https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9833

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **SUCCESSION CAUSE NO. 439 OF 2012** **IN THE MATTER OF THE ESTATE OF JULIUS KIMEU MUASYA** **ZIPPORAH MUKONYO MUNYAO……………………. 1ST APPLICANT** **AMOS MUASYA KIMEU…………………………………. 2ND APPLICANT** **VERSUS** **ERASTUS MAWEU KIMEU………………………………. RESPONDENT** **RULING** 1. Before this Court for determination are two applications. The first is the Summons dated 6th August, 2025, filed by the Applicants seeking, inter alia, orders that pending the hearing and determination of applications dated 5th May, 2023, and 19th October, 2023, this Court do preserve the status quo in respect of land parcel **MBITINI/MATHA/415 (approximately 53.25 acres)**. The Applicants further seek restraining orders against the Respondent, Erastus Maweu Kimeu, from acts of violence, intimidation, or interference with beneficiaries’ access to the said property, as well as the intervention of the Officer Commanding Kikumini Police Post to maintain peace. 2. The application is supported by affidavits sworn by the Applicants, who describe themselves as children and beneficiaries of the estate of the deceased. They state that the deceased was survived by several children and his widow, Naumi Ndulu Kimeu (now also deceased), who had been appointed administrator of the estate and whose grant was confirmed on 6th October, 2014. 3. The Applicants aver that prior to completing administration of the estate, the said administrator died on 16th July, 2025, thereby rendering the estate only partially administered and necessitating the filing of a petition for letters of administration de bonis non, which they have since lodged together with the present application. 4. It is their case that during confirmation of the grant, land parcel **MBITINI/MATHA/415**, which contains the family homestead and burial sites of the deceased, was erroneously allocated solely to the Respondent. They contend that this allocation was inadvertent and is the subject of a pending application dated 19th October, 2023, seeking rectification and redistribution of the estate. 5. The Applicants further allege that following the death of the administrator, the Respondent has engaged in acts of hostility and intimidation against other beneficiaries, including attempts to exclude them from access to the property, erect barriers, and interfere with the use and occupation of the homestead. They state that these actions have disrupted the peace and threaten the orderly administration of the estate, prompting reports to the police by some family members. 6. The Applicants therefore seek preservation of the prevailing status quo to prevent further interference with the property and to safeguard the rights of all beneficiaries pending the determination of the pending applications and the appointment of new administrators. 7. In their supplementary affidavit sworn on 8th October, 2025, the Applicants reiterate that they have authority to depose on behalf of other beneficiaries. They depose that the Respondent, the youngest child in the family, has resided in the United States of America for over twenty-five years and has had minimal involvement in family affairs. They further contend that he did not participate in significant family events, including the burial of their father in 2009. 8. The Applicants maintain that their late mother had, prior to her death, taken steps to challenge the exclusive allocation of the suit property to the Respondent and had actively pursued redistribution of the estate for a period of approximately three years. They aver that the Respondent resisted those efforts. 9. The Applicants state that their apprehension that the Respondent would deny them access to the family home has since materialised. They depose that shortly after the death and burial of their mother in July 2025, the Respondent became increasingly hostile and issued threats against other family members. 10. They further recount that on 6th September, 2025, during a family visit to the homestead to take stock of their late mother’s belongings and attempt an amicable resolution, the Respondent engaged in conduct perceived as intimidating, including riding a motorcycle around the compound during the meeting. 11. The Applicants further allege that, without their knowledge, the Respondent removed personal belongings they had placed in the family home, deposited them outside, locked the house, and left with the keys. They contend that this conduct effectively evicted them from the homestead and denied them access to the property, including their late mother’s grave. They state that the matter was reported to the police and local administration. 12. It is also the Applicants’ case that the Respondent has had minimal involvement in the upkeep of the family home and the welfare of their late mother, yet has excluded other beneficiaries who allegedly supported her. They further allege that the Respondent has changed the locks to the house and gate, installed unfamiliar persons on the property, and restricted access to the homestead, including securing their late mother’s bedroom. They contend that such actions contravene customary practices governing the distribution of a deceased parent’s personal effects. 13. The Applicants additionally aver that the Respondent forcibly evicted their brother, Charles Kyalo Kimeu, who had resided on and cared for their late mother at the homestead. They allege that his livestock was removed, his personal belongings displaced, and his access to the property denied. They further express concern that the Respondent may interfere with household goods, farm produce, burial site and other estate assets. 