https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7768

In re Estate of Murianga alias Mirianga (Deceased) (Succession Cause 1 of 2019) [2026] KEHC 7768 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEHC 7768 (KLR) Republic of Kenya In the High Court at Embu Succession Cause 1 of 2019 RM Mwongo, J June 3, 2026 IN THE MATTER OF THE ESTATE OF JORAM NGUNGURU MURIANGA alias JORAM NGUNGURU MIRIANGA alias JORAM NGURUNGURU MIRIANGA (DECEASED) Between Salafin Joram Ndaru Administrator and Vejeslaus Mbogo Joram 1st Administrator Dickson Wachira Ngunguru 2nd Administrator Josephat Mbogo Ngunguru 3rd Administrator and Johnson Ngunguru Njeru 1st Respondent Judy Waceke Mwangi 2nd Respondent Fiona Wambui Gatere 3rd Respondent Ruling Background 1.In this matter the Court ordered that the summons herein by the applicant dated 22nd January, 2026 be heard together with the Preliminary Objection dated 3rd February, 2026 by the 5th and 6th respondents. 2.The deceased died on 3rd July, 2005. Following petitions, cross petitions and objections, the present administrators of the deceased’s estate are the applicant and 1st to 3rd respondents. They were appointed pursuant to a grant issued by consent on 12th May, 2022. The deceased’s estate is vast, as shown in the summons for confirmation of grant dated 24th June, 2022, and confirmed grant issued on 31st January, 2025. Summons dated 22nd January 2026 3.The applicant filed summons dated 22nd January 2026 seeking the following orders:1.That a temporary injunction do issue restraining the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents, their agents, or servants and/or anyone claiming under them from entering, fencing, cultivating, leasing, destroying crops or trees or in any manner interfering with parcels of land Numbers Mbeti/Gachuriri/6705, 6715, 6708, 6707, 6706, 6709, 6714, 6713, 6712 and 6710 all resultant subdivision of Mbeti/Gachuriri/105 pending the hearing and determination of this Application.2.That the subdivision of Mbeti/Gachuriri/105 to Mbeti/Gachuriri/6684 to 6723 (all inclusive), transfers and/or transmissions arising from the said subdivision be cancelled, revoked and nullified.3.That Mbeti/Gachuriri/105 be re-subdivided strictly in accordance with the confirmed grant dated 23/01/2025 and in particular the Applicant's 9 acre entitlement be demarcated within the area of his long standing occupation and developments.4.That the purported lease agreement dated 08/09/2025 entered into between the 1st, 2nd, 3rd and 4th Respondents on the one part and 5th and 6th Respondents on the other part be declared null and void and cancelled.5.That an order be issued directing that all the income generated from the estate of the deceased includingi.17 acre share of Mbeti/Gachuriri/105ii.Mbeti/Gachuriri/1402iii.Embu/Municipality/322iv.Embu/Municipality/1112/54v.Machang'a/15vi.Thagichu Sharesbe deposited into a joint bank account in which all the four Administrators are mandatory signatories pending distribution in accordance with the confirmed grant;6.That the 1st to 3rd Respondents do render a full and accurate account of all income collected from the estate properties from the date of confirmation of grant to date; and7.That costs of the Application be provided for. 4.The application is supported by grounds appearing on its face and in the supporting affidavit accompanying it. The applicant’s case is that during confirmation of the grant, the court ordered that the applicant’s entitlement to 9 acres of Mbeti/Gachuriri/105 be executed keeping in mind his long-standing occupation on the land. At the time of subdivision of Mbeti/Gachuriri/105 which resulted in Mbeti/Gachuriri/6684 to 6723, he could not be physically present during execution of the confirmed grant due to illness. 5.In his absence, his 9-acre portion of land which he was occupying was fragmented, ending up being 2 pieces of land. This move affected his occupation of the land. To make matters worse, he stated, the administrators allocated a road reserve on the estate, to pass on top of his son’s grave, causing anguish to him and his family. He stated that the variation of the order of the court through the certificate of confirmation of grant is null and void. Consequently, he refused to sign the forms for transfer by transmission either as an administrator or as a beneficiary and that the signatures on those transfer forms are forged. He stated that the part of the land leased to the 5th and 6th respondents forms part of the land occupied by the applicant and that ought to be transferred to him. 6.That occupation of the 5th and 6th respondents of the said land is causing the applicant irreparable loss since his miraa trees have been destroyed and the portion occupied has been fenced off. It is the applicant’s case that the 1st, 2nd and 3rd administrators have excluded him from management of income generating properties within the estate. The same administrators have failed to administer the estate transparently and in the best interest of the beneficiaries. It is on this basis that he prayed that an account of the estate be given to the court. 