https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6884

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **SUCCESSION CAUSE NO. 76 OF 1995** **IN THE MATTER OF THE ESTATE OF THE LATE SAMWEL NAKHONE WABWIRE-DECEASED** **ARAMISI MAKOKHA NAKHONJE……………………………….OBJECTOR** **AND** **TOM OGARA NAKHONE……………………………………………OBJECTOR** **VERSUS** **THE PUBLIC TRUSTEE OF KAKAMEGA……………………….ADMINISTRATOR** **AND** **CHRISTOPHER OSAMA…………………………………………..RESPONDENT** **RULING** 1. This objectors Aramisi Makokha Nakhone and Tom Ogara Nakhone have brought an urgent application for a temporary injunction against the public trustee and other respondents. The applicants seek orders to restrain any dealings with land parcel Bukhayo/Buyofu/38, which they allege forms part of the intestate estate of their late father, Samwel Nakhone Wabwire. 2. The late Samwel Nakhone Wabwire died on 20th September 1991, intestate. 3. The public trustee was granted letters of administration over his estate on 24th January 1995. The initial grant mistakenly identified the estate asset as land Bunyala/Nambacha/152, an error corrected by a court order on 14th March 1995 to the correct parcel, Bukhayo/Buyofu/38. 4. The applicants, sons of the deceased, now allege that the said land has been unlawfully subdivided without the consent of all beneficiaries, creating multiple new titles in the names of third parties. 5. The Applicants further allege that the public trustee failed to involve all beneficiaries in the succession process and failed to conduct a proper identification of beneficiaries' portions on the ground before confirming the grant. 6. Section 47 of the Law of Succession Act clothes the High Court with jurisdiction thus: **“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decree and make such orders therein as may be expedient”** **“Rule 73 of the Probate and Administration rules provides:** **Nothing in these rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court”** **Analysis** 1. The core duty of an administrator, such as the Public Trustee, is to gather, preserve, and distribute the estate for the benefit of all beneficiaries. This is a fiduciary duty of the highest order. Section 83 of the Law of Succession Act outlines the duties of the representatives as: **“Personal representatives shall have the following duties:** **(a)to provide and pay, out of the estate of the deceased, the expenses of a reasonable funeral for him;** **c)to pay, out of the estate of the deceased, all expenses of obtaining their grant of representation, and all other reasonable expenses of administration (including estate duty, if any)** **(d)to ascertain and pay, out of the estate of the deceased, all his debts;** **(e)within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;** **(f)subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be;** **(g)within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration.** **(h)to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;** **(i)to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.”** 1. On the aspect of failure to identify all beneficiaries, an administrator has a statutory obligation to provide a true and complete account of the estate. Relying solely on a district commissioner's letter without conducting thorough due diligence on the family composition may constitute a failure in this duty. The applicants' detailed list of all potential beneficiaries: 2. KALASINA NAKHONE – WIDOW 3. AJWANG NAKHONE –WIDOW 4. PETER KOKONYA NAKHONE- SON 5. CHRISANTUS NAKHONE -SON 6. ARAMISI MAKOKHA NAKHONE-SON 7. TOM O. NAKHONE – SON 8. THOMAS M. NAKHONE - SON 9. CONSTANT MAKOKHA NAKHONE – SON 10. JUDE NAKHONE -SON 11. ROSEMARY A. NAKHONE – DAUGHETR 12. AKELLO CATHERINE NAKHONE - DAUGHTER 13. MATHA DINDI NAKHONE - DAUGHTER 14. DANIS NAKHONE - SON 15. ANTONY NAKHONE - SON 16. JACOB NAKHONE- SON 17. METRINE NAKHONE - SON 18. NEKUNDA NAKHONE- SON 19. STEPHEN SENEGO NAKHONE - SON 20. MILDRED NAKHONE - DAUGHTER 21. VIOLET NAKHONE - DAUGHTER 22. STALLA NAKHONE- DAUGHTER 23. In **Kagau & another v Kagau & another (Civil Appeal 477 of 2018) [2025] KECA 696 (KLR) (11 April 2025)**, it was held that: ***“Failure to disclose all legal heirs constitutes a valid ground for revocation of a grant. The High Court, on a preponderance of all the facts and evidence placed before it, found that the appellants had knowledge of the 1st respondent’s relationship with the deceased and the children’s dependency but omitted them from the list of beneficiaries, making the grant defective.”*** 1. The Applicants have provided a prima facie case that the estate asset, Bukhayo/Bunyofu/38, is being dissipated as detailed by the report of the land search in the lands registry. The following subdivision entries was not consented by the beneficiaries was found on Bukhayo/bunyofu/38 on the lands registry: 2. Bukhayo/bunyofu/4138, the proprietor was Jesinta Osama. 