https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7552

In re Estate of John Muthiora Gathuna (Deceased) (Succession Cause 1161 of 1990 & Miscellaneous Cause E120 of 2022 (Consolidated)) [2026] KEHC 7552 (KLR) (Family) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7552 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 1161 of 1990 & Miscellaneous Cause E120 of 2022 (Consolidated) HK Chemitei, J June 4, 2026 IN THE MATTER THE ESTATE OF JOHN MUTHIORA GATHUNA (DECEASED) Between Daniel Kirui Muthiora Applicant and Joseph Kwinga Muthiora Respondent Ruling 1.This ruling relates to the application dated 6th February, 2023 and further amended on 30th July, 2024 filed by the Applicant, Peter Alioshi Idenya; seeking for orders that:a.The confirmation of the grant made on the 24th November, 1992 as rectified on the 7th November, 2012 be reviewed and amended in the manner following: -(aa)That the list of the names of beneficiaries contained in the partial mediation agreement against the plots consisting the entire L.R. No. Dagoretti/Riruta/168 (plots 1-29) except for plot No. 29 be deemed as the lawful beneficiaries of plots No. 1-28 within L.R. No. Dagoretti/Riruta/168.(bb)That in the respect of plot No. 29 the plot be declared as owned by the beneficiaries namely Mary Nyambura Kangara and Paul Mayaka Ogari in the ratio of 70/30% in terms of the judgment of the Supreme Court in petition No. 9 of 2021 which judgment was delivered on 27th January 2023.(cc)That in terms of the decision of justice Maureen Odero of 4th October 2023, (aa) herein and (bb) herein, the confirmed grant rectified on the 7th November 2012 be deemed as “the amended confirmed grant” and that the partial mediation agreement annexed herewith and the judgment of the Supreme Court in Petition No. 9 of 2021 in respect plot No. 29 be deemed as the entire schedule required in law i.e. the entire list of beneficiaries and their entitlement.b.The costs of this application be costs in the cause. 2.The application is based on the grounds thereof and supported by affidavit sworn by Joseph Kwinga Muthiora on 6th February, 2023. 3.He avers inter alia that following the confirmation and subsequent rectification of the grant, he initiated efforts to conclude the administration of the estate in consultation with the beneficiaries. To facilitate implementation of the confirmed grant, the beneficiaries jointly engaged a licensed surveyor who undertook the subdivision of L.R. No. Dagoretti/Riruta/168. The proposed subdivision was completed and obtained the requisite approval from the Nairobi City County authorities. He annexed copies of the subdivision plans and approvals to demonstrate that the exercise had been undertaken in accordance with the relevant planning requirements. 4.He states that the subdivision scheme was designed to reflect the interests of numerous purchasers who had acquired portions of the land from beneficiaries, had taken possession and had already developed their respective portions. He explains that at the time the grant was confirmed, there was an assumption that all beneficiaries who were entitled to shares had been identified through the male descendants named in the grant. 5.Consequently, several female beneficiaries, namely Margaret Wanjiku Muthiora, Mary Nyambura Muthiora, Virginia Nyokabi Muthiora, Esther Nyokabi Muthiora (deceased) and Mariamu Ngendo Muthiora, were omitted despite having been allocated portions within the property. He further avers that the Court was not informed that some beneficiaries had died after disposing of their allotted portions to third parties. 6.He further explains that certain beneficiaries had sold parts of their shares to third parties who subsequently developed the portions purchased. As a result, the schedule contained in the confirmed grant no longer reflected the realities on the ground. 7.The confirmed grant registered the property in trust for several beneficiaries, including George Gathuna Muthiora, Daniel Kiru Muthiora (in two portions), Patrick Kioko Muthiora, Paul Kamau Muthiora, Patrick Gathuna Muthiora, Paul Kamuyu Muthiora, James Kibunyi Muthiora and Rose Sigire Gathuku. However, because of the omissions relating to female beneficiaries, deceased beneficiaries and purchasers, the Land Control Board declined to grant consent for transfer and subdivision in accordance with the proposed scheme, thereby creating a stalemate in implementation. 8.According to him, legal advice received indicated that the interests of the purchasers in possession should be formally disclosed to the Court and recognized so that appropriate orders could be made regarding their respective portions and the interests of the beneficiaries. He contends that several beneficiaries and the omitted sisters had already sold their allocated portions and no longer had any proprietary interest in the estate, while other sisters who had disposed of their shares to purchasers similarly had no remaining entitlement requiring distribution. 