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High CourtDismissedSuccession Cause (application dated 3rd March 2020) - Meru High Court

In re Estate of the late M'Ikiara M'Nkabu (Julius Kirimi Nkabu v Grace Gauku & Another)

High Court of Kenya
24 September 2020
AOAnne Adwera Ong'injo
961 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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To secure a court injunction, you must prove immediate harm and act within the strict legal time limits.

What this practically means

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Executive summary

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The applicant, Julius Kirimi Nkabu, co-administrator of the estate of the late M'Ikiara M'Nkabu, filed an application dated 3rd March 2020 under Section 47 of the Law of Succession Act seeking injunction and preservatory orders restraining the respondents from destroying or interfering with his properties, including a dwelling house and tea bushes, on L.R. Abogeta/U-Kithangari/517, and from evicting him pending valuation and compensation of developments on the estate. He alleged the co-administrator divided the land without regard to beneficiaries' developments, sprayed herbicide, felled trees, and caused his children to face criminal charges. Grace Gauku opposed through a replying affidavit, averring that the applicant had earlier been granted leave to appeal within 14 days, failed to file the appeal, and that security was issued and the estate divided equally, with all beneficiaries now in occupation of their portions. No submissions were filed despite directions. Applying the Giella v Cassman Brown principles, the court found the application was filed six months after the relevant orders and two years after the grant, hence not timeously made; the valuation and compensation claim was an afterthought; and the allegations of destruction were unsupported by any police report or charge sheets, with police having supervised the subdivision under the court's order and Section 83 of the Law of Succession Act. The court noted the cause had been in court for over 20 years and that litigation must come to an end. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the applicant established a prima facie case for an injunction under Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules

Holding

The application fails; no prima facie case was established

Reasoning

The applicant alleged destruction of properties and flimsy criminal charges against his children but attached no police report, authority report or charge sheets. Police supervised the subdivision under the court's order and Section 83 of the Law of Succession Act and would have acted on any destruction. The application was also filed six months after the relevant orders and two years after the grant, and the valuation/compensation claim was an afterthought raised long after distribution.

p. 2

Legal principles established

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  • The conditions for grant of an interlocutory injunction are a prima facie case with probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience

Court orders

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  1. 1.The application dated 3rd March 2020 is dismissed with costs to the Respondent
Jurisdiction invoked
Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Estate of the late M'Ikiara M'Nkabu (Julius Kirimi Nkabu v Grace Gauku & Another)", Case Analysis (2020). Succession Cause (application dated 3rd March 2020) - Meru High Court. Source:

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