https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10770

In re Estate of Kiruai - Deceased (Succession Cause 2A of 2024) [2026] KEHC 10770 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 10770 (KLR) Republic of Kenya In the High Court at Kerugoya Succession Cause 2A of 2024 EM Muriithi, J June 25, 2026 IN THE MATTER OF THE ESTATE OF NJAGI KIRUAI-DECEASED Between David Maina Kabiru 1st Petitioner Symon Ndambiri Njagi 2nd Petitioner and Faith Wakarii Njagi 1st Protestor Lawrence Njagi Ndambiri 2nd Protestor Ruling 1.The applicant filed Summons dated 13th October, 2025 seeking the following orders:1.That this Honourable court be pleased to stay the hearing of this case pending the outcome of the reported fraud OB 24/18/03/2019.2.That this honourable court be pleased to include U.F.A. and Mwietheri SaccO in the partition.3.That the costs of this application be provided for. 2.The application is based upon the annexed affidavit of the applicant of the protestorsetting out his case is that its pending confirmation of grant. He discovered that there are deceased’s assets omitted in the petition like U.F.A and Mwietheri Sacco. Further, the applicant avers that in the year 2019, there frauds reported in respect of the deceased vide OB 24/18/03/2019 at Kianyaga Police and report has never been produced. He avers that the hearing of this cause ought not to proceed without the fraud report. Lastly, he avers that the hearing of this case ought not to proceed before the omitted deceased’s assets are included in the petition. 3.The 1st Respondent/protestor deposed to a Replying Affidavit urging that while the Applicant alleges that some assets were omitted in the Petition, no particulars whatsoever have’ been provided and no documentary evidence has been annexed in support of this allegation. Further, the Applicant alludes to a report of fraud that was made but has not attached an extract of the OB or proof of such report. Lastly, the respondent avers that this matter has been pending in court for a long time at the behest of the Applicant who is occupying the biggest share of the deceased’s land to the exclusion of the other beneficiaries including the respondent. The continued delay only serves to defeat the principle of expeditious disposal of matters. 4.The 2nd Respondent/protestor deposed to a Replying Affidavit that the applicant seek to stay the hearing of the application for confirmation of grant and the attendant protests filed thereto on the basis of an unsubstantiated report of fraud made under OB 24/18/03/2019, but has not provided any particulars or even furnished this Honourable Court with a copy of the OB slip issued to him when he lodged the report. The respondent avers that the Applicant has not explained to this Honourable Court why, despite allegedly lodging his complaint way back in 2019, he has never made any follow-ups to the logical conclusion of the supposed investigations, and has only just recalled and initiated the same upon realising that this matter was proceeding to substantive hearing and determination. Further, the respondent avers that the Applicant refers to the deceased’s assets omitted from the Petition, held by UFA and MWIETHERI SACCO, but neither gives any particulars of these assets, including their description, nor furnishes this Honourable Court with any proof that the deceased had any such assets. Moreover, the respondent avers that all of the beneficiaries to the deceased's estate, all of the assets are as listed in the Affidavit in Support of the Summons for Confirmation of Grant dated 27" May 2024. Lastly, the respondent avers that the Applicant, being one of the two administrators of the deceased's estate, has not explained to this Honourable Court why he has not made any efforts to identify and collate all these assets in the two decades that succession proceedings over the deceased's estate have been in abeyance. Applicant/protestor’s submissions 5.The protestor reported forgery and/or fraud to Kianyaga Police Station due to what the petitioner who is the protestor’s nephew did to him in as far as the deceased’s estates are concerned. If this case proceeds for hearing before the protestor is furnished with the forgery and/or fraud report, his protest would not have enough weight. 6.The applicant submits that looking at the application for confirmation of grant dated 27th May, 2024, the petitioner in the mode of distribution of the estate, he is giving himself 2 acres and his father Pharis Kabiru Njagi 2.15acres. The petitioner who is the grandson of the deceased ought to share the share of his father but not direct from the deceased. 1st Respondent/ Protestor submissions 7.She submits that this succession cause has been pending determination since 2016 at the behest of the Applicant who has a tendency of filing baseless applications at the prejudice of the rest of the beneficiaries of the estate. Stay of proceedings is a grave judicial action that should only be granted where the Applicant is able to demonstrate clear prejudice that cannot be otherwise remedied. 8.The test for grant of orders for stay of proceedings is more stringent as was noted by the court in Kenya Wildlife Services v Jane Mutembi (2019) eKLR given the fact that it affects the right to access to justice and the right to be heard without delay. The respondent submits that the Applicant has not demonstrated the prejudice he stands to suffer if this matter proceeds for hearing. 1st Petitioner submissions 9.The Petitioner submits that the Applicant has failed to demonstrate any credible basis or lawful ground for stay sought, nor show how the alleged fraud relate directly to the succession proceedings. The Petitioner submits that staying succession proceedings on the basis of unproven investigations defeats the objective of timely administration of the estate. He supports this with the decided case of in re Estate of Priscilla Wambui Gathungu (Deceased) 2025] KEHC 16177 (KLR) where it was held as follows:“ 20.It is imperativethat thesuccession process is conducted swiftly and eciently.This urgency isessential to prevent the potential deterioration of theestateand to guaranteethat therightful heirs receivetheir due entitlements without unnecessary delay.” 