https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12871

In re Estate of Buyengo (Deceased) (Succession Cause E003 of 2023) [2026] KEHC 12871 (KLR) (6 August 2026) (Ruling) Neutral citation: [2026] KEHC 12871 (KLR) Republic of Kenya In the High Court at Vihiga Succession Cause E003 of 2023 RN Nyakundi, J August 6, 2026 IN THE MATTER OF THE ESTATE OF ELKANA ARONAH BUYENGO (DECEASED) Between Abbisai A Buyengo & 4 others Petitioner and Mobitel Buyengo Achibu Objector Ruling 1.There are two matters awaiting determination in this cause. The first is the Preliminary Objection dated 24th November 2025 filed by the Objector/Respondent. The second is the Amended Notice of Motion dated 29th September 2025 filed by the Petitioners/Applicants, being the application at which that Preliminary Objection is aimed. 2.It is convenient, and consistent with principle, to dispose of the Preliminary Objection first, since it is raised in limine and, if sustained, would render consideration of the merits of the application unnecessary. Should the objection fail, I will proceed to determine the application itself. Both matters have been fully argued and it is in the interests of the expeditious disposal of this cause, which was commenced in 2023, that both be resolved in a single ruling. The Application 3.The Amended Notice of Motion dated 29th September 2025 is expressed to be brought under Sections 45, 47 and 82 of the Law of Succession Act, Cap 160, Rules 49 and 73 of the Probate and Administration Rules, Order 40 of the Civil Procedure Rules and all enabling provisions of the law. It seeks, in substance, the following orders:a.A temporary injunction restraining the Objector, Mobitel Buyengo Achibu, his cousins Samuel And Derrick Obiero and his mother Dorcas Abayo, by themselves, their agents, servants or anyone acting under their instructions, from trespassing upon, entering, occupying, interfering with, wasting, alienating, selling or in any manner dealing with the deceased’s family home at Kakamega Town, being Title No. Isukha/shirere/3187, and any other property of the estate – provided that, for the avoidance of doubt, the order shall not prevent the lawful beneficiary Mobitel Buyengo Achibu from accessing the said property with the knowledge and consent of the administrators, in a peaceful and non-destructive manner – pending the hearing and determination of the application and/or further orders of the Court;b.An order restraining Dorcas Abayo, Samuel And Derrick Obiero, described as strangers to the estate and intruders who are neither spouses, beneficiaries nor dependants within the meaning of the Law of Succession Act, from intermeddling with, trespassing upon, occupying, accessing or in any manner interfering with the estate properties, pending the hearing and determination of the application and/or further orders of the Court;c.A direction to the Officer Commanding Station, Kakamega Police Station, to enforce compliance with the restraining orders and to provide the necessary assistance to maintain peace and security at the deceased’s family home;d.Liberty to apply for further orders in the event of continued trespass or non-compliance;e.Such other or ancillary orders as may be necessary for the preservation of the estate and the protection of its lawful administrators and beneficiaries; andf.Costs. 4.The application is supported by the affidavit of HELGAH A. BUYENGO, co-administrator, sworn on 10th September 2025. The deponent avers that she is one of the duly appointed administrators of the estate and is therefore competent to swear the affidavit. She deposes that on two occasions, namely 18th and 19th July 2024, the Objector’s mother Dorcas Abayo, together with her nephews Samuel and Derrick, unlawfully and forcefully entered the deceased’s family home by breaking the locks. 5.As to the most recent incident, she deposes that on 7th September 2025 the Objector, in the company of his mother, broke the locks and smashed the windows of the family home, notwithstanding that he had been informed by one Maureen Afwande that the keys were in Kisumu following her work transfer and would be dispatched by courier; and that within some thirty minutes of that conversation the locks and windows were broken, leaving the house insecure and exposed. The incident was reported at Kakamega Police Station under OB No. 94 of 7th September 2025 at 2130 hours by Kennedy Oluchiri, with the assistance of Maureen Afwande. Annexed to the affidavit are the OB extract and photographs of the damage (HAB-1(a)–(b)), earlier OB extracts (HAB-2), and receipts for the replacement of locks, fixtures and enhanced security measures (HAB-3). 6.The deponent further avers that on each occasion the persons complained of verbally and physically abused the beneficiaries present, issued threats of further violence and created an atmosphere of intimidation and insecurity; that items of value belonging to the estate have gone missing following the break-ins; that the Objector’s mother is neither a wife, beneficiary nor dependant of the deceased within the meaning of the Act and has persistently intermeddled with estate property; and that unless restrained, the conduct will continue, causing irreparable harm to the estate and to the beneficiaries. The Preliminary Objection 7.By a Notice of Preliminary Objection dated 24th November 2025, the Objector/Respondent raises a threshold objection to what is there described as the “Applicants’ Chamber Summons dated 10th September 2025”. The objection is expressly stated not to be directed at the merits of the application but at its legal competence, procedural propriety and constitutional validity. 