https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10364

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI** **FAMILY DIVISION** **PROBATE & ADMINISTRATION CAUSE 094 OF 2017** ***IN THE MATTER OF THE ESTATE OF ELIZABETH WAIRIMU WAIYAKI (DECEASED)*** **LEWIS WILKINSON KIMANI WAIYAKI ........ 1ST PETITIONER/APPLICANT** **PETER GICHUHI WAIYAKI ....... 2ND PETITIONER/APPLICANT** **TIRAS BARAE WAIYAKI ...... 3RD PETITIONER/APPLICANT** **VERSUS** **EUNICE WAMAITHA WAIYAKI ......... RESPONDENT/CONTEMNOR** **AND** **JOHN NJENGA MANGA’RA ....... OBJECTOR** **RULING** 1. Before the Court is Notice of Motion Application dated 27 June 2025, filed by the surviving Executors of the Deceased. The Applicants seek the invocation of the Court’s coercive, equitable, and penal powers through a series of specific prayers. 2. The substantive reliefs sought by the Applicants are: 3. Spent; 4. That pending the hearing and determination of this Application, this Honourable Court be pleased to issue an Order restraining the Respondent, Eunice Wamaitha Waiyaki, and any person acting under her authority from further intermeddling and or in any other manner interfering with the Deceased’s Estate and the Administration and management thereof being carried out by the Executors of the Deceased’s Estate and allow the said administration of the estate to proceed to finality. 5. That the Honourable Court be pleased to issue a Notice to Show Cause against Eunice Wamaitha Waiyaki the Respondent/Contemnor to show cause why she should not be committed to serve 6 months imprisonment for disobeying the Orders of the Court issued on the 15th October 2020 by the Honourable Justice A. Aroni (as she then was). 6. That this Honourable Court be pleased to grant leave and order for the committal to civil jail Eunice Wamaitha Waiyaki to serve 6 months imprisonment for disobeying the Orders of the Court issued on 15th October 2020 by Honourable Justice A. Aroni. 7. That in addition to being committed to civil jail, the Respondent/Contemnor herein be ordered to pay a fine in her personal capacity. 8. That the Honourable Court be pleased to issue an Order directing the area Officer Commanding Station (OCS) to assist the Petitioners/Applicants in gaining immediate, peaceful and unhindered access to part of the Estate known as Dagoretti/Kinoo/2484 (Plot C) (Cemetery), and provide adequate security and protection against any threats, obstruction, or interference by the Respondent/Contemnor, her servants, agents, employees, and/or any other persons acting on her instructions. 9. That the costs of this application be in the cause. 10. The Application is substantively grounded upon the Supporting Affidavit of the 3rd Petitioner/Applicant, sworn on 27 June 2025, alongside various annexures marked "TBW-1" through "TBW-4". It is further buttressed by a Further Affidavit sworn by the same deponent on 13 March 2026, as well as written submissions. 11. The Application is fiercely resisted by the Respondent through a Replying Affidavit sworn on 26 February 2026, and written submissions. 12. The Objector/Interested Party indicated to the Court that he was not participating in the contempt Application and would not be filing any responses thereto. Consequently, the adversarial contest herein lies squarely between the surviving Executors and the Respondent. **Brief Background** 1. The Estate in question belonged to the late Elizabeth Wairimu Waiyaki, who passed away on 5 April 2014, leaving behind a written Will. She was the widow of Tiras Waiyaki Munyua, a patriarch who pre-deceased her in 1988. The patriarch and matriarch had 16 children during their lifetime. 2. The Respondent herein is the widow of Dr. Benjamin Githieya Waiyaki, a son of the Deceased who pre-deceased his mother in 1997. Following the death of the matriarch, a fierce familial dispute erupted concerning the distribution of the Estate. The primary genesis of the conflict was that the Will of the Deceased conspicuously excluded the estate of her late son, Dr. Benjamin Githieya Waiyaki, effectively disinheriting his widow (the Respondent) and her children from the residue of the properties that had allegedly been promised or gifted during the patriarch's lifetime. 3. This perceived historical injustice led to protracted objection proceedings that ultimately culminated in a landmark, authoritative Judgment delivered on 15 October 2020 by the Hon. Lady Justice A. Ali-Aroni (as she then was). In evaluating the provisions of the Will against Sections 26 and 27 of the Law of Succession Act, which empower the Court to make reasonable provision for dependents not adequately provided for, the learned Judge found that the Deceased had failed in her moral and legal duty to make reasonable provision for the estate of her late son. Consequently, the Court exercised its unfettered statutory discretion to interfere with the testamentary disposition to cure the manifest discrimination. 