https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7030

In re Estate of Gershom Muguheli Manani (Deceased) (Succession Cause 671 of 2010) [2026] KEHC 7030 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEHC 7030 (KLR) Republic of Kenya In the High Court at Kakamega Succession Cause 671 of 2010 S Mbungi, J May 19, 2026 IN THE MATTER OF THE ESTATE OF GERISHOM MUGUHELI MANANI (DECEASED) Between Ericah Azenga Muguheri Petitioner and Mable Musinzi Lumula Objector Ruling 1.The Applicant filed a Notice of Motion application dated 5th December 2025 seeking the following orders;a.This honourable court be pleased to restrain the petitioner/ Respondent from alienating and further sub-dividing original land parcel L.R Kakamega/Soy/361b.That further to the orders of this honourable court issued on 20/02/2019 and directed to the land Registrar Kakamega County.c.That the Land registrar Kakamega County while cancelling all titles from arising from sub-division of the original land parcel L.R Kakamega /361 as per the orders of the court issued on 20/03/2019 be allowed to dispense with the surrender and or production of originals title deeds to be cancelled.d.That upon cancelation of all title deeds that arose from the partition of land parcel L.R Kakamega /Soy 361 as per (1) above the County Surveyor- Kakamega be authorized to equally amend the map in respect of land parcel L.R Kakamega/Soy/361 be cancelling of all parties that arose from sub-division and or partition of original land parcel LR Kakamega/Soy/361. 2.The application was supported by the affidavit of the applicant who avers that the succession cause was finalised on 22/04/2015 and while the Respondent was dissatisfied with the ruling filed an appeal in Kisumu civil appeal no 196 of 2019 which was dismissed. 3.She claimed that she had filed the orders issued on 20/02/2019 with the land registrar of both vihiga and kakamega while the registrar Vihiga complied with the court order and transferred the land parcel North/Margoli/Kisaturi/824 to the applicant to hold in trust for Hope Mbaiza and Lily Mirembe, the Land Registrar Kakamega has not complied to cancel the titles as the objector had failed to surrender the original title deeds for the cancellation process to be complete. 4.According to the Applicant, the Respondent who instigated the process of illegal transfer has failed to cooperate and hand over the title to be cancelled hence rendering the court orders dated 20/02/2019 unable to effected. 5.They pray that the court mandate the county surveyor amend the relevant map in order to align with the orders issued by the court same to the surveyor- kakamega to amend LR Kakamega/Soy 361 to be in tandem with the court orders issued on 20/02/2019. 6.In her reply to the application, the respondent filed a replying affidavit dated 21st January 2026 stated that the estate being litigated upon was her deceased husband and the applicant was her son’s wife who had since remarried 7.She claimed that she was willing to transfer the 5 acres to the applicant to hold in trust for her two children and that she had raised the surveyor’s fee which the applicant refused to pay for and has remained uncooperative. 8.She blamed the Applicant for the delay in completing the transfer process to enable the sub division process to be completed. She further avers that the applicant lacks loci as the said minors are now all grown up and are adults who can pursue the case themselves and that they should pay for the cost of the survey to enable the transfer the five acres out of the original title Kakamega/Soy/361 9.The respondent filed a notice of preliminary objection dated 21st January 2026 seeking that the application be struck out. 10.In her submission dated 11th March 2026, the Respondent filed 5 issues for determination. 11.On the first ground, she averred that the Applicant had instituted the suit on behalf of her t wo minor children Hope Mbaiza and Lily Mirembe and according to the grant confirmed on 22 April 2015, the Applicant was to hold it in trust for the two minors who are now adults and are able to continue with the process. She avers that the applicant lacked legal capacity to bring the proceedings. 12.On the second ground on non- joinder of the title renders the application fatally defective. She claimed that the titles to the land are held by proprietors who are not parties to the proceedings and were not served with the applications and that they needed to be provided with audience before this court otherwise the application would be a nullity 13.On the third ground, she stated that the court issued an order for the survey and transfer of the 5 acres of land however, that the applicant refused to contribute her share hence she was the one who frustrated the transfer process and quoted the case of National bank of Kenya Limited vs. Pipe plastic Samkolit limited & another (2001) eKLR 14.On the fourth ground, they claim that the applicant’s counsel Naomi Mwangi lacked the legal capacity to represent her as they had not filed a proper notice of change of advocates as they had been represented by Chitwah & co. advocates before filing the impugned applications. They aver that the application dated 5th December 2025 is therefore irregular and a nullity 15.On the fifth and final ground, the claim that the application is a gross abuse of the as the applicant seeks the applicant to reopen issues already litigated upon and an abuse of the court orders since it was hr who had not meet their share of the survey costs as directed by the court on 12th June 2025. They relied on the case of Muchanga Investments Limited vs. Safari unlimited Africa & 2 others (2009). 16.They quoted the principal of Res Judicata stating that substantive issues had already been litigated and determined by court in 2019 and affirmed by court of appeal on 31st March 2023. 17.In conclusion, they submit that the Applicant lacked locus standi, further that the non-joinder of the registered proprietors of the title sought to be cancelled is fatal and insurable defect going to the jurisdiction of the court to grant the relief sought. 18.They pray that the application be dismissed for lack of merit and an abuse of the court’s process. Analysis and Determination 19.I have looked at the applications, the parties’ affidavit and submissions and find the following issues for determination;a)Whether the Applicant has/lacks locus standi to institute this applicationb)Whether the application is incompetent for non-joinder of third interested parties being the title holders.c)Whether the application is res judicatae)Whether the Applicant is entitled to the reliefs sought. 20.On the first issue for determination of whether the Applicant lacks locus standi, it was the respondent/ petitioners argument that the Applicant had instituted the succession proceedings on behalf of her two children who were minors at the beginning but have now attained the age of majority and as such they have the capacity to sue on their own behalf. 