https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10660

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT SIAYA** **SUCCESSION CAUSE NO. E002 OF 2025** **(FORMERLY KISUMU HIGH COURT P & A NO. 341 OF 2025)** **IN THE MATTER OF THE ESTATE OF AMOTH OWIRA RAGEN (DECEASED)** **BETWEEN** **VINCENT WERE AMOTH ...................... 1ST BENEFICIARY/APPLICANT** **GEORGE OPIYO AMOTH.................... 2ND BENEFICIARY/APPLICANT** **KEVIN BUNDE AMOTH ..................... 3RD BENEFICIARY/APPLICANT** **VERSUS** **LIVINGSTON RAGEN AMOTH ...........................1ST RESPONDENT** **CORNEL RASANGA AMOTH............................. 2ND RESPONDENT** **PETER OKERO AMOTH................................... 3RD RESPONDENT** **DEDAN OMONDI SEWE .................................. 4TH RESPONDENT** **RULING** 1. Before this Court for determination is the Notice of Motion Application dated 22nd May 2026, brought by the Applicants under Rule 49 of the Probate and Administration Rules, Section 45 of the Law of Succession Act (Cap 160) and the inherent jurisdiction of this Court. They seek the following reliefs:. 2. Spent. 3. THAT pending the hearing and determination of this application inter parties, this Honourable Court do issue temporary exp-parte orders stopping the construction of mausoleum in the homestead of the deceased herein. 4. THAT pending the hearing and determination of this succession, this court do issue injunctive orders stopping the construction of mausoleum in the homestead of the deceased herein and an order of status quo preserving the entire deceased’s estate until the estate is fully distributed. 5. THAT the costs of this Application be provided for. 6. The Application is grounded upon the supporting affidavit of **Kevin Bunde Amoth** (the 3rd Applicant) sworn on even date alongside his further Affidavit. The Applicants’ grievance is simple: the deceased's estate remains completely undistributed, no letters of administration have been substantively confirmed and the Respondents have unilaterally commenced massive structural developments upon the estate property without the consultation or explicit consent of all beneficiaries, which they argue amounts to illegal intermeddling under Section 45 of the Law of Succession Act. 7. Records indicate that the 1st, 2nd, and 3rd Respondents (**Livingston Ragen Amoth, Cornel Rasanga Amoth and Peter Okero Amoth**) were duly served with the Application but did not enter an appearance, file pleadings or participate in these proceedings in any manner. Consequently, the Application proceeded uncontested as against the 1st, 2nd, and 3rd Respondents. 8. Conversely, the Application is strenuously opposed by the 4th Respondent via a replying affidavit sworn on 27th May 2026 and written submissions dated 30th June 2026 prepared by his legal counsel M/S Yonga, Odhiambo & Associates. The 4th Respondent cross-relies on a supporting affidavit sworn by Domtila Okuno Amoth, a surviving widow of the deceased. The 4th Respondent raises foundational procedural objections regarding the competence of the application and argues on the merits that his actions are non-commercial, cultural and constitute the fulfillment of the deceased's express oral deathbed wishes thereby exempting them from the threshold of "intermeddling." 9. The Application was canvassed by way of written submissions. Both parties filed their respective submissions. 10. The Applicants submit that the deceased’s estate remains wholly undistributed and no substantive or confirmed grant of representation has been issued. Consequently, they argue that the unilateral actions of the Respondents in commencing the construction of a permanent structural mausoleum on undivided family property amount to absolute intermeddling with the free property of the deceased flatly contravening section 45 of the Law of Succession Act (Cap 160). 11. The Applicants contend that the Respondents commenced this massive construction project without any form of consultation, dialogue or the express consent of the rest of the biological children and rightful beneficiaries of the estate. 12. It is argued that the construction of a massive concrete mausoleum within the primary homestead will irrevocably jeopardize, prejudice, and complicate the eventual court-supervised distribution of the estate. The Applicants submit that such a permanent structural encumbrance will inevitably spark proprietary friction regarding which beneficiary will inherit or own the specific portion containing the development. 13. The 3rd Applicant further deposes that while he holds his late father’s memory in high regard, the current structure on the ground is structurally or aesthetically inadequate. He argues that the deceased deserves a befitting commemorative monument and that construction should be halted to allow for a family meeting to mutually agree upon a proper architectural design. 