https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10655

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAROK** **HIGH COURT FAMILY DIVISION PROBATE &** **ADMINISTRATIONCASE NO. E011 OF 2025** **IN THE MATTER OF THE ESTATE OF NAFTALI NDIRANGU KAARE (DECEASED)** **BETWEEN** **SIMON SIAMETO KAARE......................................................................1ST PETITIONER** **SAMUEL SUNDERE KAHARE..............................................................2ND PETITIONER** **PAUL KAHARE.........................................................................................3RD PETITIONER** **VERSUS** **GRACE NAISIA KAARE.............................................................................1ST OBJECTOR** **MERCY NAMUNYAK.................................................................................2ND OBJECTOR** **NAFTALI OLOIMUTIE..............................................................................3RD OBJECTOR** **RULING** **A. Background** 1. On 16th February 2026, this Court directed the Deputy Registrar, accompanied by counsel for the respective parties, to conduct a site visit to the estate property known as **CIS MARA/ENABELBEL-ENEN'ETIA/128** and file a report on the prevailing occupation, possession, and utilization of the property. 2. The purpose of the exercise was not to determine ownership or entitlement but to assist the Court in appreciating the factual position on the ground pending determination of this succession cause. 3. The Deputy Registrar conducted the site visit on 6th March 2026 in the presence of counsel, representatives of the parties, beneficiaries, local administration, and security officers and thereafter filed a comprehensive report. (Annexed with list of attendance). 4. The Court has carefully considered the report together with the observations made by the parties. **B. Nature of the Proceedings** 1. This is an intestate succession cause. 2. The substantive issues concerning identification of beneficiaries, their respective shares and distribution of the estate remain pending determination after hearing evidence. 3. The present ruling is therefore confined solely to preservation of the estate pending hearing of the cause. **C. Summary of the Deputy Registrar's Findings (annexed to this ruling).** 1. The report establishes that the estate land has, over time, been occupied by different beneficiaries and members of their respective families. 2. The Deputy Registrar identified approximately seven (7) distinct portions occupied by different households. 3. The report further establishes that: - ***a) several beneficiaries have permanent homesteads on the land;*** ***b) various portions have been cultivated over many years;*** ***c) numerous family graves are situated on different portions;*** ***d) there exist boreholes, forests, access roads, and other developments requiring preservation; and*** ***e) the current occupation has existed for a considerable period although the acreage claimed by some beneficiaries remains disputed.*** 1. Although differing views were expressed regarding the acreage that ought ultimately to devolve upon particular beneficiaries, there was substantial consensus regarding the persons presently occupying the various portions. 2. The Deputy Registrar's report therefore provides a reliable record of the status obtaining on the ground as of 6th March 2026. (See the report). **D. Issue for Determination** 1. The only issue for determination is whether the Court should preserve the prevailing occupation and condition of the estate pending hearing and determination of the succession cause. **E. Analysis** 1. The primary duty of a succession court pending confirmation of grant and final distribution is preservation of the estate for the benefit of all beneficiaries. 2. Sections 45, 47 and 83 of the Law of Succession Act, together with Rule 73 of the Probate and Administration Rules, vest this Court with wide powers to protect the estate from waste, intermeddling, alienation or acts capable of defeating the ends of justice. 3. Preservation orders are not intended to determine proprietary rights. Rather, they ensure that the estate remains intact until the Court has heard all parties and determined their respective entitlements. 4. The Deputy Registrar's report demonstrates that numerous beneficiaries have established homes, cultivated land, and buried relatives on various portions of the estate over many years. 5. Any attempt by one party to alter the present occupation before determination of the succession proceedings is likely to generate conflict, occasion prejudice to other beneficiaries and risk irreversible alteration of the estate. 6. The Court is therefore satisfied that preservation of the prevailing status quo is necessary in the interests of justice. **F. Orders** 1. Accordingly, the Court hereby orders as follows: ***i. The status quo obtaining on the ground as of 6th March 2026, as reflected in the Deputy Registrar's Report, shall be maintained pending the hearing and determination of this succession cause.*** ***ii. Every beneficiary or occupant shall remain in possession and occupation only of the portion presently occupied as reflected in the Deputy Registrar's Report.*** ***iii. No party shall enter upon, occupy, cultivate, fence, subdivide, allocate or extend occupation into any portion presently occupied by another beneficiary.*** ***iv. No party shall evict, threaten, intimidate, harass, or interfere with the peaceful occupation of any beneficiary presently residing on the estate.*** ***v. No party shall sell, transfer, lease, charge, gift, alienate or otherwise dispose of any part of the estate pending further orders of this Court.*** ***vi. No permanent structures shall be erected, no boundaries altered and no substantial developments undertaken capable of changing the present character of the estate.*** ***vii. Existing homes, cultivated areas, graves, boreholes, forests, access roads, and all developments identified in the Deputy Registrar's Report shall remain preserved.*** ***viii. Beneficiaries may continue harvesting crops already planted, provided such harvesting does not amount to expansion of occupation or interference with the rights of other beneficiaries.*** ***ix. The Deputy Registrar's Report dated 6th March 2026 shall constitute the reference document for purposes of determining the prevailing status quo.*** ***x. Any person found to have acted in breach of these orders shall be liable to contempt proceedings and such further sanctions as the Court may deem appropriate.*** 1. For the avoidance of doubt, these orders are purely preservatory and shall not be construed as determining ownership, beneficial entitlement, or the mode of distribution of the estate. 2. The substantive issues relating to confirmation of grant and distribution shall be determined after hearing all parties. **Disposition** 1. The status quo obtaining as of **6th March 2026** shall remain in force until the hearing and final determination of this succession cause or until further orders of this Court. **Orders accordingly.** **DATED, SIGNED AND DELIVERED AT NAROK THIS 10TH DAY OF JULY 2026.** **………………………………………** **CHARLES M. KARIUKI** **JUDGE**