https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10370

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **SUCCESSION CAUSE NO. 10 OF 1985** **IN THE MATTER OF THE ESTATE OF KAMAU GICHUHI (DECEASED)** **DANIEL MWANIKI KAMAU…………………………………….……………APPLICANT** **VERSUS** **MONICAH WAMBUI KAMAU………………………………..…………..RESPONDENT** **Coram: Before Justice R. Nyakundi** **M/S C & O Advocates LLP** **M/S Daniel Mwaniki Kamau** **M/S Monicah Wambui Kamau** **RULING** 1. Before this Court is Notice of Motion dated 3rd June 2026, expressed to be brought under Sections 29, 47 and 66(b) of the Law of Succession Act, Cap 160 Laws of Kenya, Rules 49 and 73 of the Probate and Administration Rules, and all other enabling provisions of the law. The Applicant seeks the following orders: 2. *Pending the hearing and determination of this application, this Honourable Court be pleased to order the respondent to file in Court the original Certificate of Lease for ELDORET MUNICIPALITY BLOCK 6/95.* 3. *Pending the hearing and determination of this application, this Honourable Court be pleased to order the respondent to file in Court the original Certificate of Lease for ELDORET MUNICIPALITY LR NO. 10492 now known as PLOT NO.21/3733.* 4. *Pending the hearing and determination of this application, this Honourable Court be pleased to issue an order restraining the Respondent, any administrator, beneficiary, agent, or any person acting under them from selling, leasing, charging, transferring, alienating, or in any other manner interfering with ELDORET MUNICIPALITYBLOCK 6/95 and ELDORET MUNICIPALITY LR NO. 10492 now known as PLOT NO. 21/3733.* 5. *Pending the distribution of the estate, the Applicant be allowed to receive an equal share of the income derived from ELDORET MUNICIPALITY BLOCK 6/95 and ELDORET MUNICIPALITY LR NO. 10492 now known as PLOT NO. 21/3733.* 6. *This Honourable Court be pleased to order that no beneficiary shall exclusively enjoy or monopolize the intestate estate of the deceased to the exclusion of the Applicant.* 7. *Costs of this application be provided for.* 8. Grounds in support: 9. *THAT the Applicant is a beneficiary of the estate of KAMAU GICHUHI (DECEASED).* 10. *THAT this succession cause has remained unresolved for approximately forty-one (41) years.* 11. *THAT the Applicant has never benefited from the estate of the deceased despite being a lawful beneficiary.* 12. *THAT other beneficiaries continue to enjoy and derive benefits from the estate while the Applicant continues to suffer exclusion and prejudice.* 13. *THAT in a ruling delivered on 17th May 2023, this Honourable Court directed the Respondent to prepare and file a proposal on the mode of distribution of the estate.* 14. *THAT contrary to the said orders, the Respondent proceeded to obtain a Certificate of Lease issued on 19th February 2024 over part of the estate property.* 15. *THAT unless the orders sought herein are granted, the Applicant risks suffering irreparable loss and continue exclusion from the estate.* 16. *THAT this application is brought in good faith and in the interest of justice.* 17. In response to the application is the Replying Affidavit of one Monicah Wambui Kamau who avers as follows: 18. *THAT I am the Respondent herein and one of the beneficiaries and administrator(s) of the estate of the late Kamau Gichuhi (Deceased), hence competent and duly authorized to swear this affidavit.* 19. *THAT I have read and understood the Applicant's application together with the grounds advanced in support thereof and I wish to respond as hereunder.* 20. *THAT the succession proceedings herein commenced in the year 1985 following the death of Kamau Gichuhi (Deceased) who was survived by two households.* 21. *THAT upon my husband's demise, Leah Mukami Kamau my co-wife filed Probate and Administration Cause no. 10 of 1985, petitioning for letters of Administration on or about 5th August 1985 without my knowledge and consequently a Notice of publication was forwarded in the Kenya Gazette on 16th August 1985.* 22. *THAT subsequent to the said ruling, I filed an application dated 3rd July 2023 seeking review of the Ruling dated 17th May 2023. However, vide a Ruling dated 24th September 2023 the Court upheld the Ruling dated 17th May 2023.* 23. *THAT the Applicant is therefore misleading this Honourable Court by presenting the ruling of 17th May 2023 as if it was a final distribution order capable of being enforced in isolation.