https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10873

In re Estte of Waweru (Deceased) (Succession Cause 172 of 2016) [2026] KEHC 10873 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KEHC 10873 (KLR) Republic of Kenya In the High Court at Malindi Succession Cause 172 of 2016 M Thande, J July 17, 2026 IN THE MATTER OF THE ESTATE OF ESTATE OF LUSILA WAIRU WAWERU (DECEASED) Between Emmanuel Julius Nyota 1st Objector Peter Waweru Wairu 2nd Objector Hellen Wanjiru 3rd Objector Wilbert Njuki Thumbi 4th Objector and Augusta Rwamba Thumbi Respondent and Joakim Thumbi Ireri Interested Party Ruling 1.The proceedings herein relate to the estate of Lusila Wairu Waweru (the deceased) who died on 15.10.15. A grant of probate of written will was issued to Agusta Rwamba Thumbi, a daughter of the deceased on 1.4.19. The dispute relating to the distribution of the deceased’s estate has been raging for several years and is yet to be settled. The Executor filed a summons for confirmation of grant dated 12.1.25 which has been opposed by some of the children of the deceased. 2.Joakim Thumbi Ireri (Joakim), one of the sons of the deceased filed an Application dated 27.10.25 seeking the following: 1.That the Honourable Court be pleased to issue summons to the Registrar of Titles Mombasa Registry, M.S. Manyarkiy, to be cross-examined on the contents of his report dated 16th September, 2025 and filed on 3rd of October, 2025; 2.That the Honourable Court be pleased to issue summons to the Land Registrar In Charge Mombasa Registry, S.K. Mwangi, to be cross-examined on the contents of his undated letter, filed by the 2nd to 4th Respondents on 28th January, 2025; 3.That the Honourable Court be pleased to direct that at the material date of the hearing the Land Registrar does produce at the trial, the original registry parcel file pertinent to the original parcel number MN/III/2960; 4.That costs be in the cause. 3.In support of his Application, Joakim averred that on 28.1.25, the Objectors/Respondents filed their affidavits in opposition to the confirmation of grant herein. The 2nd - 4th Respondents annexed an undated letter issued by the Land Registrar, In Charge Mombasa Registry, S.K. Mwangi purporting to issue a report ascertaining the ownership of land parcel number MN/III/8103, a subdivision of land parcel MN/III/2960, belonging to the deceased. Joakim stated that due to the disputed contents therein with regards to the irregular subdivision coupled with the glaring anomalies on the face of the document, lack of proper dates thereof and the veracity of the endorsed signature and lack of the officer’s (registrar’s) service number, it was necessary for him to be accorded the opportunity to cross-examine the Land Registrar on the document. 4.Joakim stated further, that the 2nd - 4th Respondents filed a Further List of Documents on 3.10.25 annexing a report dated 16.9.25 prepared by the Registrar of Titles Mombasa Registry, M.S. Manyarkiy, purporting to issue a further report on the same parcel number mentioned above. Joakim thus states that it is crucial for the officer to produce in court, during the trial, the original parcel file to parcel number MN/III/2960 for purposes of verification of its contents thereon, with regard to the dispute on the irregular subdivision of the original parcel number MN/III/2960. It is Joakim’s contention that he disputes the reports, since on 6.5.10, he and the 2nd Respondent Peter Waweru Wairu registered a caveat against parcel number MN/III/2960 which has never been lifted to date. He argued that the purported subdivision as indicated in the said documents raises questions which need to be addressed by the authors of the reports. He thus urged that he is seeking production of the said documents and cross examination of their authors in furtherance of the dictates of Article 50 of the Constitution. 5.The Application is opposed by the 1st Respondent, Emmanuel Julius Nyota (Emmanuel) vide a replying affidavit sworn on 12.11.25. 6.I have carefully considered the Application. Joakim disputes the subdivision of parcel number MN/III/2960 and ownership of parcel number MN/III/8103 which emanated from the subdivision of parcel number MN/III/2960. 7.On 18.7.25, this Court delivered a ruling on a notice to produce filed by Joakim. He had sought that Emmanuel produces for inspection, original email correspondence addressed to him from the firm of Gikera & Vadgama in relation to lack of certificate of clean title to subdivision No. MN/III/8103 emanating from land parcel MN/III/2960. Joakim’s contention was that the subdivision of land parcel MN/III/2960 was fraudulent as he and Peter Waweru Wairu had lodged a caveat on Plot 2960 on 6.5.10, which was still in place. 