https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9633

In re Estate of Karichu (Deceased) (Succession Cause 25 of 2016) [2026] KEHC 9633 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KEHC 9633 (KLR) Republic of Kenya In the High Court at Eldoret Succession Cause 25 of 2016 RN Nyakundi, J July 6, 2026 IN THE MATTER OF THE ESTATE OF JOHNSON MBURU KARICHU (DECEASED) In the matter of Lucy Nyambura Mburu Petitioner Ruling 1.This Court has spoken again and again in this litigation landscape of this succession cause which was filed way back in 2016. However, notwithstanding the Court due diligence, the parties to the succession dispute continue with what one can describe as conduct which is vexing the Court. I have in mind the past decisions in which the Court pronounced itself as follows; it is on record that on 17th September 2025 the Court ruled as follows:The current application and basic legal instrument on transmission of this estate dated 19th July 2017 provokes practical question on the interpretation of the provisions of the Law of Succession Act to the facts presented by the Administrators and the beneficiaries alike which essentially is in violation or contravention of the same law. Probate Courts applying the doctrine of equality should not change the law but it should prevent Administrators and the beneficiary from enforcing legal judgements that are inequitable. The certificate of confirmation of grant does not fill the spirit and the letter, the equity shaped gap in my understanding of the law. The model of vesting the entire estate one beneficiary in exclusion of the other beneficiaries who have come of age and are under the age of majority threatens or infringes the provisions of Section 35, 36, 37, 38 as read with Section 40, 41 and 42 of the Law of Succession Act. There must have been nondisclosure or misrepresentation of facts to the session Court at a time resulting in an error of law apparent on the face of the record. The Administrators therefore are put on notice to move purposively with a view to comply with the constitutional imperatives and the Law of Succession Act to undo the illegalities likely to occasion prejudice and injustice to the heirs of the estate. What the law contemplates and commonly misunderstood is for parties to enter into a mediation agreement of a consent to be adopted by the probate Court which is not in violation of the legal policy and statute law governing succession dispute. For those reasons a status conference shall be held on 21/10/2025 before this Court. 2.The Administrators and the beneficiaries have never complied with the above orders of this Court and yet another application or affidavit was filed on 16th of October 2025 in which subsequently the Court pronounced itself as follows:a.In application of the doctrine of the abuse of the Court process as discussed above, instead of adhering to those orders which were given by this Honourable Court on 17th September 2025, the Applicant has filed a fresh affidavit purporting to justify actions already deemed non-compliant, thereby undermining the authority of the Court and frustrating the orderly administration of justice. Such conduct not only disregards the binding nature of judicial directions but also attempts to reopen issues that were conclusively addressed, contrary to the principles of finality and procedural propriety. Moreover, the Further Affidavit purports to validate the distribution of the estate in accordance with a will that has neither been produced nor proved before this Court and therefore seeks to rely on extraneous material to sanitize a process already found to be irregular. This approach violates the procedural safeguards established under Sections 47 and 83 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules, which empower the Court to prevent the abuse of the Court process and ensure that parties act in good faith. By filing an affidavit that disregards prior Court orders and attempts to validate an unverified will within an intestate succession cause, the Applicant has engaged in conduct that is vexatious, misleading and calculated to delay the fair and expeditious determination of this matter.b.In view of the foregoing and taking into context the discussed legal provisions, the following orders shall abide:-a.That the further Affidavit sworn by the Petitioner/Applicant herein is hereby dismissed for being irregular, premature, an abuse of the Court process and non-compliant with this Court's directions.b.That the Administrators are again reminded to strictly comply with the Court’s Orders of 17th September 2025 and do so in consistent with Sections 35-42 of the Law of Succession Act and Article 27 of the Constitution.c.The shall be a Status Conference on 24th November 2025 to confirm compliance with the aforesaid orders dated 17th September 2025.d.It is so ordered. 3.These two decisions set out the ligation history of this matter and unless and until the parties demonstrate compelling evidence why they should disobey the direction and orders of the Court, they should be denied audience and cannot rely or justify any such compliance the provision of Article 50 on fair trial on our Constitution. When one looks at the affidavit by Lucy Nyambura dated 16th October 2025 she deponed as follows:a.That the deceased's estate was shared among the family members in line with the deceased's will.b.That all the family members were in agreement with the content of the will and consented to the distribution of the deceased's estate.c.That none of the heirs of the estate has complained of any prejudice.d.That in respect to the application to amend the certificate of confirmation issued by this Honourable Court, the beneficiaries have agreed to share the assets as per the attached consent. 