21.However, this court takes note that the Applicant was recognized in the confirmed grant on 20/02/2019 as trustee for the two minors who were the beneficiaries. 22.It is not in contention that the beneficiaries have already become adults however this does not automatically extinguish the Applicant’s obligation or authority in respect of implementation of the confirmed grant unless discharged by the court. 23.Further, it is my understanding that the current application seeks to enforcement and implementation of existing court orders issued on 20/02/2019. Such an application may properly be brought by a party to the proceedings affected by non-compliance with the court orders. 24.I hereby find that the Applicant has given this court sufficient standing to move the court. 25.On whether the non – joinder of the alleged title holders is fatal. the Respondent submitted that cancellation of the resultant titles cannot issue in the absence of the registered proprietors. According the Respondent, the titles sought to be cancelled or transferred to the Applicant are held by 3rd parties who have ownership of the original parcel. According to the law, cancellation of titles, especially where fraud or irregularity is alleged generally requires that affected parties be joined to afford an opportunity to be heard as title cancellation affects their proprietary rights 26.While this court agrees that the 3rd parties are likely to be adversely affected ought ordinarily to be heard, the present proceedings arise from implementation of orders already issued by this court regarding redistribution of the estate property.Where a prior court order specifically required cancellation or transfer and was served or filed with the relevant Land Registrar, the court may order the Registrar to comply and, where necessary, direct joinder, notice, or give directions to secure due process for affected proprietors. 27.It is my view that the Respondent has not demonstrated that the said title holders acquired interests independent of the succession proceedings or that the subdivisions were undertaken outside implementation of the grant. The court further notes that the application is primarily directed at implementation of prior orders already issued by this court sitting as a succession court. 28.In this matter, given the history of non-compliance with the court orders issued on 212/02/2019, this Court finds the objection not fatal but directs that any cancellation process afford notice to affected 3rd parties. 29.On whether the application is res judicata and whether the court is functus officio 30.The Respondent contends that the issues herein were conclusively determined on 12/02/ 2019 and affirmed by the Court of Appeal. The current application seeks enforcement and facilitation of those orders, not re-litigation. It is not barred by res judicata under Section 7 of the Civil Procedure Act as alluded to by the Respondent. The Respondent’s reliance on Muchanga Investments Limited vs. Safaris Unlimited (2009) is misplaced, as that case involved fresh claims on issues previously adjudicated. Here, the Applicant seeks implementation and enforcement of the orders. 31.The court is therefore not being invited to sit on appeal over its earlier decision but to facilitate execution of its orders that had been issued earlier on by this court. 32.In re Estate of Yawaya Shitanda Nyatati (Deceased) [2022] KEHC 11430 (KLR), the court held that where administration of the estate has not been completed and accounts have not been rendered, the probate court is not functus officio and may intervene to ensure implementation of the grant. 33.Similarly, in Re Estate of M’ikunyua M’murithi (Deceased) [2023] KEHC 26332 (KLR), the court held that pendency of an appeal does not operate as a stay of execution unless stay orders are granted and the court retains jurisdiction to facilitate implementation of its judgment. 34.I am therefore not persuaded that the present application is barred by res judicata or that this court is functus officio. 35.The respondent has raised claims that the Applicant counsel was unprocedural and that all the documents drawn by her ought to be null and void and thus the application should be struck out. It is my view that this is a procedural technicality. Any irregularity can be cured by filing the proper notice if not already done. It does not render the entire application a nullity. 36.On whether the Applicant is entitled to the reliefs sought 37.The evidence before court demonstrates that implementation of the confirmed grant issued on 12/02/2019 has been stalled and delayed due to failure to surrender original title deeds for cancellation. The Respondent has admitted existence of the court orders and her willingness to transfer the five acres though she blames the Applicant for delay in payment of survey fees. 38.The court notes that the Respondent has not denied existence of the titles sought to be cancelled nor disputed the validity of the orders issued on 20/02/2019. 39.This court cannot permit a party to frustrate implementation of lawful court orders through refusal to surrender title documents. The ends of justice demand that the estate be distributed in accordance with the confirmed grant and prior orders of the court. 40.Nevertheless, the issue of survey costs appears contested and the court notes that implementation of the subdivision process requires cooperation of both parties. The parties are therefore obligated to cooperate fully in facilitating the survey and transfer process. 41.In conclusion this court makes the following orders;a)The Respondent, whether by herself, agents or servants, is hereby restrained from alienating, charging, transferring or further subdividing land parcel No. Kakamega/Soy/361 pending full implementation of the confirmed grant and orders of this court.b)The Land Registrar, Kakamega County, is hereby authorized to implement the orders issued on 20/02/2019 and to cancel all titles arising from subdivision of land parcel No. Kakamega/Soy/361 notwithstanding non-production and/or non-surrender of the original title deeds.c)The County Surveyor, Kakamega County, is hereby authorized to rectify and amend the registry maps and records relating to parcel No. Kakamega/Soy/361 so as to conform with the orders of this court issued on 20/02/2019.d)The Officer Commanding Station (OCS) of the relevant police station shall provide security and assistance during implementation if necessary.e)Mention 15.10.2026 for further directions.f)This being a family dispute, each party shall bear their own costs.g)Right of Appeal 30 days. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 19TH DAY OF MAY, 2026.S.N. MBUNGIJUDGEIn the presence of:-CA: Zilda/VelmaAbsence of the Applicant, though Mr. Douglas Chule, son to Petitioner present and says the Applicant is sick, sitting outside, he will inform her.