Kathuku (Suing as the legal administrator of the Estate of Kathuku Musau Dammas (Deceased) v Musyoka (Environment & Land Case E171 of 2023) [2024] KEELC 4122 (KLR)

Environment and Land Court

7 May 2024

MMM.D. Mwangi

1,710 words in judgment

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The bottom line

What this practically means

Executive summary

The Plaintiff/Applicant moved the court by Notice of Motion dated 15th November, 2023 under Order 40 of the Civil Procedure Rules and Sections 3A and 63(e) of the Civil Procedure Act, seeking a temporary injunction restraining the Defendant from encroaching upon, trespassing on, managing, developing, collecting rent from or interfering with Plot No. A4-128 Kayole Estate, forming part of the estate of the late Kathuku Musau Dammas, together with costs. The Defendant, describing herself as the deceased's widow to whom the property was transferred, opposed the application, asserting the property was matrimonial property and that a Succession Cause (Milimani P&A No. 1392 of 2019) was pending in which the Applicant had already filed a Chamber Summons seeking identical relief, amounting to forum shopping. The Plaintiff denied the Defendant was a wife of the deceased but confirmed the grant and the pending Chamber Summons. The court, canvassing the matter on written submissions, framed jurisdiction as the threshold issue. Applying the Owners of Motor Vessel 'Lilian S' dictum and Githinji J's reasoning in Re Estate of Kitur Chepsungulgei, which endorsed Floris Piezzo v Giancarlo Falasconi on the Succession Court's power under Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules to grant injunctions protecting an estate, the court held the High Court Succession Court was competent to grant the preservation orders sought. Finding the application duplicated prayer 1 of the pending Chamber Summons, the court struck out the Notice of Motion for want of jurisdiction and as an abuse of the process of court, with costs to the Defendant.

Key legal issues

Jurisdiction of the ELC over an application to preserve a deceased's estate listed in a pending Succession Cause

Holding

The court has no jurisdiction; the Succession Court is competent to grant the protective orders sought

Reasoning

Both parties disclosed that the suit property is listed in Milimani Succession Cause No. 1392 of 2019, in which the Applicant has already obtained a grant. Section 47 of the Law of Succession Act confers on the Succession Court wide powers to make all-embracing orders, including injunctions, to safeguard an estate. Filing a separate suit for a temporary injunction was therefore unnecessary and the ELC could not make one more step.

p. 4

Abuse of process by duplicating pending applications

Holding

The application was an abuse of the process of court because identical orders were sought in a Chamber Summons dated 23rd June, 2022 pending before the Succession Court

Reasoning

The court compared prayer 1 of the Chamber Summons in the Succession Cause with the orders sought in the Notice of Motion and found them identical. The Defendant's forum-shopping objection was well founded, and the duplication warranted striking out the application in addition to the jurisdictional defect.

p. 4

Legal principles established

Section 47 of the Law of Succession Act, read with Rule 73 of the Probate and Administration Rules, gives the Succession Court power to issue all-embracing orders, including injunctions, to safeguard a deceased's estate
Where a court lacks jurisdiction, proceedings cannot continue and the court must down its tools
Duplicate proceedings seeking identical relief in another pending cause constitute an abuse of the process of court

Court orders

1.Struck out the Plaintiff's Notice of Motion dated 15th November, 2023 for want of jurisdiction and as an abuse of the process of court, with costs to the Defendant/Respondent

Authorities

Legislation

Civil Procedure RulesOrder 40 Rules (a), (b), 2(i) & (3)
Civil Procedure ActSection 3A
Civil Procedure ActSection 63(e)
Law of Succession ActSection 47
Law of Succession ActSection 55
Law of Succession ActSection 71
Law of Succession ActSection 82(b)(ii)
Probate and Administration RulesRule 73

Cases cited (3)

The Owners of Motor Vessel 'Lilian S' v Caltex Kenya Ltd
[1989] KLR
Re Estate of Kitur Chepsungulgei (Deceased)
[2021] eKLR
Floris Piezzo & Another v Giancarlo Falasconi
[2014] eKLR

Jurisdiction invoked: Not expressly stated; the court declined jurisdiction in favour of the Family Court (High Court Succession Cause) on the basis of Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kathuku (Suing as the legal administrator of the Estate of Kathuku Musau Dammas (Deceased) v Musyoka (Environment & Land Case E171 of 2023) [2024] KEELC 4122 (KLR)", Case Analysis (2024). Notice of Motion dated 15th November, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4122/eng@2024-05-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.