* 24. *THAT thereafter I filed a Notice of Motion Application dated 24th April 2024 seeking the following orders:* 25. *THAT the Respondent and the intended Interested party herein, be restrained from intermeddling and/or interfering with all the residential quarters situated in ELDORET MUNICIPALITY BLOCK 6/95, which is part of the deceased's estate hereof.* 26. *THAT pending Hearing and determination of the Application, this Honourable Court be pleased stay the proceedings of the Business Premises Rent Tribunal in TRIBUNAL CASE NO.51 OF 2020: MOHAMED ALI VS MONICAH WAMBUI KAMAU.* 27. *THAT this Honourable Court be pleased to make an order that status quo be maintained in regard to all that property known as ELDORET MUNICIPALITY BLOCK 6/95 pending the Hearing and determination of this Application.* 28. *THAT on 13th June 2024 the matter came up for highlighting of submission on the application dated 24th April 2024 wherein the Court directed parties to negotiate and a further date issued for recording settlement.* 29. *THAT parties filed their respective proposals on how the distribution should be effected.* 30. *Block 14/5 which has inadvertently left the orders of the Court partially discharged.* 31. *THAT the said ruling is the latest substantive ruling concerning distribution of the estate and supersedes any attempt to rely selectively on earlier interim proceedings.* 32. *THAT the Applicant cannot seek enforcement of the ruling of 17th May 2023 while ignoring the subsequent ruling of 20th September 2024 which addressed the broader issues affecting the estate.* 33. *THAT following delivery of the ruling dated 2Oth September 2024, Honourable Justice R. Nyakundi who was presiding over the matter was subsequently transferred from Eldoret High Court to Vihiga High Court before the necessary directions were issued, thereby further contributing to the delay in finalizing the outstanding issues.* 34. *THAT the matter has remained before this Honourable Court awaiting further directions regarding implementation of the orders and completion of the distribution process.* 35. *THAT since November 2025, my advocates on record have attended Court on numerous occasions seeking directions before Honourable Justice R. Nyakundi regarding the way forward.* 36. *THAT despite several attendances, my advocates on record have not received substantive directions from the Honourable Justice R. Nyakundi to enable completion of the process.* 37. *THAT the delay in concluding the matter has not been caused by refusal, neglect, or disobedience on my part, but has arisen from the unresolved procedural and administrative steps awaiting directions of this Honourable Court.* 38. *THAT my advocates on record continue to follow up on the issuance of directions from the Honourable Court.* **Decision** 1. This is a long protracted litigation and dates way back in the decisions made by this Court. The matter in dispute had been handled by various secession Judges of this High Court and I made the first entry point when I determined the application dated 21st October 2021 in which the parties were seeking the following orders: 2. *Spent.* 3. *There be stay of execution of the ruling of this honorable Court delivered on 17thh June 2020. Pending inter-parte hearing and determination of this appeal.* 4. *The ruling of this honorable Court delivered on 17th June 2020 be reviewed in favour of the Petitioner/applicant herein or set aside and directions be taken for rehearing of the respondent’s application dated 10th April 2015* 5. *Costs of the application be granted to the applicant* 6. In this respect the Court ruled as follows: 7. *The Court finds no error apparent on the face of record of the Ruling delivered on 17th June, 2020 to warrant a review of the said Ruling.* 8. *I further take judicial notice of the fact that this case has taken over 37 years in Court. Some of the deceased's beneficiaries are dead while others continue to suffer as they wait for their rightful share of the estate of the deceased. Litigation must at some point come to an end.* 9. *I am inspired by the words of Lord Diplock in Birkett -v- James(1977) 2 All ER 801 in which he observed; “That where it has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.” It is clear from the above principles the unjustified delay in litigation of claims is to be deplored. Inordinate delay by itself occasions prejudice and injustice which the constitution and enabling statutes cannot remedy to create a right in favour of a litigant. Therefore, in my view inordinate delay places an innocent party to a substantial risk of a fair trial. Loss of time in litigation is incurable even if this Court was to respond to the claim despite the delay by the aggrieved party.