https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7558

In re Estate of Anthony Timothy Mariano (Deceased) (Succession Cause 500 of 2017) [2026] KEHC 7558 (KLR) (Family) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7558 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 500 of 2017 HK Chemitei, J June 4, 2026 IN THE MATTER OF THE ESTATE OF ANTHONY TIMOTHY MARIANO (DECEASED) Between Morsel Hijrat Executor and Maria Szabanowicz Mariano Objector Ruling 1.This ruling relates to the application dated 23rd October, 2025 filed by the Applicant, Maria Szabanowicz Mariano, seeking for orders that:1.Spent.2.Pending hearing and determination of this Application the Court issues orders to the land registrar to register restriction order preventing the Executor from leasing, charging, transferring, selling Flat No. 10 erected on Land Reference No. 1870/V/241; I.R Murati Apartments Nairobi (“the Flat”) and/or in any manner howsoever dealing with the Flat pending filing, hearing and determination of formal application for confirmation of the sealed Grant.3.The Court hereby orders that the land registrar to register restriction order preventing the Executor from leasing, charging, transferring, selling Flat no. 10 erected on Land Reference no. 1870/V/241; I.R Murati Apartments Nairobi (“the Flat”) and/or in any manner howsoever dealing with the Flat pending filing, hearing and determination of formal application for confirmation of the sealed Grant.4.The Court hereby orders that the conveyance, transmission and/or transfer carried out by the Land Registrar on 19th May, 2025 in respect to Flat no. 10 erected on Land Reference no. 1870/V/241; I.R Murati Apartments Nairobi (“the Flat”) allegedly issued pursuant to the sealed grant be revoked and nullified by the Land Registrar and the matter to proceed for filing, hearing and determination of formal application for confirmation of grant.5.The Respondent to bear the costs of the Application. 2.The application is based on the grounds thereof and supported by affidavit sworn by Maria Szabanowicz Mariano on 23rd October, 2025. She avers inter alia that she is the deceased’s widow. She explains that on 6th October, 2023, the high Court delivered a ruling dismissing her application seeking revocation of the resealed grant that had been issued in favour of Morsel Hijrat, the Executor of the deceased’s estate. 3.According to her, following delivery of that ruling, the Executor failed to file a formal application for confirmation of the resealed grant despite the Court having specifically identified Flat No. 10 erected on L.R. No. 1870/V/241, I.R. Murati Apartments, Nairobi as property forming part of the estate. 4.She further deposes that on 10th July, 2025, the Court of Appeal granted her leave to appeal against the ruling and that at the time she was in occupation, possession and control of the flat. She avers that on 19th May, 2025, while the succession proceedings remained pending and before any application for confirmation of grant had been heard and determined, the Executor allegedly procured the conveyance, transmission and transfer of the flat into his own name. She contends that the transfer was undertaken with the intention of evicting her from the premises, dispossessing her of her occupation and extinguishing the rights and interests she claims over the property as a spouse of the deceased. 5.In her view, the transfer amounted to an unlawful attempt to defeat her proprietary and occupational interests while the matter remained unresolved before the Court. She further states that the ruling of 6th October, 2023 did not determine the merits of her claim or uphold the resealed grant. Rather, the Court only found that it lacked jurisdiction to revoke a foreign grant and advised that any challenge to the grant should be pursued in the country where it was originally issued. 6.Consequently, she maintains that her right to challenge the grant remains alive and that she has already obtained leave to appeal the decision. She argues that unless restrained, the Executor, whom she describes as a foreign national without any fixed abode in Kenya, may proceed to lease, charge, transfer or otherwise dispose of the flat, thereby rendering both the pending proceedings and her appeal nugatory. 7.She asserts that she stands to suffer irreparable loss if protective orders are not granted because she has been residing in and exercising possession and control over the property as the deceased’s spouse. She argues that any further conveyance, transfer or dealing with the property would violate her constitutional and proprietary rights. She therefore urges the Court to preserve the property pending the filing and determination of an application for confirmation of grant. 8.She also contends that the Executor improperly obtained registration of the flat in his name despite the succession proceedings remaining active and the matter having been reserved for further directions by the Court. In support of her position, she annexes several documents. These include a lease dated 25th November, 1997 relating to Flat No. 10 on L.R. No. 1870/V/241, Murati Apartments, Nairobi, showing the proprietary interest attached to the apartment and the terms governing occupation and ownership of the unit. 9.She also annexes entries from the title documents indicating a transmission of the property to Morsel Hijrat as Executor of the estate pursuant to the probate proceedings, as well as the ruling delivered by Hon. Lady Justice Maureen Odero on 6th October, 2023, which struck out her application for revocation of the foreign grant on jurisdictional grounds. 10.Further annexures include the resealing documents issued by the High Court in July 2017 concerning the Dutch grant of probate and a Notice of Appeal lodged after she obtained leave to challenge the ruling before the Court of Appeal. These annexures are relied upon to demonstrate that the property forms part of the deceased’s estate, that the transfer into the Executor’s name has already taken place and that appellate proceedings concerning the grant are currently underway. 