ANTONY FRANCIS WAREHAM v BRIAN JOHN HAWKES & another [2010] eKLR

Key Facts

Deceased Name

Issues

• The court considered whether the plaintiff had the right to obtain an injunction to restrain the defendants from alienating, selling, or disposing of the property pending the suit's determination.
• The court determined whether the plaintiff, as a beneficiary, could be granted a permanent injunction to restrain the defendants from evicting him or interfering with his occupation of the suit premises.
• The court evaluated the valuation of the property for purchase, considering the 2006 and 2008 reports, and determined the fair price as Kshs.6,250,000/=.
• The court addressed the question of whether the plaintiff is a tenant or has a right to purchase the property, given his status as the deceased's son and beneficiary.

Date of Death

Holdings

• The court determined that the plaintiff should purchase the suit property at the valuation of Kshs.6,250,000/= as per the 2008 report by Lloyd Masika Ltd. The valuation was agreed upon by the parties, and the court found it fair and just for the purchase price to be set at this amount. The plaintiff is required to pay this sum, and interest on the unpaid balance from 28th July 2008 to date, with rent paid by the plaintiff (Kshs.25,000/= monthly from August 2008) offset against the interest. Each party shall bear their own costs.
• The court ruled that the defendants are entitled to sell the suit property only to the plaintiff, as per the consent agreement. The property cannot be offered to third parties or interfered with during the suit's pendency. The plaintiff's right to possession is upheld until the purchase price is settled.
• The court ordered that each party bear their own costs associated with the suit. No party is to claim costs from the other.

Remedies

• The court ruled that each party shall bear their own costs associated with the suit.
• The plaintiff must pay interest on the Kshs.6,250,000/= purchase price at court rates from 28th July 2008 to the present, with the rent paid from August 2008 onward applied as an offset against the interest due.
• The plaintiff is required to purchase Maisonette Number 134 (LR 209/10530/121) at Kshs.6,250,000/= as per the 2008 valuation report, with interest on the purchase price from July 2008 to date (offset by rent paid).

Will Type

Probate Status

Legal Principles

• The court applied the principle that agreements between parties must be honored ('pacta sunt servanda'). The 2008 valuation report, agreed upon by both parties, was upheld as binding despite subsequent disputes, requiring the plaintiff to purchase the property at that value.
• The court emphasized that executors have a fiduciary duty to act in the best interests of all beneficiaries when managing an estate. This principle was central to the determination that the executors could not unilaterally set the property's sale price against the plaintiff's offer, as their actions must prioritize equitable distribution.

Succession Regime

Executor Name

• Charles W. Rubia
• Brian John Hawkes

Cited Statute

Executor Appointment

Judge Name

Passage Text

• By consent the plaintiff's application dated 8th November, 2007 be and is hereby allowed: (i) The defendants are not to levy distress against the plaintiff provided the plaintiff continues to pay rent of Kshs.25,000/=. (ii) The plaintiff do purchase the suit property LR 209/10530/121 upon a value to be agreed upon between the parties or failing agreement by parties, upon a value determined by the court.
• I find that it would have been fair and just for the plaintiff to purchase the suit property in July, 2008, at the appropriate valuation given by Lloyd Masika on 2nd July, 2008. Since the parties have been unable to agree on the purchase price, and the parties did consent that the court would fix the purchase price in the event of such a disagreement, I find that the plaintiff should pay the purchase price of Kshs.6,250,000/=. However, the plaintiff not having deposited this money, it is obvious that the defendants are entitled to be compensated.

Beneficiary Classes