14. The Applicants raise a collateral argument citing a consent order in Civil Suit No. 10 of 2015, which restrained the holding of final rites ceremonies (*nindo e liel*). They submit that under Luo customary law, structural activities on a graveside are inherently ritualistic and thus barred by the subsistence of that order. 15. The 4th Respondent through his Counsel M/S Yonga, Odhiambo & Associates strongly opposes the application and seeks its dismissal via his replying affidavit and written submissions. 16. At the threshold, the 4th Respondent raises an objection under Section 5 of the Oaths and Statutory Declarations Act (Cap 15) asserting that the supporting affidavit of Kevin Bunde Amoth is fatally defective. He argues that the deponent lacks personal knowledge and has no valid written authority to depose to facts on behalf of the 1st and 2nd Applicants thereby rendering the foundational application entirely unsupported by law. 17. The 4th Respondent submits that in the absolute absence of a substantive grant of letters of administration, the Applicants possess no legal capacity or *locus standi* as bare beneficiaries to initiate proceedings or seek substantive preservation orders under Section 45. 18. It is the 4th Respondent's position that the construction of a commemorative burial monument cannot under any circumstances, be characterized as "intermeddling" within the meaning of the Act. He states that intermeddling strictly involves the unauthorized dissipation, asset-stripping or conversion of estate property for personal, commercial gain. He asserts that because a mausoleum is built directly over an existing grave site is non-habitable, non-commercial and incapable of individual ownership or distribution, it does not diminish, alienate or encumber the estate. 19. The 4th Respondent argues that he is merely fulfilling the solemn express oral instructions given to him personally by his late grandfather, who trusted him above all others. He points out that he has already successfully fulfilled five other oral burial wishes of the deceased (including the renovation of the main house, notifying former President Moi and providing an executive coffin) without any objection from the Applicants. 20. The 4th Respondent relies heavily on the supporting affidavit of Domtila Okuno Amoth, the 88-year-old surviving widow of the deceased who married the late Senior Chief in 1953. The widow explicitly corroborates that she and her co-wives personally heard the deceased give clear instructions to the 4th Respondent to construct the mausoleum. She urges the Court not to frustrate her late husband's final wishes and expresses her deepest wish to see the monument completed before she passes away. 21. The 4th Respondent points out that the 2nd and 3rd Applicants have themselves constructed permanent residential houses on the undistributed estate land in 2007 and 2012 respectively without any grant of administration or formal consent. He submits that it is inequitable for the Applicants to invoke Section 45 against his cultural monument while their own permanent developments stand unchallenged. 22. Regarding the alleged contempt of court, the 4th Respondent submits that he was a stranger to Civil Suit No. 10 of 2015 and cannot be bound by it. Furthermore, he relies on Order 40 Rule 6 of the Civil Procedure Rules demonstrating that since the suit was never determined or the injunction extended within twelve months, the 2015 order lapsed automatically by operation of law in December 2016 and is entirely spent. 23. Having carefully evaluated the pleadings, affidavit evidence and respective submissions filed by both parties, this Court distills the core issue for determination as whether the Application has merit. 24. The 4th Respondent has invited this Court to strike out the application *in limine* citing Section 5 of the Oaths and Statutory Declarations Act (Cap 15). He contends that the 3rd Applicant lacked personal knowledge or explicit written authority to depose to facts on behalf of the 1st and 2nd Applicants, placing reliance on the Supreme Court directive in **Konchellah v Sunkuli & 2 others (Civil Application 26 of 2018) [2018] KESC 58 (KLR)** 25. While this Court notes the strictures governing the execution of affidavits, it must be guided by the overarching constitutional edict under Article 159(2)(d) of the Constitution of Kenya 2010 which mandates that justice shall be administered without undue regard to procedural technicalities. In the instant case, the facts regarding the physical existence and ongoing construction of the structural foundation are completely admitted by all parties. Where the underlying substratum of fact is mutually acknowledged, it would be an abuse of judicial economy to strike out an application involving the potential dissipation or permanent alteration of an estate on a technical misstep in the affidavit's joint authorization. The 3rd Applicant is a biological son and undeniable beneficiary; his personal knowledge of developments within his late father's homestead is naturally sufficient to sustain the core allegations. 