9.He maintains that there is no dispute between the beneficiaries and the purchasers concerning the portions occupied and developed by the latter and that the respective interests and boundaries can readily be identified through the subdivision plans prepared by the surveyor. 10.He further states that the issue relating to Plot No. 29 had already been conclusively determined by the Supreme Court in its judgment delivered on 27th January, 2023, which resolved the ownership dispute concerning that plot. He therefore asserts that the remaining challenge is to align the confirmed grant with the actual circumstances on the ground by recognizing omitted beneficiaries, acknowledging the interests of purchasers and adopting the approved subdivision scheme. 11.In his view, amendment of the confirmed grant is necessary to facilitate lawful implementation of the distribution, regularization of titles and eventual closure of the estate administration process. The affidavit is supported by annexures comprising the mutation forms, subdivision plans, survey sketches, approved development plans, and Nairobi City County approvals relating to the subdivision of Dagoretti/Riruta/168. 12.The application is opposed vide preliminary objection dated 29th August, 2024. The Objector urges the Court to dismiss the entire application with costs on several legal grounds. 13.First, it is contended that the application is legally untenable because it seeks to amend an application in a manner not permitted by law. Reliance is placed on the decision in Jaribu Traders Limited v Fidelity Bank Limited & Another (Commercial Case No. 647 of 2015) [2024] KEHC 3412 (KLR), which is cited as authority for the proposition that the amendment sought is improper. 14.Secondly, the Objector argues that the application is incompetent as it does not comply with the provisions of the Probate and Administration Rules governing succession proceedings. It is asserted that the procedure adopted by the Applicant is contrary to the applicable legal framework and therefore incapable of sustaining the reliefs sought. 15.Thirdly, the Objector maintains that the application is misconceived, incurably defective and devoid of merit. It is argued that the application seeks to alter or interfere with a mediation agreement that had already been adopted as an order of the Court and which has not been set aside. The Objector further contends that the Further Amended Application is unsupported by its own affidavit and improperly seeks to rely on a supporting affidavit filed in relation to a different application, rendering the application procedurally defective. On these grounds, the Court is urged to strike out or dismiss the application with costs. 16.The Respondent has filed written submissions dated 9th October, 2025. He submits that the application is fundamentally defective because it seeks to alter a mediation agreement that was lawfully adopted as an order of the Court, is brought by persons who allegedly lack proper authority to act and improperly invites the Probate Court to enforce a judgment arising from separate matrimonial proceedings. 17.He identifies two principal issues for determination. First, whether the Probate Court has jurisdiction to enforce a judgment issued in matrimonial proceedings and affirmed by the Supreme Court. Second, whether a mediation agreement that has already been adopted as a Court order can lawfully be varied, reviewed or set aside through the present succession proceedings. 18.He submits that these issues raise pure points of law capable of disposing of the matter at a preliminary stage, thereby satisfying the principles governing preliminary objections as set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. 19.On jurisdiction, he argues that the dispute concerning Plot No. 29 and the rights of Paul Mayaka Ogari and Mary Nyambura Kang’ara originated in matrimonial proceedings, namely HCCC No. 6 of 2012 (OS), which culminated in Supreme Court Petition No. 9 of 2021. It is contended that the succession proceedings concern only the administration and distribution of the estate of John Muthiora Gathuna and are distinct from the matrimonial dispute. Since the Supreme Court judgment arose from matrimonial litigation, any enforcement proceedings must be undertaken before the Court that originally handled the matter or is otherwise vested with jurisdiction over execution of that decree. He relies on Sections 29 and 34 of the Civil Procedure Act and authorities such as Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd, emphasizing that jurisdiction is fundamental and that a Court lacking jurisdiction must decline to proceed. 20.He further submits that Paul Mayaka Ogari had already sought and obtained enforcement orders from the Matrimonial Court regarding the Supreme Court judgment. Consequently, he cannot seek a second avenue of enforcement through the succession proceedings, whether directly or indirectly through the administrator. He contends that allowing the succession Court to undertake enforcement would amount to reopening issues that have already been determined by the proper forum and would offend the statutory framework governing execution of decrees. 