Arot (deceased) John Otieno Mang'uro v Helena Agalo Arot & 2 Others

KANYADA/KANYABALÀ/4262 and/or interfering whatsoever with L.R. NO. KANYADA/KANYABALA/4262. [c] Pending the hearing and determination of this succession cause an interim order of temporary injunction do issue restraining the objectors their assignees and/or agents from construction of permanent structures, continuing the construction of permanent structures on L.R. NO. KANYADA/KANYABALA/4262 and/or interfering whatsoever with L.R. NO. KANYADA/KANYABAW4262. [d] The costs of this application be provided for. [2] The application was based on the affidavit of John Otieno Mang'uro (the petitioner) and on the ground that the Court rendered a Judgement in this matter on 14 th May 2020; and that in paragraphs 20 and 21 of the Judgement, the Court advised that the 1st objector ought to retain the portion of the land she is occupying in L.R. NO. KANYADA/KANYABALA/3365 in exchange with an equal portion of L.R. NO. KANYADA/KANYABALA/1024. The petitioner further stated that in Paragraph 22(d) of the said Judgement, the Court ordered the Land Registrar, Homa Bay, to ascertain the area of L.R. NO. KANYADA/KANYABALA/3365 occupied by both the 1st Objector and the petitioner. [3] The petitioner further averred that thereafter the Land Registrar and the County Surveyor went to the site and ascertained the area of L.R. NO. KANYADA/KANYABALA/3365 occupied by the 1st objector to be 0.44 Ha and that the area 2|Page HCFP&A NO. 3 OF 2023 RULING

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occupied by him is 0.88 Ha. He stated that he subdivided L.R. NO. KANYADA/KANYABALA/3365 into two portions, namely, L.R. NO. KANYADA/KANYABALA/4261 (measuring 0.78Ha, being the parcel he is in occupation of) and. L.R. NO KANYADA/KANYABALA/4262 (measuring 0.44 Ha, being the portion occupied by the 1 st objector). He added that the 1st objector subdivided L.R. NO. KANYADA/KANYABALA/1024 into 3 portions namely; L.R. NOS. KANYADA/KANYABALA/3989, 3990 and 3991; and that L.R. NO. KANYADA/KANYABALA/3989 which measures 0.64 Ha is still in the name of the 1st objector's deceased husband. [4] It was therefore the proposal of the petitioner that land parcel No. KANYADA/KANYABALA/4262 be transferred to the 1 st objector and in exchange the 1st objector to transfer an equal portion of L. R. NO KANYADA/KANYABALA/3989 measuring 0.44Ha to him. He added that the parties are yet to agree on the exchange of the respective parcels of land; yet the 1 st objector is busy constructing permanent structures on L.R. NO KANYADA/KANYABALA/4262 while this matter is still pending full determination. He contended that the construction is in bad faith and is only calculated to deny him his rightful share of the estate of the deceased. He therefore filed the instant application for restraining orders adding that the objectors do not stand to suffer any prejudice if the orders sought are granted. He therefore prayed that the application be allowed in the interest of justice. [5] The application was supported by the petitioner’s own affidavit sworn on 11th February 2025 in which he reiterated the 3|Page HCFP&A NO. 3 OF 2023 RULING

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grounds aforestated. The petitioner annexed to that affidavit images depicting the construction works on the subject property and reiterated his prayer for temporary restraining orders pending the hearing and conclusion of this Succession Cause. [6] The application was opposed by the objectors vide their Grounds of Opposition dated 20th February 2025. They contended that: [a] The petitioner has come before the Court with unclean hands and therefore is undeserving of the orders prayed for. [b] The petitioner does not stand to suffer any prejudice or irreparable damage if the orders sought herein are not granted. [c] The beneficiaries are in the process of mediation as to the mode of distribution of the estate of the late Elkana Mang’uro Arot. [d] The application lacks merit and the same should be dismissed in its entirety. [7] The objectors also filed two Replying Affidavits in opposition to the petitioner’s application. The first Replying Affidavit was sworn by Hellena Agalo Arot, the 1st objector herein. She averred that she is one of the widows of Moses Mang’uro Arot (deceased) that she has two co-wives with whom she has been sharing one home. The 1st objector further averred that she has lived in the disputed land now registered as LR NO. KANYADA/KANYABALA/4262 for over four (4) decades and was later joined by her co-wives. 4|Page HCFP&A NO. 3 OF 2023 RULING

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[8] She revisited the history of this litigation and stated that the court summarily dismissed their Summons for Revocation of Grant issued on 31st August 2016 without sufficiently interrogating the allegations raised therein; and that because they were dissatisfied with that decision, they moved this court for review the said orders vide an application dated 29 th February 2024 but the same was not dispensed with. Instead, directions were issued to file proposals on the mode of distribution. [9] The 1st objector further averred that the genesis of this protracted family dispute is the manner in which the petitioner initiated the process when he failed to fully involve the entire family and the respective beneficiaries. She added that the petitioner presented forged signatures vide the Form P & A 38 filed at the High Court in Kisumu and therefore did not come before this court with clean hands. [10] At paragraph 12 of her Replying Affidavit, the 1 st objector deposed that both LR NO. KANYADA/KANYABALA/4261 and 4262 have been registered in the petitioner’s name, yet she is still resident on the portion now assigned LR NO. KANYADA/KANYABALA/4262 together with the other widows of the late Moses Arot (Son of the late Elkana Mang’uro Arot). She added that the petitioner continues to frustrate her quiet enjoyment of the land by distorting the existing boundary between them in an attempt to increase the portion of LR. NO. KANYADA/KANYABALA/4261. 5|Page HCFP&A NO. 3 OF 2023 RULING