* 10. *Accordingly, I find no merit in the Applicant's application dated 21st October, 2021 and the same is hereby dismissed with costs.* 11. It is also in record that on 26th September 2021 one Daniel Mwaniki Kamau moved the Court seeking the following orders: 12. *Spent.* 13. *An order do issue that the Applicant is allowed to be receiving equal share of the income that the 2nd house is controlling from ELDORET MUNICIPALITY LR NO. 10492 and ELDORETMUNICIPALITY BLOCK 6/95 estate of the (Deceased) pending the hearing and determination of the application dated 17th August,2020 and 17th July, 2020.* 14. *An order do issue that the Respondent to render account of the income every month from ELDORET MUNICIPALITY LR NO. 10492and ELDORET MUNICIPALITY BLOCK 6/95 pending the hearing and determination of the application dated 17th August, 2020 and application dated 17th July,2020* 15. *Cost be paid by the Respondent.* 16. The parties continued to vex the Court on 3rd July 2023 another motion was filed seeking the following orders: 17. *Spent.* 18. *Pending inter pates hearing of this review application there be temporary stay of the Courts orders of 17.5.2023 and thereafter till further direction of the Court* 19. *This honorable Court be pleased to review its orders of 17.5.2023 by setting them aside and substituting them with an order dismissing the application dated 26.10.2021* 20. *Costs be provided for* 21. Following an inter partes hearing this Court pronounced itself as follows: 22. *As for the instant application from the point of view of the facts and applicable law, the perpetuation of this litigation is a kind of scheme which is admittedly unfortunate given the unconscionable nature of the new and old elements purposed as causes of action for various judges to exercise adjudicatory powers over the dispute in terms of Article 50 (1) of the Constitution. Most directly in point in terms of Section 38 & 40 of the Succession Act the claim lodged by the respondent is therefore statutory and if not sufficiently addressed is a violation of his fundamental right to inheritance unless compelling reasons exists for the Court not give proper effect to the law. In law as far as the applicable law for review is concerned the same is unmerited and having given having given considerable thought to it I declare it dismissed with costs to the respondent. In my view, the context of this litigation calls for the exercise of inherent jurisdiction under Section 3(a) of the CPA and Rule 73(1) of the Probate and Administration Rules for a declaration to issue of freezing all interlocutory applications by any beneficiaries to this intestate estate save for leave of the Court. It is so ordered.* 23. In this very same application, the Court ordained itself as follows: 24. *Guided by the aforementioned case law and the Succession Code together with the circumstances surrounding the instant cause, the model as adopted in the orders by Hon. V.V. Patel J. as he then was is fair and equitable. I would not therefore substantially depart from that structural interdict although I take judicial notice for decades the beneficiaries to this estate have been litigating outside the clear order and judgement of this Court on the status of the estate. I am satisfied that being a Court of concurrent jurisdiction the consent order provides the basic structure in which this inheritance can be unlocked for the benefit of the beneficiaries.* 25. *As a consequence the following declaration shall abide:* 26. *The Petitioner James Ngugi Kamau having been authorized to administer the estate of his late mother Leah Mukami is hereby ordered to render account of all proceeds acquired from the sale of Eldoret Municipality Block 14/5 for the entire period to-date within 30 days from the date of this ruling.* 27. *In the alternative of default, a forensic financial expert be engaged for purposes of carrying an audit of the disputed account and have a report availed before this Court for evaluation and further action. To actualize this declaration the Deputy Registrar of the High Court shall cause an updated register of licenced accountant and auditors to be shared with my office for purpose of appointment.* 28. *That upon appointment of forensic financial expert he or she shall be mandated to execute the mandate within 30 day of appointment and any expenses incurred shall be met by the estate.