https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12549

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **SUCCESSION CAUSE NO. 40 OF 2003** **IN THE MATTER OF THE ESTATE OF ISAAC KIILU KILOVIA (DECEASED)** **ANNASTACIA MWENDE KIILU ………… PETITIONERS/APPLICANTS** **JULIUS MUTUKU KILOVIA ........................ PETITIONERS/APPLICANTS** **-VERSUS-** **DAVID GITHUMBI ........................................ RESPONDENT/CONTEMNOR** **AND** **DAVID GITHUMBI ............................................ RESPONDENT/APPLICANT** **VERSUS** **ANNASTACIA MWENDE KIILU ……….. PETITIONERS/RESPONDENT** **JULIUS MUTUKU KILOVIA .......................PETITIONERS/RESPONDENT** **AND** **EAST AFRICAN PORTLAND CEMENT PLC ...................... INTERESTED** **PARTY/JUDGMENT DEBTOR** **R U L I N G** (On the Notice to Show Cause dated 24th July, 2025, why Roseline Ominde, Company Secretary of the Interested Party, should not be committed to civil jail) **A. INTRODUCTION** **1.** By a Notice to Show Cause dated 24th July, 2025 ("the NTSC"), the Petitioners/Applicants ("the Estate") called upon Roseline Ominde, the Company Secretary of East African Portland Cement PLC ("the Interested Party" or "EAPCC"), to show cause why she should not be committed to civil jail for failure to settle a sum of Kshs. 6,379,760.00, said to be owed to the Estate of the late Isaac Kiilu Kilovia. **2.** In response, the Interested Party, through Roseline Ominde, filed a Replying Affidavit sworn on 21st September, 2025, opposing the NTSC principally on grounds that it is misconceived, incompetent and bad in law. **3.** By its directions of 25th November, 2025, the Court directed that the NTSC be canvassed by way of written submissions. The Interested Party filed its submissions on 4th February, 2026, and the Estate filed its submissions dated 24th March, 2026, in support of the NTSC. The Court has carefully considered both sets of submissions, the Replying Affidavit and its annexures, and the record of these proceedings. **B. BACKGROUND** **4.** The deceased herein passed away on 7th July, 2002, while in the employment of the Interested Party. Upon his death, terminal dues and a group life policy benefit became payable, part through the Interested Party and part through ICEA LION Life Assurance. **5.** A Certificate of Confirmation of Grant was issued in these proceedings, listing terminal benefits due from the Interested Party and dues from ICEA LION Life Assurance as assets of the estate. **6.** It is common ground that, following escalation and eventual forwarding of the Confirmed Grant and payment details to the Interested Party on 29th August, 2025, the Interested Party remitted a sum of Kshs. 1,639,646.50, being the ICEA LION terminal benefit, to the firm of B.M Mung'ata & Company Advocates, then on record for the Estate. This is confirmed both in the Replying Affidavit and in correspondence exhibited as RO-1. **7.** The Estate maintains that a further and larger sum, Kshs. 6,379,760.00 inclusive of interest computed from 7th July, 2002, remains outstanding and unpaid, and that this failure justifies committal of Ms Ominde to civil jail. The Interested Party disputes owing any sum beyond what has already been remitted, and further disputes the propriety of the NTSC altogether. **8.** The Court notes, and takes judicial notice of its own record, that a substantially similar question, whether documents issued in this succession cause are enforceable against the Interested Party as against a non-party, was previously addressed by Muigai J. in a ruling on a contempt application arising from these very proceedings***: In re Estate of Isaac Kiilu Kilovia (Deceased) (Succession Cause No. 40 of 2003) [2022] eKLR***. That ruling held that the Certificate of Confirmation of Grant dated 5th December, 2016, and the order issued at Machakos on 14th February, 2016, did not constitute an enforceable or executable court order against a third party who was not a party to the proceedings. **C. ISSUES FOR DETERMINATION** **9.** Having considered the NTSC, the Replying Affidavit and the rival submissions, the following issues arise for determination: **(i) Whether this Court, sitting as a Probate Court, has jurisdiction to entertain and enforce a Notice to Show Cause for committal to civil jail as a mode of execution in a succession cause;** **(ii) Whether there exists a valid and executable decree or order of this Court, against the Interested Party or against Roseline Ominde personally, capable of grounding execution by way of committal;** **(iii) Whether Roseline Ominde, as an officer/employee of a limited liability company, may be committed to civil jail in execution of an alleged liability of the company;** **(iv)Whether interest is payable on the alleged sum, and if so, on what basis and from when; and** **(v) Whether, in any event, the issuance of a warrant of arrest is warranted in the circumstances of this case.** **D. ANALYSIS AND DETERMINATION** **(i) Jurisdiction to entertain committal to civil jail within a Probate Cause** **10.