26. Regarding the argument that the application is premature because no administrator has been formally issued a full grant, this Court finds that the 4th Respondent’s reliance on **JK v. DC [2016] KEHC 7611 (KLR)** is profoundly misplaced. The High Court retains an expansive, inherent and protective jurisdiction over the property of deceased persons who died intestate. As observed by the court in **Re Estate of Benson Maingi Mulwa (Deceased) [2021] eKLR,** any beneficiary or person with a legitimate interest in an estate has the requisite *locus standi* to approach the court to seek interim protective or preservation orders where it is shown that the estate assets are at risk of being intermeddled with, shifted or structurally altered prior to formal representation. To hold otherwise would create a legal vacuum where an estate could be stripped or structurally altered with impunity before a grant is extracted. The objections on competence are hereby overruled. 27. Section 45(1) of the Law of Succession Act (Cap 160) states in explicit, peremptory terms: *"Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person."* 1. What constitutes acts of intermeddling are varied. In [**Benson Mutuma Muriungi v CEO Kenya Police Sacco & Another**](https://kenyalaw.org/akn/ke/judgment/kehc/2016/7145)**[2016] eKLR**the court stated that; “There is no specific definition of the term intermeddling provided for in the Law of Succession Act. The Act simply prohibits taking possession of or disposing of, or otherwise intermeddling with, any free property of a deceased person by any person unless with the express authority of the Act, any other written law or a grant of representation under the Act. But in my understanding, the use of wide and general terms such as: “for any purpose” and “or otherwise intermeddle with” in the Act portends that the category of the offensive acts which would amount to intermeddling is not heretically closed or limited to taking possession and disposing of the property of the deceased. I would include in that category such acts as: taking possession, or occupation of, disposing of, transferring, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with existing lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act or any other written law. I do not pretend to close the list either or make it exhaustive. The list could be long. However, any act or acts which will dissipate or diminish or put at risk the free property of the deceased are acts of intermeddling in law.” 2. Further, it matters not if the intermeddler has a stake in the Estate. [**In the case of Re Estate of Ndiba Thande (Deceased)**](https://www.academia.edu/91035558/Law_of_Succession_By_William_Musyoka)***[2013] eKLR,*** Musyoka (J) held: **"It is fallacious for a spouse or child to imagine that they cannot be guilty of intermeddling when they handle property belonging to their dead spouse or parent without a grant of representation. Intermeddling can be committed by any person so long as the handler has no grant of representation.’’** 3. The 4th Respondent argues that constructing a mausoleum does not constitute intermeddling as it is an act of cultural honor, a non-commercial venture and does not "dispose of" the land relying on **Re Estate of Robert Syuma Kalui (Deceased) [2024] KEHC 2147 (KLR).** 4. This Court begs to differ. "Intermeddling" is an elastic judicial term that covers *any* unauthorized act of dealing, taking possession or altering the physical state, boundaries or utility of the free property of a deceased person before administration is finalized. The land upon which the foundation has been cast is undivided family land. By constructing a permanent "massive" architectural structure (as described in the architectural plans titled *"Senior Chief Amoth Owira Mausoleum"* drawn to scale 1:133.45), the 4th Respondent has effectively appropriated a specific portion of the estate's land to the exclusion of others. 5. While the 4th Respondent claims this is a "shared memory," the reality of property law is that permanent structural alterations definitively change the physical layout of the land. This significantly fetters, preempts and hampers the Court’s future power to decree an equitable, friction-free subdivision and distribution among all beneficiaries. The fact that the 4th Respondent admits he is a grandchild and *not* a direct beneficiary of the estate confirms that his unilateral entry onto the land to execute major structural projects constitutes an unauthorized taking of possession under Section 45. Customary obligations no matter how noble cannot override express statutory provisions prohibiting dealing with the property of a deceased person absent a grant. 