https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10683

REPUBLIC OF KENYA IN THE HIGH COURT AT MACHAKOS SUCCESSION CAUSE NO. E038 & E039 OF 2024 IN THE ESTATE OF SYOKAU KINAMA ALIAS BETH SYOKAU KINAMA (DECEASED) AND IN THE ESTATE OF JOYCE NDITI KINAMA (DECEASED) 1. CHARLES OWITI AGUTU 2. ROSEMARY ATIENO TOLO OWIDHI.............................. APPLICANTS VERSUS ROSE MWIKALI MUTIE MUTINDA ....1ST ADMINISTRATOR/RESPONDENT RUTH WAUSI MUTUA...................... 2ND ADMINISTRATOR/RESPONDENT ROSE NTHENYA MUANGE .............. 3RD ADMINISTRATOR/RESPONDENT SHADRACK KYALO ...............,,,,,,,... 4TH ADMINISTRATOR/RESPONDENT **RULING** **The application** 1. This ruling is on the Objector/Applicants Notice of Motion application dated 16th October 2025 brought under Rules 15, 49, 59 & 73 of the Probate and Administration Rules, Sec. 47 & 76 of the law of Succession Act and all enabling Provisions of the law. The application is supported by the supporting affidavit of CHARLES AWITI AGUTU who depones to have sworn the same on his own and on behalf of ROSEMARY ATIENO OWINO alias ROSEMARY ATIENO TOLO. The application seeks for orders: 1) THAT the applicants **Charles Owiti Agutu** and **Rosemary Atieno Tolo Owidhi** alias **Rosemary Ationo Owino** be joined as interested parties/beneficiaries in these proceedings concerning the Estate of the late **Beth Syokau Kinama**. 2) THAT pending the hearing and determination of this succession cause, the Applicants' beneficial interest in the parcel of land known as MAVOKO TOWN BLOCK 2/317, measuring approximately 10. Ha, be preserved and protected from any dealing whatsoever. 3. THAT the Applicants be granted leave to file documents/affidavits and participate in the confirmation of grant proceedings to protect their interests in the estate. 4. THAT the costs of this application be in the course. 2. The application premised on the grounds on the face of the application that: a) THAT the deceased Beth Syokau Kinama died intestate leaving among others, the property known as **LR. NO.** MAVOKO TOWN BLOCK 2/317. b) THAT land parcel **LR. NO. MAVOKO TOWN BLOCK 2/317** was co-owned by Joyce Nditi Kinama (deceased) and Syokau Kinama (deceased). c) THAT after she died, the heirs to her estate sold one (1) acre of land from the deceased's share, to the Applicants. d) THAT the administrators of the estate of M/s Syokau Kinama received money from the Applicants in respect of the one acre but has to date refused to transfer the land to the Applicants. e) THAT there is pending suit before Machakos ELC between the parties herein, in respect to LR. NO. MAVOKO TOWN BLOCK 2/317 (ELC 313 of 2011). f) THAT unless the applicants are allowed to participate in the succession cause herein and the subject property preserved, there is a real risk that the administrators may seek to distribute or dispose of the land without taking into account the interest of the applicants, thereby denying them their rights to property. g) THAT unless this Honourable Court intervenes, the applicants stand to suffer irreparable harm and loss that cannot be adequately compensated by way of damages since land shall have been allocated to other people who are not rightful beneficiaries. Further, the administrators lack income or assets to compensate them should the court find in their favour after the property has changed hands. h) THAT it is in the interest of justice, equity and fairness that the applicants be joined as beneficiaries in order to ventilate their claim before distribution of the estate can take place. **1st Administrator/Respondent’s Response** 1. The application is opposed by ROSE MWIKALI MUTIE MUTNDA, the 1st Administrator/Respondent sworn on 21st November 2025 in which she depones that the application is frivolous, vexatious, is an abuse of court process, lacks merit and the same ought to be dismissed at the very outset. She further avers that the property known a MAVOKO TOWN BLOCK 2/317 (Hereinafter referred as 'suit property') is registered in the names of **Syokau Kinama** and **Joyce Nditi Kinama** (both deceased) who are co-wives and held the property in equal undivided shares as tenants in common as per her annexure R.M.M I and R.M.M II which is a copy of the title deed and search certificates respectively. That the Applicants claim to have bought 20 acres of all that suit property known as MAVOKO TOWN BLOCK 2/317 from the deceased herein **Joyce Nditi Kinama** during her lifetime and 1 acre from one **Michael Mwange Kinama** a beneficiary of the estate of **Syokau Kinama**. She also states that the sale of the said property is vehemently denied by the beneficiaries of the deceased and if any transactions for the sale of land were entered into, which are still vehemently denied, the same were marred with fraud, are illegal, null and void and are un-enforceable. 