https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10486

In re Estate of Barimba (Deceased) (Succession Cause 14 of 2016) [2026] KEHC 10486 (KLR) (15 July 2026) (Ruling) Neutral citation: [2026] KEHC 10486 (KLR) Republic of Kenya In the High Court at Meru Succession Cause 14 of 2016 SM Githinji, J July 15, 2026 Between Safina Nkatha Kaanga Petitioner and Wilson Kirima Kaanga Objector and Mururu Shadrack Meeme Interested Party and Mururu Shadrack Meeme Interested Party Ruling 1.For determination is the Chamber Summons dated 30/1/2020 pursuant to Section 47 of the Law of Succession Act and Rules 49, 63 and 73 of the Probate and Administration Rules, seeking that:1.Spent.2.This Honourable Court be pleased to have Mururu Shadrack Meeme enjoined in these proceedings as an Interested Party.3.This Honourable Court be pleased to review the Judgment delivered on 14/11/2019 and re-open the matter for hearing limited to the distribution of land parcel NO. Kangeta/Kangeta/2804 only.4.This Honourable Court be pleased to grant any other orders that meet the ends of Justice. 2.The application is premised on the grounds that the interested party bought land parcel No. Kangeta/Kangeta (hereinafter referred to as the suit property) from the deceased on 4/7/2014. The Petitioner dishonestly withheld from the Court the fact of the aforesaid sale, despite having witnessed the transaction, and instead misleadingly represented that the land had been sold to David Mbirithu. The interested party has developed the suit property by planting seasonal food crops, timber/wood and fruit trees among other developments since 2014 to date. He retorted that there was material non-disclosure over the land, which occasioned an injustice to him. 3.The Petitioner swore a Replying Affidavit on 26/9/2024 in opposition to the application. She averred that this Court lacked jurisdiction to deal with the application, as the interested party’sremedy was a civil suit against the administrators for a refund, since the estate had fully been distributed. The interested party had never been in occupation of the suit property, and it had already been sold to a 3rd party. 4.Jerusha Kagendo Kaanga swore a Replying Affidavit on 27/2/2020 in opposition to the application. She averred that the Court conclusively held that the suit property was given to her by the deceased, and the application was thus untenable, misplaced and an afterthought. In any event, there was no evidence to support the purported sale to the interested party. She verily believed that the interested party’s claim was based on contract, and this court lacked the jurisdiction to deal with it. 5.Loice Kathambi Maore swore a Replying Affidavit on 15/11/2023 in opposition to the application. She averred that following the Confirmation of the Grant, her father purchased the suit property from Jerusha Kagendo, subsequent to which she acquired title thereto on 22/7/2021, and has been in occupation ever since. According toher, the Interested Party’s only remedy was to seek a refund from the estate of the deceased. 6.The Interested Party swore a Supplementary Affidavit on 7/4/2026 in support of his application. 7.The application was canvassed by way of Written Submissions, which were only filed by Counsel for the Petitioner and the Interested Party. Analysis and determination 8.The sole issue for determination is whether the Interested Party is a necessary party to be joined to these proceedings. 9.The pre-requisites to be fulfilled before a party can be joined to proceedings were set out in Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2016] KESC 12 (KLR) (Civ) (28 January 2016) (Ruling), where the Supreme Court rendered thus; “Enjoinment is not as of right, but is at the discretion of the Court;hence, sufficient grounds must be laid before the Court, on the basis of the following elements: The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral. The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.” 10.Comparatively, in Civicon Limited v Kivuwatt Limited & 2 others (2015) eKLR, the Court of Appeal espoused as follows; “The question is whether the right of a person may be affected if he is not added as a party. Generally in exercising this jurisdiction the court will consider whether a party ought to have been joined as plaintiff or defendant, and is not so joined, or without his presence, the question in the suit cannot be completely and effectively decided. Accordingly, a necessary party is one without whom no order can be made effectively, while a proper party is one in whose absence an effectiveorder can be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings.” 11.The Interested Party’s quest for joinder is predicated upon a purchase of the suit property from the deceased vide an agreement for sale dated 4/7/2014, which the Petitioner allegedly witnessed. 12.The jurisdictional issue of whether the Interested Party’s claim lies elsewhere was comprehensively expounded by this Court vide its Ruling dated 31/5/2022 as follows; “A distinction may be made between determination of land dispute over question of ownership of land and the succession dispute whether the deceased had transferred his estate or part thereof during his life, and the question would be whether that asset forms part of the estate available for distribution. In the latter case, the matter is one for determination by succession Court. In this matter, the question whether the deceased had sold his interest in the estate asset subject of this application is a matter of Succession Law, and not purely one of a land dispute on the validity of the contract of sale of the property, as would be the case in the case of two living parties. It is a matter within the competence of a succession Court.” 13.I find that the Interested Party’s claim over the suit property is strictly against the estate of the deceased. The contention by the Petitioner that the Interested Party ought to pursue his claim elsewhere against the administrators is manifestly unfounded and misplaced. 14.It is conceded that the Interested Party did not whatsoever participate in the proceedings culminating in the Confirmation of the Grant, to agitate for his proprietary rights. 15.In the circumstances therefore, the Interested Party has demonstrated to the satisfaction of this court that he has an identifiable stake in this cause, and thus he is a necessary party thereto. 16.The Interested Party averred that he has substantially developed the suit property by planting assorted trees and undertaking other developments thereon, as evinced by the annexed photographs. The mere fact that he does not reside in or occupy the suit property cannot, of itself, constitute a sufficient basis for finding that he is disentitled to it. 17.For the reasons set out above, the Court finds that the Interested Party’s application dated 30/1/2020 is merited and it is hereby granted in terms of prayers 2 and 3 thereof. 18.Mention for further directions on 18/11/2026. DATED AND DELIVERED AT MERU THIS 15TH DAY OF JULY, 2026.S.M. GITHINJI –JUDGE15/7/2026In the Presence of:-Ms. Asuma holding brief for Mr. Mutembei for the Petitioner.Mr. Mbaya holding brief for Mr. Omari for the 1st Petitioner.Mr. Gichunge for the 1st Interested Party.