4.Notwithstanding the view held by Lucy Nyambura the grant in question was issued way back in 19th July 2017 when all the properties were devolved in her name to hold in trust for all the beneficiaries. The Court has not been told why the letter and spirit of the Law of Succession Act has not been followed and it marks discrimination on the face of the record. While the Court must always be conscious of the underlying values of a written Will. It is nonetheless our task as Courts to interpret a written instrument within the confines of the Constitution and Statute. If the language used by the testator does not promote the values which underlie an open and democratic society based on freedom and equality that exercise of Will making in contextual interpretation can be held to be in violation of Article 27(1)(4) of the Constitution. It is left to the Courts to decide what would be appropriate relief in any particular case. Appropriate relief will in essence be that which is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the right enshrined in the Constitution are protected and enforced. If it is necessary to do so, the Courts may even have to fashion new remedies to secure the protection and enforcement of all these important rights including inheritance rights to property survived of the deceased. 5.To conclude the purpose of the Law of Succession Act pursuant to Section 35, 36, 37, 38, 39, and 40 is to fashion the distribution of the estate to the beneficiaries within the doctrine of equitable remedies. In deciding to read and interpret the words and provision of the law of Succession Act whether it is in intestate distribution or probate distribution a Court should also bear in mind that it would not be appropriate to endorse the scheme on the mode of distribution even in a written Will unless in so doing a Court can define its sufficient precision, how the act or the written Will of the deceased ought to be extended or varied in order to comply with the Constitution. As the Courts have held elsewhere the Constitution supremacy clause automatically renders any such law unconstitutional or conduct a nullity. 6.This estate generally speaking has not been distributed and it is intolerable for the Petitioner to continue to be the executor or Administrator to greater uncertainty when the beneficiaries would inherit the land and the assets of the deceased. This is why the Court declined to adopt the amendment. Essentially a party wishing the Court to make such an order must come up with the relevant information to justify it doing so. The requisite information would necessarily depend on its detail on the nature of the law and the character of the defect to be amended. 7.The cause of fairness and justice is rarely served when judicial time is crammed with futile applications in succession matters to the detriment of the beneficiaries who legitimately have been waiting to take possession of their right to property on inheritance. the Constitution requires us to grapple with these difficult issues. It commits the State and the courts to the goal of achieving equality. It tells us that the type of society that it wishes to create is one based on equality, dignity and freedom. Hence Article 27, is one of the core rights on equality before the law and non-discrimination guaranteed and protected by out Constitution. 8.Time has come for the society in this great Republic comprising of multiracial or multiethnic communities to underscore the concept of unfair discrimination on inheritance rights so that we can afford each human being equal treatment on the basis of equality and dignity worth by insisting upon identical treatment in all circumstances unless there is compelling evidence for any departure. 9.For instance, when would the children of the deceased inherit the land of their deceased father? The measures that have held the dignity and self-esteem of individual beneficiaries legitimately recognized under Section 29 of the Act cannot be achieved and justified if all the assets are absolutely vested in the hands of one Lucy Nyambura Mburu. There is no evidence that she contributed to the acquisition to any of the estate property survived of the deceased, and if she did so it cannot be an excuse to deprive or deny any of the legitimate beneficiaries to take possession of their respective shares. 10.It is clear that the only purpose of rationality review is an enquiry into whether the differential on inheritance of this estate if arbitrarily, irrational or manifest naked preference and is in violation of the scheme chosen by the Legislature in the Law of Succession Act on the distribution of the estate. It is abundantly clear that only few of the beneficiaries have signed the consent being referred to by the petitioner Lucy Nyambura which means appropriately they are not in agreement with that amendment as proposed by the petitioner relying on the so called written Will of the deceased. There is no member of the same family who should be made to feel they are not deserving of equal treatment, respect and consideration on matters of inheritance. 11.In my view, the best thing for the petitioner to do is not to hang on to the written Will and continue to hold the assets in trust for the beneficiaries but to respect the individual human dignity of her children which entails recognition that each one of them is capable of making individual choices. This includes the choice of how they can develop the properties survived of the deceased. Principally holding in trust by an administrator or executor means treating other legitimate beneficiaries under Section 29 of the Law of Succession Act differently and in a way which impairs their fundamental dignity as human beings who are inherently by birth equal in dignity. I therefore emphasize by implication that the petitioner should consider applying the statutory provisions of the Law of Succession Act in which the making of the Will of any Testator is premised in such a way as to conform to the Bill of Rights as read with Article 40 of the Constitution. It is so ordered. DATED, DELIVERED AND PUBLISHED VIA CTS AT ELDORET THIS 6TH DAY OF JULY 2026.…………………………………R. NYAKUNDIJUDGE