Miriti & another v Kalayu [2023] KEHC 26632 (KLR)

Miriti & another v Kalayu (Civil Appeal E013 of 2023) [2023] KEHC 26632 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26632 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E013 of 2023

TW Cherere, J

December 14, 2023

IN THE MATTER OF THE ESTATE OF JULIUS M’TIMITU ALIAS ITIMITU MBUI (DECEASED) AND IN THE MATTER OF AN APPLICATION FOR INHIBITION PENDING APPEAL

Between

David Miriti

1st Appellant

Frank Mutua

2nd Appellant

and

Jerusha Kalayu

Respondent

Ruling

Background 1. Respondent is widow and Appellants son and grandson of the deceased Appellant who is son of the 3rd Respondent and also grandson of the deceased respectively.

2. Appellants’ claim as beneficiaries of the deceased was dismissed by the trial court and the grant was confirmed wholly in the sole name of the Respondent.

3. Appellants who are aggrieved by the decision of the trial court pray for orders of inhibition over deceased’s estate comprised in LR. Nyambene/Uringu 1/241 and LR. NyambenE/URINGU 1/2947 pending the hearing and determination of the appeal on the grounds among others that the distribution of the estate to the Respondent will render their appeal nugatory.

4. By her replying affidavit sworn on September 27, 2023, Respondent opposes the application on the ground that the Appellants ought to give her time to distribute the estates to them and her other children. Respondent particularly faults the Applicants for not sweet-talking her to distribute the estate to them.

5. Section 47 of the Law of Succession Act and ‘rule 73 of the Probate and Administration Rules’ gives this court discretion to entertain any application and issue such orders as it deems fit in the circumstances. Applicants seek inhibitory orders in order to preserve the subject matter of the appeal.

6. Section 68(1) of the Land Registration Act,2012, gives this court the discretion to inhibit registered dealings on land for a particular time or until the occurrence of a particular event. As such, an inhibition order is an order which is in the nature of a prohibitory injunction restraining dealings on land pending further orders by the court. The purpose of the said order is to preserve the property from acts that would otherwise render a court order incapable of being executed and/or to give an opportunity to hear and decide the matter. Issuance of prohibitory orders is also provided for under the provisions of order 22 rule 48 (1) of the Civil Procedure Rules.

7. In the persuasive decision in In Philip Mwangi Githinji v Grace WakarimaGithinji (2004) eKLR Okwengu J (as she then was) held that before the court can issue such an order, it must be satisfied that the person moving the court for such orders has good grounds for requesting such an inhibition, such grounds would normally be in the form of a sustainable claim over the suit land.

8. In another persuasive decision in Mwambeja Ranching Company Limited & another v Kenya National Capital Corporation Limited & 6 others[2015] eKLR, Gikonyo J held the view that orders of inhibition envisaged under section 68 of theRegistration ofLand Act are in the nature of prohibitory injunction and act to preserve the suit property just as an interlocutory injunction would do. The learned judge additionally stated;“Of great significance on the request for an order of inhibition is Section 68(1) of the Land Registration Act which reads as follows; The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge. The case of Japhet Kaimenyi M’ndatho v M’ndatho M’mbwiria [2012] eKLR dealt with the threshold for granting orders of inhibition in a pointed manner as follows; “In an application for orders of inhibition, in my understanding, the applicant has to satisfy the following conditions: -a.That the suit property is at the risk of being disposed of or alienated or transferred to the detriment of the applicant unless Preservatory orders of inhibition are issued.b.That the refusal to grant orders of inhibition would render the applicant’s suit nugatory.c.That the applicant has arguable case.”

9. In the instant case, that Appellants are son and grandson of the deceased is not disputed. That Appellants were not provided for when deceased’s estate was distributed is also not disputed.

10. Section 35 of the Law of Succession Act provides for the mode of distribution of an intestate estate where the deceased is survived by a spouse and child or children. After considering the manner in which deceased’s estate was distributed, I find that Appellants’ claim that their intended appeal has high chances of success merited.

11. In the circumstances, I find that this is a proper case for preservation of the estate pending the determination of the appeal.

12. It is therefore hereby ordered:1. Orders shall issue inhibiting any dealings on LR. Nyambene/URINGU 1/241 and LR. Nyambene/Uringu 1/2947 pending the hearing and determination of this appeal2. These orders shall be served on the Land Registrar in the Land’s Office where the two assets are situated for compliance3. The memorandum of appeal shall be filed and served within 30 days from today’s date4. The Record of appeal shall be filed and served in the next 45 days from today’s date5. Appeal shall be disposed off by way of written submissions

6. Mention on 29th February, 2024 to confirm compliance with orders (1), (2) (3) (4) and (5) and for taking a judgment date

7. Costs shall be costs in the appeal

DATED IN MERU THIS 14TH DAY OF DECEMBER 2023. T.W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneFor Appellants - Mr. Mageria for Nyamu Nyaga & Co. AdvocatesFor Respondent - Ms. Muna