[1] The application coming up for determination is the one dated 18 th October 2024. It was filed by Joab Otieno Ouma (the respondent) pursuant to Sections 45 of the Law of Succession Act, Chapter 160 of the Laws of Kenya, Sections 1A, 1B and 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, Order 9 Rule 9, Order 40 Rules 1 and 2 of the Civil Procedure Rules, and all other enabling provisions of the law. The applicant is thereby seeking the following orders:
[a] Spent
[b] Spent
[c] That the Court be pleased to issue an order of injunction restraining the appellant by himself, his servants, employees, agents and/or assigns from trespassing, encroaching, constructing, further constructing, disposing, alienating, transferring, leasing collecting rent, evicting clients and/or in any other way interfering with any part of Land Parcel No. KABUOCH/K/K/KOGUTA/1528 pending the determination of the appeal.
[e] That costs of the application be provided for.
[2] The application was premised on the grounds that the appellant is busy intermeddling with the estate of the deceased; and therefore that it is in the best interest of all the parties that he be restrained from disposing of any part of the estate. The application was supported by the respondent’s Supporting Affidavit, sworn on 18 th October 2024. He annexed several documents to his affidavit to buttress his assertions. In his Supplementary Affidavit and written submissions, the respondent focused attention on the merits of his claim to a share of the estate and urged that the estate be preserved in the meantime. He relied on Mulavu & another v Annah Ndunge Mulavu & 3 others [2018] eKLR and Giella v Cassman Brown & Co. Ltd [1973] EA 358.
[3] The appellant also proposed for determination the question whether the respondent has satisfied the ingredients for the grant of a temporary injunction. He made reference to Order 40 Rule 1 of the Civil Procedure Rules and urged the Court to find that no proof was presented to show that the estate is in danger of being alienated or sold. According to the appellant, none of the prerequisites for the grant of a temporary injunction was met. He relied on East Africa Industries Ltd v Trufoods [1972] EA 420, Mrao Ltd v First American Bank of Kenya Limited & 2 others [2003] KLR 125 and Cyanamid Co. (No. 1) v Ethicon Ltd [1975] UKHL 1 and urged for the dismissal of the application with costs.
[4] It is to be remembered that the Law of Succession Act is more or less a stand-alone piece of legislation; and therefore , unless a provision of the Civil Procedure Rules is expressly imported thereunder, the same is deemed inapplicable. Consequently, Rule 63 of the Probate and Administration Rules provides that:
“(1) Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 (Cap. 21, Sub. Leg.), … shall apply so far as relevant to proceedings under these Rules.
(2) Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased person shall be those existing and in force immediately prior to the coming into operation of these Rules.”
[5] Moreover, Section 47 of the Law of Succession Act provides that:
“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…”
[6] Accordingly, and in the light of the foregoing, I have given consideration to the application; particularly the averments set out in the Applicant’s affidavit and the annexures in support of the assertions. They demonstrate that the estate is in danger of dissipation; and that there is a demonstration of intermeddling for purposes of Section 45 of the Law of Succession Act . That provision is explicit that:
“Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.”
[7] In similar vein, the proviso to Section 82 of the Law of Succession Act is clear that "...no immovable property shall be sold before confirmation of grant..." The respondent did not have to wait until a part of the estate was sold to avail concrete evidence of intermeddling. Order 40 Rules 1 and 2 of the Civil Procedure Rules encompasses threats or danger of alienation.
[8] Consequently, I find merit in the application dated 18 th October 2024 . It is hereby allowed and orders granted in the following terms:
[a] That an order of injunction be and is hereby granted restraining the appellant by himself, his servants, employees, agents and/or assigns from trespassing, encroaching, constructing, further constructing, disposing, alienating, transferring, leasing collecting rent, evicting clients and/or in any other way interfering with any part of Land Parcel No. KABUOCH/K/K/KOGUTA/1528 pending the determination of the appeal.
[b] That costs of the application be in the cause.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 22 ND DAY OF MAY 2025
[a] Spent
[b] Spent
[c] That the Court be pleased to issue an order of injunction restraining the appellant by himself, his servants, employees, agents and/or assigns from trespassing, encroaching, constructing, further constructing, disposing, alienating, transferring, leasing collecting rent, evicting clients and/or in any other way interfering with any part of Land Parcel No. KABUOCH/K/K/KOGUTA/1528 pending the determination of the appeal.
[e] That costs of the application be provided for.
[2] The application was premised on the grounds that the appellant is busy intermeddling with the estate of the deceased; and therefore that it is in the best interest of all the parties that he be restrained from disposing of any part of the estate. The application was supported by the respondent’s Supporting Affidavit, sworn on 18 th October 2024. He annexed several documents to his affidavit to buttress his assertions. In his Supplementary Affidavit and written submissions, the respondent focused attention on the merits of his claim to a share of the estate and urged that the estate be preserved in the meantime. He relied on Mulavu & another v Annah Ndunge Mulavu & 3 others [2018] eKLR and Giella v Cassman Brown & Co. Ltd [1973] EA 358.
[3] The appellant also proposed for determination the question whether the respondent has satisfied the ingredients for the grant of a temporary injunction. He made reference to Order 40 Rule 1 of the Civil Procedure Rules and urged the Court to find that no proof was presented to show that the estate is in danger of being alienated or sold. According to the appellant, none of the prerequisites for the grant of a temporary injunction was met. He relied on East Africa Industries Ltd v Trufoods [1972] EA 420, Mrao Ltd v First American Bank of Kenya Limited & 2 others [2003] KLR 125 and Cyanamid Co. (No. 1) v Ethicon Ltd [1975] UKHL 1 and urged for the dismissal of the application with costs.
[4] It is to be remembered that the Law of Succession Act is more or less a stand-alone piece of legislation; and therefore , unless a provision of the Civil Procedure Rules is expressly imported thereunder, the same is deemed inapplicable. Consequently, Rule 63 of the Probate and Administration Rules provides that:
“(1) Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 (Cap. 21, Sub. Leg.), … shall apply so far as relevant to proceedings under these Rules.
(2) Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased person shall be those existing and in force immediately prior to the coming into operation of these Rules.”
[5] Moreover, Section 47 of the Law of Succession Act provides that:
“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…”
[6] Accordingly, and in the light of the foregoing, I have given consideration to the application; particularly the averments set out in the Applicant’s affidavit and the annexures in support of the assertions. They demonstrate that the estate is in danger of dissipation; and that there is a demonstration of intermeddling for purposes of Section 45 of the Law of Succession Act . That provision is explicit that:
“Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.”
[7] In similar vein, the proviso to Section 82 of the Law of Succession Act is clear that "...no immovable property shall be sold before confirmation of grant..." The respondent did not have to wait until a part of the estate was sold to avail concrete evidence of intermeddling. Order 40 Rules 1 and 2 of the Civil Procedure Rules encompasses threats or danger of alienation.
[8] Consequently, I find merit in the application dated 18 th October 2024 . It is hereby allowed and orders granted in the following terms:
[a] That an order of injunction be and is hereby granted restraining the appellant by himself, his servants, employees, agents and/or assigns from trespassing, encroaching, constructing, further constructing, disposing, alienating, transferring, leasing collecting rent, evicting clients and/or in any other way interfering with any part of Land Parcel No. KABUOCH/K/K/KOGUTA/1528 pending the determination of the appeal.
[b] That costs of the application be in the cause.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 22 ND DAY OF MAY 2025