11.Accordingly, she urges the Court to issue urgent preservatory orders, including registration of restrictions against the title, suspension of any further dealings with the flat and revocation of the conveyance and transmission allegedly effected on 19th May, 2025, pending the filing, hearing and determination of a formal application for confirmation of grant and the resolution of the pending appellate process. 12.The application is opposed vide grounds of opposition filed by Morsel Hijrat and the same dated 17th November, 2025; on both procedural and substantive grounds. He contends that the pleading filed as a “Summons” under Section 47 of the Law of Succession Act is unknown to law and is therefore fatally defective. He further argues that the application is frivolous, vexatious and constitutes an abuse of the Court process. 13.According to the Respondent, there is no legal requirement under the Law of Succession Act or the Probate and Administration Rules for a resealed foreign grant to undergo confirmation proceedings, rendering the foundation of the Applicant’s application legally unsustainable. 14.He further maintains that the substantive orders sought concerning Flat No. 10 on L.R. No. 1870/V/241, Murati Apartments, Nairobi are barred by the doctrine of res judicata. He relies on the judgment of the Environment and Land Court in Mariano v Hijarat (Sued as the Administrator of the Estate of Anthony Timothy Mariano) & 3 Others (ELC No. 151 of 2013) delivered on 29th February, 2024, where the Court extensively considered the Applicant’s claims to the property and dismissed them. 15.He asserts that the ELC conclusively determined that the Applicant had failed to establish any proprietary, matrimonial or beneficial interest in the flat and therefore cannot reopen the same dispute through succession proceedings. 16.In the annexed judgment, the Environment and Land Court examined the Applicant’s claim that she was the deceased’s wife and that the flat constituted matrimonial property acquired through their joint efforts. The Applicant testified that she married the deceased in 2000, contributed to the purchase of the property, maintained the household, financed travel and medical expenses and resided with him as husband and wife. Several witnesses corroborated her account of the relationship. 17.However, the Court found significant irregularities in the marriage certificate relied upon by the Applicant, including the absence of requisite signatures and unexplained delays in its issuance. The Court consequently questioned the authenticity and validity of the alleged marriage and declined to invoke the doctrine of presumption of marriage. 18.The ELC further found that the Applicant had failed to prove her alleged financial contribution to the acquisition of the property. While she claimed to have paid the deposit from savings and employment benefits, she produced no documentary evidence to support those assertions. The only evidence tendered consisted of service charge receipts amounting to a relatively small sum compared to the purchase price of the apartment. The Court held that such evidence was insufficient to establish either ownership, contribution or a resulting trust in her favour. 19.Having found that the existence of a valid marriage had not been proved and that contribution towards acquisition of the property had not been demonstrated, the Court concluded that the flat was not matrimonial property and dismissed the suit in its entirety. 20.The Respondent also argues that this succession Court lacks jurisdiction to direct the Land Registrar to revoke or annul a conveyance of land as sought in the application. He contends that such relief falls outside the jurisdiction of the probate Court and is properly within the province of the Environment and Land Court. 21.In addition, he accuses the Applicant of forum shopping, pointing out that she has already filed a similar application before the Court of Appeal in COACAPPL/E640/2025, seeking substantially the same preservatory orders concerning the property. On those grounds, the Respondent urges the Court to dismiss the application with costs in the cause. 22.The annexures attached to the Grounds of Opposition further include copies of the resealed grant issued by the High Court in July 2017, notices relating to the resealing proceedings, extracts from the Kenya Gazette showing publication of the resealing application, the Dutch Certificate of Inheritance, the deceased’s death certificate, the deceased’s will and related inheritance documents from the Netherlands. These documents are relied upon to demonstrate that the deceased left a valid will, that the grant was lawfully issued and resealed and that Morsel Hijrat was duly recognized as the beneficiary and Executor of the estate under Dutch succession law. 23.The applicant has filed written submissions dated 18th November, 2025. She reiterates that her application seeks preservatory orders over Flat No. 10 on L.R. No. 1870/V/241, Murati Apartments, Nairobi, including a restriction against any leasing, charging, transfer or sale of the property pending the filing and determination of an application for confirmation of the resealed grant. 24.She further seeks the revocation of the conveyance and transmission allegedly effected on 19th May, 2025, contending that the transfer was undertaken without lawful authority and before the estate had undergone proper succession processes. The Applicant submits that the factual matters raised in her supporting affidavit remain largely uncontested because the Respondent did not file a replying affidavit. 25.She maintains that her longstanding relationship with the deceased, her adoption of his surname, their joint medical arrangements and her acquisition of an American visa as the deceased’s spouse all demonstrate the existence of a marital relationship. She argues that the Environment and Land Court decision relied upon by the Respondent is not conclusive because an appeal has already been lodged against that judgment. 