4.This Succession Cause relates to the estate of the late Charles Peter Angwenyi who died on January 9, 1991. The Deceased died testate having left a written Will dated May 13, 1982. The Respondent Susan Njeri Angwenyi was appointed as sole Executrix under the said Will. Grant of Probate was issued in the name of the Respondent and Lawrence George Sagini on July 9, 1991. Following the death of one Executor the Grant was amended on December 18, 2002 naming the Respondent as the sole Executrix of the estate.
5.Vide an application dated January 31, 2013 the Respondent sought an order that the property known as LR No 12146/5 (hereinafter the ‘suit property’) as well as the property known as Nairobi/Block 91/219 Gigiri be added to the Will as assets belong to the estate. In the ruling delivered on March 8, 2013 Hon Justice William Musyoka held as follows:-
6.By so saying the Judge held that the Deceased died intestate in so far as the two properties were concerned. The Hon. Judge declined the prayer to have the two properties added to the Will as assets belonging to the estate of the Deceased.
7.Thereafter the Applicant filed an application dated December 22, 2017 seeking injunctive orders in respect of LR No 12146/5 (the suit property herein) and all the subdivisions thereto. Hon Lady Justice Asenath Ongeri delivered a Ruling dated July 26, 2019 directed the Executrix to petition the Court for Grant of letters of Administration Intestate in respect to the said property. The Respondent did file a Petition dated September 2, 2019 but the Grant is yet to be issued. The Applicant then filed this present application seeking preservatory orders in respect of the suit property.
8.The Applicant averred that there is ongoing construction on LR No 12146/31 (Original Number 12146/5/2 despite the fact that no letters of Administration have been issued to any party in respect of the suit property. That the said construction and other business activities on the suit property amounts to intermeddling.
9.The Applicant states both Hon Justice William Musyoka and Hon Lady Justice Asenath Ongeri had in their respective rulings cautioned the Respondent against intermeddling with the suit property. That in defiance of the caution issued by the court the Respondent proceeded to subdivide LR No 12146/5 into ten (10) plots which she had registered in her own name.
10.The Applicant further averred that the Respondent has been reluctant to pursue her Petition for Grant of letters of Administration Intestate to allow her the leeway to continue intermeddling with the estate to the detriment of the other beneficiaries.
11.The Respondent countered that the present application was ‘Res Judicata’ as the orders being sought herein are the same as the orders which the Applicant had sought in his application dated December 22, 2017 which application was heard and determined by Hon. Lady Justice Asenath Ongeri vide the Ruling dated July 26, 2019. The Respondent further states that she did file a Petition seeking Grant of letter of Administration Intestate. That she is awaiting gazettement of the Petition.
12.The Respondent denies intermeddling with the estate of the Deceased. She states that the property in question is her matrimonial home which was merely undergoing renovation. The Respondent equally accused the Applicant of intermeddling with the property known as LR No 6001/3 [Original No 6001/2/1 (I R 16526)] which belongs to the estate. She urges the court to dismiss this application in its entirety.
Analysis and Determination
13.I have carefully considered the application before this court, the reply filed thereto as well as the written submissions filed by both parties. The issues for determination are:-iWhether the present application is Res Judicata.iiWhether preservatory orders ought to be issued
Whether the present application is Res Judicata
14.The doctrine of res judiciata is set out under Section 7 of the Civil Procedure Act as follows:-
16.Therefore party seeking to rely on the doctrine of res judicata to bar a suit from being heard must prove each of the following elements:-aThe suit or issue was directly and substantially in issue in the former suit;bThe former suit was between the same parties or between the same parties under whom they or any of them claim;cThe parties were litigating under the same title in the former; anddThe court that formerly heard and determined the issue was competent to try and the subsequent suit or the suit in which the issue is raised.
17.The Respondent claims that the prayers being sought in the present application are identical to the prayers which were sought in the application dated December 22, 2017 which application was heard and determined by Hon. Lady Justice Asenath Ongeri.