** The jurisdiction of this Court in succession matters is donated by *section 47 of the Law of Succession Act*, which empowers the High Court to entertain applications and determine disputes "under this Act" and to make such orders as may be expedient. It is now well settled that this jurisdiction is not open-ended, it is confined to matters contemplated under the Act: see ***In re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR.*** **11.** The procedural machinery of the Law of Succession Act is self-contained. *Rule 63 of the Probate and Administration Rules* imports into succession proceedings only specified provisions of the Civil Procedure Rules, namely Order 5 rules 2 to 34, and Orders 11, 16, 19, 26, 40, 45 and 50, together with the High Court (Practice and Procedure) Rules. Committal to civil jail is a mode of execution created by section 38 of the Civil Procedure Act and given effect through Order 22. of the Civil Procedure Rules. Order 22 is conspicuously absent from the list of provisions imported by Rule 63. **12.** This omission has been treated by the courts as deliberate rather than accidental, and as incapable of remedy by implication or judicial discretion. As the Court of Appeal held in ***Josephine Wambui Wanyoike v Margaret Wanjira Kamau & Another [2013] eKLR:*** ***“We hasten to add that the Law of Succession Act is a self-sufficient Act of Parliament with its own substantive law and rules of procedure. In the few instances where need to supplement the same has been identified, some specific rules have been directly imported into the Act through its Rule 63(1).”*** The consistent thread running through this authority is that succession proceedings are sui generis, and that only those civil procedure provisions expressly imported by Rule 63 may be availed of in aid of a succession cause. **13.** It follows, further, that the court's earlier holding ***in Re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR*** is instructive. Musyoka J held that: ***“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.”*** Accordingly, the probate jurisdiction is properly confined to the identification of the assets of the deceased, the ascertainment of beneficiaries, and distribution among them. Disputes between the estate and third parties who are neither survivors nor beneficiaries fall to be resolved through ordinary civil process, and it is only once such a dispute has been reduced to a decree or order of a civil court that the resulting decree may be brought before the probate court for implementation. **14.** The Interested Party is, on the material before the Court, neither a survivor of the deceased nor a beneficiary of the estate; it is, at best, a debtor alleged to hold funds due to the estate. Any dispute as to the existence, quantum or recoverability of such a debt is accordingly a matter for resolution outside the succession cause, through an ordinary civil suit in which the Interested Party may be properly sued, served, and afforded an opportunity to be heard on the merits of the claim against it. **15.** For these reasons, the Court finds that it lacks jurisdiction, sitting as a Probate Court in this succession cause, to entertain, determine or enforce a Notice to Show Cause for committal to civil jail as a mode of execution against the Interested Party or its officers. This finding alone is dispositive of the NTSC. The Court nonetheless proceeds to address the remaining issues, in the event this finding is found on appeal or review to be in error. **(ii) Existence of a valid and executable decree or order** **16.** Even were the Court to assume, without deciding, that it possessed jurisdiction to entertain the NTSC, execution, including committal to civil jail, it can only proceed upon a valid decree or order that conclusively determines the rights and obligations of the party sought to be bound. ***See section 2 and section 28 of the Civil Procedure Act; Order 21 rule 7 of the Civil Procedure Rules***. An executing court is bound by the decree as drawn and cannot go behind it, less still create fresh liability by inference. **17.** No decree or order of this Court has ever been entered against the Interested Party or against Roseline Ominde personally. Neither was a party to, cited in, or served in the substantive succession proceedings that culminated in the Certificate of Confirmation of Grant. This precise question was determined by Muigai J. in the 2022 ruling (supra), which held; **in proceedings arising from this same cause, that the Certificate of Confirmation of Grant and the order of 14th February, 2016 do not constitute an enforceable or executable order against a third party who was not a party to the proceedings**. That finding was not appealed and stands as the position of this Court on the point. **18.