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Court of AppealDismissedCivil Application No. 5 of 2014

Mwongera Mugambi Rinturi & another v Florence Imathiu [2014] KECA 587 (KLR)

Court of Appeal of Kenya
28 May 2014
AVAlnashir VisramSKS. Gatembu KairuOTOtieno-Odek
1,294 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to freeze a deceased family's estate, ruling vague allegations of mismanagement aren't enough — you need actual proof.

What this practically means

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Executive summary

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This Court of Appeal ruling at Nyeri (Visram, Gatembu Kairu and Otieno-Odek, JJ.A.) determined a Notice of Motion dated 18th February 2014 brought under Section 68 of the Land Registration Act and Rules 42 and 43 of the Court of Appeal Rules. The applicants, brothers of the respondent, sought inhibitory orders restraining the respondent, the sole administratrix of the estate of Paramenus Mugambi, from dealing with the estate properties - particularly Land Parcel No. Ntima/Igoki/943, subdivided into nine parcels - pending the hearing and determination of two pending appeals challenging the distribution of the estate and the annulment of the applicants' appointment as administrators. The applicants alleged that the respondent had transferred much of the estate to herself and sub-divided other properties with intent to transfer them to third parties. The respondent countered that the estate had been fully administered and distributed and that the suit parcel no longer existed. The court applied its decision in Equity Bank Limited v West Link MBO Limited on the purpose of stay and preservation orders, held that an administrator is a trustee subject to the High Court's supervision, and found that mere allegations of wastage do not suffice to establish breach of the terms of a grant. Because Civil Appeal No. 277 of 2010 had already been heard, inhibitory orders would serve no purpose. The application was dismissed with each party bearing their own costs, the court noting this was a family dispute. The decision below was not disturbed; this ruling disposed only of the interlocutory application.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether inhibitory orders under Section 68 of the Land Registration Act should issue to stop dealings by the sole administratrix with the estate properties pending the hearing and determination of Nyeri Civil Appeal No. 277 of 2010 and Civil Appeal No. 32 of 2013

Key legal issues

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01

Whether inhibitory/conservatory orders should issue over estate properties pending determination of pending appeals

Holding

The application was dismissed because the appeal concerning the appointment of the respondent as administratrix had already been heard, rendering inhibitory orders purposeless, and the applicants failed to prove maladministration; mere allegations of wastage are insufficient.

Reasoning

The court relied on its prior decision in Equity Bank Limited v West Link MBO Limited on the purpose of stay/preservation orders. Since Civil Appeal No. 277 of 2010 had been heard and an application to strike out Civil Appeal No. 32 of 2013 had also been heard, inhibitory orders would serve no purpose. Additionally, an administrator is a trustee supervised by the High Court, and the applicants did not demonstrate any contravention of the terms of the grant.

p. 2

Legal principles established

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  • A stay order empowers the Court to entertain interlocutory applications for preservation of the subject matter of a pending appeal to ensure just and effective determination of the appeal
  • An administrator of the estate of a deceased person is a trustee and must administer the estate subject to the supervision of the High Court
  • Mere allegations of wastage of an estate, without more, do not suffice to establish that an administrator has acted in contravention of the terms of a grant

Court orders

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  1. 1.The Notice of Motion application dated 18th February, 2014 is dismissed
  2. 2.Each party to bear his/her own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AV
majority
SK
majority
OT
majority
On appeal from
High Court of Kenya at Meru
Succession Cause No. 213 of 1997
Jurisdiction invoked
Section 68 of the Land Registration Act and Rules 42 & 43 of the Court of Appeal Rules

Relief refused

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Inhibitory orders restraining the administratrix from dealing with the estate properties, including Land Parcel No. Ntima/Igoki/943 and subdivisions Nos. 8268-8276, pending determination of the appeals

Civil Appeal No. 277 of 2010 had already been heard and the applicants failed to demonstrate administration of the estate in contravention of the terms of the grant; mere allegations of wastage do not suffice

p. 3

Costs

This being a family dispute, each party shall bear his/her own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

a stay order is designed to empower this Court to entertain interlocutory applications for preservation of the subject matter of the pending appeal in order to ensure the just and effective determination of appeal
p. 2Purpose of stay and preservation orders
an administrator of the estate of a deceased person is a trustee and should administer the estate subject to the supervision of the High Court
p. 2Trustee status of an estate administrator
Mere allegations of wastage of the estate do not suffice to prove the same
p. 3Evidentiary threshold for inhibitory orders against an administratrix
we find no merit in the Notice of Motion application dated 18th February, 2014, and the same is hereby dismissed. This being a family dispute, each party shall bear his/her own costs
p. 3Disposition and costs

Issues in the judgment

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minor

The cause number is recorded as 'High Court Succession Case No. 213 of 1997' in one passage and 'Meru Succession Cause No. 213 of 1997' in another; the description is consistent in substance but the reference to the respondent's appointment ruling (Kasango, J.) follows the earlier reference to Emukule, J.'s distribution orders

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mwongera Mugambi Rinturi & another v Florence Imathiu [2014] KECA 587 (KLR)", Case Analysis (2014). Civil Application No. 5 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/587/eng@2014-05-28

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