7.In his supporting affidavit, he states that the only other beneficiary entitled to a part of Mbeti/Gachuriri/105 is his step sister Serah Mbandi Ngunguru. On his part of the land, the 9-acre portion, he has planted miraa and fruit trees, food crops and the land also has permanent houses which were occupied by his deceased parents. The part of the properties leased to the 5th and 6th respondents are for a period of 25 years. He states that if the court does not grant the orders herein, the 5th and 6th respondents will cause his family anguish for a very long time and he will suffer irreparable damage. Replying Affidavits 8.The 1st to 4th respondents filed their replying affidavit to the summons, stating that the orders sought therein have since been overtaken by events. That parcel number Mbeti/Gachuriri/105 has already been subdivided and the shares distributed according to the certificate of confirmation of grant. That the applicant was, at all times, present during the subdivision and he even signed the mutation forms. They stated that the applicant misled the court in stating that he was sick during execution of the certificate of confirmation of grant because that is a lie. They stated that after subdivision of this named parcel, all the parts of the land were affected since some parts have fertile red soil while other parts have black cotton soil that is not very productive. 9.The distribution adopted benefits for all the beneficiaries so that everyone gets productive land. In transferring the portions of land to the various beneficiaries, the applicant appeared before an advocate and signed the transfer form LRA 42 voluntarily. They disputed the applicant’s contention that there is a road passing over his late son’s grave, and stated that the burial site for the whole family, including the applicant’s son is found on parcel number Mbeti/Gachuriri/6711 and 6721 as designated by the deceased. They stated that the income from the estate is deposited into 2 accounts held at KCB Bank Embu Branch. 10.They stated that the family has been holding meetings to discuss how the proceeds from the estate should be handled but the applicant refuses to attend these meetings. They clarified that rental income from the estate is collected by Maska Agencies and deposited into the accounts specified for use by the family members on need basis. They stated that the 5th and 6th respondents have acquired a part of Mbeti/Gachuriri/105 through long term leases and title deeds for the portions given to them have titles in their names as lessees. They urged the court to find that the application is frivolous, vexatious and an abuse of the court process. 11.The 5th respondent filed a replying affidavit stating that indeed, she leased a part of parcel number Mbeti/Gachuriri/105 alongside the 6th respondent who has since terminated her lease. That the portion they leased is not the applicant’s piece of land and she wished to be removed from the case since she is simply a lessee of a part of the land. 12.She stated that after leasing the land, she developed it by installing piped water and sprinkler irrigation, and she had already paid the lessors Kshs.1,500,000/=. As far as she is concerned, the applicant is one of the lessors. She denied having interfered with the applicant’s land in any way. She was informed that the resultant titles from subdivision had already been issued to the beneficiaries. She stated that, in any event, the court lacks jurisdiction to determine the application. Preliminary Objection 13.The 5th and 6th respondents also filed a preliminary objection to the summons on grounds that the court lacks jurisdiction to determine the Notice of Motion dated 22nd January, 2026. That the court with requisite jurisdiction is Environment and Land Court (ELC). That the process of transmission has already been concluded and the 5th and 6th respondents are not beneficiaries or dependants of the estate. Submissions on the Preliminary Objection and Summons 14.The parties filed submissions on both the summons and the preliminary objection as directed by the court for determination in this ruling. 15.The applicant relied on section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules and argued that the succession court is at liberty to make any orders necessary within its powers towards the ends of justice. That the administrators must be called to account for the estate in line with their duties as provided under section 83 of the Law of Succession Act. That the court gave the applicant 9 acres of parcel number Mbeti/Gachuriri/105 knowing well that the applicant was already occupying it. 16.He argued that the administrators’ decision to interfere with his occupation of this land is erroneous in the name of fairness taking into account the issue of soil productivity. That the administrators have been collecting income from the estate and excluding him and other beneficiaries from accessing this income. Hence the prayer that they be required to account for the estate. He relied on the case of In re Estate of Makokha Idris Khasabuli (Deceased) [2019] KEHC 257 (KLR) and argued that the administrators are bound to give an account of the estate of the deceased. 