1. To begin with, the Applicants claim that **Joyce Nditi Kinama** owned 20 acres of the suit land and **Syokau Kinama** owned 5 acres are imaginary and unfounded. That if land is owned in common, unless the register states otherwise, the presumption is that each Co-owner holds equal undivided shares. In this case, the title documents do not define the respective shares of each co-owner and therefore the legal presumption is that each Co-owner has an equal undivided share. Therefore, the Applicants cannot claim that Joyce Nditi Kinama owned 20 acres and Syokau Kinama owned 5 acres without proof. 2. Having established that the Co-tenants owned equal undivided shares in the property, if land is owned in common, each tenant is entitled to an undivided share in the whole and no tenant in common shall deal with their undivided share in favour of another person except with the consent in writing of the remaining tenant. 3. The Applicants have not demonstrated that the alleged vendor (*the deceased herein*) obtained the consent of the co-owner and/ or her validly and legally appointed legal representative and/ or heirs of the Co-owner and for this reason, the validity of the transaction is null and void and unenforceable in law. 4. Furthermore, the validity of the sale agreement dated 6th May 2001 at pages 12 of the Notice of Motion dated 16.10.2025 is highly contested and the 1st Administrator is of the considered view that the same is a forgery meant to mislead this court. 5. The said agreement is quite different from the agreement that the Applicants filed in support of their claims in MACHAKOS ELC 313 OF 2011. While the sale agreement annexed in the instant application bears a thumbprint by the alleged vendor, the sale agreement filed in support of MACHAKOS ELC 313 OF 2011 is entirely different and bears a signature as opposed to a thump print of the vendor and the signatures of the purchasers and witnesses significantly differ. 6. The illegality of the said agreement is further buttressed by the fact that it was entered into with a beneficiary of the estate who had no legal capacity to sell the property. Furthermore, the express terms of the sale agreement and in particular clause 13, the sale was conditional on one **Michael Muange** obtaining letters of administration within 60 days of the agreement which would otherwise terminate. 7. There is no demonstration that the letters of administration were ever obtained and in any event the agreement was already a nullity and amounted to intermeddling with the deceased's estate and the law is trite that a person cannot enter a valid Sale agreement over an estate property before letters of administration are issued. 8. The Applicants allege that they entered into a sale agreement with **Joyce Nditi Kinama** on 6th May 2001 during her lifetime but offer no sufficient explanation why the deceased never signed the relevant transfer forms until she passed on 20th February 2008. 9. The Applicants have also not led any evidence, documentary or otherwise to prove that any money and/or consideration was paid to the deceased herein. 10. With regard to the Memorandum of Agreement for sale dated 7th December 2009 on pages 15-17 of the Notice of Motion, the same is a non-starter as it does not bear the signatures of the alleged purchasers and most importantly is illegal as the vendor purports to sell property of a deceased person without the proper legal authority. 11. The Applicants in their Supporting Affidavit make numerous references to talks and communication with family members but have not led any evidence of any correspondence with the said family or minutes of any meetings held with regard to sale of the property. 12. What is evident from the application is that if the Applicants entered into a sale agreement, which is still vehemently denied, the sale agreement(s) was entered into without the authority of the deceased, the court and prior to confirmation of grant, The Law of Succession Act prohibits sale and/or disposition of a deceased property prior to confirmation of grant. 13. Due to the aforementioned illegalities, the interests of the Applicants are not recognizable and the suit property forms part of the free estate of the deceased, and the same cannot be alienated or transferred without the due process of succession being completed and the grant confirmed and the applicants are therefore a stranger to the estate proceedings and lack locus standi to lodge an objection to the confirmation of grant a grant already having been issued. 