26.She further notes that even within that judgment, the Court acknowledged that she had established some contribution towards the acquisition and maintenance of the property. She submits that the earlier succession ruling delivered on 6th October, 2023 did not determine the merits of the dispute concerning the estate or the Applicant’s entitlement. Instead, the Court merely declined jurisdiction to revoke a foreign grant and did not pronounce itself on the substantive rights of the parties. 27.Consequently, the Applicant argues that the issues surrounding the property and her entitlement remain unresolved and are still capable of determination by the Court. She emphasizes that succession law is not confined to spouses and biological children but extends protection to dependants who can demonstrate that they were maintained by the deceased during his lifetime. 28.According to the Applicant, the confirmation process is intended to identify the rightful beneficiaries and determine how estate assets should devolve. The Applicant further contends that the deceased’s Will does not specifically mention the disputed apartment and therefore succession to that property ought not to proceed solely on the basis of the resealed grant. She argues that the Respondent never sought confirmation of the grant and has not demonstrated how the property was bequeathed to him. 29.In her view, any transfer undertaken without confirmation of grant and without a clear judicial determination regarding the property amounts to intermeddling with the estate. She relies on provisions of the Land Registration Act and the Land Registration (General) Regulations, which require production of a grant and a certificate of confirmation before a personal representative may lawfully transfer immovable property to a beneficiary. 30.She therefore submits that the transmission effected in favour of the Respondent was unlawful and should be revoked. The Applicant also challenges the legal efficacy of the Dutch grant that was resealed in Kenya. She argues that the Netherlands is not among the countries designated under the Foreign Judgments (Reciprocal Enforcement) Act, and therefore judgments or grants originating from that jurisdiction cannot automatically be enforced in Kenya. 31.She submits that a resealed foreign grant must still comply with Kenyan succession procedures before it can affect Kenyan property rights. In her view, the resealed grant cannot operate as a final determination of ownership or entitlement to land situated in Kenya. She relies on Sections 77 and 78 of the Law of Succession Act and Rule 42 of the Probate and Administration Rules to argue that resealing is merely a procedural recognition of a foreign grant and does not dispense with subsequent succession processes affecting Kenyan assets. 32.The Applicant further submits that confirmation proceedings apply equally to resealed grants because Kenyan Courts must ascertain the assets available for distribution and determine the beneficiaries entitled to them. She argues that the disputed apartment was omitted from the foreign testamentary documents and therefore cannot lawfully pass to the Respondent without scrutiny by the Kenyan Court. 33.She also invokes Sections 26 and 29 of the Law of Succession Act, contending that the Court has power to make reasonable provision for dependants who were not adequately provided for under a will. According to her, dependency is not restricted to legal spouses and children but may extend to any person who was maintained by the deceased immediately before death. 34.Relying on the Matrimonial Property Act, the Applicant argues that the apartment constitutes matrimonial property acquired during the subsistence of her relationship with the deceased. She submits that both monetary and non-monetary contributions are recognized by law and include companionship, management of the home, domestic work and support to the family. 35.She contends that she made substantial contributions to the acquisition, maintenance and development of the property and that the law presumes property acquired in the name of one spouse during marriage to be held for the benefit of both spouses. 36.Consequently, she argues that the apartment is not available for distribution as part of the deceased’s estate until her proprietary interests are first determined. 37.Finally, the Applicant submits that the balance of probabilities favours preservation of the property pending determination of the outstanding succession issues. She points out that she has remained in occupation and possession of the apartment for many years, that the deceased publicly treated her as his spouse and that no Court has ever ordered her eviction. 38.She argues that the Respondent made no contribution to the acquisition or development of the property and that allowing the transfer to stand would unjustly deprive her of rights accrued through her relationship with the deceased. On that basis, she urges the Court to grant the orders sought and preserve the property until the issues of dependency, matrimonial interest and distribution of the estate are fully determined. 39.The respondent has not filed written submissions. Analysis And Determination 40.I have read the application, the grounds of opposition in response thereto and the filed submissions. 41.The issues arising for determination are:i.Whether the application is incompetent for being brought by way of summons under Section 47 of the Law of Succession Act.ii.Whether the Court has jurisdiction to grant the orders sought.iii.Whether the Applicant has established a basis for preservatory orders over Flat No. 10 on L.R. No. 1870/V/241, Murati Apartments, Nairobi.iv.Whether the Court can revoke or nullify the conveyance and transmission effected on 19th May, 2025.v.Who should bear the costs of the application. 