3. Bukhayo/bunyofu/4137, the proprietor was Dennis Osama 4. Bukhayo/bunyofu/3424, the proprietor was Aramis Makhokha. 5. Bukhayo/Bunyofu/3475, the proprietor was Humphrey Chweya. 6. Bukhayo/bunyofu/3476, the proprietor was Aramis Makhokha. 7. Bukhayo/bunyofu/1819, the proprietor was Tom Wabwire 8. Bukhayo/bunyofu/1817, the proprietor was Aramis Makhokha 9. Bukhayo/bunyofu/1818, the proprietor was Christopher Osama. 10. Section 155 of the Land Act 2012 is clear that it is an offence for anyone to deal with estate property without proper authorization. The alleged subdivision and registration of parcels to third parties, if done without a valid grant of administration or in breach of fiduciary duty, can amount to intermeddling and potentially fraud. 11. On the issue of whether the applicant has satisfied the requirements for grant of a temporary injunction or interlocutory injunction to issue, the applicant has relied on the principles that were set out in the case of **Giella v Cassman Brown & Co. Ltd [1973] EA 358** , requiring an applicant to: ***“a.Show that they have established a prima facie case, which is strong enough to proceed to trial.*** ***demonstrate that they are likely to suffer irreparable harm, which is significant and non- monetary in the sense that the Applicant cannot be compensated a monetary award if the injunction is not granted.*** ***c.A demonstration of a balance of convenience in the sense that if there is a doubt in regard to the first two conditions, the court will consider which party would suffer more from either granting or denying the injunction.”*** 1. Courts have consistently held that the purpose of an injunction is to preserve the subject matter of a dispute until its final determination. The alleged ongoing threat of eviction and disturbance by the respondents creates a situation where the final determination of the objection would be rendered nugatory if the land is further alienated or developed. In **Ngugi v Mwihaki & another [2025] KEHC 11865 (KLR),** it was held that: ***“The purpose of temporary or interlocutory injunction is to preserve the status quo until a final decision is made. They are meant to prevent wasting, damaging or disposal of a property in dispute until the same is resolved.”*** 1. The applicants have demonstrated a serious question to be tried. They have shown a direct interest as alleged sons of the deceased. They have attached documentary evidence, including a copy of the grant and mutation forms, supporting their claim of unauthorized subdivision. This is sufficient to establish a prima facie case. 2. On the issue of irreparable injury, the subdivision and potential sale of the land to third parties would permanently alter the character of the estate's primary asset. Recovery of the land after such alienation would be complex, costly, and may not be possible, causing irreparable harm to all beneficiaries. 3. On the balance of convenience, the balance tilts heavily in favor of maintaining the status quo. The injury to the applicants and other beneficiaries from the loss of their inheritance outweighs any inconvenience to the Respondents from being restrained from dealing with the land pending the hearing. Preserving the estate safeguards the interests of all parties until the court makes a final determination. **Orders** 1. A temporary injunction is hereby issued, restraining the respondents, whether by themselves, their employees, agents, workers, or servants from accessing, developing, alienating, selling, transferring, cultivating, destroying, constructing on, fencing, or undertaking any other activities on land parcel BUKHAYO/BUYOFU/38 and all its subsequent subdivisions, including but not limited to parcels numbers 4138, 4137, 3424, 3475, 3476, 1819, 1817, and 1818. This order shall remain in force pending the hearing and final determination of the main objection or until further order of this Court. 2. The 1st applicant, Aramisi Makokha Nakhone, is directed to file and serve a comprehensive report detailing all surviving beneficiaries of the estate of Samwel Nakhone Wabwire within fourteen days from the date of this order. This report must be supported by affidavit evidence and, where possible, corroborated by documentary proof such as: 3. Letters from the chief 4. birth and death certificates. 5. ID card 6. The Applicants shall serve this order upon all respondents. 7. The officer in charge of Nambale Police Station is directed to ensure compliance with this order. 8. Right of Appeal 30 days explained. 9. The costs of this application shall be in the cause. 10. Mention 16.7.2026 for further directions or orders. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 20TH DAY OF MAY, 2026.** **S.MBUNGI** **JUDGE** **In the presence of:-** **CA:** Zilda/Velma Administrator, absent. Respondent, absent. Objectors, present. Advocates, absent.