8.This Court dismissed the notice to produce and noted as follows:In the email, the advocates informed Emmanuel that they found no record of the consent of the land control board in respect of the subdivision of Plot 2960 or the transfer of Plot 8103 to him. They further stated that in light of that, they could not issue a certificate of clean title. It would appear that Joakim seeks to use this email to challenge the subdivision of Plot 2960 and transfer of Plot 8103 to Emmanuel. This Court albeit differently constituted, has already pronounced itself on the issue of the transfer of Plot 8103 in Civil Case No. 25 of 2016 (OS). In the said judgment dated 25.6.2020, in Nyakundi, J. stated as follows regarding Plot 8103:(f).That certificate of title comprised of and subdivided parcels of land transferred in the name Emmanuel Julius Nyota surveyed subdivision referred as 8103 shall be transmitted under the grant of probate to the rightful owner.On his part, Githinji, J. in his ruling of 11.5.23 in allowing an application for review of the said judgment, stated:Given the above reasons, I do find that the land parcel number MN/III/8103 which was transferred on June 11, 2012 during the lifetime of the deceased does not form part of the estate of the deceased. Notably, is that the 1st respondent even having raised a P.O did not oppose the averments contained in the Notice of Motion in respect of this said plot. This to me is a mistake on the record and a regrettable error that deserves correction. Plot MN/111/8104 is the one which should be included in the will.By dint of the doctrine of res judicata set out in Section 7 of the Civil Procedure Act, this Court cannot reopen the matter to receive any document to explain an issue in respect of which it has pronounced itself. Additionally, Article 165(6) of the Constitution bars this Court from supervising a superior court. A Judge of the High Court cannot review the decision of a fellow Judge of the Court. In this regard, I am guided by the holding in Bellevue Development Company Ltd v Gikonyo & 3 others; Kenya Commercial Bank & 3 others (Interested Parties) (Civil Appeal 239 of 2018) [2018] KECA 330 (KLR) (21 September 2018) (Judgment) where Kiage, JA. stated:I have no difficulty upholding the learned Judge's holding that as a judge of the High Court he had no jurisdiction to enquire into or review the propriety of the decisions of the Judges, who were of concurrent jurisdiction as himself. In our system of courts, which is hierarchical in nature, judges of concurrent jurisdiction do not possess supervisory jurisdiction over each other. No judge of the High Court can superintend over fellow judges of that court or of the superior courts of equal status. That much is plain common sense. It has, moreover, been expressly stated in Article 165(6) of the Constitution in these terms;“The High Court has supervisory jurisdiction over the subordinate courts and over any other person, body or authority exercising a judicial or quasi judicial function, but not over a superior court.” (Our emphasis) 9.Duly guided, this Court found that any attempt to reopen the matter to receive and consider evidence relating to Plot 8103, is to tread on forbidden ground thus defying the constitutional hierarchy of the courts. 10.The Court finds that this is yet another attempt by Joakim to reopen the issue of the subdivision of land parcel MN/III/2960 and ownership of land parcel MN/III/8103. Already, 2 Judges of this Court have pronounced themselves on the said issue. Accordingly, I have no jurisdiction to enquire into or review the propriety of the decisions of the said Judges, who are of concurrent jurisdiction as myself. 11.Further, the issue of ownership of the properties, which is what Joakim disputes, is beyond the jurisdiction of this Court. Article 165(5) of the Constitution provides as follows:(5)The High Court shall not have jurisdiction in respect of matters—(a)reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or(b)falling within the jurisdiction of the courts contemplated in Article 162(2).Article 162(2) provides:(2)Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—(a)…(b)the environment and the use and occupation of, and title to, land. 12.By dint of Article 165(5) of the Constitution, this Court lacks the jurisdiction over matters to do with the use and occupation of, and title to, land. As such, the Court is incompetent to consider and make a determination on the issue of validity of the subdivision of land parcel MN/III/2960 and the ownership of land parcel MN/III/8103. That jurisdiction is exclusively reserved for the Environment and Land Court by dint of Article 162(2) of the Constitution. It is in that court that Joakim may, if so inclined, challenge the subdivision of land parcel MN/III/2960 and ownership of land parcel MN/III/8103. 13.In the end and in view of the foregoing, the Court finds that the Application dated 27.10.25 lacks merit and the same is dismissed. This being a family matter, there shall be no order as to costs. DATED, SIGNED AND DELIVERED IN MALINDI THIS 17TH DAY OF JULY 2026_________________M. THANDEJUDGE