https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12485

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **SUCCESSION CAUSE NO. 247 OF 2014** **IN THE MATTER OF THE ESTATE OF KIMELO OLE KUYONI (DECEASED)** **BETWEEN** **JANE CHEROTICH TUM…**……………………………………$.1^{ST}$**PETITIONER/ APPLICANT** **CHRISPHER KIPKEMBO TIROP**………………………………………………$.2^{ND}$**PETITIONER** **VERSUS** **SALLY JEMASUND…**………………………………………………….**OBJECTOR /RESPONDENT** **RULING** **Introduction** 1. Before this Court is the Notice of Motion dated 6th July 2026, brought under Sections 45 and 47 of the Law of Succession Act, Rule 73 of the Probate and Administration Rules and all other enabling provisions of the law. The Applicant seeks preservatory orders in respect of Land Parcel No. Plateau/Chepkongony Block 6 (Rotunga)/59 pending the hearing and determination of the summons for revocation of grant pending before this Court. 2. The application is founded on the grounds set out on its face and the supporting affidavit sworn by the Applicant. In summary, the Applicant contends that the suit property forms part of the estate of the deceased and that notwithstanding the pendency of the summons for revocation of grant, the Respondent has embarked on construction and other developments thereon. It is the Applicant's case that unless the Court intervenes, the continued developments may substantially alter the subject matter of the dispute and thereby prejudice the effective determination of the pending proceedings. 1. The application is opposed through a replying affidavit sworn by the Respondent. The Respondent maintains that she is the registered proprietor of Land Parcel No. Plateau/Chepkongony Block 6 (Rotunga)/59, having acquired title on 25th November 1992, long before the deceased passed away. She therefore contends that the parcel does not form part of the deceased's estate and that this Court, sitting as a succession court, lacks jurisdiction to determine contested questions of ownership in the present proceedings. On that basis, she urges the Court to dismiss the application. 2. The parties subsequently filed written submissions, together with the authorities upon which they respectively rely. The Court has carefully considered the application, the affidavits on record, the rival submissions and the applicable law. **The Application** 1. The Applicant seeks orders principally aimed at preserving the suit property pending the determination of the summons for revocation of grant. The gravamen of the application is that ongoing construction upon the disputed parcel risks materially altering the subject matter of the dispute before the Court has had the opportunity to determine whether the property properly forms part of the deceased's estate. 2. The Applicant further contends that the continued developments, if left unchecked, may complicate or even defeat the effective implementation of the Court's eventual determination should the summons for revocation ultimately succeed. It is therefore urged that the interests of justice demand the intervention of the Court through appropriate preservatory orders pending the conclusion of the substantive proceedings. **The Response** 1. The Respondent opposes the application on the basis that the suit property is her private property, having been registered in her name since 25th November 1992. She maintains that the parcel was never included among the assets of the deceased's estate in the succession proceedings and therefore cannot properly be subjected to preservatory orders issued in a probate cause. 2. It is further the Respondent's case that the application improperly invites the Court to determine contested questions of ownership, a jurisdiction which, according to the Respondent, falls outside the mandate of the succession court. Reliance is placed principally upon ***In re Estate of Mbai Wainaina (Deceased)*** in support of that proposition. **The Parties' Submissions** 1. Learned counsel for the Applicant submitted that the impugned parcel is the subject of the pending summons for revocation of grant and that the Respondent's ongoing construction threatens to fundamentally alter the property before the Court determines whether it forms part of the estate. 2. Counsel argued that Sections 45 and 47 of the Law of Succession Act, read together with Rule 73 of the Probate and Administration Rules, empower this Court to issue preservatory orders whenever necessary to safeguard the subject matter of succession proceedings and to ensure that its eventual decision is not rendered nugatory. 3. On her part, learned counsel for the Respondent reiterated that the Respondent's title predates the deceased's death by several decades and submitted that the probate court lacks jurisdiction to determine disputed questions of ownership within succession proceedings. 4. Counsel further argued that the Applicant has failed to satisfy the principles governing interlocutory relief and that the orders sought would effectively amount to an indirect determination of ownership before the hearing of the substantive summons. Reliance was placed, inter alia, on ***In re Estate of Mbai Wainaina (Deceased)*.** **Issue for Determination** 1. Having carefully considered the application, the response thereto, the rival submissions and the authorities cited, the Court is of the respectful view that only one issue falls for determination, namely: Whether this Court should grant preservatory orders over Land Parcel No. Plateau/Chepkongony Block 6 (Rotunga)/59 pending the hearing and determination of the partly-heard summons for revocation of grant. **Analysis and Determination** 1. I have carefully considered the application, the affidavits on record, the rival submissions and the authorities cited by learned counsel. At the outset, it is necessary to define the scope of the present application. The Court is not presently called upon to determine whether **Land Parcel No. Plateau/Chepkongony Block 6 (Rotunga)/59** forms part of the estate of the deceased or whether the Respondent's title thereto is valid or impeachable. Those are substantive questions that fall for determination in the pending summons for revocation of grant, which have already proceeded substantially and remain part-heard. The Court's mandate at this interlocutory stage is therefore considerably narrower. It is confined to determining whether the circumstances disclosed justify the grant of preservatory orders pending the final determination of those proceedings. 