4. The October 2020 Judgment directed the Executors to provide for the Respondent and the estate of her late husband from the residue of the Estate. Crucially, the Court noted that the Respondent had been in continuous occupation and usage of Dagoretti/Kinoo/2484 (Plot C). However, because several members of the extended family were interred on that specific parcel (functioning as a family cemetery), the Court prudently declined to grant physical possessory exclusivity of that specific parcel to the Respondent. Instead, the Court expressly directed and ordered the Trustees to allocate an alternative property of similar size and value to her. 5. It is the Applicants' fundamental contention that despite the clarity of this Judgment, the Respondent has stubbornly remained in occupation of Plot C, desecrated the ancestral graves, and forcefully locked the Executors out, thereby necessitating the present contempt, injunction, and eviction proceedings. Conversely, the Respondent contends that the Executors have blatantly failed to comply with the 2020 Judgment by failing to identify, survey, or provide the ordered alternative land, and that she cannot be held in contempt for remaining in her long-standing residence until the Executors fulfil their corresponding judicial mandate. **The Applicants’ Case** 1. The Applicants assert that the Respondent has wilfully, contumaciously, and maliciously disobeyed the 15 October 2020 Judgment. 2. First, on the issue of defiance of Court Orders, the Applicants submit that the Judgment explicitly preserved Plot C as a family cemetery and purposefully declined to allocate it to the Respondent. By continuing to occupy the parcel, denying the Executors access, and asserting dominion over the land, the Respondent is deliberately defying the authority of the Court and obstructing the lawful administration of the Estate. The Applicants argue that such conduct undermines the dignity of the judiciary and warrants the imposition of custodial sanctions. 3. Second, the Applicants allege severe intermeddling contrary to Section 45 of the Law of Succession Act. They argue that under Section 45, no person shall take possession of, dispose of, or intermeddle with the free property of a deceased person without express legal authorization or a grant of representation. They allege the Respondent has deployed unknown, hostile agents to fence off the cemetery, denied the Executors access, and engaged in the desecration of the ancestral graves. To substantiate this severe claim, the Applicants annexed photographic evidence alongside a Certificate of Electronic Evidence sworn by Tiras Victor Waiyaki pursuant to Sections 78A and 106B of the Evidence Act. 4. Third, regarding the standard of proof in contempt proceedings, the Applicants rely on the foundational precedents of ***Mutitika v. Baharini Farm Limited* KLR 227** and ***Shimmers Plaza Ltd v. National Bank of Kenya Ltd* eKLR.** They submit that while the standard of proof in civil contempt proceedings is higher than a mere balance of probabilities, the Respondent’s deliberate and uninterrupted occupation of the cemetery—an act she admits to in her own affidavits—easily meets this threshold. They urge the Court to find that her conduct was not a mistake, but a conscious disregard of the rule of law. **The Respondent’s Rebuttal** 1. The Respondent vehemently opposes the Application, characterizing it as a legally untenable, procedurally defective, and malicious abuse of the court process. 2. First, the Respondent asserts the absence of a clear, unambiguous, and coercive restraining order. She submits that the Judgment did not contain any injunctive order commanding her to vacate Plot C immediately. Rather, the Judgment placed a mandatory, reciprocal obligation on the Executors to allocate her an alternative property of similar size and value from the residue of the Estate. She contends that because the Executors have completely failed to provide this alternative land, there is no clear order capable of being disobeyed. She emphasizes that one cannot be jailed for failing to perform an action that is entirely conditional upon the prior performance of the Applicants. 