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[11] The 1st objector postulated that the beneficiaries of the deceased person’s Estate are willing to discuss the mode of distribution of LR. NO. KANYADA/KANYABALA/1239 and added that the same has been ongoing since last year when this matter was referred to mediation. She annexed a copy of the Partial Mediation Agreement, marked as Annexure HAA-08) and pointed out that LR NO. KANYADA/KANYABALA/3989 was not part of the Partial Mediation Settlement. [12] In response to the instant application, the 1 st objector deposed that her co-wife’s house had been damaged by constant flooding around her semi-permanent house; hence the need to construct a better structure for herself. She added that the petitioner’s decision to seek injunctive orders against her cowife’s efforts at improvement of her dwelling house only goes on to show his deep-seated disregard for the wellbeing of the beneficiaries of the estate of the deceased. She therefore prayed for the dismissal of the application and for the parties to continue with the mediation process for amicable settlement of the dispute. She annexed several documents to her affidavit to augment her averments. [13] The objectors also relied on the Replying Affidavit sworn on 20th February 2025 by the 2nd objector, Thomas Oloo Mang’uro. He averred that he is one of the sons of the deceased, Elkana Mang’uro Arot; and that he is aware that the deceased divided his Plot No. 1033 to his sons in his lifetime; and that the deceased allowed Moses Mang’uro Arot to stay on a portion of Plot No. 6|Page HCFP&A NO. 3 OF 2023 RULING

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1033. He added that Moses Mang’uro Arot continued to stay on Land Parcel No. KANYADA/KANYABALA/3365 long after the demise of the deceased. [14] The 2nd objector also reiterated their common stance that the petitioner secretly obtained Grant of Letters of Administration Intestate to the estate of the deceased without the knowledge or consent of the other beneficiaries; and that the petitioner was prosecuted for forgery before Kisumu Magistrate’s Court. He further averred that the petitioner did not have any legal right to subdivide Plot No. 3365 into Parcel Numbers 4261 and 4262 and registering them in his own name. He likewise urged for the dismissal of the petitioner’s application with costs. [15] By dint of Section 47 of the Law of Succession Act; the Court has powers to make such orders as are necessary for the ends of justice herein. It 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…” [16] Similarly, Rule 73 of the Probate and Administration Rules, which is one of the enabling provisions cited by the applicant, provides that: “Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” [17] In addition to the foregoing provisions, Rule 63(1) of the Probate and Administration Rules recognizes that: 7|Page HCFP&A NO. 3 OF 2023 RULING

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“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. [18] The instant application having been brought pursuant to Order 40 Rule 1(a) of the Civil Procedure Rules, it is well within the jurisdiction of the Court to handle and it is therefore imperative to consider whether the objector has made a good case for the issuance of a temporary injunction to preserve the estate pending the hearing and determination of her application for revocation; for that provision states thus "Where in any suit it is proved by affidavit or otherwise that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongly sold in execution of a decree ... the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders." [19] The prerequisites guiding the exercise of discretion in an application such as this remains Giella v Cassman Brown & Co. Ltd [1973] EA 358 wherein it was held that: "The conditions for the grant of an interlocutory injunction are ...well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience." [20] And in Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others [2003] KLR 123 the Court of Appeal held that: "A prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there 8|Page HCFP&A NO. 3 OF 2023 RULING

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exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter." [21] In considering whether or not a prima facie case has been made out, the Court is not required to go into an exhaustive evaluation of the merits of the objector’s revocation application. This caution was aptly expressed by the Court of Appeal in Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR thus: “... in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right, which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right, which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.” [22] The instant cause is a succession cause involving family members. The petitioner explained that negotiations have been held and the parties are, generally speaking in agreement that Parcel No. KANYADA/KANYABALA/4262 which is currently registered in the name of the petitioner be given to the family of Moses Mang’uro Arot, who include the 1st objector. This assertion was conceded to by the objectors. It is also not in dispute that attempts had been made by the objectors to erect a permanent structure on the said plot. Although the objectors explained that the construction was simply to put up an alternative house for one of the widows of Moses Manguro Arot whose house had been destroyed by flood waters, if indeed the 9|Page HCFP&A NO. 3 OF 2023 RULING

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parties are already in agreement over the exchange proposed by the petitioner, then it would not be in the interest of justice to continue with the construction of permanent structures on Plot No. 4262 while the cause is pending determination. [23] Accordingly, I find merit in the Notice of Motion dated 11 th February 2025. The same is hereby allowed and orders granted as follows: [a] That pending the final determination of this succession cause an order of temporary injunction do issue restraining the objectors their assignees and/or agents from construction of permanent structures, continuing the construction of permanent structures on NO. L.R. KANYADA/KANYABALA/4262 and/or interfering whatsoever with L.R. NO. KANYADA/KANYABAW4262. [b] That each party to bear own costs of the application. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF APRIL 2026 …………………………… OLGA SEWE JUDGE 10 | P a g e HCFP&A NO. 3 OF 2023 RULING

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