https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10567

In re Estate of Abare (Deceased) (Civil Appeal 010 of 2025) [2026] KEHC 10567 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10567 (KLR) Republic of Kenya In the High Court at Marsabit Civil Appeal 010 of 2025 FR Olel, J July 9, 2026 Between Amina Huka Boru Appellant and Hussein Wako Tuto Respondent Ruling A. Introduction 1.The Application before court for determination is the Notice of Motion dated 9th October 2025 brought under Sections 48 and 73 of the Law of Succession Act, Rules 44(1) and 73 of the Probate and Administration Rules, and Sections 1, 1A, 3 and 3A of the Civil Procedure Act. The prayers sought therein are that:a.Spentb.That pending the hearing of this application inter partes, a temporary order of injunction do issue restraining the Respondent, his servants, agents, employees, representatives, assigns and heirs from subdividing land parcels known as unregistered lands situate at Garqarsa And Kubi Mukha, Marsabit County.c.That pending the hearing of this application inter partes, a temporary order of injunction do issue restraining the Honourable Kadhi, his servants, agents, employees, representatives and assigns from subdividing the said parcels, Known as unregistered lands situated at Garqarsa And Kubi Mukha, Marsabit County.d.Costs of the application.e.Any other remedy the court may deem fit and just to grant 2.The application is supported by the affidavit of the Applicant sworn on the same date, where she depones that she is a beneficiary of the estate of the late Huka Boru Abare (deceased) and had discovered that pursuant to the Kadhi’s judgment, which she had appeal against, the Honourable Kadhi had scheduled to visit and supervise the subdivision of the disputed parcels on 13th October 2025, which act she contents was illegal and ultra vires, mala fides, vexatious and constituted an abuse of the courts powers. 3.She contends said that the judgment has escalated family disputes rather than resolving them, and expresses apprehension that irreparable damage will be occasioned should the suit property be sub divided and sold off in the absence of restraining orders, which act would also render the said appeal to be rendered nugatory. She thus prayed that the orders sought be granted pending determination of the Appeal filed. B. The Response 4.The Respondent opposed the application through his replying affidavit dated 18th November 2025, where he avers that the application filed is mischievous, vexatious, brought in bad faith and constituted an abuse of the court process. He maintains that the succession petition before the Kadhi was properly conducted, ten (10) witnesses were heard, and judgment delivered, where in the legitimate/ bona fide beneficiaries of the estate were identified and the estate distributed in accordance with Islamic principles applicable. 5.The respondent faulted the applicant for alleging that the suit properties belonged to her late father, Huka Boru Abare, yet it was within her knowledge that the same belonged to her grandfather Wako Tuto, who was married to two (2) wives. The first wife was Diranu Wako Tuto, who gave birth to one child, the appellants father, Huka Boru Abare (deceased), and the second wife was Diramo Galgallo, who was his mother. Based on the aforegoing, it was clear that the estate herein did belong to the appellants grandfather, and she would only be entitled benefits from her fathers share in the two unregistered parcels of land and not the entire parcels as claimed. 6.Finally, he did reiterate that he had no interest in disposing off the suit parcels of land, and his interest was limited to dividing the estate to the surviving beneficiaries of the estate in accordance with Islamic law. The application filed was therefore misconceived and he urged the court to dismiss the same. C. Analysis & Determination 7.I have carefully considered the Notice of Motion, the supporting affidavit, the replying affidavit, and the rival positions advanced. The issue for determination is whether the Applicant has met the threshold for grant of an injunction. Section 47 of the law of succession Act vests in the court wide discretion in granting protective powers for purposes of safeguarding the estate of a deceased person. The said section provides that;“The 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 maybe expedient. 8.Similarly. Rule 73 of the probate and administration rules provide that“Nothing in these rules shall limit or otherwise affect the inherent power of the court to make such orders as maybe necessary for the ends of justice or to prevent abuse of the court process.” 9.A reading of these two sections indicate that the high court is clothed with wide discretionary powers to do what is necessary to ensure that ends of justice are met. This position finds support in Millicent Mbatha Mulavu Vs Annah Ndunge Mulava & 3 others (2018) eklr, where the High court affirmed that it has powers to issue injunctive orders for purposes of preserving the estate of a deceased person and also in the court of Appeal case of Floris Piezzo & Another Vs Giancarlo Falasconi ( 2014) eklr where the said court expressed itself as follows;“We have carefully considered the grounds of Appeal, rival submissions and the law. The application before the court was for temporary injunction to restrain the appellant from dealing with the suit premises in a manner inimical to the estate of the deceased. The question which arose and had to be determined first was whether the court had jurisdiction to grant an injunction in a succession cause.The appellants took the position that the court had no such jurisdiction, whereas the respondent took the contrary position. However, the High court was persuaded that rule 73 of the probate and administration rules reserved the courts inherent jurisdiction to allow for grant of an injunction in deserving cases. We totally agree with this conclusion. We have no doubt at all that the law of succession gives the court wide jurisdiction to deal with testamentary and administration issues of an estate…………….in other words. We are of the same view that section 47 of the Act gives the court an all-embracing power to make necessary orders including injunctions where appropriate to safeguard the deceased estate. This section must be further read with Rule 73 of the probate and administration rules which further emboldens court’s jurisdiction to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court. we would imagine that such orders include injunctive orders.” 10.In CMC Holding Ltd & Another Vs Jaquar Land Rover Exports Ltd eKLR the court while highlighting the purpose of interim measures of protection held as follows;“The measures are intended to preserve the asset or evidence which is likely to be wasted if conservatory orders are not issued. These orders are not automatic. The purpose of the interim measure of protection is to ensure that the subject matter will be in the same state as it was at the commencement or during the arbitral. The court must be satisfied that the subject matter of the arbitral will not be in the same state at the time the arbitral reference is concluded, before it can grant an interim measure of protection.” 11.In that case, the applicant is just apprehensive that the respondent wants to dispose of the suit properties, but has not established the same nor has she proved that the Honourable Kadhi was to supervise the sub division of the land as alleged. Her assertions therefore remain speculative, unsupported by actual evidence to prove infringement of her rights and thus has not demonstrated a prima facie case or the substantial loss she stands to suffer if the injunction is not granted. For the same reasons, irreparable harm too has not been established. 12.The balance of convenience therefore does not favour granting the injunctive orders sought, where the substratum of the appeal has not been shown to be at risk of destruction and/or the same would be rendered nugatory. D. Dispostion 13.Taking all relevant factors into consideration, I do find that the Notice of Motion dated 9th October 2025 lacks merit and accordingly it is dismissed. 14.The costs of the said Application will be in the cause. 15.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MARSABIT THIS 9TH DAY OF JULY, 2026.FRANCIS RAYOLA OLELJUDGEDelivered through Email and on CTS, portal this 9th day of JULY, 2026.In the presence of: -………………………………………………………..AppellantPresent in …………………………………………. RespondentJarso……………………………………………….Court Assistant