21.The submissions also stress that the Probate Court’s jurisdiction is limited to matters arising under the Law of Succession Act, namely identification of beneficiaries, administration of estates and distribution of a deceased person’s assets. Reliance is placed on In re Estate of Atibu Oronje Asioma (Deceased), where the Court held that Section 47 of the Law of Succession Act does not confer unlimited jurisdiction and cannot be used to determine disputes falling outside the succession framework. 22.According to the Applicant, enforcement of third-party decrees and matrimonial judgments is beyond the mandate of the succession Court. 23.With respect to the mediation agreement, he submits that Court-annexed mediation is governed by the Judiciary’s Mediation Practice Directions, which provide that once a mediation settlement is adopted by the Court, it acquires the force of a judgment or order of the Court. He therefore argues that the present application is a disguised attempt to alter or circumvent a binding consent judgment. 24.It is further contended that none of the parties to the mediation agreement instructed the firm of Moses N. Siagi & Co. Advocates to seek its variation and that the application is therefore procedurally deficient. He also argues that the application fails to satisfy the legal requirements for review under Order 45 of the Civil Procedure Rules as imported into succession proceedings through Rule 63 of the Probate and Administration Rules. It is submitted that the Applicant has not demonstrated discovery of new and important evidence, an error apparent on the face of the record, or any other sufficient reason that would justify review of a Court order. 25.The Applicant maintains that the omission of enforcement of the Supreme Court judgment from the succession proceedings was neither a factual nor legal error because enforcement properly belongs in the matrimonial proceedings. Accordingly, there exists no lawful basis for reviewing or modifying the mediation agreement. 26.In conclusion, he urges the Court to reject what is described as an attempt to merge two distinct legal proceedings, succession and matrimonial litigation, and to bring the long-running succession cause to a close. The Court is therefore invited to uphold the Preliminary Objection and dismiss the Further Amended Chamber Summons dated 30th July, 2024 with costs. 27.The Applicant has filed written submissions dated 15th December, 2025. He submits that the objections raised by the Applicant are unsustainable both in fact and in law. He argues that the objections have already been overtaken by events and do not meet the threshold of a valid preliminary objection. 28.According to him, the Court had previously considered similar objections and rendered a ruling on 20th June, 2024 dismissing them, thereby rendering the present objections res judicata. 29.The Respondent further contends that the application presently before the Court concerns implementation of matters that remained unresolved after mediation, particularly Plot No. 29 and is therefore not an attempt to reopen issues that were conclusively settled through mediation. 30.On the issue of mediation, the Respondent argues that the Applicant mischaracterizes the mediation settlement as a complete resolution of all issues relating to the estate. He points out that the mediation agreement expressly described itself as a partial mediation agreement and only resolved the distribution of Plots 1–28. Plot No. 29 was deliberately excluded because ownership of that plot remained contested between Mary Nyambura Kang’ara and Paul Mayaka Ogari. 31.Consequently, the Respondent submits that recognizing the Supreme Court’s determination regarding Plot No. 29 would not amount to setting aside or varying the mediation agreement, since the mediation settlement itself left that issue unresolved. He further submits that the Supreme Court conclusively determined ownership of Plot No. 29 by declaring that Mary Nyambura Kang’ara and Paul Mayaka Ogari were entitled to the property in the ratio of 70% and 30% respectively. 32.He argues that this determination is binding on all Courts and forums and cannot be ignored in the succession proceedings. In his view, the succession Court is not being asked to reconsider or vary the Supreme Court judgment but merely to implement its consequences within the estate distribution process. Since Plot No. 29 forms part of L.R. No. Dagoretti/Riruta/168, which is the principal estate property under distribution, the succession Court must take cognizance of the Supreme Court’s findings when finalizing distribution. 