1.Before this Court for determination is the Chamber Summons dated 16th December 2022 by which the Applicant seeks the following orders:-
2.The Application is premised upon Sections 45 of the Law of Succession Act, Rule 49 of the Probate and Administration Rules, Section 1A, 1B and 3A of the Civil Procedure Act, Order 40 Rule 1 (a) (b) and 4 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law and is supported by the Affidavit of even date sworn by Peter Kimuyu Njonjo.
3.The Respondents opposed the application through the Replying Affidavit dated 14th March, 2023 sworn by the 1st Respondent John Njogu Kimani.
4.The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated 8th May 2023 whilst the Respondent relied upon their written submissions dated 9th May 2023.
5.This Succession Cause relates to the estate of the late Teresia Gathoni Mungai (hereinafter ‘the Deceased’) who died intestate on 21st September 1993.
6.A copy of the Death Certificate serial No. 383917 is annexed to the Petition for Grant of letters of Administration Intestate dated 7th November 1994.
7.The Deceased is said to have been survived by the following persons:-i)Sophie Wairimu - daughterii)Louis Njonjo Mungai - soniii)Mary Njeri Mungai - Daughteriv)John Njenga Mwaura - purchaserv)Samuel Njenga Gachemi - purchaservi)Peter Kimunyu Njonjo - purchaservii)Esther Wanjiku Chege - purchaser
8.The estate of the Deceased comprised the following assets:-a.Land Reference No.1556/65 Naivasha;b.Kabete/Lower/Kabete/831;c.Kenya Post Office Saving Bank Account No. KLW 5090;d.Kiambu Dairy & Pyrethrum Farmers Co-operative Union Ltd;e.Kenya Commercial Bank Ltd Kikuyu;f.Savings Account No. 100-157-444.
9.Following the demise of the Deceased Grant of letters of Administration was on 26th January 1995 issued to Mary Njeri Mungai, John Njenga Mwaura, Esther Wanjiku Chege And Louis Njonjo Mungai. The Grant was duly confirmed on 3rd October 1997. In the confirmed Grant the Property Known as LR No. 1556/65 Naivasha (hereinafter ‘the suit property’) was to be distributed as follows:-
- Mary Njeri Mungai - 0.4816 Hectares
- Samuel Njenga Gachemi - 0.8094 Hectares
- John Njenga Mwaura - 0.8094 Hectares
- Peter Kimuyu Mwaura - 0.8094 Hectares
- Esther Wanjiku Chege - 0.8094 Hectares
10.The Applicants state that the suit land is farm land and they purchased their portions from the Deceased during her life time. That the Applicants have developed the suit property, put up houses and have farmed on their respective portions for over twenty (20) years.
11.It is stated that the 1st Respondent and the Deceased were owners in common of the suit property. That the 2nd Respondent is a grandson of the Deceased whilst the 3rd Respondent is the daughter of the Deceased.
12.The Applicants allege that the Respondents have now joined hands in an effort to evict the applicants from the suit land. That the Respondents have been showing the land to prospective buyers.
13.The Applicants state that they are yet to be issued with Title Deeds because the Administrators have declined and/or neglected to sign the requisite transmission forms despite the mode of distribution set out in the confirmed Grant dated 3rd October 1997.
14.The Applicants allege that the Respondents have cunningly obtained a new title to the suit property all in in attempt to defeat the Applicants rights to said land.
15.The Applicants state that they are apprehensive that unless restrained by way of an injunction the Respondents will move to evict them and/or interfere with their peaceful enjoyment of the suit land. Hence the present application.
16.The Respondents in reply confirm that the 1st Respondent was a Co-owner of the suit land owning 54% of the property. It is conceded that the Deceased sold her 46% share in the property to the Applicants herein.
17.The 1st Respondent avers that sometime in October 2018 the 2nd Respondent informed him that the original Title Document to the suit land had been misplaced. That they made a report at Kikuyu Police Station. However, the Respondents deny the claim by the Applicants that they have secured a replacement title for the suit land.
18.The Respondents deny interfering with the Applicants occupation of the suit land and deny any intention to evict them therefrom. Instead the Respondents allege that it is the Applicants who have been encroaching on their portion of the land and have removed and destroyed beacons. The Respondents pray that the Applicants be ordered to produce the original Title to the suit land and be ordered to restore the beacons.
Analysis and Determination
19.I have carefully considered the application before this court, the Reply filed thereto as well as the written submissions filed by both parties.
20.The Applicants have prayed that a permanent injunction issue to restrain the Respondent from dealing with the property known as LR No. 1556/65 Naivasha.
21.A permanent injunction is ordinarily an order requiring a party to do or to cease from a specific act and such order is normally given as a final order upon conclusion of hearing. As a general rule court do not issue permanent injunctions at the interlocutory stage.
22.In Kenya Power & Lighting Company Limited -vs- Sheriff Molana Habib [2018 eKLR, the court stated that:-
23.This suit has no been heard inter parties and in the circumstances it would be premature to issue a permanent injunction. I do believe that what the Applicants are actually seeking is interim injunction pending distribution of the estate.
24.The Grounds upon which an interim injunction can be granted were set out in the oft cited case of Giella – vs- Casman Brown  EA. As follows:-
25.The Applicants herein are all parties to this Succession Cause. John Njenga Mwaura (the 1st Applicant) and Esther Wanjiku Chege (the 4th Applicant) are appointed by the court as Administrators of the estate of the Deceased vide the Grant issued on 3rd October, 1997.
26.Samuel Njenga (the 2nd Applicant) and Peter Kimuyu Njonjo (the 3rd Applicants) are both beneficiaries of the estate in terms of the confirmed Grant dated 3rd October 1997. The Applicants have therefore established a prima facie case.
27.I note that the Grant herein was confirmed way back in October 1997. To date the estate has not been distributed. The Applicants have not yet secured Title Documents for the portions of land which were allocated to them in the confirmed Grant.
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:-
29.Likewise, Rule 73 of the Probate and Administration Rules provides that:-
30.This is a Probate Court and the duty of the Probate Court is to ensure that the estate of the Deceased is distributed to the genuine beneficiaries. It is my view that the Administrators have been lax in carrying out their duties. Why has the estate not been distributed twenty-six (26) years after the Grant was confirmed.
31.Finally, I find merit in this application and I hereby issue the following orders:-(1)An interim injunction be and is hereby issued to restrain the Respondents by themselves their agents, employees or any other person acting under their instructions from trespassing selling transferring, charging or in any other manner whatsoever interfering with the land being portions of LR No. Naivasha/1556/65 allocated to the Applicants under the terms of the Certificate of Confirmed Grant dated 3rd October, 1997 pending final distribution of the estate.(2)The Administrators to conclude distribution of the estate by signing all requisite transfer Document to transmit the various parcels of lands to the beneficiaries within Sixty (60) days.(3)In the event the Administrators fail to comply with (2) above then the Hon. Deputy Registrar is authorized to sign the requisite forms on behalf of the Administrators.(4)Each party to meet is own costs.