10.It is the Petitioner's submissions that this Honourable Court cannot act on mere allegations or speculations of fraud without any supporting evidence as doing so would amount to aiding the Applicant’s misuse of the Judicial process. The Applicant cannot wave the spectre of investigations as a sword to indefinitely paralyze succession proceedings. Litigation must come to an end. Issues 11.The issues for determjination are:a)Whether the Applicant has established sufficient grounds for stay of proceedings.b)Whether the Court should order inclusion of U.F.A and Mwihetheri Sacco assets at this stage. Analysis Whether stay of proceedings should issue 12.Stay of proceedings as a discretionary remedy is not granted as a matter of course. The applicant must demonstrate that there exists a sufficient and compelling reason why the court proceedings should be halted. In Kenya Wildlife Service v James Mutembei [2019] eKLR, the Court (F. Goikonyo, J.) emphasized grave nature of stay of proceedings as follows:“Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore the test for stay of proceeding is high and stringent. See Ringera J in the case of Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 persuasively stated thus:“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (emphasis added).” 13.In the present case, the Applicant relies heavily on an alleged fraud report made in 2019. However, no copy of the OB extract has been placed before Court. No evidence has been presented demonstrating the nature of the alleged fraud, the persons involved, or how the alleged investigations directly affect the confirmation of grant proceedings. 14.Fraud is a serious charge and the applicant is required to prove such allegation by cogent evidence, and as observed in In re Estate of George Mudenyo Kadima [2025] KEHC 15284 (KLR) a bare Occurence Book (OB) number without supporting evidence or a police report is insufficient to establish fraud for purposes of succession proceedings. See also Court of Appeal in Kinyanjui Kamau v George Kamau [2015] eKLR. 15.The applciant has also not demonstrated how the alleged fraud directly impacts the distribution of the estate in a manner that cannot be addressed during the confirmation hearing. The Court finds that the Applicant has failed to demonstrate sufficient cause to warrant stay of the proceedings. Whether U.F.A and Mwietheri sacco assets should be included 16.Under Section 83 of the Law of Succession Act, personal representatives have a duty to ascertain and collect all assets of the deceased, pay debts and liabilities, and ultimately render a full account of the administration of the estate. The duty imposed upon administrators is not merely passive but requires them to make reasonable efforts to identify and preserve the entire estate. 17.Further, Rule 7(1) and (5) of the Probate and Administration Rules requires a petitioner applying for a grant to disclose the full particulars of the deceased’s estate. The purpose of this requirement is to ensure that all assets forming part of the estate are brought before the Court for purposes of proper administration and distribution. The Applicant alleges that certain assets belonging to the deceased were omitted from the petition. However, no particulars of those assets have been supplied. There is no evidence showing the existence, ownership, value, or connection of the alleged assets with the deceased. 18.The burden of proving that additional assets form part of the estate lies upon the person asserting that fact. The Applicant, being the person alleging omission of assets, was required to place before Court some evidence of existence of such assets. Mere allegations are insufficient. This Court respectfully agrees with Court in Re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR that assets forming part of an estate must be proved before they can be subjected to distribution. 19.In the absence of evidence, the Court cannot speculate or order inclusion on mere assertion. Needless to state, the absence of evidence from the Applicant does not absolve the administrators from their statutory obligation to make full disclosure of the estate. 20.Consequently, the prayer for immediate inclusion of the alleged assets cannot be granted on the material presently before Court. Conclusion 21.It is clear that the application is grounded on no evidence but speculation as to what police investigations may establish as the applicant in his submissions dated 26/2/2026 himself atteests, urging that “it is fare (sic) and just to stay hearing of this case awaiting the protestor to be furnished with the forgery and/or fraud report which he wish to rely on.” There is also no evidenceof existenceof the assets sought to be included in the estate. 22.The application is based on suspected forgery which may or may not be establsihed by police investigations which are not shown to have been commenced. It is inappropropriate to stay proceedings on account of such fluid allegations withot prima facie proof of forgery of fraud. There is no basis for the Court to order the police to file a report of an investigation into alleged forgery in the deceased’s estate, without any evidential basis. 23.The application for stay of proceedings and inclusion of assets without proof of ownership by the deceased fails. Orders 24.Accordingly, for the reasosns set out above, the Court finds that the application dated has no merit and it is dismissed.Order accordingly. DATED AND DELIVERED THIS 25TH DAY OF JUNE 2026.EDWARD M. MURIITHIJUDGEAppearances:Mrs. Makworo for the Petitioner.The 2nd Petitioner/Applicant in person.Mr. Ombongi for Ms. Rugaita for the 1st Protestor.Mr. Ngunjiri for the 2nd Protestor.