8.The objection, as elaborated in written submissions dated 20th April 2026 and filed on 23rd April 2026 by M/s Ombati Onywoki & Co. Advocates, rests on three propositions, each said to be independently dispositive: first, that non-joinder of necessary parties is a jurisdictional bar where the orders sought directly affect such parties; secondly, that the application violates the constitutional guarantee of a fair hearing under Article 50(1) of the Constitution; and thirdly, that permanent injunctive relief cannot issue at an interlocutory stage. 9.Counsel submits that the application seeks permanent injunctive orders against individuals who are neither parties to the proceedings nor have been joined, served or heard; that jurisdiction is the authority of the court to adjudicate and without it the court cannot take even a single step, relying on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 and Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR; that Order 1 Rule 10(2) of the Civil Procedure Rules embodies the substantive principle that the legitimacy of adjudication depends on the presence of all persons whose rights are to be affected; and that orders issued against non-parties are nullities for want of juridical foundation, relying on Edward Steven Mwiti v Peter Irungu & 2 Others [2012] KEHC 1542 (KLR) and Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55. 10.On the constitutional limb, counsel invokes the doctrine of audi alteram partem as entrenched in Article 50(1), read with Articles 27 and 40, and submits that by virtue of Article 2(4) any act or omission inconsistent with the Constitution is void. On the third limb, counsel relies on Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR and Kenya Power & Lighting Company Ltd v Habib [2018] KEHC 5027 (KLR) for the distinction between interlocutory and final relief, submitting that a permanent injunction may only issue upon the hearing of a suit. The Objector prays that the objection be upheld in its entirety and the application struck out with costs. The Grounds Of Opposition 11.The Applicants oppose the objection by Grounds of Opposition dated 18th December 2025. The principal ground is that the Preliminary Objection is fatally defective, misconceived and incompetent for being directed at a “Chamber Summons dated 10th September 2025”, when no such pleading exists on the record, the application properly before the Court being the Amended Notice of Motion dated 29th September 2025. It is contended that the objection is therefore aimed at a non-existent pleading and is incapable of determination. 12.It is further contended that the objection is improperly framed in that it raises contested issues of fact – including alleged dependency, beneficiary status, occupation and access to estate property – which cannot be determined on a preliminary objection; that it improperly invites the Court to determine substantive rights at an interlocutory stage; that the Court is clothed with jurisdiction under Sections 45, 47 and 82 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules to issue interlocutory and preservatory orders, including orders restraining intermeddling by non-beneficiaries or strangers to the estate; and that the objection is an abuse of the process of the Court calculated to delay the expeditious determination of the application. Submissions 13.The Applicants filed written submissions dated 12th November 2025 and filed on 14th November 2025 in support of the Amended Notice of Motion, and further submissions dated 15th April 2026 in opposition to the Preliminary Objection and in support of the application. M/s Walubengo Waningilo & Co. Advocates identify five issues: whether the Preliminary Objection raises a pure point of law and is competent; whether the Applicants as administrators have the statutory mandate and locus to seek the orders; whether the conduct complained of amounts to intermeddling within Sections 45 and 82 of the Act; whether the threshold for a temporary injunction is met; and whether the continued occupation and interference by Dorcas Abayo, Samuel and Derrick Obiero prejudices the administration of the estate so as to warrant orders barring them from the property together with directions to the Officer Commanding Station, Kakamega. 14.On the first issue, counsel relies on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 for the proposition that a preliminary objection must be founded on a pure point of law arising from the pleadings, and on the dictum of Sir Charles Newbold P. that such an objection cannot be raised if any fact has to be ascertained. 15.On locus, counsel relies on Section 79 of the Act, by which the property of the deceased vests in the personal representative to whom representation has been granted, and on Section 82, which confers upon personal representatives the powers necessary to take possession of, preserve and protect estate property. Reliance is placed on Re Estate of G.K.K (Deceased) [2017] eKLR for the proposition that an administrator is duty bound to preserve the estate for the benefit of all beneficiaries pending distribution. 