17.The applicant denied ever signing the transfer by transmission forms and that the signatures on those forms are not his. He also referred to the lease agreements made out to the 5th and 6th respondents and confirmed that the portions of land leased were hived out of parcel number Mbeti/Gachuriri/105 through subdivision. He stated that there is no evidence that any beneficiary benefitted from the lease amounts from leasing of a part of the estate yet that was income to the estate. 18.The 1st to 4th respondents submitted that the applicant was present in person during subdivision of parcel number Mbeti/Gachuriri/105 from which parcel numbers Mbeti/Gachuriri/6711 and 6712 resulted and were leased. That the parcel number Mbeti/Gachuriri/105 is expansive with parts of it having red soil while others having black cotton soil which is infertile. They defended their actions as administrators and stated that the distribution favoured all the beneficiaries so that nobody gets only unproductive land. They stated that all the graves on the estate are found on parcel number Mbeti/Gachuriri/8719 and not anywhere else on the expansive estate. That the applicant’s contention that his son’s grave is now a road reserve, is not true. 19.They stated that the 2 bank accounts held at KCB Bank are for collecting rental income through Maska Property Agents, and the money collected is for the benefit of all the beneficiaries. They relied on the cases of Giella v Cassman Brown Co. Ltd [1973] EA 358 and Caliph Properties Limited v Barbel Sharma & Another [2015] eKLR and stated that the applicant has not demonstrated that they stand to lose the kind of loss that cannot be compensated with damages. They also argued that any issues concerning the land should be placed before the ELC as this court lacks jurisdiction over the issue. They relied on the cases of Interim Independent Electoral Commission, SC Constitutional. Application No. 2 of 2011; [2011] eKLR and Samuel Kamau Macharia & 2 Others v. Kenya. Commercial Bank & 2 Others [2012] eKLR. 20.In support of the preliminary objection, the 5th and 6th respondents submitted that the orders sought are in the nature of matters within the jurisdiction of the ELC. They relied on Articles 162() and 165(5) of the Constitution and the case of In re Estate of Aminbai Kara (Deceased) [2025] KEHC 8506 (KLR). Issues for Determination 21.The issues for determination are:1.Whether the preliminary objection has merit.2.Whether the application has merit Analysis and Determination 22.A preliminary objection must raise a point of law which, once determined, has the ability to determine the whole suit. This was established in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 where it was stated thus:“....A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 23.The 5th and 6th respondents objected to the summons on grounds that the orders sought therein can only be issued by the ELC hence this court lacks jurisdiction. They have argued that the orders sought are prejudicial to them as lessees of a part of the land which was leased to them for 25 years from the estate after/during distribution. 24.After confirmation of the grant, the applicant filed the summons herein contending that the portion of the estate, which he was already occupying, was redistributed and a part of it was even leased to the 5th and 6th respondents. In essence, the applicant would like to pursue enforcement of a change to the confirmed grant given his circumstances. 25.Courts have previously held that a succession court can make orders regarding land where it is the subject of an estate of a deceased person which must be preserved. In Santuzza Bilioti alias Mei Santuzza (Deceased) v Giancarlo Falasconi [2014] KEHC 467 (KLR) the court held:“There is no rule that any issue touching on land must be heard by the Environmental and Land Court even if the land is a subject of succession proceedings. Majority of succession cases involve the distribution of land. Where the deceased land has been sold before distribution is done, the succession court can hear both the administrator and the registered owner to determine whether the land is part of the estate or was lawfully sold.” 26.Section 47 of the LSA and Reg 49 of the Probate and Administration Rules provide extensive jurisdiction to the court to deal with an unlimited nature of application under the Act. The provisions are as follows:“47.Jurisdiction of High CourtThe High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.”and49.Applications not otherwise provided forA person desiring to make an application to the court relating to the estate of a deceased person for which no provision is made elsewhere in these Rules shall file a summons supported if necessary by affidavit.”” 