14. In conclusion, the Applicants contend that the Respondent has not resided on the property for over twenty-five years and would therefore suffer no prejudice if the orders sought are granted. They assert that, unless restrained, the Respondent may dispose of or otherwise interfere with the estate, to the detriment of other beneficiaries. They urge the Court to issue preservation and restraining orders to safeguard the estate pending determination of the pending succession proceedings while honouring the wishes and legacy of their late mother. 15. The Respondent, Erastus Maweu Kimeu, opposes the application through a Replying Affidavit sworn on 17th December, 2025. He contends that the application is premised on falsehoods, malice, and speculation. He avers that his residence and citizenship status are irrelevant to his entitlement as a lawful beneficiary and denies any intention to dispose of the suit property. He maintains that he has made substantial investments toward its maintenance and asserts that certain beneficiaries have previously disposed of their respective shares. He further states that issues relating to his absence during the deceased’s funeral were previously addressed and do not affect the confirmed grant or distribution. 16. The Respondent disputes the allegation that he had minimal involvement with the family, deposing that he maintained contact and provided financial support, including hosting family members abroad and remitting funds for maintenance of the suit property. He contends that he was a regular user of the property, while the Applicants only visited occasionally. He further denies that Charles Kyalo Kimeu resided permanently at the homestead, asserting that he was an employee who has since benefited from his share of the estate. He accuses the Applicants of attempting to advance Charles’ interests at his expense. 17. The Respondent further avers that their late mother’s efforts to alter the mode of distribution were not intended to reclaim the matrimonial home, as she remained in occupation until her demise. He contends that the present application seeks to reopen matters already determined and would foster protracted litigation. He also asserts that the Applicants have selectively focused on his share while disregarding benefits already enjoyed by other beneficiaries, including rental income from estate properties. 18. Regarding access to the homestead and the events of 6th September, 2025, the Respondent denies restricting access to the gravesite but maintains that such access does not confer a right to enter his private residence. He alleges that the Applicants engaged in confrontational conduct, harassed his employees, and misrepresented the events in question. He denies issuing threats and states that police investigations did not substantiate the allegations. He further contends that the Applicants had already taken possession of most of their late mother’s personal effects and that their claims to the contrary are not candid. He also invokes customary considerations, asserting that the Applicants have selectively relied on custom to support their claims. 19. With respect to the events of 25th October, 2025, the Respondent alleges that the Applicants, accompanied by a large group of individuals, exceeded the scope of a court order granting access to the property and forcibly entered his residence, resulting in a confrontation. He claims that he and his employees were assaulted and that he was compelled to vacate the premises for his safety. He contends that this conduct demonstrates hostility on the part of the Applicants and renders them unsuitable to administer the estate. 20. In conclusion, the Respondent urges the Court to dismiss the application with costs. He further seeks orders for the appointment of the Public Trustee to administer the estate, full disclosure and accounting of estate assets and income, and the establishment of a joint interest-earning account for rental proceeds pending determination of the succession proceedings. 21. The second application is the Summons dated 16th February, 2026, filed by the Respondent against the Applicants and other beneficiaries. It seeks orders granting the Respondent and his employees unrestricted access to land parcel **MBITINI/MATHA/415**, restraining the Applicants from interfering with his use and occupation thereof, and costs. 22. The application is supported by an affidavit sworn by the Respondent. He deposes that upon confirmation of the grant on 6th October, 2014, it was agreed that he would inherit land parcel **MBITINI/MATHA/415**, which includes the family home. He avers that, following confirmation, the arrangement was that he, their late mother, and his employees resided on the property, while the Applicants and other beneficiaries had limited access for visitation. He contends that this arrangement subsisted peacefully until 2023, when the Applicants and other beneficiaries began asserting competing claims over the property after he had undertaken substantial developments thereon. 23. The Respondent further avers that on or about 16th October, 2025, the Applicants obtained court orders granting access to the property, allegedly on a misrepresentation that he had denied them entry. He contends that the purpose of the said orders was to preserve the prevailing status quo, which recognised his occupation and use of the property. He accuses the Applicants of misinterpreting and abusing those orders to interfere with his possession, harass him and his employees, and unlawfully evict them. He further alleges that even prior to the issuance of those orders, the Applicants had convened a meeting on 6th September, 2025, and purported to pass a resolution aimed at removing him from the property. He also challenges reliance on a letter from the Assistant Chief, contending that the author lacked jurisdiction over the area. 24. The Respondent further alleges that the Applicants unlawfully entered his residence under the guise of enforcing the court orders and engaged in acts of violence and vandalism. In particular, he avers that on 25th October, 2025, the Applicants, accompanied by a group of individuals, invaded the property, damaged property, and assaulted him and his employees, resulting in injuries requiring medical attention. He further states that he was thereafter arrested and detained on allegations that were later withdrawn for lack of merit. 