33.Addressing the question of jurisdiction, the Respondent maintains that the succession Court is properly seized of the matter because the dispute concerns distribution and transmission of estate property. He argues that while the matrimonial proceedings determined beneficial ownership rights between Mary Nyambura Kang’ara and Paul Mayaka Ogari, those rights must ultimately be reflected in the succession cause through confirmation and transmission of title. 34.According to the Respondent, implementation of the Supreme Court judgment and completion of succession proceedings are intertwined, making it necessary for the Probate Court to address both aspects simultaneously. The Respondent criticizes the Applicant’s position as leading to an absurd result. He argues that if the Applicant’s interpretation were accepted, Mary Nyambura Kang’ara would receive 100% ownership of Plot No. 29 through the succession proceedings while Paul Mayaka Ogari would simultaneously hold a 30% beneficial interest through the matrimonial proceedings. Such an outcome would create conflicting legal positions and undermine the finality of the Supreme Court judgment. 35.The Respondent therefore contends that the succession Court must give effect to the Supreme Court’s allocation of ownership interests to avoid legal inconsistency. 36.Regarding representation, the Respondent submits that the administrator has authority to act on behalf of all beneficiaries and persons interested in the estate. He argues that the beneficiaries and purchasers had consented to the administrator representing their collective interests in concluding administration of the estate. Consequently, the challenge to the authority of the administrator and his advocates is said to be without merit. The Respondent maintains that succession proceedings are intended to preserve and distribute estate property and that the administrator is entitled to move the Court whenever necessary to facilitate completion of that mandate. 37.The Respondent also relies on the Court’s earlier ruling of 20th June, 2024, which dismissed a similar preliminary objection. He argues that the Court had already held that questions regarding the mediation agreement, the authority of counsel and jurisdiction involved factual matters requiring evidentiary interrogation and therefore could not properly be raised through a preliminary objection. 38.The Respondent submits that the same reasoning applies to the current objection and that the Applicant is merely seeking to revisit issues that have already been determined. 39.In conclusion, the Respondent urges the Court to dismiss the preliminary objection and allow the administrator’s application. He submits that the only outstanding issue in the estate concerns implementation of the Supreme Court decision regarding Plot No. 29 and that allowing the application would facilitate final distribution of the estate and bring the long-running succession cause to a close. Analysis and Determination 40.I have perused carefully the application, the responses thereto and the rival submissions. 41.The principal issues arising for determination are: firstly, whether the preliminary objection raises pure points of law capable of disposing of the application; secondly, whether this Court has jurisdiction to entertain the application and incorporate the effect of the Supreme Court judgment relating to Plot No. 29 within the succession proceedings; and thirdly, whether the Applicant has established sufficient grounds for review and amendment of the rectified confirmed grant. 42.In the case of I.N. & 5 others v. Board of Management St G. School Nairobi & another (2017) eKLR the Court defined, at paragraphs 7 & 8, a preliminary objection as follows:- “Definition of a preliminary objection: I find it necessary to define what constitutes a preliminary objection on a point of law. A preliminary objection must first, raise a point of law based on ascertained facts and not on evidence. Secondly, if the objection is sustained, that should dispose of the matter. A preliminary objection is in the nature of a legal objection not based on the merits or facts of the case, but must be on pure points of law. It may be noted that preliminary objections are narrow in scope and cannot raise substantive issues raised in the pleadings that may have to be determined by the Court after perusal of evidence. Understanding the nature and scope of preliminary objections is very important for practicing lawyers. Knowing how to raise a properly formulated preliminary objection, and when to raise it, can save a lot of time and costs.” 43.The law on preliminary objections is settled. Courts emphasize that a preliminary objection must raise a pure point of law founded on uncontested facts and capable of disposing of the entire matter without recourse to evidence. 44.In the present case, the objection challenges the authority of counsel, the effect of the mediation agreement, the status of purchasers, the implementation of the Supreme Court judgment and the nature of Plot No. 29. 