. Amongst these was the Application dated 16/03/2021 in which she sought to be joined into this Cause as an “interested party”. The basis of the Application was that she had purchased ½ acre portion of the property known as Eldoret Municipality/Block 25 (Luliet) 3 from the deceased. I note further that by the Ruling dated and delivered on 28/09/2021 by S.M. Githinji J, it was ordered that, rather than be joined as an “interested party”, the Applicant, having established a claim of a purchaser’s interest, be joined, not as an “interested party”, but as a “creditor”, together with any other alleged purchasers.

24. From the Petitioner’s Replying Affidavit to the present Application, I note that they do not seriously dispute the Applicant’s interest as a purchaser. In fact, the Petitioners have presented to the Court a list of up to 101 purchasers as “creditors” and in which list the Applicant appears as creditor No. 44. According to the Petitioners, the only matter yet to be established is the correct acreage purchased by the Applicant. The Applicant’s locus in this matter is therefore not really contested.

25. Has the Applicant therefore established a prima facie case? The Applicant’s main contention is that the survey plan that the Petitioners have presented to the Director of Survey does not include her ½ acre portion. On their part, save for stating that they have prepared a list of all creditors to the estate, the Petitioners have not denied the Applicant’s allegation that there is an ongoing survey. The Applicant also has exhibited a copy of the Mutation Form as proof of the on-going survey process. In the circumstances, I find that the Applicant has established on a prima facie basis that there is presently an ongoing survey process on the parcel of land known as Eldoret Municipality/Block 25 (Luliet) 3.

26. As regards the second condition for grant of a temporary injunction, namely, whether the Applicant stands to suffer irreparable loss, the Applicant’s case is that on the said ½ acre portion, she has constructed a permanent home where she and her family is and has been residing for the last 25 years. The Applicant states that she is apprehensive that if the Petitioners and the Department of Survey are not restrained from undertaking the survey process then she and her family are likely to be rendered landless and that she might lose her matrimonial home. With the foregoing in mind, I agree that in the event that the survey process continues before the grant is confirmed then the Applicant and her family may be disadvantaged by the process. In the circumstances, I find that the Applicant has also satisfied the second condition.

27. Regarding “balance of convenience”, I associate myself with the holding in Pius Kipchirchir Kogo vs. Frank Kimeli Tenai [2018] eKLR where it was stated as follows:“The meaning of balance of convenience in favor of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favor of the plaintiffs, the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer? In other words, the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it.”

28. In light of my earlier findings above on irreparable loss, I am satisfied that the balance of convenience also tilts in favour of the Applicant. I therefore find that the Applicant has satisfied all the conditions necessary for the grant of the temporary injunction.

29. Meanwhile, regarding the allegation of an ongoing survey, which has not been denied by the Petitioners, I wonder on what basis the same is being conducted, if at all, yet distribution of the estate has not been undertaken by this Court. Even worse, to my knowledge, not even an Administrator has been appointed. Who then is pushing the survey and in what capacity? Is this not a clear act of intermeddling with the estate, which is prohibited in law?

30. Regarding “intermeddling” as defined in Section 45 of the Law of Succession Act, Gikonyo J in Re Estate of M’Ngarithi M’Miriti [2017] eKLR, stated as follows:“Whereas there is no specific definition provided by the Act for the term intermeddling, it refers to any act or acts which are done by a person in relation to the free property of the deceased without the authority of any law or grant of representation to do so. The category of the offensive acts is not heretically closed but would certainly include taking possession, or occupation of, disposing of, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act. I should add that any act or acts which will dissipate or diminish or put at risk the free property of the deceased are also acts of intermeddling in law. I reckon that intermeddling with the free property of the deceased is a very serious criminal charge for which the person intermeddling may be convicted and sentenced to imprisonment or fine or both under section 45 of the Law of Succession Act. That is why the law has taken a very firm stance on intermeddling and has clothed the court with wide powers to deal with cases of intermeddling and may issue any appropriate order(s) of protection of the estate against any person.”

31. In light of the foregoing, I believe that anyone advancing the survey agenda at this stage shall now tread with caution.

32. In respect to prayer 4 of the Application, the Applicant seeks that her name be included in the list of persons submitted by the Petitioners as having a purchasers’ interest in the estate. As already stated, the Petitioners have annexed a list of the Creditors and the Applicant’s name appears at No. 44 thereon. Prayer No. 4 is therefore settled.

33. As aforesaid, the only issue raised by the Petitioners is that the acreage purchased by the Applicant is yet to be established. If the parties can agree on this issue, then the Court may adopt the same and proceed to factor it in determining distribution. However, should there be no agreement, then I may just perhaps mention that the Applicant not being a survivor of the deceased nor a beneficiary, a decision may have to be made on whether such dispute can validly be canvassed in this Succession Cause or whether the same should be placed before the Environment & Lands Court or any other appropriate forum.

34. On this point, I cite the following holding made by Musyoka, J in Re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR:“26. It may be argued that the subject land is estate property and by dint of that fact the probate court would have jurisdiction thereon. The position is not as simple. The Law of Succession Act, and the Rules made thereunder, are designed in such a way that they confer jurisdiction to the probate court with respect to determining the assets of the deceased, the survivors of the deceased and the persons with beneficial interest, and finally distribution of the assets amongst the survivors and the persons beneficially interested. The function of the probate court in the circumstances would be to facilitate collection and preservation of the estate, identification of survivors and beneficiaries, and distribution of the assets.Disputes of course do arise in the process. The provisions of the Law of Succession Act and the Probate and Administration Rules are tailored for resolution of disputes between the personal representatives of the deceased and the survivors, beneficiaries and dependants. However, claims by and against third parties, meaning persons who are neither survivors of the deceased nor beneficiaries, are for resolution outside of the framework set out in the Law of Succession Act and the Probate and Administration Rules. Such have to be resolved through the structures created by the Civil Procedure Act and Rules, which have elaborate rules on suits by and against executors and administrators (emphasize added).”

Final orders 35. In the premises, the Applicant’s Notice of Motion dated 21/04/2022 partially succeeds in terms of Prayers 2 and 3 thereof. Accordingly, I grant the following orders:i.Pending the hearing and determination of this Cause or until further directions are given by this Court, the Petitioners and/or the Director or Department of Survey, or the Registrar of Lands, whether at the Uasin Gishu County or National Government, or any other governmental or County authority in charge of land survey or registration, is or are hereby restrained, either by themselves, their agents or servants and/or any other person acting under their instructions, from conducting any survey exercise upon all that parcel of land known as Eldoret Municipality/Block 25 (Luliet) 3, and in the event that any such survey has already been conducted, then they are restrained from implementing the results thereof or effecting the registration of any changes on the subject plans or amendments arising therefrom.ii.In the meantime, if no Administrator has not been appointed, then the Deputy Registrar is hereby directed to forthwith process the Petition for Letters of Administration Intestate filed by the Petitioners on 12/11/2020. iii.Costs of this application will be in the cause.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 3RD DAY OF NOVEMBER 2023…………………..WANANDA J. R. ANUROJUDGE