14. If indeed the Applicants parted with money in relation to the estate, their only recourse lies against the beneficiary who purported to sell the Estate property and not against the Estate or its Administrators. 15. **MACHAKOS ELC 313 OF 2011** was instituted by one **Joshua Mutua Kinama,** a beneficiary of the estate against **Shangilia Baba na Mama and one Mutuku Kinama** a beneficiary of the estate and the Plaintiff therein sought for a declaration that the sale transaction between the two defendants is illegal having entered into by a person without authority. The said suit is no longer pending as alleged the same having been dismissed for want of prosecution and upon an application to re-instate the same, the said application has since been dismissed by a Ruling of this court and therefore the suit no longer exists. 16. In paragraph 33 of the supporting affidavit, the Applicants state that the property is not free property as to be considered as forming part of the deceased estate. In response to this, the 1st Administrator states that such issues are beyond the jurisdiction of the probate court. The law is trite that the resolution of such questions does not necessitate joinder into the cause of the Applicants to establish ownership as it is not the function of the probate court to determine ownership of assets claimed to be or not to be estate property and jurisdiction in such a case lies in the ELC court. 17. The 1st Administrator therefore vehemently oppose the prayer by the Applicants to be enjoined in these succession proceedings since they are not beneficiaries of the Estate. 18. The succession proceedings are at a very advanced stage all beneficiaries having agreed to the mode of distribution through mediation and a final mediation settlement agreement filed in court and the instant application is a delay tactic meant to frustrate the final distribution of the deceased estate. 19. From the foregoing, it is in the interest of justice that the objection be dismissed at the first instance as it is frivolous, misconceived and amounts to an attempt to interfere with the lawful administration of the estate. **2nd Administrator/Respondent’s Response** 1. The 2nd Administrato/Respondent too opposes the instant application vide her Replying Affidavit sworn on 10th November 2025 in which she deponed that she was appointed as a Co-Administrator of the Estate pursuant to the Petition filed by the 1st Administrator, the gazettement of the same and after filing her objection thereof dated 30th September 2024. Her appointment and the issuance of the Letters of Administration thereof followed the laid down procedure in law including gazettement of the Petition. 1. She states am a daughter in law to the deceased and therefore a beneficiary of her Estate. She left the following other beneficiaries; 2. **Wambua Kinama Son (Deceased)** 3. **Michael Muange Kinama Son (Deceased)** 4. **Joseph Mutua Kinama Son (Deceased)** 5. **Muasya Kinama Son (Deceased)** 6. **Mary Nthambi Musyoki Daughter (Deceased)** 7. **Rose Mwikali Mutie Mutinda Daughter** 8. **Philes Mathembo Kyania Daughter (Deceased)** 9. **Margaret Ndinda John Daughter (Deceased)** 10. **Ruth Wausi Mutua Daughter in Law** 11. **Rose Nthenya Muange (Michael's wife) Daughter in Law** 12. **Elisi Muasya Kinama (Muasya's wife) Daughter in Law** 13. She states that her mother-in-law; the deceased herein was a co-wife of the late Joyce Nditi Kinama who died on 20th February 2008. They were both married to **Stephen Kinama Muthike** (deceased). Her mother-in-law; Beth Syokau Kinama alias Syokau Kinama and Joyce Nditi Kinama are the registered joint owners in equal shares of property described as Mavoko Town Block 2/317 as per the attached copies of the Title Deed and various searches she has attached to her Replying Affidavit collectively as "RWM-2" 8. 14. The property was held in trust by the two wives for the children and beneficiaries of their respective Estates. The allegation that Joyce Nditi Kinama (deceased) owned 20 acres while Beth Syokau Kinama alias Syokau Kinama (deceased) owned 5 acres is false. 15. Beth Syokau Kinama alias Syokau Kinama died on 31st May 1999 and to date despite several Letters of Administration having been issued in respect of her Estate; no Certificate of Confirmation has been issued distributing her half share of Mavoko Town Block 2/317. 16. The initial Letters of Administration in respect of the Estate of Beth Syokau Kinama alias Syokau Kinama were issued on 1st February 2002 in Machakos High Court Succession Cause 246 of 2001 and *Ad Litem* Letters limited to filing suit for damages in respect of her death were issued on 23rd February 2011 in Machakos High Court Succession Cause 77 of 2011. 