25. He also deposes that on 5th February, 2026, certain beneficiaries unlawfully entered his residence, replaced the locks, and took possession of his personal belongings, thereby denying him access. He further alleges that his employees were assaulted and forcibly evicted from the property on subsequent dates, including 10th February, 2026, when a group allegedly declared that they had taken control of the property. 26. The Respondent contends that these actions have caused him substantial loss, including disruption of agricultural activities, loss of livestock and produce, and inability to fulfil commercial obligations. He asserts that unless restrained, the Applicants will continue to interfere with his occupation and use of the property. He therefore urges the Court to grant the orders sought to protect his interests pending the determination of the succession proceedings. 27. In opposition to the Respondent’s application, the Applicants filed a Replying Affidavit sworn on 25th March, 2026. They acknowledge being beneficiaries of the estate and indicate that they have been proposed as administrators, expressing no objection to the Respondent’s inclusion in that role. They contend that the application dated 16th February, 2026 is misconceived and deny that they have barred the Respondent from accessing the family property known as Mbitini/Matha/415. They aver that they have merely continued to access and utilize the property in the same manner as during their late mother’s lifetime and in accordance with the interim orders issued by the Court on 16th October, 2025. They further state that they have no intention of restricting the Respondent’s access whenever he is in the country, pending determination of the succession dispute. 28. The Applicants further aver that in early February 2026 they learnt that the Respondent had returned to the United States, where he has allegedly resided for many years. They maintain that they have complied with the Court’s status quo orders and contend that any disagreements that have arisen stemmed from the Respondent’s own conduct and alleged violations of the court’s orders. 29. The Applicants also allege that upon visiting the property on 25th October, 2025, they discovered that certain assets, including livestock and farm produce, were missing while under the Respondent’s control and had not been accounted for. They further accuse him of felling trees on the property and acting unilaterally in appointing individuals to manage the homestead and farm. They contend that such individuals became disrespectful and denied family members access to the property, necessitating police intervention to have them removed from the property. 30. The Applicants dispute the Respondent’s assertion that their interest in the property arose only after he undertook developments thereon. They maintain that dissatisfaction with the mode of distribution dates back several years and was also shared by their late mother, who sought redistribution of the estate. They further challenge the characterization of the property as the Respondent’s private residence, contending that it is the family home constructed by their parents and comprising shared living spaces allocated among family members. They assert that the Respondent occupies only a portion thereof and that his belongings remain undisturbed. 31. The Applicants also deny that the Respondent resides on the property, maintaining that he has long resided abroad and only visits occasionally. They further deny allegations of violence or unlawful conduct, stating that persons present on the property were family members and not hired individuals. They dispute the Respondent’s claims of economic loss, contending that the alleged agricultural activities were recent developments undertaken contrary to existing court orders and that the assets in question form part of the wider estate. They also question the consistency of the Respondent’s assertions regarding his residence. 32. In conclusion, the Applicants state that their primary objective is to preserve peace and facilitate orderly administration of the estate pending determination of the pending application for rectification and redistribution. They urge the Court to dismiss the Respondent’s application. 33. Both parties filed written submissions in support of their respective positions. Applicant’s submissions is dated 6th May, 2026, while the Respondent’s submissions is dated 7th April, 2026. ***Respondent’s Submissions*** 1. In his written submissions, the Respondent reiterates that his application dated 16th February, 2026, seeks orders granting him and his employees unfettered access to land parcel **MBITINI/MATHA/415**, together with restraining orders against the Applicants from interfering with his occupation and use of the property. He submits that the application is supported by the facts set out in his affidavit and that the Applicants have not sufficiently rebutted the material allegations therein. 2. The Respondent identifies three issues for determination: whether the Applicants have interfered with his use and occupation of the suit property; whether he is entitled to unrestricted access thereto; and what orders should issue. He submits that it is not in dispute that the property was allocated to him upon confirmation of the grant, and that the Applicants themselves acknowledge that different beneficiaries have historically occupied distinct portions of the homestead. According to him, the central issue is therefore not ownership, but alleged interference with his possession and use of the property. 