16.On intermeddling, counsel relies on the mandatory terms of Section 45(1) of the Act and on In re Estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR, In re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR and In re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR, to the effect that occupation of, or dealing with, estate property without lawful authority constitutes intermeddling, and that the Court has a duty to protect estate property and may restrain unauthorised persons whose presence threatens proper administration. On the Court’s power to make preservatory orders and to direct police assistance, counsel relies on Section 47 of the Act and Rule 73 of the Probate and Administration Rules. 17.I record that the Applicants’ submissions state that the Respondent had not filed submissions in support of the Preliminary Objection. That statement appears to reflect the position as at the date those submissions were settled; the Respondent’s submissions dated 20th April 2026 were subsequently filed on 23rd April 2026 and I have had the benefit of considering them. Issues For Determination 18.Having considered the application, the supporting affidavit and its annexures, the Preliminary Objection, the Grounds of Opposition and the rival submissions, the following issues fall for determination:i.Whether the Preliminary Objection dated 24th November 2025 is competent and, if so, whether it is merited;ii.Whether the Court has jurisdiction and the Applicants have locus to seek the preservatory orders sought;iii.Whether the Applicants have satisfied the threshold for the grant of a temporary injunction;iv.In what terms, if at all, orders may properly issue in respect of persons who are not parties to this cause; andv.Who should bear the costs. Analysis And Determination i. Whether the Preliminary Objection is competent and merited 19.The law on preliminary objections is settled and has been settled for more than half a century. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law J.A. stated that so far as he was aware a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit; and he gave as examples an objection to the jurisdiction of the court, a plea of limitation, or a submission that the parties are bound by contract to refer the dispute to arbitration. 20.In the same case Sir Charles Newbold P. added the caution which has since become the touchstone in this jurisdiction: a preliminary objection is in the nature of what used to be a demurrer; it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct; and it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. That approach was restated by Ojwang J. (as he then was) in Oraro v Mbaja [2005] eKLR, where the learned Judge emphasised that a point of law raised by way of preliminary objection must not be blurred with factual details liable to be contested, and by the Supreme Court in Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR, where the Court deprecated the practice of resorting to preliminary objections as a device for delay. The misdescription point 21.I take first the Applicants’ threshold answer, namely that the Preliminary Objection is aimed at a “Chamber Summons dated 10th September 2025” which does not exist on the record. It is correct that no chamber summons of that description appears on the file. What does appear is a Notice of Motion whose supporting affidavit was sworn on 10th September 2025 and which was originally dated 10th September 2025, that date having been struck through on the face of the document and replaced by 29th September 2025 upon amendment. The pleading under attack was therefore perfectly ascertainable, and neither the Applicants nor their advocates can have been in any doubt as to what was being challenged. 22.Article 159(2)(d) of the Constitution requires this Court to administer justice without undue regard to procedural technicalities. That command cuts both ways. It does not permit a party to defeat an otherwise arguable objection by pointing to the wrong label having been attached to a pleading whose identity is obvious. I therefore decline to strike out the Preliminary Objection on that ground alone. The misdescription is an irregularity, and a curable one. 23.I would, however, observe that the Respondent’s own submissions compound rather than cure the difficulty. Those submissions describe the persons said to be affected by the application – there called “the Non-Parties” – as Dorcus Abayo, Espirah Buyengo, Moses Otiende, Hosbon Buyengo and Kennedy Oluchili. Four of those five names appear nowhere in the Amended Notice of Motion. The persons in fact named in the application are Dorcas Abayo, Samuel and Derrick Obiero. Indeed Kennedy Oluchiri, so far from being a person against whom relief is sought, appears on the Applicants’ own affidavit as the person who reported the incident of 7th September 2025 to the police. An objection which misidentifies the very persons whose absence is said to deprive the Court of jurisdiction is not a promising foundation for an argument that the Court cannot take a single step. I mention this not to dispose of the objection on a technicality, but because it bears directly on the weight the argument can carry. Is non-joinder a jurisdictional bar? 24.The central proposition advanced for the Respondent is that non-joinder of necessary parties is a jurisdictional defect which disentitles the Court from granting the orders sought. With respect, that proposition is contrary to the express terms of the Civil Procedure Rules. Order 1 Rule 9 provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and that the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Order 1 Rule 10(2), upon which the Respondent himself relies, empowers the court, at any stage of the proceedings and either upon or without the application of either party, to order that the name of any person who ought to have been joined be added. 