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High CourtPartially Allowed· [2020] KEHC 8507 (KLR)

In re Estate of the late Ganira Ajiza (Application by beneficiaries for occupation orders pending revocation summons)

High Court of Kenya
6 February 2020
418 words in judgment
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The bottom line

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Beneficiaries can maintain possession of inherited land while a challenge to the will is pending, provided they follow court procedures.

What this practically means

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Executive summary

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This is an interlocutory ruling by Ali-Aroni J in a succession matter before the High Court, Nairobi, delivered on 6 February 2020. The Applicants, beneficiaries of the estate of the late Ganira Ajiza together with an interested party, Jemimah Ajiza Ganira, sought orders restraining the 1st and 2nd Respondents from entering, trespassing on, alienating or interfering with parcels L.R. ISUKHA/MURHANDA/938 and ISUKHA/MURHANDA/930, orders allowing the beneficiaries to continue occupying the suit premises, and enforcement through the OCS, Shisasari Police Station. The grant had been confirmed on 27 May 2015 and beneficiaries took possession of their shares. The Respondents, dissatisfied with the distribution, filed an application for revocation and/or annulment of the grant on 10 February 2017, which remains unprosecuted. Their complaint was that the Respondents were interfering with occupation by lawful beneficiaries and intermeddling with the property. Despite service, the Respondents did not respond or attend court, so their position was unknown. The court granted prayers 2, 3 and 4 of the application pending hearing and determination of the revocation application, preserving the beneficiaries' occupation with police enforcement. To bring the old matter to a quick closure, the court directed that the revocation summons be heard by way of oral evidence, with witness statements and documents to be filed and exchanged within 30 days, a mention for further directions within 45 days, and costs in the cause. The outcome is partially allowed: the restraining orders in prayer 1 were not granted.

Key legal issues

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01

Interim protection of beneficiaries' occupation pending revocation of a confirmed grant

Holding

The court allowed the beneficiaries and interested party to continue occupying the suit premises and directed police enforcement, pending determination of the revocation application

Reasoning

The grant was confirmed on 27 May 2015 and beneficiaries took possession of their shares. The Respondents, dissatisfied with the distribution, filed a revocation application on 10 February 2017 which remains unprosecuted. The court found the complaint was interference with lawful occupation and intermeddling, and granted interim relief preserving the status quo while directing expedited hearing of the revocation summons by oral evidence.

p. 1
02

Unopposed application where Respondents were served but did not respond or attend

Holding

The court proceeded on the Applicants' material, noting the Respondents' position was unknown to the court

Reasoning

Despite service, the Respondents neither responded nor attended court. The court therefore determined the interim application on the Applicants' uncontroverted material, while deferring substantive determination to the revocation summons, which it directed be heard by way of oral evidence with timelines for filing witness statements and documents.

p. 1

Legal principles established

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  • Where a grant has been confirmed and beneficiaries have taken possession of their shares, a party aggrieved by the distribution must pursue the pending revocation/annulment application rather than interfere with occupation by other beneficiaries

Court orders

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  1. 1.Prayers 2, 3 and 4 of the application granted pending hearing and determination of the application for revocation and/or annulment of the grant
  2. 2.The summons for revocation to be heard by way of oral evidence
  3. 3.Parties to file and exchange witness statements within 30 days
  4. 4.Documents, if any, to be filed and exchanged within 30 days of the date of the ruling
  5. 5.Matter to be mentioned for further directions within 45 days of the date of the ruling
  6. 6.Costs in the cause
Jurisdiction invoked
Succession cause - probate and administration jurisdiction of the High Court (application for interim orders pending summons for revocation/annulment of a confirmed grant)

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 Ganira Ajiza (Application by beneficiaries for occupation orders pending revocation summons)", Case Analysis (2020). . Source: 

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