3. Second, the Respondent defends her occupation by highlighting her pre-existing, lawful entry onto the land. She avers that her occupation of the subject property dates back to the year 1985, when her late husband, Dr. Benjamin Githieya Waiyaki, was settled there by the patriarch of the family during his lifetime. Her possession is, therefore, long-standing, open, and significantly predates the probate proceedings and the filing of this succession cause. Consequently, she asserts that her continued, peaceful occupation of her matrimonial home, pending the allocation of the alternative land, cannot be legally construed as criminal "intermeddling" under Section 45 of the Act. 4. Third, the Respondent raises a critical preliminary issue regarding the *locus standi* of the surviving Executors. She points out that the Grant of Probate was originally issued jointly to the Applicants. Following the death of Lewis Wilkinson Kimani Waiyaki, the Respondent argues that the surviving Administrators lack the capacity to institute these proceedings until a new Grant is issued or the existing Grant is formally confirmed by the Court. 5. Finally, the Respondent invokes the equitable doctrine of abuse of process. She highlights that the Applicants have filed multiple, successive applications to avoid their primary statutory duty of confirming the Grant and distributing the Estate. Relying on the Court of Appeal decision in ***Muchanga Investments Limited v. Safaris Unlimited (Africa) Limited & 2 Others* eKLR,** she argues that the coercive powers of the Court should not be invoked to reward the Applicants' own non-compliance with the 2020 Judgment. **Analysis & Determination** 1. The Court formulates the following core issues for substantive determination: 2. Whether the surviving Applicants possess the requisite *locus standi* and legal capacity to institute and prosecute the present Application following the demise of a co-Executor. 3. Whether the legal and evidentiary threshold for contempt of court has been established to warrant the committal of the Respondent to civil jail. 4. Whether the Respondent’s continued occupation of the subject property constitutes unlawful "intermeddling" within the strict ambit of Section 45 of the Law of Succession Act. 5. Whether the Application constitutes an abuse of the court process. The *Locus Standi* Conundrum 1. The Respondent has forcefully argued as a preliminary point of law that the demise of the 1st Petitioner rendered the joint Grant of Probate inoperative. Consequently, she contends that the surviving Administrators (the 2nd and 3rd Applicants) are stripped of the *locus standi* to move the Court and cannot prosecute applications until a fresh Grant is issued or a substitution is made. 2. This argument invites the Court to examine the statutory framework governing the survivorship of personal representatives under succession law. The resolution of this issue lies squarely within the four corners of Section 81 of the Act which expressly addresses the devolution of powers upon the death of a co-administrator. 3. Section 81 of the Act provides in clear, mandatory terms: *Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them: Provided that, where there has been a grant of letters of administration which involve any continuing trust, a sole surviving administrator who is not a trust corporation shall have no power to do any act or thing in respect of such trust until the court has made a further grant to one or more persons jointly with him.* 1. The jurisprudence emanating from the superior courts provides unequivocal clarity on the interpretation and application of this section. In the authoritative case of ***Re Estate of George Ragui Karanja (Deceased)* eKLR**, the Court astutely observed that while the Act does not expressly provide a mechanism for the substitution of personal representatives who die in office, Section 81 operates as an automatic statutory mechanism to vest the powers and duties of the deceased representative in the survivor or survivors. 2. Similarly, in [***In re Estate of Elijah Okitah Mikah Tsimbwele (Deceased) [2021] KEHC 6642 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2021/6642/eng%402021-05-28)the Court reaffirmed that the powers and duties of personal representatives rest seamlessly and without interruption in the surviving representative upon the death of one of them. Furthermore, in ***In re Estate of Jairo Elloga Akibaya (Deceased)* KEHC 797 (KLR)**, the Court underscored the mandatory nature of Section 81 due to the use of the word "shall", noting that the remaining administration of the deceased's estate is automatically regulated by the surviving administrators. 