25.The scheme of those provisions is plain. Non-joinder is not a jurisdictional bar; it is an irregularity for which the Rules prescribe a remedy, and that remedy is joinder, not striking out. The authorities relied upon for the Respondent do not establish the contrary. Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 and the line of cases culminating in the proposition that orders against non-parties lack juridical foundation are authority for a narrower and different point, to which I shall come: that a person who has not been heard cannot be bound. They are not authority for the proposition that the presence on a file of an application which over-reaches in the relief it seeks deprives the Court of jurisdiction over the application altogether. 26.Nor is the Lillian S line of authority in point. The jurisdiction of this Court to entertain this application is conferred by Section 47 of the Law of Succession Act, which vests in the High Court jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decrees and make such orders therein as may be expedient, and by Rule 73 of the Probate and Administration Rules, which preserves the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent an abuse of its process. That jurisdiction is not contingent upon the joinder of every person who may be affected by the manner in which relief is ultimately framed. 27.There is a further and independent reason why this limb cannot be resolved as a preliminary objection. To determine whether Dorcas Abayo, Samuel and Derrick Obiero are “necessary parties”, the Court would have to determine what interest, if any, each of them has in the estate. That is precisely the question upon which the parties are at issue. The Applicants assert that they are strangers, neither spouses, beneficiaries nor dependants within the meaning of the Act. The Respondent asserts that they are persons whose rights are directly implicated and who are potential claimants as dependants under Sections 26 and 29 of the Act. That dispute cannot be resolved without evidence, and a preliminary objection cannot be raised where a fact has to be ascertained. 28.I add this observation, which the parties will wish to bear in mind as this cause proceeds. It is not disputed that Dorcas Abayo is the mother of the Objector, and it is the Applicants’ own pleading that the Objector is a lawful beneficiary of the estate, that is to say a child of the deceased. Whether the mother of a child of the deceased is a wife, a former wife or a person who was being maintained by the deceased immediately prior to his death within the meaning of Section 29 of the Act is a question of fact and of law which may well require evidence. To describe her at this interlocutory stage, and without hearing her, as a “stranger” and an “intruder” is to assume the answer to a question the Court has not yet determined. Nothing in this ruling should be read as such a determination. Audi alteram partem 29.The second limb of the objection stands on a different footing, and here the Respondent is on solid ground so far as it goes. Article 50(1) of the Constitution guarantees to every person the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing. It is a first principle of adjudication, older than the Constitution and now entrenched by it, that a court does not make orders against a person who has not been served, has not appeared, and has not been heard. 30.Prayer (b) of the Amended Notice of Motion seeks orders operating directly and in personam against three named individuals who are not parties to this cause. To that extent the application does over-reach, and the Respondent is right to say so. But the consequence is not that the application must be struck out. The consequence is that the relief must be framed so as to respect the principle. A court confronted with an application which seeks more than it may properly grant does not dismiss the application; it grants so much of it as is proper and refuses the remainder. I return to this in framing the orders. Whether permanent relief is sought 31.The third limb can be shortly disposed of. It proceeds on the premise that the application seeks permanent injunctive relief at an interlocutory stage. That premise is not borne out by the pleading. Prayer (a) is expressly for “an order of temporary injunction … pending the hearing and determination of this application and/or further orders of this Honourable Court”. Prayer (b) is likewise expressed to operate “pending the hearing and determination of this application and/or further orders”. Whatever else may be said of the application, it does not seek a permanent injunction. 