42.In the case of I.N. & 5 others v. Board of Management St G. School Nairobi & another (2017) eKLR the Court defined, at paragraphs 7 & 8, a preliminary objection as follows:- “Definition of a preliminary objection: I find it necessary to define what constitutes a preliminary objection on a point of law. A preliminary objection must first, raise a point of law based on ascertained facts and not on evidence. Secondly, if the objection is sustained, that should dispose of the matter. A preliminary objection is in the nature of a legal objection not based on the merits or facts of the case, but must be on pure points of law. It may be noted that preliminary objections are narrow in scope and cannot raise substantive issues raised in the pleadings that may have to be determined by the Court after perusal of evidence. Understanding the nature and scope of preliminary objections is very important for practicing lawyers. Knowing how to raise a properly formulated preliminary objection, and when to raise it, can save a lot of time and costs.” 43.In re Estate of Matayo Dawas (Deceased) [2022] eKLR, Njagi J stated as follows: “…The conditions to be met before an interlocutory injunction can be granted are as was exposited in Giella v Cassman Brown Co. Ltd 1973 E.A. 358 that; “First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable harm which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on a balance of convenience.” Whether the application is incompetent: 44.The Respondent argues that the application is fatally defective because it is brought by way of summons under Section 47 of the Law of Succession Act. However, Section 47 of the Act and Rule 73 of the Probate and Administration Rules confer wide discretionary powers upon the succession Court to make such orders as may be necessary for the ends of justice and to prevent abuse of the Court process. 45.Succession proceedings are not defeated merely by procedural technicalities where the substance of the dispute is clear and the parties have been heard. The grounds of opposition do not raise a pure point of law capable of disposing of the application without reference to contested facts and therefore does not meet the threshold of a proper preliminary objection Accordingly, the grounds of opposition on form is without merit. Whether the Applicant has established a prima facie case: 46.The Applicant's case is founded on the assertion that she was the deceased's widow and dependant, that she occupied the suit property for many years, and that the property was transferred to the Respondent while disputes concerning the estate remain unresolved. 47.The Court notes, however, that the Environment and Land Court in Mariano v Hijrat & 3 Others (ELC No. 151 of 2013) extensively considered the Applicant's claim to the property and found that she had failed to prove a valid marriage, beneficial ownership, contribution or a matrimonial property interest. While the Applicant states that an appeal has been lodged, no order staying the effect of that judgment has been produced. Consequently, the findings of the Environment and Land Court remain valid and binding unless overturned on appeal. 48.Nevertheless, the present application is not strictly one seeking a declaration of ownership. It seeks preservation of estate property pending determination of succession issues and a pending appeal. The Court cannot ignore the fact that the Applicant has demonstrated long occupation of the property, has filed an appeal against both the ELC judgment and the succession ruling and contends that the transfer occurred while disputes concerning the estate remained active. These circumstances raise arguable issues requiring preservation of the subject matter pending final determination. The Applicant has therefore established a limited prima facie case sufficient to warrant consideration of preservatory relief, though not one sufficient to justify substantive interference with registered title. Whether the resealed grant required confirmation: 49.The Applicant's principal argument is that the resealed Dutch grant required confirmation before any transmission of the property could occur. I disagree. Sections 77 and 78 of the Law of Succession Act provide that a grant resealed by the High Court shall have the same force and effect in Kenya as if granted and confirmed by the High Court itself. 50.Unlike local grants of letters of administration issued intestate, the law governing resealed foreign probate grants does not expressly require a further confirmation process before administration may proceed. Once resealed, the grant confers authority upon the Executor to administer the estate in accordance with the will and the foreign probate proceedings. The Applicant has therefore not demonstrated a clear legal requirement mandating confirmation of the resealed grant before the Respondent could act as Executor. Whether the Court can revoke the conveyance and transmission: 51.Prayer 4 seeks revocation and nullification of the conveyance and transmission effected by the Land Registrar. That relief directly concerns the validity of land registration and the propriety of entries made in the land register. 52.Pursuant to Article 162 (2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, disputes concerning title, ownership, conveyancing, cancellation of registrations and rectification of land records fall within the jurisdiction of the Environment and Land Court. A succession Court may determine whether property forms part of an estate, but it lacks jurisdiction to order rectification of the land register or cancellation of registered conveyances. Consequently, prayer 4 is beyond my jurisdiction. Whether preservatory orders should issue: 53.I am satisfied that unless the property is preserved there is a real risk that further dealings may complicate or defeat pending proceedings and appeals. Although the Applicant has not established ownership rights over the property, she has demonstrated that there are unresolved proceedings touching on the estate and that the property is the subject matter of those disputes. Preservation of the status quo would therefore best serve the interests of justice without determining the substantive rights of the parties. 54.In light of the foregoing, I allow the application dated 23rd October, 2025 in terms of prayer 3 only. 55.Parties to bear their own costs. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS4TH DAY OF JUNE 2026.H K CHEMITEIJUDGE, FCIArb.