2. The jurisdiction of this Court to grant preservatory orders in succession proceedings is derived principally from **Sections 45 and 47 of the Law of Succession Act**, read together with **Rule 73 of the Probate and Administration Rules**. Section 45 prohibits intermeddling with the free property of a deceased person except as authorized by law, while Section 47 vests this Court with jurisdiction to entertain and determine disputes arising under the Act and to pronounce such decrees and make such orders as may be expedient. Rule 73 further preserves the Court's inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. These provisions collectively clothe the Court with ample jurisdiction to preserve the subject matter of succession proceedings whenever the interests of justice so demand. 3. The Court's power to preserve the subject matter of succession proceedings is not exercised to determine proprietary rights in advance, but to ensure that the judicial process remains effective. Where property that is the subject of pending litigation is alleged to be undergoing substantial alteration, the Court is entitled, in an appropriate case, to intervene so that its eventual determination is not rendered illusory or incapable of practical implementation. Such intervention is an exercise of judicial restraint rather than judicial overreach, for it merely maintains the status quo until the parties' rights are conclusively determined. 4. The importance of preserving the integrity of succession proceedings has long been recognised by our courts. In **Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & Another**, the Court underscored the supervisory role of the succession court in ensuring the orderly administration of estates in accordance with the Law of Succession Act. Similarly, in **Trouistik Union International & Another v Jane Mbeyu & Another**, the Court of Appeal affirmed the broad jurisdiction conferred upon the High Court under the Act to make such orders as are necessary for the proper administration of estates and the attainment of justice. Those principles underscore that the succession court is not a passive observer but is vested with sufficient authority to protect the integrity of proceedings before it whenever circumstances so require. 5. The Respondent has urged this Court to decline the invitation to grant the orders sought on the basis that she has been the registered proprietor of the suit property since **25th November 1992** and that questions of ownership fall outside the jurisdiction of the probate court. Reliance was placed principally upon ***In re Estate of Mbai Wainaina (Deceased)*.** I respectfully agree with the proposition that a succession court ought not to conclusively determine contested questions of ownership within interlocutory proceedings. That principle accords with the limited nature of interlocutory jurisdiction and the need to avoid prejudging substantive disputes. However, the present application does not invite the Court to pronounce itself upon the validity of the Respondent's title or to determine whether the suit property ultimately forms part of the deceased's estate. Rather, it seeks preservation of property that is already the subject of active judicial inquiry in the pending summons for revocation of grant. The authority relied upon by the Respondent is therefore distinguishable, for the Court is not being asked to determine ownership but merely to preserve the subject matter pending that determination. 1. Against that legal backdrop, one feature of this matter assumes particular significance. It is common ground that the summons for revocation of grant have already proceeded to hearing and remain **part-heard**, several witnesses having testified before this Court. The dispute concerning the status of **Land Parcel No. Plateau/Chepkongony Block 6 (Rotunga)/59** is therefore no longer hypothetical or speculative; it forms part of the substantive issues awaiting the Court's final determination. To make any definitive pronouncement regarding ownership at this interlocutory stage would inevitably trespass into matters reserved for the final judgment and would risk prejudging evidence that is yet to be fully received and evaluated. 2. Judicial restraint therefore demands that the Court confines itself to the issue properly before it. The question is not whether the Applicant has established that the property belongs to the estate, nor whether the Respondent has demonstrated an indefeasible title. Those are matters that remain squarely for determination in the summons for revocation of grant. The sole question is whether the property should be preserved in its present state so that the Court's eventual determination, whichever way it may ultimately fall, remains effective and capable of practical implementation. 3. Applying the foregoing principles to the present application, the Court observes that the Applicant has placed before it material alleging that the Respondent has commenced construction and other developments on the disputed parcel during the pendency of the summons for revocation of grant. The Respondent does not dispute that developments are ongoing but maintains that they are being undertaken on her own property by virtue of her registered title. These competing positions underscore the very dispute that awaits determination in the substantive proceedings and reinforce the need for the Court to exercise caution in expressing any concluded opinion on the parties' respective proprietary claims. 4. The Court is alive to the Respondent's contention that she has been the registered proprietor of the suit property since **25th November 1992**. Equally, the Court has considered the Applicant's assertion that notwithstanding that registration, the parcel properly forms part of the deceased's estate and ought to be available for distribution. At this interlocutory stage, the Court neither accepts nor rejects either position. To do so would amount to determining, albeit indirectly, issues that are reserved for the hearing and final determination of the pending summons for revocation of grant. 