17. Joyce Nditi Kinama died on 20th February 2008 and the Letters in respect of her Estate were issued in this cause on 3rd December 2024. 18. The Letters of Administration as issued above do not grant the Administrators any powers to dispose any assets of the estate. The role of the Administrator on appointment is to collect and preserve the assets of the deceased pending confirmation of Grant. With the Letters issued on 19th March 2025 she cannot dispose off any asset of the Estate. The Applicants do confirm this in paragraphs of 12 & 15 of the Applicants Supporting Affidavit. 19. She has seen the Letters of Administration issued to **Joshua Kinama Muange** on 18th June 2009 in Machakos High Court Succession Cause 24 of 2009 in respect of the Estate of Michael Muange Kinama and the said Letters did not grant authority to Joshua Kinama Muange to deal with the assets of the Estate of Joyce Nditi Kinama including Mavoko Town Block 2/317. The said Joshua Kinama could not therefore even collect nor preserve any assets of the Estate of Joyce Nditi Kinama as HЕ WAS NOT the Administrator of that Estate; his appointment was in respect of the estate of **Michael Muange Kinama** and not in respect of the Estate of Joyce Nditi Kinama. 20. She has seen the Agreement for Sale dated 6th May 2011 & Memorandum of Agreement for sale dated 7th December 2009 contained in the Applicants documents (pages 12-17 of the Application) allegedly for the sale of 20 acres and 2 acres of Mavoko Town Block 2/317 respectively and wish to state as follows; 21. In respect of the agreement dated 6th May 2001, the same was illegal, null and void as the same purports that 20 acres of Mavoko Town Block 2/317 were sold by Syokau Kinama who had died on 31\* May 1999; almost a year prior and no Grant of Representation in respect of her Estate had been issued nor Confirmed; any person attempting to dispose off her assets did so illegally, fraudulently and those actions amount to intermeddling as provided for by Section 47 of the Law of Succession Act. 22. The said agreement was illegal, null and void as it purported that the Estate of Syokau Kinama was being represented by **Mr. Michael Muange** who did not hold neither Letters of Administration nor Certificate of Confirmation of Grant. The alleged sale amounted to intermeddling with the Estate of a deceased person which is criminal, illegal and punishable under the law. The property being jointly owned and held in trust by Joyce Nditi Kinama and Syokau Kinama equally; the Agreement dated 6th May 2001 is illegal, null and void for want of capacity and the requisite consents and involvement of all the beneficiaries of the two families. 23. In respect of the Agreement dated 7th December 2009. The alleged Jackson Mutuku Kinama lacked the requisite capacity to enter into and or sell any part of Mavoko Town Block 2/317 as he held no letters of Administration nor certificates of confirmation of Grant in respect of the Estate of Joyce Nditi Kinama who had died on 20th February 2008. 24. The property being jointly owned and held in trust by Joyce Nditi Kinama and Syokau Kinama equally; the Agreement dated 6th May 2001 is illegal, null and void for want of capacity and the requisite consents and involvement of all the beneficiaries of the two families. 25. Further to the above; the Agreement dated 6th May 2001 attached in these proceedings is completely different with the Agreement attached in the suit filed by her late husband; Joseph Mutua Mutuku in Machakos Civil Suit Number 313 of 2011 in execution; clear evidence of the fraudulent actions of the Applicants and 2 of the Estate's beneficiaries. 26. She states that, she shall at the hearing hereof request to be supplied with the Original Copy of the Agreement for verification of the fingerprint contained thereat. 27. The above is evidence that the driver of the fraudulent sale of the Estate's property was **Michael Muange** and **Jackson Mutuku** who had no legal capacity to sell the property and any agreements entered into by the said individuals are null and void.The actions of Jackson Mutuku & Michael Muange are criminal and amount to intermeddling of the Estates of deceased persons as provided for by Section 45 of the Law of Succession Act and this Honourable Court should not greenlight an illegality. 28. The Estate cannot be bound to perform illegal contracts entered into by individual beneficiaries without authority or consents from either the beneficiaries or the court. Only this Honourable Court has the requisite authority to allow the beneficiaries of a deceased's estate deal with the assets of the said Estate and no such orders have ever been granted. 