https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7053

In re Estate of Gachathi (Deceased) (Succession Cause 69 of 2016) [2026] KEHC 7053 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 7053 (KLR) Republic of Kenya In the High Court at Kiambu Succession Cause 69 of 2016 A Mshila, J May 22, 2026 IN THE MATTER OF THE ESTATE OF MUNYUA GACHATHI (DECEASED) Between John Mburu Munyua ‘A’ 1st Applicant John Mburu Munyua ‘B’ 2nd Applicant and Peter Ngaruiya Gachoka 1st Respondent Joseph Mwangi Gachoka 2nd Respondent Ruling Background 1.John Mburu Munyua ‘A’ filed the summons dated 18th December, 2025 brought under section 47, 82 (a), 73 & 76 of the Law of Succession Act cap 160 Laws of Kenya and rules 49, 63(1) and 73 of the Probate and Administration Rules and other enabling provisions of the law. The 1st administrator sought for orders that;-a.Spent.b.There be stay of execution in implementation of the certificate of confirmation dated 23rd February, 2023.c.The boundaries placed by the surveyor on 10th November, 2025 be dispensed with and the estate of the deceased in LR Githunguri/Githunguri/445 on consolidation of LR Githunguri/Githunguri/1384 and Githunguri/Githunguri/1383 to revert to its original status.d.The estate of the deceased to be distributed under the certificate of confirmation of grant confirmed on 15th February, 2023 taking into consideration the existing developments on the grounds, burial sites and human settlement by various beneficiaries. 2.The summons is based on the ground that the applicant among other members have established settlement on ground for over 40 years. The surveyor visited the land without consulting all beneficiaries and marked boundaries that are on the ground developed by some beneficiaries, grave sites and settlement which if followed will necessitate pulling down of houses and other developments as well as exhuming graves. 3.In support of the summons, John Mburu Munyua ‘A’ deposed that he is one of the administrators of the estate. Together with his brother they were not satisfied with the grant confirmed on 15/2/2023. His co-administrator’s application for execution dated 20/5/2025 was allowed by the court. On 4/11/2025 they received a letter from the Kiambu County Surveyor that the surveyor will be sub-dividing the land pursuant to the certificate of confirmation of grant. On 10/11/2025 the land was sub-divided without taking into account existing settlement and developments which have been on the ground for over 40 years. The proposed distribution passes through his house, his late mother’s grave and other developments. His brother Samuel Kibe Munyua is also affected. The land that is undeveloped has been left out only for their developed portions to be targeted. He stated that the surveyor should be directed not to interfere with the already developed portions. The boundaries placed splitting his land should be removed and the land be resurveyed which activity will not prejudice the other beneficiaries as they will benefit from the undeveloped land. He also sought for a mediator to be appointed to oversee the family in addressing distribution of the estate. 4.Peter Ngaruiya Gachoka in his replying affidavit dated 6/3/2026 deposed that he is one of the administrators of the deceased’s estate herein. The applicant was misleading the court while denying the Respondents the fruits of the judgment. The deceased herein was a brother to Kibe Gachathi and the family land was to be shared between the brothers. His father Gachoka Kibe took over the case until his demise when he took over. The court distributed the deceased’s estate among the three houses in equal share as per the judgment by Meoli J dated 7/8/2020 which has never been appealed. He made an application for the distribution of 4.25 acres for the family of Kibe Gachathi and for the same to be carried out by the Kiambu County Surveyor. The surveyor visited the premises and divided the land into two portions where the family of Kibe Gachathi took over their 4.25 acres and left the deceased’s family quarrelling as such the family of Kibe Gachathi should not be involved in issues of sharing the portion of Munyua Gachathi. The mode of distribution as proposed in the application herein proposes that the family of Kibe Gachathi is getting 4.25 acres portion marked as A, the family of John Mburu Munyua ‘B’ is getting 6.2 acres portion B and portion C 2.27 acres to be taken by the house of John Mburu Munyua ‘A’. There cannot be stay as the land is registered in the names of the 3 administrators with each house getting its rightful share as per the judgment of Meoli J. The court was urged to direct the house of the deceased herein to share their 8.25 acres without involving the 4.25 acres of the family of Kibe Gachathi. 5.John Munyua Mburu ‘B’ filed his replying affidavit dated 9th March, 2026. He stated that Githunguri/Githunguri/445 belonged to the deceased and Kibe Gachathi. The family of Kibe Gachathi was granted 4.25 acres to be exercised from Githunguri/Githunguri/445 and the remaining 8.45 acres was to be shared equally among the house of Munyua Gachathi. A surveyor was invited on 10/11/2025 when all parties were present and the land was divided into 3 portions. Other family members are willing to move their structures to bring this matter to an end while the applicant claims to have erected structures on portion B yet the applicant’s mother is buried on portion marked C as such the applicant and his family members should get the said portion. The application was said to have been brought in bad faith with the court being urged to order the applicant to bear the costs of the beacons that he has destroyed. 