Succession cause number 82/2016

Estate of M'rachi Thambura

Ruling
The matter for determination is the summons dated 12th August 2022 which was brought
under certificate of urgency.
The orders sought are that the respondent be directed to vacate the applicant’s land number
LR MUTHAMBI/ CHAMUNGA 1216 (a subdivision of scheme of the original deceased's
estate LR MUTHAMBI/ CHAMUNGA 317), and in default the officer in charge Marima Police
Post be directed to provide the necessary security to the applicant and the auctioneer during
the eviction of the respondent from the applicants above land.
The grounds upon which the application is based are
-The respondent has adamantly refused to vacate from the applicant’s land despite
numerous demands being served upon the respondent to vacate from the said land parcel
- The respondents portion after the subdivision of the deceased's estate is Muthambi/
Chamunga 1215.
- It is in the interests of justice that the order sought be granted expeditiously to avert
an injustice being occasioned to the applicant.

In the affidavit in support of the summons the applicant averred that the court dismissed the
protest filed by the protester on the mode of distribution of the estate as was sought by the
administrator. The court then confirmed the grant for distribution of the deceased's estate.
The administrator then proceeded to subdivide the estate which was land number LR
MUTHAMBI/ CHAMUNGA 371. The protester/ respondent was allocated LR
MUTHAMBI/CHAMUNGA/ 1215 and the applicant's mother, who is now deceased was
allocated LR MUTHAMBI/ CHAMUNGA 1216.
The applicant then inherited his mother's share vide orders issued in Succession cause no
38/2020 and had the land registered in his name.
However, the respondent has adamantly refused to vacate from the applicant's land hence
this application.

The application was opposed. In his replying affidavit, the respondent stated that he has
substantial development such as a permanent residential house on the subject land. That
when the judgement was entered in his absence he was not notified of the same and only
learnt about it when the applicant's surveyors went to his residential place for the purposes
of subdividing it. He proceeded to file an appeal in the High Court seeking orders to restrain
the beneficiaries of the estate from interfering with the estate. He contended that the said
appeal raises serious and arguable issues with a strong probability of success. He stated
that the applicant has rushed to this court to seek eviction orders after learning that he had
filed an appeal at the High Court. He urged the court to stay the eviction proceedings
pending the hearing and determination of the appeal as he stands to suffer substantial loss
since his property will be taken over leaving him and his family homeless.

Parties resolved to canvass this application by way of written submissions.

For the applicant it was submitted that the judgement was delivered on 3rd July 2018 in the
presence of both petitioner and the protester and that the survey process was conducted on
6th December 2019 in the presence of all the parties. That a certificate of confirmation of
Grant was issued on 4th July 2018. The respondent has failed to file any appeal against the
judgement and when the survey process was conducted he only came to court to file an
application for an extension of time to file an appeal out of time after he was served with a
notice to vacate the applicant’s land number Muthambi/ Chamunga/1216 on 25/7/22. It was
therefore submitted that there was inordinate delay on the part of the respondent to file the
appeal if any and that the intended appeal has no chance nor probability of success. That
this court has no jurisdiction to determine the merits and demerits of the respondent’s
application in the High Court for extension of time to appeal out of time. That under order 42
rule 6(1) the Civil Procedure Rules 2010 it is provided that an appeal cannot stay any
execution.

They concluded that the application here is merited and the orders sought should be granted
for the interest of Justice. That the respondents interest lie on LR number Muthambi
Chamunga 1215 and as such this application will not render the applicant landless.

The respondent in his submissions stated that the delay in filing the appeal was occasioned
but the fact that the respondent was never served with a notice of delivery of judgement and
only learnt of it through the server sent by the applicant.

It was submitted that since the issue of the grant and confirmation of the same has been
contested in the High Court which has already pronounced itself on the extension to file an
appeal then this application is null ab initio. That the respondent has already filed an appeal
and if the applicant is evicted then the appeal will be rendered nugatory and merely an
academic exercise. They relied on the authority of Kenya Shell Limited Vs Benjamin
Karuga Kibiru & another (1986) eKLR.
They concluded that the respondent and his family will suffer irreparable loss if this
application is allowed.

After perusing the court file here, I note that when the judgement was delivered on 28th June
2018 none of the parties were present. There is therefore some truth that the respondent
might not have been aware of the delivery of the judgement. There is no proof that the
applicant served the respondent with a notice of the said judgement. I have also noted that
an appeal has been filed in the High Court. This application is seeking drastic orders of
eviction. The respondent has indicated that he and his family reside on the land and that he
has developed his portion and he has permanent buildings thereon. This means that the
respondent stands to suffer irreparable damage if he is evicted at this point.

Though there is no indication that the respondent has sought a stay of the judgement here,
due to the reason that the applicant was not aware of the judgement and that eviction is a
drastic order, I order the applicant to give the respondent a 90- day notice of eviction hoping
that the respondent might comply or seek a stay of these orders. The prayer 4 police
assistance is not allowed for now. Cost of the application shall be in the cause.

READ IN OPEN COURT THIS DAY OF IN THE YEAR 2023 IN THE

PRESENCE OF