32.The distinction drawn in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR between interlocutory and final relief is a sound one, and the proposition that a permanent injunction may issue only upon the hearing of a suit is not in doubt. But a correct statement of law is of no assistance to a party if the factual premise upon which it is deployed is absent. This limb fails. Disposal of the Preliminary Objection 33.Drawing these threads together: the Preliminary Objection is competent in form notwithstanding the misdescription of the pleading; but of its three limbs, the first cannot be determined without ascertaining contested facts and is in any event founded on a proposition contrary to Order 1 Rule 9; the third is founded on a premise which the pleading does not support; and the second, while raising a genuine point of principle, does not dispose of the application but goes only to the terms in which relief may be granted. An objection which cannot dispose of the matter is not a preliminary objection in the Mukisa sense at all. 34.The Preliminary Objection dated 24th November 2025 is accordingly dismissed. I should say, however, that I do not accept the Applicants’ characterisation of it as an abuse of the process of the Court. The point taken under Article 50(1) was a proper point to take, and it has influenced the orders I make. It was simply taken in the wrong form. (ii) Jurisdiction and the locus of the Applicants 35.The Applicants describe themselves as the duly appointed administrators of the estate. Having obtained the said Grant of letters of Administration on 3rd July 2023. Section 79 of the Law of Succession Act provides that the executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative. 36.The consequence is that estate property does not lie in abeyance pending distribution. It vests in the personal representatives, who hold it upon trust for those beneficially entitled. Section 82 of the Act confers upon personal representatives the powers necessary to give effect to that trust, including the power to enforce by suit or otherwise all causes of action which survive the deceased and to get in and preserve the assets of the estate. Section 83 imposes correlative duties, among them the duty to get in all free property of the deceased and to preserve it pending distribution. As was observed in Re Estate of G.K.K (Deceased) [2017] eKLR, an administrator is duty bound to preserve the estate and to ensure that it is safeguarded for the benefit of all beneficiaries pending distribution. 37.It follows that the Applicants come before this Court not as volunteers or busybodies but in discharge of a statutory obligation. Had they stood by while estate property was broken into and its contents dissipated, they would have exposed themselves to criticism and possibly to removal. Their locus is beyond argument, and the Court’s jurisdiction to entertain the application is conferred by Section 47 of the Act read with Rule 73 of the Probate and Administration Rules, and by Order 40 of the Civil Procedure Rules as applied to probate and administration proceedings. iii. The threshold for a temporary injunction 38.The principles governing the grant of an interlocutory injunction are those laid down in Giella v Cassman Brown & Co. Ltd [1973] EA 358: first, the applicant must show a prima facie case with a probability of success; secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages; and thirdly, if the court is in doubt, it will decide the application on a balance of convenience. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR the Court of Appeal emphasised that these conditions are sequential rather than disjunctive, so that the second condition falls to be considered only if the first is satisfied, and the third only in the event of doubt. In Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR a prima facie case was described as a case which, on the material presented, discloses an arguable case requiring an answer, and not merely a case which will succeed. 39.Order 40 Rule 1 of the Civil Procedure Rules is also directly in point: where it is proved by affidavit or otherwise that property in dispute is in danger of being wasted, damaged or alienated, the court may grant a temporary injunction to restrain such act. 40.As to the first condition, the Applicants hold a grant vesting the estate property in them. The suit property, Title No. ISUKHA/SHIRERE/3187, is admitted on all sides to be estate property. The evidence of forcible entry on 7th September 2025 is supported by an OB extract, photographs of the damage and receipts for the replacement of locks and fixtures. On the material before me a prima facie case requiring an answer is plainly disclosed. 41.As to the second condition, the subject matter is a family home under administration. The mischief complained of is not a dispute about title but forcible entry, breaking of locks, smashing of windows and the disappearance of movable items. Damage of that kind, and the insecurity it leaves behind, is not readily quantified in money; nor is there any material before me as to the means of the persons complained of from which the Court could be satisfied that an award of damages would be an adequate remedy. The risk of escalation and of a breach of the peace within a family already in litigation is itself a species of harm which damages cannot repair. 42.As to the balance of convenience, if I were in doubt, it would in my judgment fall decisively in favour of preservation. An order restraining forcible and destructive entry deprives no one of anything to which he is lawfully entitled. The Applicants have themselves, and to their credit, framed prayer (a) so as to preserve the Objector’s right of access as a beneficiary, subject only to that access being peaceful, non-destructive and with the administrators’ knowledge. That is a proper and measured formulation which I am content to adopt. 