Esther Makumbi Matundu v Mwang’a Kisyula [2018] KEELC 151 (KLR)

The court noted the Applicant's uncontroverted deposition that Nzaui/Nziu/373, like the other two parcels, is family property and not the private property of the Respondent, and that the father-in-law is buried on the parcel contrary to Kamba customary law. The Respondent's own affidavits admitted holding two parcels in trust for the three families of his late father. Together these showed a prima facie case with a probability of success sufficient to justify an interlocutory injunction.

The court accepted that exclusion of the Applicant and her late husband's estate from the subdivision and distribution of the trust parcels would leave her with an injury that could not be compensated in damages. It agreed with the Respondent that holding land in trust for a deceased father's family is not intermeddling with a deceased's estate, but held that the manner of subdivision and distribution had been put to question.

The court found it was not in doubt on the competing claims, but held that even if it were, the balance of convenience favoured the Applicant given the findings on the first two Giella principles. Both parties had addressed the balance of convenience in submissions, each contending it favoured their side, and the court resolved the issue on the strength of its earlier findings.

Counsel for the Applicant had argued that the Respondent's admission of dealing with the estate of his late brother Michael Matundu contravened Section 45 of the Law of Succession Act. The court agreed with the Respondent that, since he holds the land in trust for the family of his deceased father and the late Michael Matundu holds no registered title, his conduct does not constitute intermeddling, though the manner of subdivision and distribution remained questionable.