3. Applying these robust legal principles to the facts at hand, it is undisputed that the Grant was initially issued jointly to three individuals. The unfortunate death of the 1st Applicant does not vitiate, invalidate, or suspend the Grant, nor does it paralyse the administration of the Estate. By the direct operation of Section 81 of the Act, all the powers and duties of administration automatically devolved to and vested in the 2nd and 3rd Applicants. 4. The proviso to Section 81, which requires the appointment of an additional co-administrator in cases involving a continuing trust, applies strictly and exclusively to a sole surviving administrator. In the present cause, there are two surviving Administrators. Hence, the limiting proviso is entirely inapplicable. 5. Consequently, the Court finds that the 2nd and 3rd Applicants are fully clothed with the requisite *locus standi* and statutory capacity to institute this Application, protect the assets of the Estate, and proceed with the administration. The Respondent’s preliminary objection challenging their capacity is fundamentally misconceived, devoid of legal merit, and is hereby dismissed. Contempt of Court 1. The gravamen of the Applicants' Motion is the prayer for the committal of the Respondent to civil jail for six months, alongside the imposition of personal fines, for her alleged contempt of the Judgment delivered on 15 October 2020 by Lady Justice A. Ali-Aroni. 2. Contempt of court is a profound, drastic, and quasi-criminal invocation of the Court's inherent and statutory powers. Historically grounded in Section 5(1) of the Judicature Act, the power to punish for contempt is essential for the maintenance of the rule of law, the preservation of judicial authority, and the effective administration of justice. As articulated by the Court of Appeal in ***Shimmers Plaza Limited v. National Bank of Kenya Limited* eKLR**, it is the plain and unqualified obligation of every person against whom an order is made to obey it unless and until that order is discharged or varied by a competent court. 3. It is important to note that following the nullification of the Contempt of Court Act in ***Kenya Human Rights Commission v Attorney General & Another* eKLR,** the courts reverted to the robust common law principles and the procedural frameworks anchored in Section 5 of the Judicature Act, which aligns the High Court's powers with those possessed by the High Court of Justice in England. 4. However, because contempt proceedings inherently threaten the fundamental right to liberty enshrined in Article 39 of The Constitution, and implicate the right to a fair trial under Article 50, the law demands strict adherence to stringent procedural and substantive safeguards. Our jurisprudence has settled the essential elements that must be proved before a party can be committed for civil contempt, resulting in the deprivation of their freedom. 5. The standard of proof in contempt proceedings occupies a unique space in evidentiary law. It transcends the traditional civil standard of a "balance of probabilities" but does not entirely reach the strict criminal standard of "beyond reasonable doubt." 6. The Supreme Court, in the *locus classicus* of ***Republic v. Ahmad Abolfathi Mohammed & Another* eKLR** (and subsequent iterations in 2019), conclusively settled this debate by adopting the formulation established by the Court of Appeal in ***Mutitika v. Baharini Farm Limited* KLR 227.** The Supreme Court held: *"In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt... The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi-criminal in nature."* 1. Thus, the Applicants bear an exceptionally heavy evidentiary burden. They must demonstrate the Respondent's culpability to a standard that leaves no lingering, reasonable doubt as to her deliberate and wilful defiance of a specific judicial command. 2. As elucidated in ***Republic v Attorney General & another Exparte Mike Maina Kamau* [2020] eKLR**, citing authoritative commonwealth treatises on contempt, four essential elements must be established to the required high standard: 3. The terms of the order (or injunction) must be clear, unambiguous, and binding on the defendant. 4. The defendant must have knowledge or proper notice of the terms of the order. 5. The defendant must have acted in breach of the terms of the order. 6. The defendant's conduct must be deliberate and willful. 7. The Court must rigorously evaluate the Applicants' evidence against these four parameters. 8. The primary inquiry is whether the 2020 Judgment contained a clear, unambiguous, and coercive order directed specifically at the Respondent, commanding her to vacate Plot C. Contempt cannot be founded on vague, implied, or conditional directives. 