** In the absence of any subsequent decree quantifying and directing payment of a specific sum by the Interested Party, obtained, as it must be, in a properly constituted civil suit to which the Interested Party is a party, there is no instrument capable of execution by way of committal or otherwise. The NTSC is, on this ground too, incompetent. **(iii) Personal liability of Roseline Ominde** **19.** The Interested Party is a limited liability company, a legal person distinct from its directors, officers and employees: ***Salomon v Salomon & Co Ltd [1897] AC 22***. Absent a proper basis for lifting the corporate veil, which has not been pleaded or demonstrated here, liabilities of the company cannot, without more, be visited upon its officers in their personal capacity. **20.** Ms Ominde is here only in her capacity as Company Secretary. No material before the Court suggests that she personally holds, controls, or has withheld any funds due to the Estate, or that she has any mandate over the disbursement of the Interested Party's funds. To commit her to civil jail for an alleged corporate liability, without any finding for lifting the veil of incorporation, would offend the separate legal personality doctrine and would, in any event, be incompetent for want of a decree against her as found above. **(iv)Interest** **21.** The Estate contends that interest ought to run from 7th July, 2002, the date of the deceased's death, and be included in the sum said to be due. The Interested Party disputes this, pointing out, correctly, that the Certificate of Confirmation of Grant contains no order for payment of interest and does not direct payment of any specified sum within a prescribed period. **22.** A claim for interest, like the underlying principal claim, presupposes an adjudicated liability. There being no decree establishing the Interested Party's liability to the Estate in any sum, there is equally no foundation upon which interest can be said to have lawfully accrued or fallen due for enforcement in these proceedings. Nor has the Estate placed before the Court a reconciled computation showing how the disputed sum of Kshs. 6,379,760.00 was arrived at, particularly against the backdrop of the sum of Kshs. 1,639,646.50 already confirmed as remitted. These are matters properly resolved, if at all, in a civil suit where both figures, and the methodology behind them, can be tested on evidence. **23.** The claim for interest, as framed in the NTSC, is accordingly premature and cannot be sustained in these proceedings. **(v) Whether a warrant of arrest ought to issue** **24.** Committal to civil jail is a drastic measure of last resort, engaging the constitutional right to liberty under Article 29 as read with Article 24 of the Constitution. It is available, if at all, only after less intrusive modes of execution: see ***Beatrice Wanjiku & Another v Attorney General & Another [2012] eKLR*** where Majanja J held: ***“Arbitrary arrest and imprisonment degrades the human spirit, affects families and relationships. Arbitrary arrest and committal also infringes the right to security of the person protected under Article 29, the right to a fair trial protected under Article 50(1) and the right to movement under Article 39 of the Constitution.”*** **25.** No material has been placed before the Court to show that the Estate has pursued, still less exhausted, any other lawful mode of execution against the Interested Party before resorting to committal proceedings against its Company Secretary. On this ground alone, and independently of the jurisdictional and decree-based findings above, the application for a warrant of arrest is premature and disproportionate. **E. DISPOSITION** **26.** For the reasons set out above, the Court makes the following orders: (a) The Notice to Show Cause dated 24th July, 2025 be and is hereby found to be incompetent and is struck out, this Court lacking jurisdiction, sitting as a Probate Court, to entertain committal to civil jail as a mode of execution in this succession cause, and no valid decree or order existing against the Interested Party or against Roseline Ominde capable of execution. (b) Roseline Ominde is discharged forthwith from these proceedings, and no warrant of arrest shall issue against her. (c) For the avoidance of doubt, this ruling is confined to the propriety and enforceability of the Notice to Show Cause within this succession cause, and does not determine, one way or the other, whether any further sum is in fact due from the Interested Party to the Estate. Should the Estate consider that a sum remains outstanding beyond the Kshs. 1,639,646.50 already remitted, it is at liberty to pursue recovery of the same, together with any interest properly claimed, by way of a separate civil suit against the Interested Party, in which the disputed quantum and computation may be established on evidence. (d) Each party shall bear its own costs of the Notice to Show Cause. It is so ordered. **RULING DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 30TH DAY OF JULY 2026.** **E.N. MAINA** **JUDGE** IN THE PRESENCE OF: Mr. Simon Peter Advocate for the East African Portland /interested party No appearance for Administrator/Applicant