6.In his replying affidavit dated 10th March, 2026, Joseph Mwangi Gachoka stated that he is a grandson of Kibe Gachathi. The family of Kibe Gachathi is in occupation of the 4.25 acres hence the application does not touch on their portion of land. Survey works were carried out on 10/11/2025 and the Applicant’s family has been destroying the beacons and unmarking boundaries thereby frustrating the survey work already done as such the applicant should be ordered by the court to bear the costs of the beacons he has destroyed. 7.Subsequently, the 1st applicant filed his written submissions while the other parties elected to rely on their affidavits. 1st Applicant’s Submissions 8.The 1st Applicant submits that he only has an issue with the sub-division of the 2nd house of Ruth Muthoni Munyua and the 1st house of Margaret Wanjiku being the 8.45 acres. Further sub divisions were made by the surveyor without the consultation of the family members. The additional boundaries fall on the developments by the Applicant which he is expected to bring down. It was submitted that the Applicant objects to the boundaries due to failure to comply with the directions of the court, posterity sake, access road and economic viability of the land. The court was urged to intervene and give directions against interfering with the existing developments. Issues for Determination 9.Upon reading the application and the written submissions this court has framed the following issues for determination; 10.The applicable law for review or rectification is found ati.Whether the application for stay of implementation of the Rectified Certificate of Confirmation is merited;ii.Whether the application for review/rectification is merited; Analysis 11.The applicable law is found at section 74 of the Law of Succession Act and rule 43(1) and 63 of the Probate and Administration Rules; section 74 of the Act and rule 63 of the Probate and Administration Rules allow a party who has discovered new and important material or evidence after the orders were made to apply for review to the court that issued the orders; rule 43(1) of the Probate and Administration Rules allows for the correction of errors provided that it does not affect the substance of the grant; 12.Upon reading the application and hearing the submissions of counsel appearing for the applicant, this court notes that there is a judgment of Meoli J which provides for the mode of distribution of the deceased’s estate. The family of Kibe Gachathi was granted 4.25 acres and have no problems on distribution amongst themselves. The applicants family sought to review the distribution of their portions and the rectified certificate of confirmation of grant was issued on 15/02/2023 dividing their portions equally to the two houses; the applicant now seeks stay of the implementation of this grant and seeks to vary and or review their portions which application was opposed and the respondents who contend that the application just seeks to delay the implementation of the main certificate of confirmation as ordered by the court; 13.The applicant has not demonstrated that there is any error apparent on the face of the rectified certificate of confirmation of grant that needs correction. Nor has the applicant placed before this court any new material that he has discovered that was not in his possession or knowledge before the filing of the summons for confirmation of grant or any subsequent applications or otherwise. 14.This court is also not satisfied that the prayers sought for review are as envisaged under the aforesaid provisions of Law; this is because there exists a judgment of this court and the distribution was to be in accordance with that judgment. There is also a certificate of confirmation of grant and any party who was dissatisfied with that mode of distribution and desires to change the same was at liberty to file an appeal. 15.The decision by Meoli J was rendered on 7/10/2020 and to date no appeal has been preferred. 16.Which then brings up the next issue of stay implementation of the certificate of confirmation of grant and or the rectified certified confirmation of grant issued herein. In addressing this issue this court notes that the dispute relates to the division of the portion of Munyua Gachathi (deceased) who had two wives; this court allowed an application for rectification of the distribution of their portion of the subject property and it was divided equally between the two houses; 17.There is no pending appeal that has been filed against the determination of Meoli J on the mode of distribution therein. There being no good reason to halt or postpone the implementation this Court is satisfied that the stay of execution serves no purpose. The application is found to be calculated to stall and delay the conclusion of distribution of the estate and is found not to be merited. Findings and Determinations 18.For those reasons this court finds that this is a not a proper case for granting of the orders sought to stay implementation of either the certificate of confirmation and or the rectified certificate of confirmation of grant issued on 15/02/2023; 19.The application is therefore found to be devoid of merit and it is hereby dismissed. 20.This being a family matter there shall be no order as to costs.Orders Accordingly. DATED SIGNED AND DELIVERED VIA TEAMS AT VOI THIS 22ND DAY OF MAY, 2026.A. MSHILAJUDGEIn the presence of;Sanja/Millicent -Court Assistants.Kamuyu - For the Applicant.Gachoka - For the Respondents.