29. It was incumbent upon the Applicants to carry out the requisite due diligence to ascertain the capacity of the alleged Sellers of any property. The Applicants have not demonstrated that they did any due diligence before entering into illegal and fraudulent agreements and as neither of the parties to the Agreements dated 6th May 2001 and 7th December 2009 had capacity; any sale thereof is illegal null and void. 30. In respect to the filing of Machakos Civil Suit Number 313 of 2011; the same was ongoing and had a hearing date of 18.11.2025 (as at the time of filing the Replying Affidavit) in respect to an application filed by the Applicants. 31. In respect to the filing and withdrawal of Nairobi ELC 1310 of 2015 by the Applicants; the allegation that the family prevailed upon the Applicants to withdraw it and false and is unsupported by any documents. The fact that ten (10) years later the Applicants are following up on an illegal transaction is a clear demonstration that the family did not prevail and has never been involved in the illegal transaction; the drivers of the illegal transaction having died; the Applicants had no legs to stand on. 32. The 2nd Administrator/Respondent is a stranger to the allegations contained in paragraph 26 of the Supporting Affidavit that the survey work carried out by the Applicants were so done with their full knowledge and the Applicants are invited to strict proof thereof. 33. In answer to the contents of paragraph 30 of the Supporting Affidavit, she states that the family has not engaged in fraudulent and mischievous efforts to "rob" the Applicants of the property; as stated hereinabove it is the Applicants who entered into illegal Agreements with parties without capacity to sell the property. 34. All the chief’s introduction letters are issued by the Chief from whom the deceased persons hailed from and in this instance; it is Mitaboni Location. 35. The Affidavits filed are not false as alleged by the Applicants and no multiple letters of Grant have been issued to the current Administrators save for those issued in this present case and Machakos High Court Succession Cause E039 of 2025. The Letters of Administration alluded to became inoperative, null and void as they were issued to now deceased persons and without the involvement of all the beneficiaries of the Estate. 36. Whereas the Applicants allege that the sale was known and approved by the heirs and family members; the Applicants are unable to demonstrate this save for the 3 beneficiaries whom they were in cahoots with in committing fraudulent transactions and intermeddling in the Estate to the detriment of the other beneficiaries of the Estate. 37. The above demonstrates that the Applicants entered into illegal contracts with some beneficiaries of the Estate; beneficiaries who had no capacity to bind and dispose off the Estate's asset and therefore the Agreement is incapable of enforcement and the application should thus be dismissed with costs. 38. The individuals and entities whose claims against the Estate have not been acknowledged by the personal representatives and who do not hold any valid court decree are not creditors of the Estate but mere claimants. Their Claims are yet to be proved or established against the Estate. The place to establish those claims is not within the succession cause but in separate Environment and Land Court proceedings. 39. The 2nd Administrator/Respondent prays that the Applicants application be dismissed with costs and we be allowed to proceed with the confirmation of the Estate. **Submissions** 1. The application was canvassed through written submissions and all the parties complied save for the 3rd Administrator/ Respondent. Those submissions replicate the summary above and I wish not to duplicate the same here. **Analysis and Determination** 1. I have carefully considered the instant application, the Replying Affidavits, Further Affidavits, rival submissions by parties’ advocates and the authorities cited. 2. From the application and respective responses, the two pertinent issues for determination are as follows: 3. Whether the interested parties have a legal claim to entitle them to be enjoined as interested parties. 4. Whether this court has jurisdiction to ventilate the issues of ownership of land and enforceability of sale agreements within the succession cause. 5. **Whether the interested parties have a legal claim to entitle them to be enjoined as interested parties.** 6. The Court may grant leave for the applicant to become an interested party. An interested party must submit a formal application or motion. The application must clearly explain the interest and the reason for intervention. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules of 2013, Rule 7, establishes the process for an individual or entity to become an interested party in a legal proceeding. 7. These provisions have been subjected to numerous judicial interpretations. For instance, in the case of **Skov Estate Limited & 5 Others v. Agricultural Development Corporation and another [2015] eKLR,** the Court emphasized the point that, **the applicant in an application of this nature must demonstrate that it is necessary that he/she be enjoined in the suit. That becomes important if he has to show that the issues before the Court cannot be effectively adjudicated upon in his absence. Being affected by the order of the Court is not enough. The Applicant must show that in addition to being affected the reliefs which will be granted will not be fully decided upon because an important element of fact, which he has, shall miss if he is not added to the proceedings.** 8. In the instant application, the Applicants state that unless they are allowed to participate in the succession cause, there is a risk that the Administrators will distribute the land without taking into account their interests and they will suffer irreparable loss which cannot be adequately be compensated by way of damages. The question then is; are the succession proceedings capable of being concluded without the participation of the Applicants as interested parties/beneficiaries? 9. In succession causes, persons who would be interested parties are beneficiaries, spouses, children, creditors and any other person who has a legal claim on the estate. (See **Kibiwott vs Bartocho & Another [2025] eKLR**. 10. It is undisputed that the Applicants allegedly bought a part of the deceased’s property when the deceased had already passed on and before appointment of administrators of the deceased's estate and even before commencement of the succession proceedings. The sale agreement was between the Applicants and 'heirs' or children of the deceased who had no legal capacity to sell the deceased's estate. For that reason, the Applicants have no legal claim on the deceased’s estate and their actions already amount to intermeddling with a deceased's estate which is a recognized criminal offence. 11. Section 45 of The Law of Succession Act provides as follows on intermeddling. ***"45. No intermeddling with property of deceased person (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."*** 1. As such, the transaction entered into between the Applicants and any unauthorized person is an illegality and cannot be sanctioned by way of joinder to the succession proceedings. Their interest or any recourse against the sellers ought to be ventilated elsewhere as the role of the Probate Court is limited to distribution of the free estate of the deceased. 2. To facilitate distribution of the estate, the court usually identifies the persons who are entitled to inherit from the estate of the deceased and the assets to be shared out amongst the person entitled. Joinder of third parties who are not beneficiaries of the estate is not within the purview of the probate court. See **In re Estate of Stone Kathuli Muinde (Deceased) [2016] КЕНС 3725 (KLR)** where the court, faced with a similar issue held as follows on the issue of joinder: *"With regard to the assets, one of the questions that may present itself would be the ownership of the assets presented as belonging to the deceased. An outsider may claim that the property does not form part of the estate and therefore it need not be placed on the probate table. The resolution of such questions does not necessitate joinder into the cause of the alleged owner to establish ownership. It is not the function of the probate court to determine ownership of the assets alleged to be estate property. That jurisdiction lies elsewhere. Such claims to ownership of alleged estate property, as between the estate and a third party, should be resolved through the civil process in a civil suit properly brought before a civil court in accordance with the provisions of the Civil Procedure Act and the Civil Procedure Rules. This could mean filing suit at the magistrates' courts, or at the Civil or Commercial Divisions of the High Court, or at the Environment and Land Court. If a decree is obtained in such suit in favour of the claimant, then such decree should be presented to the probate court in the succession cause so that that court can give effect to it."