9. A careful perusal of the 2020 Judgment reveals the following exact wording: *"As for Dagoretti/Kinoo/2484(Plot C) (Cemetery), since several members of the extended family have been interred on the said land and despite Eunice's usage of the same the Court declines to grant the same and in its place directs and orders the Trustees to allocate from the Residue a property similar in size and value as Dagoretti/Kinoo/2484(Plot C) to the estate of Dr. Benjamin Githeiya Waiyaki."* 1. This judicial pronouncement is fundamentally a declaratory and distributive order made pursuant to Sections 26 and 27 of the Act. It adjusts the shares of the beneficiaries and imposes a mandatory, positive obligation on the Executors/Trustees to allocate alternative land to the Respondent. 2. It is a well-established tenet of law that a declaratory order merely proclaims the existence of a legal relationship or rights; it inherently lacks coercive force and is, therefore, incapable of being enforced via committal for contempt. In ***Rose Wangui Karuga v. Kenya Railways Corporation* eKLR,** the Court of Appeal affirmed that an order which is declaratory in nature, and which does not grant a specific, quantified, coercive directive (such as an express order of eviction or a mandatory injunction to vacate within a specified timeframe), cannot form the basis of a contempt conviction. 3. The 2020 Judgment order the Respondent to vacate Plot C within 30 days. It merely stated that the Court "declines to grant the same" and simultaneously "directs and orders the Trustees to allocate... a property similar in size and value." 4. The legal implication is profound: the coercive command of the Court was directed entirely at the Applicants (the Trustees), compelling them to provide alternative land. The judgment created a reciprocal dynamic where the Respondent’s ultimate departure from Plot C was inextricably linked to, and predicated upon, the Executors fulfilling their mandate to survey, excise, and allocate the alternative property. 5. The Applicants cannot isolate the Court’s refusal to award Plot C to the Respondent from the simultaneous, interconnected order directing the Applicants to provide a substitute property. A court order must be read holistically. Because the order lacked an express, unambiguous, and unconditional command directed at the Respondent to vacate immediately, the foundational element of a clear and unambiguous coercive order is glaringly absent. Contempt cannot be inferred or implied; it must be explicit. 6. Even if the Court were to stretch the bounds of jurisprudence and assume that a duty to vacate was impliedly embedded in the Judgment, the Applicants must still prove that the breach was deliberate and *mala fides*. They must show that the Respondent had no lawful justification or bona fide belief in her actions. 7. The Respondent has deposed, unequivocally, that she is willing to vacate Plot C as soon as the Applicants comply with the Judgment and allocate the alternative property. The Applicants have not annexed any evidence whatsoever demonstrating that they have identified, formally offered, or transferred the alternative property from the residue of the Estate to the Respondent. 8. It offends the principles of equity, logic, and the structural architecture of the 2020 Judgment for the Applicants to seek the imprisonment of the Respondent for failing to vacate a property when they themselves remain in continuous, unabashed breach of the very same Judgment by failing to provide the substitute land. The Respondent's continued occupation, pending the fulfillment of the Executors' reciprocal obligations, is a protective measure of her socio-economic rights and completely lacks the contumacious, malicious intent required to secure a conviction for civil contempt. 9. The Applicants have failed to surmount the high standard of proof required. Consequently, the prayer for the committal of the Respondent to civil jail fails entirely and is dismissed. Intermeddling under Section 45 of the Act 1. In tandem with the contempt allegations, the Applicants assert that the Respondent’s continued occupation of Plot C, alongside alleged acts of denying access and desecrating graves, constitutes unlawful intermeddling with the free property of the Deceased. The Applicants seek an injunction to restrain this conduct and an order for police assistance to gain entry. 2. Section 45(1) of the Law of Succession Act provides: *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. Section 45(2) establishes that intermeddling is a strict liability criminal offence punishable by a fine not exceeding Kshs 10,000/=, imprisonment for a term not exceeding one year, or both, and renders the intermeddler answerable to the rightful executor for the dissipated assets. 