https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11990

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KITALE** **SUCCESSION CAUSE NO.E068 OF 2023** **ESTATE OF THE LATE DANIEL MAGETO OKEBIRO – DECESED** **DOROTHY SHEILA MORAA OKEBIRO……PETITIONER/RESPONDENT** **VERSUS** **FELIX NYONGESA WANJALA………..INTERESTED PARTY/APPLICANT** **RULING** 1. Felix Nyongesa Wanjala, the interested party/applicant herein has vide Notice of Motion dated 19-3-2026 moved this court for the following orders/reliefs; 2. ***Spent*** 3. ***That pending the hearing and determination of this application, an order of injunction do issue staying confirmation.*** 4. ***That pending the hearing and determination of this application an order of injunction do issue restraining the beneficiaries of the estate of Daniel Mageto, their relative, assignees, representatives, agents, servants and/or anyone acting under their authority from trespassing, transferring, selling, tilling, digging, harvesting, ploughing, fencing or constructing any structures on those properties known as Block 15/Koitogos/2206 and Block 15/Koitogos/3015*** 5. ***That pending confirmation of grant, an order do issue directing that Block 15/Koitogos/2206 and Block 15/Koitogos/3015 be removed from schedule of assets in the proposed summons for confirmation of grant.*** 6. ***Any other order this hon court may deem fit to grant.*** 7. The applicant has listed the following grounds as the basis for the prayers sought; 8. *That he purchased Block 15/Koitogos/2206 from the deceased on 27-8-2010 for a total consideration of Kshs.400,000/- and that he paid it in full.* 9. *That on 29-5-2012 he entered into a 2nd agreement with the deceased for the purchase of parcel No.Block 15/Koitogos/3015 for a total consideration of Kshs.500,000/- and he paid it in full.* 10. *That following the demise of the deceased in 2023 one of his sisters in law made claims that she also purchased the same parcels from the deceased which raised issues on ownership.* 11. *That he is now apprehensive that the 2 subject properties could be distributed without regard to his interests as a bona fide purchaser.* 12. *That he has invested heavily towards acquisition of the said 2 properties.* 13. The applicant has supported this application with his affidavit sworn on 19-3-2026. In the said affidavit, the applicant has majorly reiterated the above grounds. 14. He has exhibited photocopies of documents showing a series of transactions as **FW1**. Most of the documents however being copes are not very clear. 15. The applicant however insists that he paid total consideration for the two subject plots and has been in quiet enjoyment from the year 2009 till recently when he claims that some deceased’s relatives began interfering with his possession and enjoyment of the properties. 16. He avers that he has lodged cautions on the 2 properties at the Land Registry and has exhibited the cautions as **FW3** and **FW4.** 17. In his written submissions dated 19-6-2026 done through learned counsel M/s Chege, Odeck, Gachoki & Co Advocates, the applicant submits that his claim is based on purchase of the subject properties from the deceased. He contends that he has carried out substantial developments on the 2 subject parcels and has been in uninterrupted occupation for over 15 years. 18. He submits that because the two properties have been listed as part of the deceased’s estate, he is apprehensive that confirmation of grant might be detrimental to his interests. 19. He contends that the law recognizes the rights of a purchaser who has paid purchase price and has possession even if formal transfer has not been completed or effected. In that regard he relies on the case of **Re Henry Micah Omino (deceased) (2020) KEHC.** 20. He further contends that the payment of purchase price and taking possession created constructive trust even if the deceased did not transfer the title to him. In that respect he relies on the case of **Erick Wamai Karuri & others –vs- Kinyua Nyaga Kinyua (2007)eKLR.** 21. He submits that he has established the threshold of the principles governing issuance of interlocutory injunction as is well illustrated in the case of **Giella –vs- Cassman Brown (1973) EA** and **Mrao Ltd –vs- First American Bank Ltd (2003)KLR.** 22. He further submits that subject property cannot be termed **‘free property’** as defined in Section 3 of Law of Succession Act because in his view in light of dispute over ownership the same cannot be automatically be treated as free property available for distribution. 23. He contends that under Section 47 of Law of Succession Act and Rule 73 Probate and Administration Rules this court has jurisdiction to determine his claim before proceeding with the distribution of the estate. 24. He urges this court to exclude the 2 subject properties from distribution pending the determination of ownership. He contends that the balance of convenience weighs in his favour in view of the fact that he has possession and has developed a residential home on the suit properties and that status quo should be ordered to preserve the properties and avoid potential grave injustice to him. 25. The petitioner/respondent has opposed this application through a replying affidavit sworn on 10-6-2026 and written submissions through learned counsel dated 24-6-2026. 26. The respondent disputes the applicant’s claim stating that the deposit slips are not sufficient proof of a sale agreement between the applicant and the deceased. 