* (Emphasis ours) 1. Similarly, **In re Estate of Solomon Mwangi Waweru (deceased) (2018) eKLR**, the court held as follows: *"Therefore, claims by interested third parties against the estate of the deceased ought to be litigated in separate proceedings. It is imperative that any adverse claims against the estate of a deceased person are determined through settlement or where inapplicable through suits against the administrator(s) of the estate and not through an objection like the one before Court........It is my opinion that the fact that the applicant has laid claim to the estate does not give rise to an automatic right to have the distribution of the property stayed by the succession cause. The applicant ought to disclose a legitimate claim which needs to be determined by the Environment and Land Court. The succession Court would then proceed with the administration of the estate in respect of other properties not affected by the conservatory order if obtained awaiting the outcome of the suit"* 1. Persuaded by the above cited cases, It is my finding that the Applicants, having allegedly purchased the suit land from unauthorized persons have no legal claim against the estate. They have not demonstrated how they are necessary parties in the proceedings and just because their interests might be 'affected' by the distribution, their participation in the proceedings is not only legally untenable under the relevant succession laws but also inconsequential as their claim cannot be ventilated in a probate court and does not lie against the estate. Accordingly, the applicants should allow the Administrators to proceed and confirm the grant and thereafter they can pursue the beneficiaries who sold the deceased’s land illegally for redress as the Applicants have no sale agreements with the estate whatsoever. 2. **Whether this court has jurisdiction to ventilate the issues of ownership of land and enforceability of sale agreements within the succession cause?** 3. Undoubtedly, the predominant issue in this case is whether there were any legal transactions by the Applicants over the alleged deceased’s properties entitling them to an interest and/or share in the deceased's estate. 4. It is not in dispute that the Applicant's cause of action for their joinder in these proceedings and the preservation of allegedly of 10 hectares of **Mavoko / Block 2/317** and their participation of these proceedings and particularly the confirmation of Grant emanates from the alleged sale of land vide the Sale Agreements dated 6th May 2001 and 7th December 2009. In the Application, the Applicants are inviting the court to make a determination whether the alleged sales were valid and if so, declare the Applicants the owners of the 22 Acres land. 5. The Applicants assert that they bought part of the deceased’s land from the heirs of the deceased but the Respondents contends that no such transactions occurred and if they did, they were illegal and irregular and cannot bind the estate. 6. This court lacks the jurisdiction to adjudicate and make a determination on such a dispute. Jurisdiction flows from either statute or the Constitution of Kenya. In this regard, Article 165 of the Constitution of Kenya 2010 establishes the High Court. Its jurisdiction is very wide. However, Sub-Article (5) thereof categorically provides the limitations to that jurisdiction. It provides thus; “*The High Court shall not have jurisdiction in respect of matters-* *(a) ...* *(b) Falling within the jurisdiction of the courts contemplated in Article 162(2).*' 65. Read together, Articles 162(2) and 165(5) of the Constitution 2010, clearly demonstrates that this Court has no jurisdiction whatsoever over matters that fall within the purview of the Environment and Land Court. 66. Section 13 of the Environment and Land Court Act Provides the extent of Jurisdiction of the Environment and Land Court. This court has original and appellate jurisdiction to hear and determine all land disputes in accordance with Article 162(2)(b) of the Constitution, the Environment and Land Court Act and other applicable laws on Environment and Land. 67. The provisions of the Law of Succession Act and the Probate and Administration Rules are tailored for resolution of disputes between the personal representatives of the deceased and the survivors, beneficiaries and dependants. 68. However, claims by and against third parties, meaning persons who are neither survivors of the deceased nor beneficiaries, that are not known or recognized by the beneficiaries/estate are for resolution outside of the framework set out in the Law of Succession Act and the Probate and Administration Rules. Such have to be resolved through the provisions of the Civil Procedure Act and Rules. 