https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7204

 **REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAIROBI** **FAMILY DIVISION** **SUCCESSION CAUSE NO. 2574 OF 2015** **IN THE MATTER OF THE ESTATE OF DAVID MWAURA KARABA (DECEASED)** **RULING** 1. The Applicant Caroline Wangari Mwaura presents an application dated 30th October 2025 and seeks the following Orders- 1. Spent 2. THAT the firm of Murigi Kamande & Associates be allowed to come on record for the applicant (Caroline Wangari Mwaura) herein in place of the firm of ANGAYA & COMPANY ADVOCATES 3. Spent 4. Spent 5. THAT the ruling delivered on 16th October 2025 be varied and/ or reviewed to provide for the Applicant’s identifiable share in Thika Municipality Block 1/1775 6. THAT this Court be pleased to order for the sale of Thika Municipality Block 1/1775 and the proceeds be shared equally between Mary Wangari Gutuba, Peter Karaba Mwaura, Judy Wanjiku Mwaura and Caroline Wangari Mwaura 7. THAT this Honourable Court be pleased to issue any or further order it may deem just. 8. THAT the costs of this Application be in the cause. 1. The Application is presented under Sections 1A, 3A and Section 80 of the Civil Procedure Act, Order 9 Rule 9, Order 42 Rule 6(2), Order 45 Rule 1 of the Civil Procedure Rules, Rule 59(5) of the Probate and Administration Rules and supported by the applicant, sworn on 30th October 2025. The application is occasioned by a stalemate between the applicant and the respondent regarding the distribution of one of the assets of the deceased’s estate, Thika Municipality Block 1/1775, following the ruling of this Court on 16th October 2025. 2. She avers that the respondent has failed to transmit the property as directed and instead continues to manage the property to the exclusion of the appellant. The respondent has kept her in the dark regarding the property, and she contests the amounts that the respondent has paid to her as her share of the rental income collected. She avers that the Respondent is claiming sole ownership of the entire property. 3. The respondent opposes the application and has sworn an affidavit on 14th March 2026. She acknowledges taking over the management of the property (Thika Municipality Block 1/1775). She has sent to the respondent her quarter share of the rent. She is also paying the deceased's mother her monthly stipend as directed. 4. She states there is an outstanding loan with KCB Bank Limited that needs to be settled. She states that, when balancing the interests of all beneficiaries, it is better that the property not be sold. 5. The Applicant has sworn a supplementary affidavit in which she counters the averments of the respondent and asserts that the matter will be best resolved through the sale of the property. 6. In a further affidavit sworn on 22nd April 2026, the respondent reiterates that selling the asset will prejudice her children. 7. The application was canvassed via written submissions both parties filed submissions. The Applicant’s submissions are dated 15th April 2026. She submits that since the estate cannot be administered in perpetuity, the Court should clarify her separate share of the estate. Reference is made to the decision in **Re Estate of Onyango Ogutu alias Benedict Onyango (Deceased) 2018 KEHC 3494 (KLR)** 8. The submissions of the respondent are dated 22nd April 2026. It is submitted that the Court is *functus officio* and reference made to the decision in **Asvalu v Ashiundu & Another [2025] KEHC 8191 (KLR).** 9. Further, it is submitted that the application does not meet the legal threshold for review under Order 45 Rule 1 of the Civil Procedure Rules, and the respondent relies on the Court of Appeal decision in Mbarak & 4 Others v Mikaya [2024] 637 (KLR). 10. Reference is made to the decision in In **Re Estate of Jonathan Muia Mumo (Deceased) [2022] KEHC 3355 (KLR)** in support of the submission that once a court issues a certificate of confirmation of Grant, the beneficiaries and the administrators are bound by the Court’s approved mode of distribution. It is further submitted that, since the respondent’s children are minors, it is not in their interests to dispose of the land, and reference is made to the decision in James Muhu Kanai vs Caroline Njeri Ngotho & 2 Others [2015] eKLR. **ANALYSIS AND DETERMINATION** 1. I have carefully considered the pleadings herein alongside the submissions and the relevant law. Observing that the coming on record of the firm of Murigi Kamande & Associates is not contested, I will allow that limb of the application and frame the issues for determination as follows 1. Whether this Court is *functus officio* 2. If the answer to (1) above is in the negative, whether the Court should vary the Orders of 16th October 2025 3. Arising from (2) above, what are the consequential orders 2. The respondent submits that this Court, having confirmed the grant, is *functus officio*. The principle of *functus officio* ensures that there is finality in litigation. This was well articulated by Musyoka, J in **In re Estate of Ernest Kerry Komo (Deceased) [2016] eKLR, where** he stated that- **Once a grant is confirmed and the property is distributed, as is the case here, the probate court becomes functus officio. The property in question is no longer estate property. It no longer vests in the administrators. It is no longer subject to the Law of Succession Act, Cap 160, Laws of Kenya, from which the probate court draws its authority and jurisdiction.** 1. It is therefore not within the mandate of the probate Court to resolve the dispute between the parties herein with regard to the collection and sharing of the rent as sought. Neither is the Court the forum for determining the issue of the Estate Management Company that ought to manage the building. 2. The Respondent is right in stating that the Court cannot be moved to vary or review its earlier orders of 16th October 2025 under Order 45 rule 1, given the statutorily limited grounds upon which a court may review or vary its orders. 3. The Orders of 16th October 2025 were *inter alia,* that- 5. THAT the properties shall be distributed as follows; (b) Thika Municipality 1/1775 – Kshs 72000000/= (i) Mary Wangari Gutuba (ii) Peter Karaba Mwaura (iii) Judy Wanjiku Mwaura (iv) Caroline Wangari Mwaura 6. THAT the administrators finalise transmission of the Estate within 9 months. Mention on 9th July 2026 to confirm compliance. 1. In exercise of my inherent jurisdiction under Section 47 of the Law of Succession Act and Rule 73 of the Law of Succession Act, I need to clarify that the property is distributed to the beneficiaries in Equal shares. The Administrator is required to transmit to the applicant her share on or before 9th July 2026 2. If by 9th July 2026, the Administrator has not transmitted the share of Caroline Wangari Mwaura to her, the only viable option will be to dispose of the property by way of sale and have the parties share the net proceeds from the sale. 3. We are yet to cross that bridge; the matter is already slated for mention on 9th July 2026 to confirm compliance. If, by that date, the Estate has not been transmitted, the Court will proceed to give orders to ensure the implementation of the Order of 16th October 2026. 4. The application is therefore premature and is accordingly dismissed with no order as to costs. **SIGNED, DATED** and **DELIVERED VIRTUALLY** at **NAIROBI** this **21st** day of **May, 2026.** **P. M NYAUNDI** **JUDGE** **In the Presence of** Fardosa Court Assistant Ms. Mutheu holding brief for Mr. Munge for Wingrace Wambugu