27.The result is that this court is well within its jurisdiction to consider the summons in that the properties in question are subject of and are based upon matters to do with the estate of a deceased person. Consequently, the preliminary objection lacks merit and is dismissed. 28.As to whether the summons has merit, the applicant is seeking a temporary injunction against the respondents regarding land parcel numbers Mbeti/Gachuriri/6705, 6715, 6708, 6707, 6706, 6709, 6714, 6713, 6712 and 6710 all resultant subdivision of Mbeti/Gachuriri/105. All of these formed the estate of the deceased. The applicant’s case is that even though he is occupying the land (a fact that was acknowledged by the court during confirmation of grant) the administrators redistributed the land in a manner that interfered with his occupation of his portion of it. In fact, the administrators even leased a part of the land he is occupying to the 5th and 6th respondents under long term leases, and leasehold titles were issued. The applicants want these titles reverted to the name of the deceased. In their defense, the administrators said that they had to distribute the land in a manner that would allow all beneficiaries to equally enjoy fertile red soils which were present where the applicant was occupying. 29.The pillars of granting of injunctions are that the applicant must:(a)establish a prima facie case,(b)demonstrate irreparable injury if a temporary injunction is not granted, and(c)if the court is in doubt as to (b), grant the injunction on a balance of convenience.This was the position taken by the court in the case of Nguruman Limited v Jan Bonde Nielsen & 2 others [2013] KECA 347 (KLR). 30.The applicant ought to demonstrate that he is bound to suffer greater harm than the respondents if the injunction is not ordered. That he is likely to be more inconvenienced. In the case of Bryan Chebii Kipkoech v Barnabas Tuitoek Bargoria & another [20191 eKLR (as cited in the case of Margaret Njambi Kamau v John Mwatha Kamau & another [2019] eKLR) the court held as follows:“The court should issue an injunction where the balance of convenience is in favor of the plaintiff and not where the balance is in favor of the opposite party. The meaning of balance of convenience in favor of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favor of the plaintiffs, the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer. In other words, the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it….” 31.Similarly, in the case of Joel Kipkurui arap Koech v Alice Wambui Magandu & 3 others [2018] eKLR the court stated:“In the case of Suleiman – v- Amboseli Resort Ltd (2004) KLR 589, Ojwang Ag. J (as he then was) stated thus: “Counsel for the Defendant urged that the shape of the Law governing the grant of injunctive relief was long ago, in Giella – v- Cassman Brown, in 1973 cast in stone and no new element may be added to that position. I am not, with respect, in agreement with counsel in that point, for the law has always kept growing to greater levels of refinement, as it expands to cover new situations not exactly foreseen before. ……Traditionally, on the basis of the well accepted principles set out by the Court of Appeal in Giella –v- Cassman Brown, the court has to consider the following questions before granting injunctive relief:i)Is there a prima facie case…..ii)Does the applicant stand to suffer irreparable harm….iii)On which side does the balance of convenience lie……Even as those must remain the basic tests, it is worth adopting a further, albeit rather special and more intrinsic test which is now in the nature of general principle. The court in responding to prayers for interlocutory injunctive relief should always opt the lower rather than the higher risk of injustice… if granting the applicant’s prayers will support the motion towards full hearing, then should grant those prayers...” 32.Under Order 40 Rule 1 of the Civil Procedure Rules, it is clear that injunctions are granted at the discretion of the court. It provides:“Where in any suit it is proved by affidavit or otherwise—(a)that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or(b)that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.” 33.The issue of distribution of the estate precedes any other transaction in succession proceedings. That is to say, the 5th and 6th respondents’ use of a part of the land as lessees should be settled after the distribution of the estate is well settled. As it is, the applicant has raised an issue of distribution and lack of compliance by the administrators with the order of the court through the certificate of confirmation of grant and its ruling. 