* 29. *In addition to the above, the Land Registrar Uasin Gishu County be and is hereby ordered to prepare an executive summary on the land transactions involving Eldoret Municipality Block 14/5* 30. *That a declaration is hereby made that on the appreciation of the findings of the report this Court be at liberty to enforce the order of estate sharing at a ration already determined by the Court.* 31. *That ELDORET MUNICIPALITY 6/95 being 1 shop and the residential quarters at the back being 0.042 Ha be kept by the family and proceeds derived from it shall be used to cater for construction expenses incurred on the said property and Monicah Wambui's day to day expenses and the remainder shared equally among the deceased's beneficiaries.* 32. *That the 4-acre piece of land previously known as L.R. 10492 be and is allocated to Monicah Wambui Kamau.* 33. *That this Succession Cause be fixed for a status conference for purposes of admitting the Land Registrar's Report and the Forensic expert report on 22.10.2024* 34. *This being a family matter, there shall be no orders as to costs.* 35. This Court is also privy to the forensic audit report on the value of Eldoret Municipality Block14/5 No. 355-371 Elgon View Estate and Eldoret Municipality Block 6/95 Eldoret town by Ken Kevin Nakitare Associates, in which in summary it was premised as follows: 36. *Summary of the audit findings 2.1.1 Our team reviewed all the documents presented to us in relation to L.R NO: ELDORETMUNICOPALITY BLOCK 14/5 (NEW NO. S 355-371), Elgon View Estate and ascertained that the Late Leah Mukami Gichuhi was entitled to equivalent to total of Kshs 64,470,000.00 at current Market value as at February 2025.* 37. *Summary of Eldoret Municipality Block 14/5 statement of account. Below is a summary of the Current Market Value calculation in relation to the above statement of account:* | | | | | --- | --- | --- | | | ***DETAILS*** | ***AMOUNT (KSHS)*** | | *1* | *Total Market Value of Block 14/5 Land (12.599 Acres)* | *377,970,000.00* | | *2* | *Total Market Value of Block 14/5 Land (Kamau Gichui’s Share i.e. 6.299 Acres)* | *188,970,000.00* | | *3* | *Total Market Value of Block 14/5 Land (Monica Wambui Kamau Share i.e. 2.149 acres)* | *64,470,000.00* | | *4* | *Total Market Value of Block 14/5 Land (Leah Mukami Gichuhi Share i.e. 4.149 acres)* | *124,470,000.00* | 1. *3.2 Details of Block 14/5 Elgon View Sale Transactions by Leah Mukami Gichui (6.299 Acre)* *The following table details the sale transactions recorded between 1987 and 2011:* | | | | | | --- | --- | --- | --- | | ***Date*** | ***Details*** | ***Land sale Stamp Duty paid @ 4%*** | ***Land Sale Value (Kes)*** | | *24/12/1992* | *Toror Limited* | *100,000.00* | *2,500,000.00* | | *19/11/1987* | *Jonathan Muraguri* | *70,000.00* | *1,750,000.00* | | *14/07/1989* | *Kuria Gitonga* | *50,000.00* | *1,250,000.00* | | *3/8/1987* | *Charles Kamau* | *25,000.00* | *625,000.00* | | *21/07/1987* | *Montague Forman* | *30,000.00* | *750,000.00* | | *21/04/2011* | *Nilsstaffan Wirell* | *320,000.00* | *8,000,000.00* | | *21/07/1987* | *Samuel Nene* | *30,000.00* | *750,000.00* | | *22/12/1987* | *Philip Kamau* | *25,000.00* | *625,000.00* | | *21/07/1987* | *George Karanja* | *125,000.00* | *3,125,000.00* | | *27/11/1987* | *Leah Mukami* | *20,000.00* | *500,000.00* | | *26/11/1991* | *KVDA* | *620,000.00* | *15,500,000.00* | | *22/07/1987* | *Japheth Magut* | *20,000.00* | *500,000.00* | | *21/08/2008* | *Thomas James* | *-* | *9,700,000.00* | | *22/12/1987* | *Giorgio Ferro* | *30,000.00* | *750,000.00* | | *22/07/1987* | *Allan George* | *30,000.00* | *750,000.00* | | *9/12/1987* | *Anne Wanjiku* | *25,000.00* | *625,000.00* | | *10/11/1988* | *Allan George* | *25,000.00* | *625,000.00* | | *27/10/1993* | *Patrick Kiprop* | *-* | *1,000,000.00* | | *22/07/1987* | *Nyokabi & Leah* | *20,000.00* | *500,000.00* | | *4/3/1988* | *Florance Adongo* | *20,000.00* | *500,000.00* | | *17/12/1999* | *Charity Wanjugu* | *300,000.00* | *300,000.00* | | ***TOTAL*** | | | ***51,375,000.00*** | *Summary of the audit findings* 1. *Our team reviewed all the documents presented to us for forensic audit and ascertained that Monica Wambui Kamau was entitled to Kshs 64,470,000.00 share of Block 14/5 of the Late Mr. Kamau Gichuhi's estate share as per the current market price of Eldoret/Municipality Block 14/5.* 2. *Our audit revealed that Eldoret Municipality Block 6/95 has a current Market Value of Kshs 60,000,000.00 consisting of 0.0109 acres of land, Shops & Residential Buildings.