5. The purpose of preservatory relief is not to confer an advantage upon one party or to deprive the other of proprietary rights before those rights have been adjudicated. Rather, it is to ensure that the subject matter of litigation remains substantially intact so that the Court's eventual decision is capable of meaningful implementation. Preservation is therefore directed at protecting the integrity of the judicial process itself. It neither validates nor impeaches title; it merely maintains the status quo until the dispute is finally resolved. 6. Although the Respondent invited the Court to apply the principles governing interlocutory injunctions under ordinary civil litigation, I take the view that those principles, while instructive, do not constitute the primary source of the Court's jurisdiction in the present matter. This application arises within succession proceedings, and the Court's jurisdiction is principally founded upon Sections 45 and 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. Decisions such as **Giella v Cassman Brown & Co. Ltd** and **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others** are therefore of persuasive assistance only, particularly on the underlying rationale for preserving the subject matter pending adjudication, but they do not displace the statutory powers conferred upon the succession court. 7. The Court must also bear in mind that the summons for revocation of grant have already proceeded substantially, with several witnesses having testified. The judicial process has therefore moved well beyond the preliminary stage. If, during the pendency of those proceedings, the character of the disputed property is materially altered through continued construction, alienation or other permanent developments, the Court's eventual determination may be rendered difficult to implement or may generate further litigation regarding restoration or enforcement. The Court is entitled to forestall such a situation by ensuring that the property remains substantially in its present condition until the substantive dispute is finally resolved. 8. Ultimately, the Court is required to strike a careful balance between two competing considerations. On the one hand is the Respondent's assertion of registered ownership over the suit property; on the other is the Applicant's contention that the parcel forms part of the deceased's estate, an issue that is already the subject of pending judicial inquiry. Justice is best served by preserving the property in its present state until those competing claims are finally adjudicated. Such an order neither confers an advantage upon either party nor prejudges the outcome of the summons for revocation. It merely safeguards the subject matter so that the Court's eventual decision, whichever way it may ultimately fall, is not rendered ineffectual. 9. I am therefore satisfied that this is an appropriate case for the exercise of this Court's preservatory jurisdiction. The orders to be granted should, however, be carefully tailored to preserve the status quo only. They should not be construed as a declaration that **Land Parcel No. Plateau/Chepkongony Block 6 (Rotunga)/59** forms part of the estate of the deceased, nor as an impeachment of the Respondent's title or a determination of any proprietary rights. Those questions remain entirely open and shall be determined solely upon the conclusion of the hearing of the summons for revocation of grant. **Disposition** 1. Having carefully considered the Notice of Motion dated **6th July 2026**, the affidavits on record, the rival submissions, the applicable statutory provisions and the authorities cited, I am satisfied that the present application is confined to the preservation of the subject matter pending the hearing and determination of the partly-heard summons for revocation of grant. 2. The Court has deliberately refrained from making any definitive pronouncement on whether **Land Parcel No. Plateau/Chepkongony Block 6 (Rotunga)/59** forms part of the estate of the deceased or on the validity of the Respondent's title thereto. Those issues fall squarely for determination upon the conclusion of the pending summons for revocation of grant after all the evidence has been received and evaluated. 3. In the circumstances of this case, the interests of justice are best served by preserving the suit property in its present state pending the determination of the substantive dispute. Such preservation neither confers proprietary rights upon the Applicant nor derogates from the Respondent's claim of ownership. It merely safeguards the subject matter of the litigation so that the Court's eventual determination is not rendered ineffectual by events occurring during the pendency of the proceedings. 4. Consequently, I find merit in the application to the limited extent necessary to preserve the subject matter pending the hearing and determination of the summons for revocation of grant. **Orders** 1. Accordingly, the Court makes the following orders: 2. Pending the hearing and final determination of the part-heard summons for revocation of grant, or until further orders of this Court, the Respondent, whether by herself, her servants, agents or any person acting under her authority, shall not undertake or permit any further construction, development, excavation, alienation, transfer, subdivision, charging, leasing, disposal or any other activity that would materially alter the current state of Land Parcel No. Plateau/Chepkongony Block 6 (Rotunga)/59. 3. For the avoidance of doubt, the orders issued herein are purely preservatory in nature and shall not be construed as determining ownership of the suit property, impeaching the Respondent's title or resolving any issue raised in the pending summons for revocation of grant. 4. The preservatory orders issued herein shall remain in force pending the hearing and final determination of the part-heard summons for revocation of grant, or until further orders of this Court. 5. Costs of the Notice of Motion dated 6th July 2026 shall abide the outcome of the summons for revocation of grant. It is so ordered. **Dated, signed and delivered virtually at Eldoret this 29th day of July 2026.** **……………………………………** **J. CHIGITI (SC)** **JUDGE**