https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12548

In re Estate of Muia (Deceased) (Succession Cause 60 of 2012) [2026] KEHC 12548 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 12548 (KLR) Republic of Kenya In the High Court at Machakos Succession Cause 60 of 2012 EN Maina, J July 30, 2026 IN THE MATTER OF THE ESTATE OF LUCY NTHENYA MUIA (DECEASED) Between Agnes Nzilani Mavuti 1st Objector Richard Mbevi Muia 2nd Objector Patrick Mutuku Muia 3rd Objector Benedict Mutie Muia 4th Objector Peter Kioko Muia 5th Objector Ruth Nduku Muia 6th Objector Rose Mbula Muia 7th Objector and Annanciata Mbithe Muia Petitioner and Antony Muia Respondent Ruling 1.The late Lucy Nthenya Muia ("the deceased") died intestate in 2011. A Certificate of Confirmation of Grant was confirmed on 19th July 2013 and dated 29th July 2013 in favour of the Petitioner/Applicant, Annanciata Mbithe Muia ("the Applicant"). Its schedule distributes Machakos/Matuu/2067 (shared equally between the Applicant and Agnes Nzilani Mavuti); Machakos/Matuu/4304, Ndalani/Mavoloni/Block 1/808, Ndalani/Mavoloni/Block 1/807, Kangundo/Isinga/1939, Kangundo Plot 120A and Kangundo Farming & Ranching Co. Ltd. Ithanga Block 44D (each wholly to the Applicant); and Machakos/Matuu/2085, Machakos/Matuu/3546 and Kangundo Farming & Ranching Co. Ltd. Parcel No. 44C (each wholly to Agnes Nzilani Mavuti). Plot No. 120A, Kangundo Town ("the suit property"), the subject of this application, is accordingly confirmed wholly to the Applicant under that grant. 2.By Notice of Motion/Application dated 12th March 2025, the Applicant sought to evict the Respondent, Antony Muia, her nephew, son of the Objector Agnes Nzilani Mavuti, and thus a grandson and beneficiary of the deceased, from a shop on the suit property. Her case is that Plot 120A devolved to her wholly under the confirmed grant of 29th July 2013; that she allowed the Respondent, out of benevolence, to occupy and stock the shop; that he has since acquired his own shop nearby but refused to relocate and hand back the premises despite notice and the Chief's intervention; and that the application concerns only recovery from a licensee, not distribution or revocation of the grant. 3.The Respondent opposed the application by a Replying Affidavit sworn 10th June 2025, supported by that of his mother, Agnes Nzilani Mavuti. Their case, and the record, disclose the following:“(a)the Respondent occupies and collects rent on part of the suit property in his own right as a beneficiary, not as the Applicant's licensee;(b)a Summons for Revocation of Grant dated 7th June 2022, filed by Agnes Nzilani Mavuti, Ruth Nduku Muia and Peter Kioko Muia under section 76 of the Law of Succession Act and Rules 44 and 49 of the Probate and Administration Rules, seeks to annul the 2013 grant on grounds of fraud, secrecy and non-disclosure of the 2nd–7th Objectors as dependants of the deceased, including through the deceased's customary "woman-to-woman" union with the late Grace Ndunge under Kamba custom,and to have all estate assets revert for fresh distribution (Annexure "AM1");(c)that summons sought interim orders restraining the Applicant from evicting or harassing the Objectors and preserving from any dealing a list of parcels expressly including Kangundo Plot 120A, pending determination of the revocation application; no order disposing of, or granting interim relief on, that summons appears on the court file, and the revocation application itself remains pending and undetermined;(d)a partial mediation settlement of 21st October 2022 (Ref. MKS/MED/076/2022) subsequently apportioned six of the estate's parcels among the parties, recording their agreement not to discuss the Kangundo Farming & Ranching Co. Ltd/Ithanga Block 44C–44D dispute, which is pending in a different court; that settlement does not mention Plot 120A at all (Annexure "AM2");(e)neither the Respondent nor his mother ever recognised the Applicant as sole owner of, or agreed to pay her rent on, Plot 120A; and(f)the application, though framed as a licensee-eviction claim, is in truth an attempt to bypass the pending revocation and distribution proceedings without disclosing them, and is frivolous, vexatious and an abuse of process.” 4.The application was mentioned on 11th June 2025 (Applicant granted 14 days to file submissions, status quo ordered maintained), 18th September 2025 (leave granted to both parties to file further affidavits/submissions), and 24th March 2026 (submissions ordered filed by close of business, failing which the application would stand dismissed). Submissions were eventually filed, and the matter was fixed for ruling on 30th July 2026 at the mention of 14th April 2026. Issues for Determination1.Whether Plot No. 120A remains a live, undistributed issue in this succession cause, or was left undisturbed, and thus remains vested in the Applicant, following the Summons for Revocation of Grant and the mediation settlement triggered thereafter.2.Whether, that being so, this application is in substance a claim for eviction or recovery of possession lying outside the jurisdiction of this court.3.Whether the Applicant has approached the court with the candour required of a party seeking discretionary relief.4.What orders should follow. Analysis and Determination Issue 1: Status of Plot 120A, and jurisdiction 5.On the face of it, this dispute has the hallmarks of intermeddling with estate property rather than a straightforward eviction. Section 45(1) of the Law of Succession Act (Cap. 160) prohibits any person, save as authorised by a grant of representation, from taking possession of, disposing of, or otherwise intermeddling with the free property of a deceased person, and its reach has been construed broadly to capture occupation, collection of rent and similar assertions of control over estate property. See Benson Mutuma Muriungi v C.E.O., Kenya Police Sacco & another [2016] eKLR (intermeddling includes taking possession or occupation of, disposing of, or otherwise interfering with the free property of the deceased, the list not being closed) and see Re Estate of Ndiba Thande (Deceased) [2013] eKLR. Both the Respondent's continued occupation and the Applicant's own assertion of a unilateral right to license and evict could be read that way. Closer examination of the record, however, resolves the question of the property's status. 