https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9632

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **MISC. SUCCESSION CAUSE NO. 599 OF 2012** **IN THE MATTER OF THE ESTATE OF ROBERT MBOGORI RUTERE – DECEASED** **JULIA GACERU M’BAGINE………………………..APPLICANT/PETITIONER** **VERSUS** **JUSTUS MWORIA…….……………..…..……1ST PROTESTOR/RESPONDENT** **RUTH KAROGOTO RUTERE……………..…2ND PROTESTOR/RESPONDENT** **RULING** 1. For determination is the summons dated 31/7/2023 under **Section 130 (d) of the Registered Land Act (Repealed) and Sections 1A, 1B, 3A & 3B of the Civil Procedure Act**, seeking that: 1. **Spent.** 2. **Caution lodged and registered on the 21st May, 2017 over parcel No. NYAKI/GIAKI-KIBURINE/45 be removed.** 3. **This Honourable court do issue such further or better orders as will meet the ends of justice.** 4. **Costs of this application be borne by the Respondent.** 2. The application is premised on the grounds that the Respondents’ protest was dismissed on 16/8/2016 and the grant confirmed on 10/4/2017. On 14/6/2023, the Land Registrar wrote to the 2nd Respondent to remove the caution lodged on the estate property, to no avail. 3. The 1st Respondent swore an Affidavit on 28/6/2024 in opposition to the application. He lamented that while their protest was dismissed, they were still in disagreement with the Court’s Ruling. According to him, the deceased herein held the land in trust for him, and he was desirous of filing a suit before the Environment and Land Court to claim his share through advance possession. He prayed for the dismissal of the application to avert any eviction and/or irreparable damage. 4. She denied any collusion with the 2nd Respondent and maintained that they were all entitled to an equal share of the estate. 5. The 4th Applicant swore a replying affidavit on 24/9/2025 in opposition to the application. They sought, and were granted orders transferring the primary cause from Meru C.M.’s court to this court, plus an inhibition, to preserve all the subject parcels of land herein, pending hearing and determination of the main Succession Cause No. 14/2023. What is pending for hearing and determination in that cause is their summons for revocation of the grant so that we can be provided for as daughters of the deceased. In her view, the subsisting inhibition order has not served the purpose for which it was granted as averred, and they were neither parties in Meru E.L.C. No. 44/2019 nor the two subsequent applications filed in the Court of Appeal. The issue of the inheritance of the suit property is still pending and cannot be said to have been concluded by the E.L.C. court as alleged or at all. At the moment, it is Mr. Mwirigi, Advocate, who farms on half of that land, and that is why he is pushing to alienate it before the summons for revocation of the grant is heard, to defeat their interest therein. 1. Mr. Carlpeters Mbaabu, the Applicants’ Advocate, equally swore a Replying Affidavit on 24/9/2025. 2. The 1st Respondent swore a Supplementary Affidavit on 15/10/2025 in support of the application. 3. The 4th Applicant swore a further affidavit on 14/11/2025 in opposition to the application. 4. The application was canvassed by way of written submissions, which were duly filed by Counsel. **Disposition** 1. Having considered the application, the responses thereto and the submissions filed together with the authorities relied on, I find the singular issue for determination to be whether the inhibition subsisting on L.R No. Nyaki/Kithoka/1674 should be lifted and/or vacated. 2. The undisputed facts herein are that the Environment and Land Court in its judgment dated 25/1/2023 found that the suit property did not form part of the estate of the deceased as it was owned exclusively by the Respondents. That decision still stands as the 2nd Respondent unsuccessfully tried to appeal against it to the Court of Appeal. 1. It is trite law that this court lacks the jurisdiction to set aside, review and/or vary a decision of a Court of competent concurrent jurisdiction. 1. In ***Republic v Chengo & 2 others [2017] KESC 15 (KLR)***, cited by the 1st Respondent, the Supreme Court held that; ***“It is against the above background, that article 162 (1) categorises the ELC and ELRC among the superior Courts and it may be inferred, then, that the drafters of the Constitution intended to delineate the roles of ELC and ELRC, for the purpose of achieving specialization, and conferring equality of the status of the High Court and the new category of Courts. Concurring with this view, the learned Judges of the Court of Appeal in the present matter observed that both the specialised Courts are of “equal rank and none has the jurisdiction to superintend, supervise, direct, shepherd and/or review the mistake, real or perceived, of the other”. Thus, a decision of the ELC or the ELRC cannot be the subject of appeal to the High Court; and none of these courts is subject to supervision or direction from another. In their words: “By being of equal status, the High Court therefore does not have the jurisdiction to superintend, supervise, direct, guide, shepherd and/or review the mistakes, real or perceived,*** ***of the ELRC and ELC administratively or judiciously as was the case in the past. The converse equally applies. At the end of the day however, ELRC and ELC are not the High Court and vice versa. However, it needs to be emphasized that status is not the same thing as jurisdiction. The Constitution though does not define the word ‘status’. The intentions of the framers of the Constitution in that regard are obvious given the choice of...words they used; that the three Courts (High Court, ELRC and ELC) are of the same juridical hierarchy and therefore are of equal footing and standing. To us it simply means that the ELRC and ELC exercise the same powers as the High Court in performance of its judicial function, in its specialised jurisdiction but they are not the High Court.”*** 1. I find that the inhibition placed on the suit property constitutes an impediment to the Respondents’ enjoyment of the fruits of their lawful judgment, and the same ought to be lifted. 2. I note that the suit property was inadvertently included among the assets due for distribution to the beneficiaries, yet it did not form part of the estate of the deceased. 3. Consequently, I find that the application dated 20/1/2025 is merited and it is hereby allowed in its entirety. 4. The certificate of confirmation of grant dated 30/3/2025 is hereby rectified to reflect the said changes. **DATED AND DELIVERED AT MERU THIS 6TH DAY OF JULY, 2026.** **S.M. GITHINJI –JUDGE** **6/7/2026** **In the Presence of:-** **Mr. Otieno C for the Applicant** **Applicant also present.** **Respondents are absent.**