https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11363

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **SUCCESSION CAUSE NO. 989 OF 2011** **IN THE MATTER OF THE ESTATE OF WAMAYA WANDO OHOWA (DECEASED)** **MELENIA OCHOLA ONALA(DECEASED)……………………..…………….1ST PETITIONER** **ALPHONCE ODHIAMBO WAMAYA(DECEASED)………………………..2ND PETITIONER** **CLEMENT OGUTU WAMAYA(DECEASED)………………..……………….3RD PETITIONER** **VERSUS** **FRANCIS OHOWA OWANDO…………………………..…………OBJECTOR/APPLICANT** **AND** **TIMOTHY OHOWA OWANDO…………………….1ST INTERESTED PARTY/RESPONDENT** **PAUL OWINO ODHIAMBO……………………….2ND INTERESTED PARTY/RESPONDENT** **RULING** 1. The Notice of Chamber Summons dated 27th November 2025 is brought under Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. 2. The applicant, Francis Ohowa Owando, seeks principally orders restraining the Interested Parties, Timothy Ngesa Odhiambo and Paul Owino Odhiambo, whether by themselves, their servants, agents or persons claiming under them, from constructing, fencing, clearing, cultivating, demolishing structures upon or otherwise interfering with land parcels SOUTH/WANGA/BUNGASI/740 and SOUTH/WANGA/BUNGASI/877 pending the hearing and determination of the succession cause. 3. The application is supported by the affidavit of the applicant sworn on 27th November 2025. He deposes that he lodged an objection to the succession proceedings; 4. That the original petitioners have since died; 5. That the dispute over the estate remains unresolved; and 6. That despite the pendency of these proceedings, the Interested Parties have commenced clearing the land and are preparing to construct permanent buildings thereon. 7. He contends that unless restrained, the developments will fundamentally alter the character of the estate property and render the pending proceedings nugatory. 8. The application is premised on the ground that the estate ought to be preserved until the court determines the rights of the parties. **ISSUES FOR DETERMINATION** 1. The issue falling for determination is whether the applicant has established a proper basis for the grant of temporary injunctive orders pending the hearing and determination of the succession cause. **ANALYSIS AND DETERMINATION** 1. Although succession proceedings are governed principally by the Law of Succession Act and the Probate and Administration Rules, the High Court possesses inherent jurisdiction under Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules to issue preservatory orders where necessary to safeguard the estate of a deceased person. 2. The applicable principles governing interlocutory injunctions remain those set out in **Giella v Cassman Brown & Co. Ltd,** namely: 3. the applicant must establish a prima facie case with a probability of success; 4. the applicant must demonstrate that he stands to suffer irreparable injury incapable of compensation by an award of damages; and 5. where the court is in doubt, it should determine the matter on the balance of convenience. 6. These principles were reaffirmed and elaborated by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others, where the Court emphasized that the three conditions are sequential and not independent alternatives. 7. **Whether a prima facie case with a probability of success has been established** 8. The applicant is an objector in this succession cause. His objection has not been heard or determined. It is also not disputed from the material before the court that the original petitioners are deceased and the succession proceedings remain unresolved. 9. The applicant alleges that the Interested Parties have commenced clearing the suit properties in preparation for construction of permanent buildings. Such allegations have been made on oath. 10. At this interlocutory stage, the court is not required to determine ownership or beneficial entitlement to the estate. As stated **in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others,** a prima facie case is one which, on the material presented, demonstrates the existence of a right which has apparently been infringed so as to call for an explanation from the opposite party. 11. The applicant has demonstrated that there exists a live dispute concerning the administration and distribution of the estate. The court is satisfied that a prima facie case has been established. 12. **Whether the applicant stands to suffer irreparable injury incapable of compensation by an award of damages** 13. The subject properties form part of the estate whose ownership and distribution remain contested.Should permanent buildings be erected before the objection proceedings are concluded, the physical character of the estate would be substantially altered. 14. Such developments may complicate implementation of any eventual orders made by the court and may generate additional disputes over improvements undertaken during the pendency of the proceedings. 15. The Court of Appeal in **Nguruman Limited v Jan Bonde Nielsen & 2 Others** observed that preservation orders are intended to prevent injury that cannot adequately be remedied by damages. 16. In succession matters, the overriding objective is preservation of the estate pending lawful administration and distribution, assuming the court were in doubt, the balance of convenience clearly favors preservation of the estate in its present condition until the objection proceedings are heard. 17. In **Re Estate of Prisca Ong’ayo Nande (Deceased),** the High Court reiterated that the court bears a duty to preserve estate assets pending determination of disputes touching on entitlement. 18. Similarly, in **Re Estate of G.K.K. (Deceased)*,*** the court held that where succession proceedings remain pending, parties should refrain from acts capable of altering the estate to the prejudice of other beneficiaries or claimants. 19. The court finds that maintaining the status quo best serves the interests of justice. 20. The court is satisfied that the applicant has met the legal threshold for the grant of temporary preservatory orders. Accordingly, the Chamber Summons dated 27th November 2025 is allowed on the following terms: 21. Pending the hearing and determination of this succession cause, the Interested Parties, Timothy Ngesa Odhiambo and Paul Owino Odhiambo, whether by themselves, their servants, agents, relatives or any other persons acting under their authority, are hereby restrained from: 22. constructing any buildings, erecting fences; demolishing existing structures on land parcels SOUTH/WANGA/BUNGASI/740 and SOUTH/WANGA/BUNGASI/877. 23. The parties shall maintain the prevailing status quo on the two parcels of land until the objection proceedings are heard and determined or until further orders of the court. 24. Costs of the application shall abide the outcome of the succession cause. 25. Hearing for summons for revocation on 14.10.2026. It is so ordered. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA 27th DAY OF JULY, 2026.** **S.MBUNGI** **JUDGE** **In the presence of:-** **CA:** Velma/Zilda Opiyo for the Interested party present online.