6. To succeed in an application for an interlocutory injunction, the Applicants must establish the tripartite test laid down in the locus classicus, **Giella v. Cassman Brown & Co. Ltd [1973] EA 358** 7. The Applicants have established that the estate property is completely undistributed and that no party holds a valid grant of representation authorizing development. The unilateral construction of a permanent building on unalienated estate land by a non-beneficiary, without the absolute consensus of all direct heirs, is a clear infraction of Section 45 of Cap 160. This is a prima facie case with an exceptionally high probability of success. 8. The 4th Respondent suggests that no harm flows from the construction because the land remains part of the estate. This Court takes judicial notice of the fact that family disputes over burial sites and permanent monuments create deep-seated irreversible polarization within succession causes. If the construction is allowed to proceed to completion, it will create a permanent physical encumbrance on a specific parcel of the land. Should the court later find that that specific portion ought to be distributed to a beneficiary who objects to the structure, the injury of having an uninvited massive concrete structure on their allocated share cannot be adequately compensated by an award of damages. The harm is structural, emotional and legally complex. 9. The 4th Respondent raises the poignant wishes of the 88-year-old widow Domtila Okuno Amoth who desires to see the structure completed. While this Court treats the advanced age and emotional sentiments of the widow with utmost empathy, the balance of convenience must lean heavily toward the preservation of legal order and the prevention of further family fracture. The 3rd Applicant notes in his affidavit that while he respects his late father's memory, the current unilateral execution and architectural plan are heavily contested and require family consensus. The balance of convenience tilts in favor of freezing all structural developments to status quo. This allows the family an opportunity to address the administration of the estate holistically through the proper legal mechanisms, rather than permitting a single faction to create a *fait accompli* on the ground via rapid construction. 10. [**William Musyoka, in his book, Law of Succession, Law Africa 2006 at page 115**](https://www.academia.edu/91035558/Law_of_Succession_By_William_Musyoka) notes that the provisions of Section 47 of the Law of Succession Act give court wide discretion in dealing with testamentary and administrative issues. The import being that Section 47 gives court the power to issue protective orders in order to safeguard the estate of a deceased person. 11. Ultimately, the administration of justice dictates that the property of the deceased must be insulated from unilateral structural acts that complicate its final distribution. The court cannot sanction a race to build permanent fixtures on an estate that is yet to be legally distributed. 12. Consequently, the Applicants' Notice of Motion Application dated 22nd May 2026 is well-grounded in both law and fact and it is hereby allowed in the following terms: 13. **THAT** an interlocutory injunction be and is hereby issued restraining the Respondents particularly the 4th Respondent (Dedan Omondi Sewe), by himself, his agents, servants or any person acting under his authority from continuing with the construction of the house, mausoleum or any permanent structure within the homestead or upon any portion of the free property of the estate of the deceased (Amoth Owira Ragen) pending the hearing and determination of this Succession Cause or until further orders of this Court. 14. **THAT** an order of *status quo* be and is hereby issued preserving the entire estate of the deceased in its current physical and legal state and all parties are strictly prohibited from alienating, intermeddling with or altering the assets of the deceased properties until the estate is fully distributed by due process of law. 15. **THAT** for the avoidance of doubt, the 1st, 2nd and 3rd Respondents are absolved of any active liability or restraint under this specific Application having not participated in the impugned construction or the proceedings therein. 16. **THAT** the costs of this Application shall be borne exclusively by the 4th Respondent. **Dated and delivered at Siaya this 16th day of July2026** **D.KEMEI** **JUDGE** **In the presence of:** 1. **Ooro F………………………..for Applicants** 2. **Que…………………………..for the 1st , 2nd & 3rd Respondents** 3. **Omondi…………………….....for 4th Respondent** 4. **Maurine………………………Court Assistant**