34.In my view, it is necessary that an order of temporary injunction be issued to preserve the estate until it is fully settled. This is stated, keeping in mind that the lessees could have started developing the land leased. In the same breath, the administrators, during distribution, invited the lessees and leased to them a part of the land to use in exchange for a sum of money. 35.The administrators stated that the money paid by the lessees was placed in a common account for the estate and that it was meant to be for the benefit of all the beneficiaries. The applicant stated that the 1st to 4th respondents have also locked him out of accessing the bank account where the income from the estate is held. In that case, there is no reason why the court should not order the administrators to give a full account of the estate. After all, it is within the power of the court under section 83 of the Law of Succession Act to order for such accounts. 36.The applicant has also alleged that his signature as administrator and beneficiary were forged and he denied ever signing any forms of transfer by transmission. On the other hand, the 1st to 4th respondents stated that the applicant voluntarily appended his signature on the forms and that he was even present when the property was being surveyed for subdivision. They also stated that they chose to pursue subdivision otherwise than how the court had ordered because they discovered that the mode adopted would cause some of the beneficiaries to get land which has unproductive black cotton soil, yet the applicant’s portion has fertile red soil. That the move was to ensure that all the beneficiaries get a part of fertile red soil land. 37.The 1st to 4th respondents missed the point by proceeding in this way. Distribution of the estate cannot be done arbitrarily depending on how the administrators feel or think. Distribution should strictly follow the order of the court, which, in this case, stated that the applicant should get inherit the part of the land where he was already occupying. The issue of productivity of the land is an afterthought in the minds of the 1st and 4th respondents and it did not give them any right to alter the ordered distribution, much less to introduce the 5th and 6th respondents as lessees. Conclusions and Disposition 38.Ultimately, I am of the view that once confirmation of grant has been issued, the administrators are bound to comply with the distribution indicated therein. In the event that the administrators consider that there is an alteration necessary due to some challenge or difficulty on the ground, they must revert back to the court for authority to change the manner of distribution. 39.Thus, the position that ought to remain is that the applicant should occupy his 9- acre piece of land as he did before and this should be achieved by means of necessary orders. 40.In the result, the preliminary objection has no merit and it is hereby dismissed. However, the summons dated 22nd January 2026 partially succeeds and it is ordered as follows;1.Pending re-survey of parcel number Mbeti/Gachuriri/105 for purposes of distribution according to the certificate of confirmation of grant issued in the estate, a temporary injunction be and is hereby issued restraining the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents, their agents, or servants and/or anyone claiming under them from entering, fencing, cultivating, leasing, destroying crops or trees or in any manner interfering with parcels of land Numbers Mbeti/Gachuriri/6705, 6715, 6708, 6707, 6706, 6709, 6714, 6713, 6712 and 6710 all resultant subdivision of Mbeti/Gachuriri/105;2.Land parcel number Mbeti/Gachuriri/105 shall be re-surveyed and subdivided in the presence of all the beneficiaries to enable distribution of their various portions, and particularly demarcating the Applicant's 9-acre entitlement within the area of his long-standing occupation and developments. The applicant shall be physically present to ensure that his 9-acre piece of land is aptly demarcated;3.The 5th and 6th respondents are held to be unlawful occupants of any land they have leased within the 9-acre piece of land reserved as the inheritance of the applicant. The basis of the unlawful occupation is founded in the unlawful distribution that was not in accord with the confirmed grant as per the court’s orders.4.In accordance with the section 83 of the Law of Succession Act, the 1st -4th respondents to provide to court, within 30 days of this ruling, a full account of the estate including the income collected from the estate from the date of confirmation of the grant; and5.No order is made as to costs. 41.Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 3RD DAY OF JUNE, 2026.R. MWONGOJUDGEDelivered in the presence of:1. Githinji holding brief for Ithiga for 1st – 4th Respondents2. Rose Njeru for Applicants3. Ms. Mwangi holding brief for Ndorongo for 5th – 6th Respondents4. Francis Munyao - Court Assistant