https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12724

In re Estate of Ngunjiri (Deceased) (Succession Cause 2261 of 2011) [2026] KEHC 12724 (KLR) (Family) (31 July 2026) (Ruling) Neutral citation: [2026] KEHC 12724 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 2261 of 2011 CJ Kendagor, J July 31, 2026 IN THE MATTER OF THE ESTATE OF ANTONY NAHASHON NGUNJIRI – DECEASED IN THE MATTER OF A PETITION FOR LIMITED GRANT OF PROBATE AD COLLIGENDA BONA, AD LITEM AND A SPECIAL GRANT OF THE ESTATE OF THE ABOVE-NAMED DECEASED BY CATHERINE NJERI NGUNJIRI, CAROLINE WAMBUI NGUNJIRI BOTH OF P.O. BOX 61747-00200 NAIROBI AND HARIT A SHETH OF P.O. BOX NO. 43045 - 00100, NAIROBI IN THE REPUBLIC OF KENYA Between Irene Wangui Ngunjiri Objector and Catherine Njeri Ngunjiri 1st Petitioner Caroline Wambui Ngunjiri 2nd Petitioner Harit Sheth 3rd Petitioner and Joseph Kamau Kimani 1st Respondent Samuel Kiburu Kimani 2nd Respondent Ruling 1.The Deceased, Antony Ngunjiri, passed away on 21st September, 2011. The pleadings indicate that he died testate, having executed a Will dated 7th October, 2008. In this Will, he appointed Catherine Njeri Ngunjiri, Caroline Wambui Nginjiri, and Harit A. Sheth as Executors and Trustees. The executors initiated the probate matter, which has not yet been concluded. Several interlocutory applications have been filed and determined, and presently, an application dated 11th September, 2025 is pending determination by this Court. 2.The application is filed by Irene Wangui Ngunjri (Applicant), the widow of the Deceased and seeks the following orders;a.Spent.b.Spent.c.Spent.d.That pending the hearing and determination of these succession proceedings and subsequent distribution of the estate thereof, the 4th and 5th Respondents, by themselves or their agents, be restrained by way of injunction from intermeddling with the estate of the above-mentioned deceased and in particular from entering, remaining on, occupying, further construction on and/or in any other way of manner interfering and/or dealing with Land Reference Number 797611 on Mirema Drive and/or preventing the said Applicant from the peaceful occupation and use on the said parcel of Land. 3.The grounds of the Application are stipulated on its face and supported by an affidavit dated 11th September, 2025, and sworn by the Applicant. The Applicant averred that she is a widow of the Deceased and that she has been residing in the matrimonial home situated on the suit property known as LR No 7976/4 on Mirema Drive. She averred that the suit property forms part of the estate of the Deceased, claiming that the Deceased held a lawful title to the same. She attached a copy of a Certificate of Title to the said property, which indicates that it was certified by the Registrar of Titles on 21st August, 2025. 4.The Applicant claimed that the 4th and 5th Respondents have invaded the suit property, cleared a portion thereof, and have commenced construction of permanent stalls. She claimed that their actions are unlawful and amount to intermeddling with the estate of the Deceased, on grounds that they have no title or known rights to the said property as they are not bona fide beneficiaries of the estate of the Deceased. She asked the Court to restrain the said Respondents from dealing in the property in a manner that is detrimental to her, the beneficiaries of the Deceased, and the estate generally. 5.The 4th and 5th Respondents filed a replying affidavit dated 6th October, 2025, and sworn by the 4th Respondent. He averred that he had the authority of the 5th Respondent to make the affidavit. He deponed that they have been in possession of a part of the said property since 1994 and that they were still in possession at the time the Deceased died in 2011. 6.He stated that they were not intermeddling with the estate of the Deceased and gave a comprehensive explanation of the history of the dispute before the Court. He claimed that they acquired the said property with the Deceased in 1994, under which the three were registered as tenants in common in equal shares. He explained that later, in 1996, the Deceased fraudulently transferred their 2/3 shares to himself, thus dispossessing them their share. He averred that they initiated Nairobi High Court Civil Case No. 1075 of 1999 to challenge the said transfer and reclaim their interests in the suit property. 7.He claimed that the said matter was pending determination when the Deceased died in September, 2011. He explained that, after his death, he wrote to his legal representatives (law firm) and inquired as to whom the administrator of his state was but he did not get a response. 8.The Application was canvassed by way of written submissions. Applicant’s written Submissions 9.The Applicant submitted that the 4th and 5th Respondents should be restrained from dealing in the said property, arguing that their actions constitute intermeddling under Section 45 of the Law of Succession Act. He argued that the 4th and 5th Respondents have not denied or controverted the facts that they have entered the suit property, cleared a portion of the property, and conducted construction activities on the property. He submitted that this amounts to intermeddling because they have carried out these activities without the sanction of the executors, the Applicant, the beneficiaries, or this Honourable Court. 4th and 5th Respondents’ written Submissions 10.The 4th and 5th Respondents submitted that the Application should not be allowed, arguing that the application is based on an illegality committed by the Deceased. They submitted that the Applicant cannot establish a prima facie case that the Deceased is the sole owner of the suit property. They argued that upon the death of the Deceased, the 1st-3rd Respondents, who are executors of the Will, held their 2/3 interest in the suit property on trust and still do so. They submitted that their right to the 2/3 of the suit property entitles them to remain in possession for as long as they have not disposed of their interest in the same. Issues for Determination 11.Having carefully considered the Application, the various affidavits, and the submissions, I find that the only issue for determination is whether the actions of the 4th and 5th Respondents constitute intermeddling under Section 45 of the Law of Succession Act. 12.The law on intermeddling is Section 45 of the Law of Succession Act, which states –'(1)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.