2. The jurisprudential architecture surrounding intermeddling requires careful dissection. The overarching legislative intent of Section 45 is to protect the estate of a deceased person from wastage, plunder, unauthorized alienation, and dissipation by unauthorized persons before the formal confirmation of a grant and the lawful distribution of assets. 3. In defining the parameters of intermeddling, courts have generally required proof of an active, unauthorized interference that diminishes or risks the estate. As held in ***Re Estate of Nom Okaro Muluka (Deceased)* eKLR**, acts such as unilaterally subdividing land, constructing new buildings, forcefully collecting rent, or selling estate assets without the consent of administrators constitute clear acts of intermeddling. Similarly, in ***M'Mwongera v M'mungania* KEHC 15950 (KLR)**, the Court noted that continued unauthorized occupation that hinders administrators from exercising their powers to turn the estate to account can amount to intermeddling. 4. However, the Court must draw a sharp, equitable distinction between the malicious dissipation of estate assets by a stranger or a rogue beneficiary, and the peaceful, continued occupation of a pre-existing residence by a recognized dependent or widow. 5. The evidentiary record before this Court reveals that the Respondent did not forcefully take possession of Plot C following the demise of the matriarch in 2014. She has been in continuous, open occupation of the property since 1985, having been settled there alongside her late husband, Dr. Benjamin Githieya Waiyaki, during the lifetime of the patriarch. The Judgment explicitly acknowledged and legitimized her long-standing usage of the property over the decades. 6. The continued occupation of family land by a widow who was lawfully placed there decades prior to the succession dispute does not crystallize into the criminal offence of intermeddling under Section 45 of the Act simply because the registered owner passes away. To hold otherwise would lead to the absurd, draconian, and unconstitutional conclusion that every dependent or widow residing in a deceased parent's or spouse's home automatically becomes a criminal intermeddler upon the owner's death, subject to immediate eviction and imprisonment. 7. The law does not countenance such an interpretation. The application of Section 45 must be harmonized with the constitutional imperatives under Article 43 and Article 45. A widow's continued occupation of her long-standing home, pending lawful distribution or the provision of court-ordered alternative accommodation, is a protective holding mechanism, not an act of intermeddling. The Applicants cannot use Section 45 to effect an eviction that the 2020 Judgment explicitly tied to the provision of alternative land. 8. The Applicants attempt to elevate their intermeddling claim by asserting that the Respondent has desecrated the cemetery, locked out the Executors, and deployed hostile individuals. While the wanton destruction of estate property or the desecration of a family graveyard would undoubtedly constitute an actionable wrong and a severe act of intermeddling, the evidentiary threshold for such quasi-criminal claims remains unmet. 9. The Applicants annexed photographs labelled "TBW-2" and "TBW-3", accompanied by a Certificate of Electronic Evidence marked "TBW-4", to allege destruction. However, the Respondent fiercely denies these allegations, asserting under oath that only one person was buried there in 1971 and that she has not undertaken any new construction, alienation, or desecration. 10. In civil litigation where quasi-criminal allegations such as intermeddling and contempt are raised, the Court cannot rely solely on contested, uncorroborated photographic evidence appended to an Affidavit. Without the benefit of oral testimony, cross-examination, an independent police report, or a judicial site visit, the Court cannot conclusively establish that desecration has occurred. The standard of proof remains elevated, and the Applicants have failed to discharge the burden of proving that the Respondent is actively wasting, alienating, or destroying the Estate. 11. Therefore, the Court declines to classify the Respondent’s passive, continued occupation of her long-standing residence—pending the Applicants' provision of alternative land—as unlawful intermeddling under Section 45 of the Act. The prayer for restraining orders and police assistance is accordingly declined. Abuse of Court Process 1. The final dimension of this dispute necessitates an evaluation of the Applicants' conduct through the lens of equity and the integrity of the judicial process. 