https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9795

In re Estate of Shivachi (Deceased) (Succession Cause 61 of 2011) [2026] KEHC 9795 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KEHC 9795 (KLR) Republic of Kenya In the High Court at Kakamega Succession Cause 61 of 2011 S Mbungi, J July 6, 2026 IN THE MATTER OF THE ESTATE OF CHARLES SHIKALI SHIVACHI (DECEASED) Between Moses Shibachi Shikali 1st Petitioner Justus Shivaji Shikali 2nd Petitioner Seth Asuza Chagilwa 3rd Petitioner and Moureen Isiaho Shikali 1st Objector Ruth Mheso 2nd Objector Brown Mheso 3rd Objector and Peter Amalemba 1st Respondent Catherine Alwoka 2nd Respondent African Divine Church Lusui 3rd Respondent Ruling 1.Before the Court for determination is the Notice of Motion dated 31st January 2026 brought under Section 45 of the Law of Succession Act, Rule 73 of the Probate and Administration Rules, Article 159(2)(d) of the Constitution and all other enabling provisions of the law. 2.The applicant seeks principally an order restraining the respondents from constructing upon, cultivating, trespassing on or otherwise interfering with Land Parcel Numbers Idakho/Iguhu/1090, 1771, 1773 and 1774, an order restraining them from intermeddling with the estate of the deceased pending confirmation of grant, an order directing the Officer Commanding Station (OCS), Iguhu Police Station, to enforce the court orders, and costs. 3.The application is supported by the affidavit of Moses Shibachi Shikali sworn on 31st January 2026. 4.The applicant deposes that the respondents are neither beneficiaries nor administrators of the estate of the deceased and have unlawfully entered the estate property where they have commenced construction and cultivation. 5.He further states that unless restrained, the respondents will continue wasting the estate thereby complicating its eventual distribution among the rightful beneficiaries. 6.The record shows that the respondents were duly served with the application ,consequently, the application is unopposed. Issues for Determination 7.The issues for determination are:i.Whether the respondents have intermeddled with the estate of the deceased.ii.Whether the applicant has established a case for the grant of preservatory orders. Analysis and Determination i. Whether the respondents have intermeddled with the estate of the deceased. 8.Section 45(1) of the Law of Succession Act provides that:Except so far as expressly authorized by this Act, or by any other written law, or by grant of representation under this Act, no person shall, for any purposes ,take possession or dispose of or otherwise intermeddle with ,any free property of a deceased person.’his provision is to preserve the estate pending lawful administration and eventual distribution. 9.In Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & another, the Court of Appeal held that upon the death of a person, no person has authority to deal with the deceased’s estate except in accordance with the Law of Succession Act through a duly appointed personal representative. 10.Similarly, in Trouistik Union International & another v Jane Mbeyu & another, the Court of Appeal held that the estate of a deceased person vests in the personal representative who alone has authority to administer and protect the estate for the benefit of the beneficiaries. Persons who are neither administrators nor beneficiaries cannot lawfully deal with estate property. 11.The High Court reiterated the same principle in In re Estate of M’Ngarithi M’Miriti (Deceased) where it held that Section 45 was enacted to protect estates from wastage, alienation and unlawful interference before completion of administration. ii. Whether the applicant has established a case for the grant of preservatory orders. 12.The succession court also possesses inherent jurisdiction under Rule 73 of the Probate and Administration Rules to issue preservatory orders whenever necessary to protect estate property. 13.In re Estate of Stone Kathuli Muinde (Deceased), the Court held that Rule 73 preserves the inherent powers of the Court to issue orders necessary for the ends of justice, including injunctions aimed at preserving estate property from waste and intermeddling. 14.The principles governing the grant of injunctions are equally settled In Giella v Cassman Brown & Co. Ltd, it was held that an applicant must establish a prima facie case with a probability of success, demonstrate that irreparable injury would result if the injunction is withheld, and where doubt exists, the matter should be decided on a balance of convenience. Those principles were reaffirmed by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 others. 15.In the present case, the applicant has exhibited photographs showing ongoing construction and cultivation on the estate property. He has deponed that the respondents are strangers to the estate and have no legal authority to occupy or develop the suit properties. Those averments have not been rebutted. 16.The Court therefore accepts the applicant’s evidence as uncontroverted. The respondents’ conduct amounts to unlawful intermeddling within the meaning of Section 45 of the Law of Succession Act. 17.The Court is satisfied that unless restrained, the continued construction and cultivation may fundamentally alter the character of the estate and complicate its eventual distribution among the beneficiaries. The applicant has therefore established a prima facie case and demonstrated that the estate stands to suffer irreparable prejudice if preservatory orders are not granted. 18.The Court notes that the applicant has sought a permanent injunction. However, succession proceedings are principally concerned with preservation, administration and distribution of a deceased person’s estate. The issue of proprietary rights as against the respondents has not been substantively determined within these proceedings. Consequently, the appropriate relief is a preservatory injunction pending confirmation of grant or further orders of this Court. 19.Accordingly, I find merit in the application and order thati.The Notice of Motion dated 31st January 2026 is hereby allowed.ii.A temporary injunction is hereby issued restraining the respondents, whether by themselves, their servants, agents, employees or any other persons acting under their authority, from entering upon, constructing on, cultivating, occupying, alienating, selling, wasting, leasing, charging or in any other manner interfering with Land Parcel Numbers Idakho/igUhu/1090, 1771, 1773 and 1774, being part of the estate of the late Charles Shikali Shivachi, pending confirmation of the grant or until further orders of this Court.iii.The respondents are hereby restrained from intermeddling with the estate of the deceased contrary to Section 45 of the Law of Succession Act.iv.The Officer Commanding Station (OCS), Iguhu Police Station, shall provide security and ensure compliance with these orders whenever called upon to do so by the administrators or an authorized court officer.v.The costs of this application shall be in the cause. 20.It is so ordered. 21.Right of Appeal 30 days explained. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 6TH DAY OF JULY, 2026.S.MBUNGIJUDGEIn the presence of:-CA: Velma/Zilda.Parties absent.Court Assistant to upload the ruling on the CTS forthwith.