(2)Any person who contravenes the provisions of this section shall –(a)be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or both fine and imprisonment …’ 13.Courts have been very consistent in interpreting the above provision. In In the Matter of the estate of Veronica Njoki Wakagoto (Deceased) [2013] KEHC 1930 (KLR), the Court interpreted the above provision and stated as follows;The effect of [Section 45 of the Law of Succession Act] is that the property of a dead person cannot be lawfully dealt with by anybody unless such person is authorized to do so by the law. Such authority emanates from a grant of representation, and any person who handles estate property without authority is guilty of intermeddling. The law takes a very serious view of intermeddling and makes it a criminal offence. 14.The Court in In Re Estate of M`Ngarithi M`Miriti (2017) eKLR expounded on the meaning of the term “intermeddling” as follows:“Whereas there is no specific definition provided by the Act for the term intermeddling, it refers to any act or acts which are done by a person in relation to the free property of the deceased without the authority of any law or grant of representation to do so. The category of the offensive acts is not heretically closed but would certainly include taking possession, or occupation of, disposing of, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act. I should add that any act or acts which will dissipate or diminish or put at risk the free property of the deceased are also acts of intermeddling in law.” 15.From the above definition, it is also clear that for one to establish intermeddling, he/she has to also show that the subject property constitutes the ‘free property’ of the Deceased. Section 3 of the Law of Succession Act defines ‘free property’ as follows: -“In relation to a deceased person, means the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death”. 16.The Court in In re Estate of Simion Robi Maroa (Deceased) [2019] KEHC 2285 (KLR) interpreted the above provision on ‘free property’ and observed as follows;17.I see the above definition in two perspectives. The first one is that a free property relates to an interest in a property of the deceased which was not encumbered during the lifetime of the deceased. The deceased would then have freely dealt with the interest in the property. The interest must also subsist even after the demise of the deceased. The other perspective is that if at any time whether during or after the life of the deceased the interest of the deceased in the property is challenged then the property ceases to be free property. The property then becomes a disputed property. 17.The Applicant produced a copy of a certificate of title to show that the suit property belongs to the Deceased. I have seen the said copy. It shows that it was certified by the Registrar of Titles on 21st August, 2025. The copy shows that the property was transferred to the Deceased vide a transfer registered on 21st November, 1996. 18.The next question is whether the suit property can be said to a ‘free property’ or ‘disputed property.’ Even though the copy of the certificate indicates that the Deceased is the owner of the suit property, the 4th and 5th Respondents dispute his ownership and maintain that the Deceased acquired the title through fraudulent schemes. They instituted two suits against the Deceased, during his lifetime, to challenge his ownership of the suit property. The two cases were HCC No. 683 of 1999 and Nairobi High Court Civil Case No. 1075 of 1999. 19.According to the 4th and 5th Respondents, the two suits were pending determination when the Deceased died in 2011. They also claimed that the executors did not pick up the said suits as required by law. Thus, they claimed that the two suits have abated against the Deceased because no legal representative was enjoined to serve as a defendant. 20.I note that the Deceased died in September, 2011. It is now more than 14 years since his death. The 4th and 5th Respondents have not shared information about the above cases that were pending determination at the time of the death of the Deceased. Although they said that his legal representatives did not pick up the cases, they did not tell this Court what became of the two suits, whether the Courts ruled in their favour or otherwise. 21.In my view, the 4th and 5th Respondents have the information on what became of the 2 suits since they were the Plaintiffs, but they have withheld that information from the Court. As a result, this Court cannot tell the status of the said cases, and cannot confirm whether the same are still pending before any court. 22.To this extent, I am inclined to make to draw an ‘adverse inference.’ I associate myself with the decision of Odunga J (as he then was), in the case of Nesco Services Limited v CM Construction [EA] Limited [2021] eKLR, in which, while following the earlier decision of Mabeya J in Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 others [2012] eKLR, held as follows:“....... In Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 others [2012] eKLR the court stated as follows:“Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides:‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proofing of disproving that fact is upon him.’Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho –vs- KCB (2003) 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.” 23.To me, the easiest way for the 4th and 5th Respondents to have proved that they still dispute the Deceased’s ownership of the suit property would have been to produce evidence showing that the two suits were still awaiting determination before the Environment and Land Court or before any other Court, or that they have already been concluded in their favour. 24.Based on this analysis, I find that the 4th and 5th Respondents have not shown that they have a current/ongoing land ownership dispute against the Deceased, and thus, the suit property constitutes a free property within the meaning of Section 45 of the Law of Succession Act. 25.In the end, I find that the application is merited and the same is allowed. Disposition 26.The Application is allowed in terms of prayer (d). In particular, the 4th and 5th Respondents are hereby restrained from entering, remaining on, occupying, further construction on and/or in any other manner interfering with and/or dealing with LR Number 7976/4 on Mirema Drive and/or preventing the Applicant from the peaceful occupation and use of the said parcel of land, pending the hearing and determination of these succession proceedings. 27.The Applicant shall have the Costs of the Application. 28.Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI ON THIS 31ST DAY OF JULY, 2026.………………………C. KENDAGORJUDGEIn the presence of:Court Assistant: BerylMr. Jumah Advocate holding brief for Odera Advocate for 1st – 3rd Petitioners/RespondentsNo attendance for Objector/ApplicantNo attendance for 4th and 5th Respondents