6.Whether Plot 120A remains estate property whose entitlement is still to be settled turns on what became of the Summons for Revocation of Grant dated 7th June 2022. That summons, filed by Agnes Nzilani Mavuti, Ruth Nduku Muia and Peter Kioko Muia, triggered a court-referred mediation between the beneficiaries. 7.The resulting Mediation Settlement Agreement of 21st October 2022 (Ref. MKS/MED/076/2022) is precise about what it leaves outstanding: paragraph 7 records the parties' agreement not to discuss the properties described as Kangundo Farming & Ranching Co. Ltd, Ithanga Block 44C and 44D, " since the matter is active in a different court". No corresponding reservation is made in respect of Plot 120A. Read together with the confirmed grant, the clear implication is that Plot 120A was not treated by the beneficiaries as a matter requiring further mediation or redistribution; it remained, as before, wholly allocated to the Applicant, to whom it had previously devolved. 8.The Summons for Revocation of Grant, having triggered that mediation, is superseded by the resulting settlement agreement and is no longer applicable as against the parcels the agreement resolved, Plot 120A included. This court adopted the Mediation Settlement Agreement. Although the parties have not since returned to court for a confirmation of grant giving formal effect to its terms, that omission does not detract from its force: once adopted, a settlement agreement is binding on the parties, see In re Estate of Oyosi Oyuoya alias Oyosi Oywoya (Deceased) [2021] eKLR, where a mediation settlement agreement reached in a succession cause was adopted as a judgment of the court, binding on the parties, under section 59D of the Civil Procedure Act (Cap. 21) and the Civil Procedure (Court-Annexed Mediation) Rules, 2022. The parties remain at liberty to regularise the position by applying for a confirmation of grant consistent with that binding settlement, but their failure to do so does not reopen what the settlement has already concluded. 9.It follows that Plot 120A is not, in this succession cause, a live or contested estate asset; it is settled, and binding on the parties, as property of the Applicant. What remains is simply the Respondent's refusal to vacate a shop on property no longer in dispute between the beneficiaries, in substance, an ordinary claim for eviction or recovery of possession, not a question of succession or estate distribution. A probate court's jurisdiction under the Law of Succession Act is confined to identifying beneficiaries, ascertaining estate assets and distributing them; it does not extend to granting eviction or recovery of possession over property no longer in issue between beneficiaries. This is affirmed in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR (jurisdiction is everything; a court must down its tools once it finds it lacks jurisdiction) and In re Estate of Mbai Wainaina (Deceased) [2015] eKLR (the probate court's mandate does not extend to determining or enforcing questions of ownership or possession of property), approved by the Court of Appeal in Civil Appeal No. 26 of 2018. Such a claim ought properly to be placed before the relevant court or tribunal clothed with jurisdiction to hear and determine it. Issue 2: The licensee question 10.Given the foregoing, it is neither necessary nor proper for this court, sitting in probate, to determine whether the Respondent's continued occupation is that of a bare licensee or otherwise; that question goes to recovery of possession, not succession, and falls to be determined by the court or tribunal properly seized to do so. Issue 3: Candour and disclosure 11.A party seeking a discretionary remedy that is, in substance, an eviction order must make full and frank disclosure of material facts, including facts adverse to its own case. The founding affidavit and submissions are silent on the Summons for Revocation of the Applicant's own grant and the mediation process it triggered, materials that would have shown, from the outset, that Plot 120A was no longer a live estate-distribution question and that any claim to evict the Respondent belonged before a different forum. That omission, and the mischaracterisation of an ordinary eviction claim as an interlocutory application within the succession cause, weighs against the Applicant. Disposition 12.The application, though brought within this succession cause, is in substance a claim for eviction or recovery of possession over property that is no longer in dispute between the beneficiaries, the same having been settled by a Mediation Settlement Agreement adopted by, and binding on the parties before, this court and cannot be relitigated in this court. The litigation lies elsewhere but not in this court. 13.Accordingly, I make the following orders:(a)The Notice of Motion/Application dated 12th March 2025 is hereby dismissed for lack of merit.(b)Given that the proceedings involves family members, each party shall bear its own costs of this application.It is so ordered. CNCLUSIONSRULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026.E.N.MAINAJUDGEIn the presence of:Mr Kioko for Muinde for the ApplicantMr Nzioka for the RespondentMiriam – Court Assistant/Interpreter