18.I have carefully perused the application dated December 22, 2017 and the prayers sought therein. The prayers sought included inter alia the following:-i……iiThat pending the hearing and determination of this application inter-parties, a temporary order of injunction do issue orders restraining the Respondent, whether by herself or her servants or agents or otherwise howsoever from alienating, transferring, selling or disposing of Land Reference Number 12146/31 (Original Number 12146/5/2) IR No 161603; Land Reference Number 12146/32 (Original Number 12146/5/3) IR No 161604; Land Reference Number 12146/31 (Original Number 12146/5/4) IR No 161605; Land Reference Number 12146/31 (Original Number 12146/5/5) IR No 161606; Land Reference Number 12146/31 (Original Number 12146/5/6) IR No 161607; Land Reference Number 12146/31 (Original Number 12146/5/7) IR No 161608; Land Reference Number 12146/31 (Original Number 12146/5/8) IR No. 161609; Land Reference Number 12146/31 (Original Number 12146/5/9) IR No 161610; Land Reference Number 12146/31 (Original Number 12146/5/10) IR No 161611; and Land Reference Number 12146/31 (Original Number 12146/5/11) IR No 161612;iiiThat the subdivision of Land Reference Number 12146/5 by the Respondent out of which the above mentioned titles were issued, and the issuing of the titles of the subdivision plots in the personal and individual named of the Respondent be nullified.ivThat the entries made on Certificate of Title No. IR 39610, Land Reference Number 12146/5 Karen issuing of the titled of the sub division plots in the personal and individual named of the Respondent be nullified.”
19.In the previous application the Applicant sought order ‘to restrain’ the Respondent from ‘alienating transferring, selling or disposing” of the suit property.
20.In the present application orders are being sought to ‘preserve the suit property from intermeddling’ by constructing on the suit property and/or conducting any form of business thereon or undertaking any developments on the property pending the issuance of Grant of letters of Administration.
21.I find that there is a distinction between the orders being sought in the two applications. In the application of Decembber 22, 2017 the prayer was for injunctive orders against any alienation of the suit property whilst in the present application the prayer is for orders to preserve and protect the suit property from any interference/ intermeddling. Accordingly I find that the instant application is not Res Judicata.
Whether the Estate ought to be preserved
22.As stated earlier the High Court had ruled that the suit property forms part of the ‘intestate’ estate of the Deceased. The Executrix was directed to file a Petition for Grant of Letters Administration to authorize her to deal with this ‘intestate’ estate. In compliance the Respondent did file the Petition dated September 2, 2019. The Petition is awaiting gazettement.
23.The Applicant claims that there has been intermeddling with the suit property by way of construction and business activities thereon. He annexes a set of photographs “PSA 1” to his supporting Affidavit as proof of this allegation.
24.On her part the Respondent has also accused the Applicant of intermeddling with property belonging to the estate of the Deceased
25.In the case of Japhet Kaimenyi M’ndatho v M’ndatho M’mbwiria  eKLR the court noted that an Applicant seeking preservatory orders over the estate of a Deceased person had to satisfy the following conditions:-a“That the suit is at risk of being disposed of or alienated or transferred to the detriment of the applicant unless Preservatory orders of inhibition are issued.bThat the refusal to grant order of inhibition would render the Applicant’s suit nugatory.cThat the applicant has arguable case.”
26.From the Affidavit evidence and from the annexed photographs the court is not able to make a determination that it is the Respondent who has been intermeddling with the suit property. In order to reach such a conclusion the court would have to hear the parties substantively on the issue of intermeddling.
27.That being said it is pertinent to note that at the present time no person is authorized to deal in any manner whatsoever with the suit property as no Grant has been issued to any party in respect of the said property. The court has a duty to ensure that the estate of a Deceased person is protected from any form of intermeddling and/or interference from any quarter.
28.Section 47 of the Law of Succession Act vests court with wide discretion in granting protective powers of purposes of safeguarding the estate of a deceased person. It provides:
30.The parties herein have pointed fingers at each other over intermeddling with the estate. No party has authority to deal with the suit property. In the interests of justice I hereby grant preservatory orders in terms of prayer (3) of the application.
31.Finally and inconclusion this court makes the following orders:-1Preservatory Orders be and are hereby issued restraining the Applicant and the Respondent or any other person whatsoever from intermeddling with the estate by constructing structures of any kind, carrying on business, leasing to third parties, developing undertaking or continuing to undertake any further developments on the following properties (all together the “suit properties”) namely:-aLand Reference Number 12146/31 (Original Number 12146/5/2) Karen and;bLand Reference Number 12146/32 (Original Number 12146/5/3) I R No 161604;cLand Reference Number 12146/31 (Original Number 12146/5/4) I R No 161605:dLand Reference Number 12146/31 (Original Number 12146/5/5) I R No 161606;eLand Reference Number 12146/31 (Original Number 12146/5/6) I R No 161607;fLand Reference Number 12146/31 (Original Number 12146/5/7) I R No 161608;gLand Reference Number 12146/31 (Original Number 12146/5/8) I R No 161609;hLand Reference Number 12146/31 (Original Number 12146/5/9) I R No 161610;iLand Reference Number 12146/31 (Original Number 12146/5/10) I R No 161611; andjLand Reference Number 12146/31 (Original Number 12146/5/11) I R No 161612 until the Letters of Administration are obtained and the Grant confirmed.2Prayer (4) of the summons is dismissed.3This being a family matter each side will bear their own costs.