43.I should add a word on intermeddling. Section 45(1) of the Act provides in mandatory terms that, except so far as expressly authorised by the Act, by any other written law, or by a grant of representation, no person shall for any purpose take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person. The authorities cited by the Applicants are In re Estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR, In re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR and In re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR – establish that unauthorised occupation of, or dealing with, estate property may constitute intermeddling and that the Court will restrain it. I am satisfied that the conduct alleged, if established at the hearing, would fall within Section 45(1). Whether it is established, and whether any of the persons concerned can bring themselves within the exception of lawful authority, are questions for determination on evidence and not now. (iv) The form of the orders: persons who are not parties 44.This brings me back to the point properly taken by the Respondent. I cannot make an order operating in personam against Dorcas Abayo, Samuel or Derrick Obiero. They have not been joined, they have not been served, and they have not been heard. An order made against them in those circumstances would be made in breach of Article 50(1) and would be liable to be set aside on that ground alone. Prayer (b) of the application, in the form in which it is cast, cannot be granted. 45.That does not, however, leave the estate unprotected, for two reasons. First, an injunction directed at a party binds not only that party but also his servants and agents and any person acting on his behalf or under his instructions, and a person who, having notice of an order of the Court, knowingly assists in its breach is himself amenable to the Court’s process. An order framed in those terms will therefore reach any of the persons named in the application who act in concert with, or at the instance of, the Objector. Secondly, the Rules provide the Applicants with a straightforward remedy if they seek orders binding those persons in their own right: an application under Order 1 Rule 10(2) to have them joined, followed by service. I shall grant liberty to that end. 46.The same reasoning governs prayer (c), which seeks a direction to the Officer Commanding Station, Kakamega Police Station. The Officer Commanding Station is not a party to this cause. Consistency requires that I treat him as I have treated the persons named in prayer (b). I decline to make a mandatory order directed at a public officer who has not been heard. I will instead grant the Applicants liberty to enlist the assistance of the Officer Commanding Station in the event of any breach of the orders now made, and any police officer to whom these orders are produced will no doubt act in accordance with his ordinary duty to keep the peace and to prevent the commission of offences. That achieves the legitimate object of the prayer without offending principle. (v) Costs 47.Costs are in the discretion of the Court under Section 27 of the Civil Procedure Act and ordinarily follow the event. The Preliminary Objection has failed and the Applicants have succeeded upon it; they are entitled to the costs of that objection. As to the application, the Applicants have succeeded in substance though not in the full terms sought, and the application is in any event interlocutory in a cause which must proceed to hearing. The costs of the application will therefore abide the outcome of the cause. Disposition 48.For the reasons set out above, I make the following orders:i.The Preliminary Objection dated 24th November 2025 is dismissed.ii.A temporary injunction be and is hereby issued restraining the Objector/Respondent, Mobitel Buyengo Achibu, by himself, his servants, agents, or any other person acting on his behalf, under his instructions or in concert with him, and having notice of this order, from forcibly entering upon, breaking into, damaging, wasting, alienating, selling, or in any manner unlawfully interfering with or dealing with the deceased’s family home situate at Kakamega Town being Title No. ISUKHA/SHIRERE/3187, or any other property of the estate of the late Elkana Aronah Buyengo, pending the hearing and determination of this cause.iii.For the avoidance of doubt, Order (2) shall not operate to prevent the Objector/Respondent, as a beneficiary of the estate, from accessing the said property in a peaceful and non-destructive manner upon reasonable prior notice to, and with the knowledge of, the administrators; and the administrators shall not unreasonably withhold or delay such access.iv.Prayer 2 of the Amended Notice of Motion dated 29th September 2025, in so far as it seeks orders operating directly against Dorcas Abayo, Samuel and DERRICK OBIERO, who are not parties to this cause, is declined, without prejudice to the Applicants’ right to apply for their joinder.v.The Applicants are at liberty, within thirty (30) days of the date hereof, to apply under Order 1 Rule 10(2) of the Civil Procedure Rules for the joinder of Dorcas Abayo, Samuel And Derrick Obiero or any of them, and upon such joinder and service, to renew their application for orders binding them personally.vi.Prayer 3 of the Amended Notice of Motion is declined in the terms sought. The Applicants are instead at liberty to enlist the assistance of the Officer Commanding Station, Kakamega Police Station, in the event of any breach of the orders herein, and to serve these orders upon him for that purpose.vii.The parties are granted liberty to apply.viii.The Applicants shall have the costs of the Preliminary Objection. The costs of the Amended Notice of Motion dated 29th September 2025 shall abide the outcome of the cause.Orders accordingly. DATED, SIGNED AND DELIVERED THIS 6TH DAY OF AUGUST 2026.____________________________JUSTICE R. NYAKUNDIJUDGESuccession Cause No. E003 of 2023 Page 5 of 5