45.These issues are heavily intertwined with contested facts and the history of the estate administration. Indeed, the record shows that the Court previously addressed substantially similar objections and held that the matters raised required evidentiary interrogation. Whether the administrator was duly authorized, whether purchasers' interests ought to be recognized and whether the mediation agreement was intended to resolve all disputes are matters that cannot be conclusively determined on a preliminary objection. 46.Consequently, I find that the preliminary objection does not meet the legal threshold and is therefore unmerited. 47.On jurisdiction, I agree with the Applicant that a Probate Court cannot purport to execute or enforce a decree issued by another Court in the manner contemplated under Sections 29 and 34 of the Civil Procedure Act. However, the application before this Court is not, strictly speaking, an execution proceeding. The Supreme Court has already pronounced itself on the beneficial ownership of Plot No. 29 and that determination is binding on all Courts under Article 163(7) of the Constitution. 48.The issue before this Court is whether the confirmed grant and the distribution schedule should reflect that determination in order to facilitate administration and transmission of the estate property. Since Plot No. 29 forms part of L.R. No. Dagoretti/Riruta/168, which constitutes estate property subject to distribution in these proceedings, the Probate Court cannot ignore an existing and binding judgment that directly affects the proprietary interests attached to that asset. 49.Recognizing and incorporating those interests into the mode of distribution does not amount to executing the Supreme Court judgment; rather, it amounts to ensuring that the estate is distributed in a manner consistent with the law and existing Court decrees. I therefore find that the Court retains jurisdiction to consider the effect of the Supreme Court decision for purposes of final distribution of the estate. 50.The next question is whether the mediation agreement bars the reliefs sought. The material placed before the Court demonstrates that the mediation settlement was expressly described as a partial mediation agreement. The agreement settled disputes relating to Plots 1–28 but left Plot No. 29 unresolved. It follows that incorporating the Supreme Court's determination concerning Plot No. 29 would not amount to setting aside or varying the mediation agreement. 51.The mediation process did not resolve ownership of Plot No. 29 and therefore there is no concluded settlement on that issue capable of being disturbed. 52.Furthermore, the evidence before the Court indicates that implementation of the confirmed grant has encountered practical difficulties arising from omitted beneficiaries, deceased beneficiaries, purchasers in possession and approved subdivision plans that do not correspond with the schedule contained in the rectified grant. The Court's duty in succession matters is to ensure that the estate is distributed to the persons lawfully entitled thereto and, in a manner, capable of implementation. A grant that no longer reflects the realities on the ground may be revisited where sufficient cause is shown. 53.I am persuaded that the circumstances disclosed by the administrator constitute sufficient reason to revisit the rectified grant. The evidence demonstrates that certain female beneficiaries were omitted from the grant notwithstanding that they had been allocated portions of the estate; some beneficiaries disposed of their interests before their deaths; purchasers acquired and developed portions of the property; and government approvals were obtained for a subdivision scheme intended to facilitate implementation of the estate distribution. 54.These matters were either not fully disclosed to the Court at the time of confirmation or subsequently arose during implementation. The overriding objective of succession proceedings is not merely to confirm grants but to ensure effective, lawful and practical distribution of the estate. To insist on implementation of a grant that is incapable of execution and which disregards interests already recognized by the parties and by superior Courts would perpetuate injustice and hinder finalization of a succession cause that has remained pending for decades. 55.Taking the totality of the above observations I allow the application as follows:(a)The preliminary objection lacks merit and is hereby dismissed.(b)The partial mediation agreement adopted by the Court shall constitute the basis for distribution of Plots 1–28, while Plot No. 29 shall be reflected in accordance with the determination of the Supreme Court allocating ownership between Mary Nyambura Kang'ara and Paul Mayaka Ogari in the ratio of 70:30 respectively.(c)The Administrator shall prepare and file an amended schedule of distribution consistent with the mediation settlement, the Supreme Court judgment and the approved subdivision scheme for purposes of final confirmation and transmission.(d)Each party to bear its own costs. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 4TH DAY OF JUNE 2026.H K CHEMITEIJUDGE, FCIArb.