2. The concept of "abuse of court process" was eloquently defined and crystallized by the Court of Appeal in ***Muchanga Investments Limited v. Safaris Unlimited (Africa) Limited & 2 Others* eKLR. T**he appellate Court observed that an abuse of process occurs when a party improperly uses the judicial machinery to achieve ends foreign to the administration of justice, or uses the process to the irritation, vexation, and annoyance of their opponent, thereby undermining the efficient and effective administration of justice. 3. The factual matrix before this Court reveals a deeply troubling asymmetry. The Applicants hold the privileged, fiduciary position of Executors. The Judgment placed a clear, unequivocal, and mandatory burden upon them: to allocate the Respondent an alternative property of similar size and value to Plot C from the residue of the Estate. 4. Nearly five years have elapsed since the Court delivered that Judgment. There is no iota of evidence on record to suggest that the Applicants have taken any substantive, *bona fide* steps to comply with that directive. They have not presented this Court with a subdivision plan, a valuation report, a draft deed of transfer, or any correspondence indicating that an alternative parcel from the extensive residue of the Estate has been identified and is ready for the Respondent's occupation. 5. Instead of executing their primary fiduciary duty and finalizing the confirmation of the Grant, the Applicants have elected to file a draconian application seeking the imprisonment of the widow and her forceful eviction via police assistance. This strategic manoeuvring represents a classic, textbook manifestation of an abuse of the court process. The Applicants are effectively seeking to weaponize the coercive jurisdiction of this Court to secure the Respondent's eviction from Plot C, while simultaneously and blatantly evading their reciprocal legal obligation to resettle her as ordered by the very same Court. 6. The jurisdiction of the court in succession matters is inherently equitable. It is a foundational, unshakeable maxim of equity that "he who comes to equity must come with clean hands," and "he who seeks equity must do equity." The Applicants' hands are undeniably soiled by their persistent, unexplained failure to comply with the Judgment. 7. This Court will not permit its penal processes—specifically the severe mechanism of civil committal and police-assisted evictions—to be utilized as instruments of harassment, or as a shield for Executors who are in continuous dereliction of their own judicially mandated duties. The prayer for an order directing the Officer Commanding Station (OCS) to assist the Applicants in gaining access to the property is, in essence, a disguised prayer for the eviction of the Respondent. Granting such an order without the simultaneous provision of the alternative land would occasion a severe miscarriage of justice, violate the Respondent's constitutional right to dignity, and render the protective provisions of the 2020 Judgment entirely nugatory. 8. The proper and lawful trajectory for the Applicants is conspicuously clear: they must diligently execute the directives of the Judgment. They must identify, value, and officially allocate the alternative parcel of land to the estate of Dr. Benjamin Githieya Waiyaki. Once that alternative property is legally and practically availed to the Respondent, the Respondent will be legally obligated to vacate Plot C. Should she refuse to vacate after the alternative land has been provided, the Applicants would then possess a legitimate, legally sound foundation to seek her eviction. Until that condition precedent is fulfilled, the present Application remains premature, oppressive, and entirely unmerited. 9. In the premises, and for the comprehensive reasons elucidated above, the Court makes the following final orders: 10. The Notice of Motion Application dated 27 June 2025 is found to be unmerited, premature, and an abuse of the court process and is hereby dismissed in its entirety. 11. The Applicants/Executors are hereby directed to strictly comply with the terms of the Judgment delivered on 15 October 2020 by identifying, valuing, and allocating to the Respondent the ordered alternative property of similar size and value from the residue of the Estate without further delay. 12. The costs of this Application shall be borne by the Applicants/Executors, payable to the Respondent. **DATED AND DELIVERED AT NAIROBI THIS 10 DAY OF JULY 2026** **HELENE R. NAMISI** **JUDGE OF THE HIGH COURT** Delivered on virtual platform in the presence of: Court Assistant: Lucy Mwangi