27. The respondent avers that the prayers sought in the application are not in the interest of the estate. 28. She submits that the applicant has not met the threshold to be granted the prayers sought. 29. She avers that at the time of demise of deceased he had leased out the subject parcels and that the averments that the applicant has been in occupation since 2009 are not true. 30. She submits that there is no sale agreement exhibited in the application to show that the deceased sold the 2 parcels to the applicant. 31. She further contests the allegations that the two parcels are in the hands of the applicant insisting that the two parcels are part of the estate and that in her view the balance of convenience tilts in her favour. 32. This court has considered the application and the grounds raised. I have also set out the response by the respondent. 33. The applicant has come to this court seeking in substance interlocutory relief of injunction but prayer (iv) thereof appears to be seeking a permanent relief which I find unsustainable because it would be premature to determine that the subject parcels are not part of the estate at this stage. 34. Secondly and more importantly the applicant can only persuade this court to issue an interlocutory relief based on a pendency of determination of dispute. In other words an interlocutory application should at least have some substratum upon which the interlocutory reliefs sought can be sustained pending determination of a dispute. 35. The applicant has not clearly pleaded that there is a dispute pending though the application suggests that there is ownership dispute on whether the 2 parcels should form part of the estate or not. The applicant has however not pleaded in his application whether a dispute exists and if the dispute is pending in this court or in another court so that the same can be used as a basis to then say that the 2 assets under dispute should be excluded in the meantime. This court takes the view that placing caution on some property alone is insufficient to demonstrate that there is an active dispute that is pending for determination. 36. As things stand this court finds that going by the copies of titles and official searches filed together with the petition for letters of administration the two subject parcels are in the name of deceased. So on a prima facie basis they are part of the estate. That presumption of course is subject to rebuttable evidence to be placed before court. 37. As observed above, the applicant has not established or demonstrated the existence of a dispute before any court with requisite jurisdiction to determine it. 38. As well illustrated in the celebrated case in **Giella –vs- Cassman Brown & Co Ltd (1973) EA 358,** interlocutory or temporary injunction as a relief can only be granted if the following 3 conditions are met; 39. ***The applicant must establish a prima facie case with a probability of success. That is to show that there is a serious or important question to be tried.*** 40. ***An applicant must also prove that unless the injunction is issued he is likely to suffer irreparable harm that cannot be compensated by damages.*** 41. ***Where the court is in doubt, then it determines the matter on a balance of convenience.*** 42. It is important to note that the above conditions are sequential in that a court will proceed with the first test, then move to the 2nd and 3rd in that order. A party cannot therefore cite condition 3 and state that he has demonstrated sufficient ground to be granted a temporary injunction. 43. Now to turn to the first test, that is existence of a prima facie case. As already observed above, the application before court lacks the substratum or legs upon which it stands on because there is no evidence that there is a pending dispute over ownership of the 2 subject parcels in this cause or any other suitable forum or court. There is no basis upon which a temporary injunction can be issued. A temporary injunction in essence is a short term relief that is issued to either stop or inhibit specific actions until a final determination or until trial takes place and the dispute is resolved. The applicant has therefore failed the 1st test and that is fatal to the application. 44. As I have observed above the way the application is couched does not indicate any existence of a dispute. For the applicant to come to court to ask that the assets be excluded without determination of his claim over the subject properties is premature at this stage. Where a party fails to surmount the first hurdle in Giella’s case which is the primary test the application cannot succeed. 45. The respondent contends that the applicant has not exhibited a sale agreement to show the nexus between the deposit slips exhibited (some of which as I have observed above are ineligible) and the 2 subject parcels. That contention in my view is well taken and the applicant has not responded to the same through an affidavit. In the premises this court finds that the application dated 19-3-2026 is simply unsustainable. The same is incompetent and is struck out for the aforestated reasons. I will however not make any order as to costs at this stage. **DELIVERED, DATED** and **SIGNED** at **KITALE** this **……31st .…** day of **………………JULY……….……………., 2026.** **HON JUSTICE R.K. LIMO** **KITALE HIGH COURT** ***Ruling delivered in open court*** ***In the presence of*** ***Odek for the applicant*** ***Nyamu for Respondent*** ***Duke/chemosop – court assistants***