69. The Orders sought by the Applicants are incapable of being granted as the mandate of this Honourable Court is limited to distributing the net estate of the deceased persons. It is not the mandate of the probate court to determine whether sales happened or whether sales were valid. The role of the Probate Court is mandated to be the distribution of the assets of the deceased person and should any dispute arise as to the share of any person claiming, the probate court downs its tools as provided by Rule 41(3) of the Probate and Administration Rules to await the determination under Order 37 of the Civil Procedure Act 70. The Probate and Administration Rules recognize this principle which is entrenched in Rule 41(3), which provides as follows – *“Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or property comprising it to abide the determination of the question in proceedings under the Civil Procedure Rules”* 71. In the case of **In Re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR**, Musyoka J addressed the issue as to whether a succession court is clothed with the requisite jurisdiction to determine issues of ownership of property by third parties in a succession cause thus; *".....The Law of Succession Act, and the Rules made thereunder, are designed in such a way that they confer jurisdiction to the probate court with respect to determining the assets of the deceased, the survivors of the deceased and the persons with beneficial interest, and finally distribution of the assets amongst the survivors and the persons beneficially interested. The function of the probate court in the circumstances would be to facilitate collection and preservation of the estate, identification of survivors and beneficiaries, and distribution of the assets. Disputes of course do arise in the process. The provisions of the Law of Succession Act and the Probate and Administration Rules are tailored for resolution of disputes between the personal representatives of the deceased and the survivors, beneficiaries and dependants. However, claims by and against third parties, meaning persons who are neither survivors of the deceased nor beneficiaries, are for resolution outside of the framework set out in the Law of Succession Act and the Probate and Administration Rules. Such have to be resolved through the structures created by the Civil Procedure Act and Rules, which have elaborate rules on suits by and against executors and administrators. Clearly, disputes as between the estate and third parties need not be determined within the succession cause. The legal infrastructure in place provides for resolution elsewhere, and upon a determination being made by the civil court, the decree or order is then made available to the probate court for implementation”.* 72. In **Njega Njogu & another v Rosemary Muthoni Njuе [2021] КЕНC 2514 (KLR)** the issue of validity and enforceability of sale agreements entered into before the deceased's demise, the Court held as follows on appeal: *“In the instant case, the claims by the appellants before the trial court were basically based on sale agreements which were refuted by the respondent herein and thus it revolves around ownership of the two disputed properties. Article 162 of the Constitution as read together with article 165(5) of the Constitution and the Environment and Land Court's Act no. 9 of 2011 establishes the Environment & Land Court and which is bestowed with the jurisdiction to determine issues as to ownership of land (see section 13 of the Act). It is my view that the trial court had no jurisdiction to determine the issue as to ownership of the respective plots/lands as were claimed by the appellants herein. The same falls squarely within jurisdiction of Environment and Land Court. It is the said court which ought to have determined as to the validity of the said agreements or otherwise. Once the said court issues a decree, the same is supposed to be filed before this court for adoption. This is because the appellants' claim on their respective parcels shall have crystallized so as to be referred to the probate court."* 73. Guided by the foregoing cases, this court is of the view that the validity and enforceability of any land sale agreement entered into between the Applicants and un-authorized persons over the estate of the deceased herein can only be properly ventilated before civil courts properly constituted. 74. The upshot is that the Applicant’s application dated 16th October 2025 is without merit and does not meet the minimum threshold for grant of the orders sought, therefore the same is dismissed with costs to the Administrators of the estate herein assessed at **Kshs.30,000/=.** It is so ordered. RULING DATED & SIGNED AT MACHAKOS THIS 15TH JULY 2026. **NOEL I. ADAGI** **JUDGE** DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 15TH JULY 2026