* 3. *Further, we noted that the Eldoret Municipality Block 6/95 is under the Leasehold of Monica Wambui Kamau of I.D number 1231204 with a portion equivalent to 0.042 Hectares and Leah Mukami Kamau ID number 1230267 with a portion equivalent to 0.003 Hectares as the sole proprietor of the estate with the lands ministry records.* 4. *We further noted that Eldoret/Municipality block 14/5, was subdivided and sold out at a total of Kshs 51,375,000.00 from date 21st July 1987 to date 21st April 2011 as illustrated in detailed table 3.2 above* 5. This is what is the letter and spirit of the Law of Succession Act as illuminated by the Court in **re Estate of Alice Mumbua Mutua [2017] eKLR,** Musyoka J, had this to say of that mandate:- *"The Law of Succession Act, and the Rules made there under, are designed in such away that they confer jurisdiction to the probate Court with respect to determining the assets of the deceased, the survivors of the deceased and the persons with beneficial interest, and finally distribution of the assets amongst the survivors and the persons beneficially interested. The function of the probate Court in the circumstances would be to facilitate collection and preservation of the estate, identification of survivors and beneficiaries, and distribution of the assets.....Clearly, disputes as between the estate and third parties need not be determined within the succession cause. The legal infrastructure in place provides for resolution elsewhere, and upon a determination being made by the civil Court, the decree or order is then made available to the probate Court for implementation. In the meantime, the property in question is removed from the distribution table. The presumption is that such disputes arise before the distribution of the estate, or the confirmation of the grant. Where they arise after confirmation, then they ought strictly to be determined outside of the probate suit, for the probate Court would in most cases be functus officio so far as the property in question is concerned. The primary mandate of the probate Court is distribution of the estate and once an order is made distributing the estate, the Court's work would be complete. The proposition therefore is that not every dispute over property of a dead person ought to be pushed to the probate Court. The interventions by that Court are limited to what I have stated above."(Emphasis added)* 1. In the instant case, parties should take judicial notice that they have ran out of time in so far as the requirements of the law is concerned. What they are doing now is vexing the Court under the guise of seeking justice. It is their responsibility to file proposal for the distribution of the shares of the estate of the beneficiaries through the appointed Administrator. It is no time to be looking back and forward by filing a series of interlocutory applications instead of focusing on the predominant issue of identifying the net estate and the respective beneficiaries to have it shared out. It is also the duty of the Administrator to account for any asset which came into their possession by virtue of appointment and they cannot afford to abdicate or run away from such weighty responsibilities. In my considered view the rulings which have been delivered by this Court are sufficient enough to guide the parties to settle this estate according to the provisions of the Law of Succession Act. The points raised here in the latest application cannot be granted until the Administrator and beneficiaries do rest their foot prints to the various declarations made by this Court on diverse dated which were aimed at to bring orderliness to this litigation. For those reasons the application dated 3rd June 2026 is dismissed for want of merit. This Court has made reference to foundational decisions which outlines what is bedeviling the estate and how the Administrator and beneficiaries ought to comply with the law by distributing the residual estate of the deceased to the beneficiaries. It is plain that some of the issues being raised in this application are mainly procedural and within the mandate of the appointed Administrators. The threshold issue for the grant of the orders being prayed for by the Applicant have not been met. It was for these reasons and perfectly so that the application must be denied. It is so ordered. **DATED, DELIVERED AND PUBLISHED VIA CTS AT ELDORET THIS 8TH DAY OF JULY 2026.** **………………………….……….** **R. NYAKUNDI** **JUDGE**