3. The Respondent contends that the evidence demonstrates persistent interference by the Applicants, including alleged acts of intimidation against him and his employees, which disrupted his occupation and farming activities. He places reliance on the events of 25th October, 2025, asserting that he was assaulted and subsequently arrested, and later released without charge, which he argues demonstrates that the allegations against him were unfounded. 4. He further submits that the Applicants’ response implicitly supports his case, as they admit involvement in the events surrounding his arrest and actions taken against his employees. He argues that such conduct amounts to interference with his rights as an allocated beneficiary in occupation of the property. He invokes Article 27 of the Constitution to contend that the Applicants have abused the Court’s interim orders to exclude him, and relies on Section 47 of the Law of Succession Act to urge the Court to exercise its inherent jurisdiction to grant appropriate relief. 5. In conclusion, the Respondent urges the Court to find the application dated 16th February, 2026, meritorious and to allow it as prayed. ***Applicant’s submissions*** 1. The Applicants submit that the Respondent’s application dated 16th February, 2026, was filed notwithstanding the existence of pending proceedings concerning redistribution of the estate and subsisting status quo orders issued by the Court. They contend that the application is aimed at excluding other beneficiaries from the suit property rather than preserving it pending resolution of the succession dispute. They maintain that, as beneficiaries and proposed administrators, they are entitled to participate in the use and management of the estate. According to them, the central issues for determination are whether the Respondent has demonstrated interference with his access to or use of Land Parcel No. MBITINI/MATHA/415, whether he is entitled to exclusive or unfettered access, and whether the orders sought would preserve or disrupt the status quo. They assert that the property remains part of the estate and is subject to pending redistribution proceedings, and that all beneficiaries therefore hold equal beneficial interests therein. 2. On the issue of alleged interference, the Applicants submit that the Respondent has not furnished credible evidence to demonstrate that he has been denied access to the property. They maintain that the property continues to be utilized in the same manner as during the lifetime of the late administrator, with all beneficiaries enjoying access. They further argue that the Respondent’s claim is weakened by his admission that he resides abroad and was not physically present at the time the alleged interference occurred. They reiterate that they have no intention of restricting his access whenever he is in Kenya and submit that the burden of proof under Section 107 of the Evidence Act has not been discharged. 3. The Applicants further contend that the prayer for “unfettered access” is, in effect, a claim for exclusive possession and control of estate property to the exclusion of other beneficiaries. They argue that such relief is inconsistent with the principles of succession law, which require that estate property be preserved and administered for the benefit of all beneficiaries pending distribution. They rely on ***Trouistik Union International & Another v Jane Mbeyu & Another* [1993] eKLR** to emphasize that estate property vests in personal representatives for the benefit of all beneficiaries and cannot be appropriated by a single beneficiary prior to lawful distribution. 4. The Applicants argue that granting the orders sought would accord the Respondent undue advantage and effectively sanction control of estate property through interlocutory proceedings. They submit that the Court should be slow to issue orders that would alter the equitable position among beneficiaries before the pending dispute on redistribution is determined. 5. On preservation of the estate, the Applicants submit that the prevailing arrangement, where all beneficiaries have access to and utilize the property, represents the status quo established during the lifetime of the deceased’s widow. They contend that it is the Respondent who has disrupted that position by seeking unilateral control and introducing third parties onto the property. They argue that the orders sought would fundamentally alter the status quo and prejudice the rights of other beneficiaries. 6. In conclusion, the Applicants contend that the Respondent’s application is intended to assert control rather than preserve the estate and therefore amounts to an abuse of the court process. They urge the Court to dismiss the application and to maintain the status quo prevailing before the death of the late administrator pending the appointment of new administrators and determination of the pending application for redistribution. ***Analysis and Determination*** 1. From the affidavits, annexures, and submissions filed by the parties, it is evident that both applications arise from the same underlying dispute concerning the use, occupation, access to, and preservation of Land Parcel No. MBITINI/MATHA/415 pending the determination of the application for rectification and redistribution of the estate. The numerous allegations relating to assaults, threats, eviction, livestock, employees, farming activities, and occupation of rooms within the family home are, in my view, ancillary to the central issue of preservation and management of the estate. 2. Accordingly, the following issues arise for determination: 3. *Whether the Applicants have established a basis for the preservation and status quo orders sought in the application dated 6th August, 2025.* 4. *Whether the Respondent has established a basis for the orders granting him unfettered access, occupation, and use of Land Parcel No. MBITINI/MATHA/415 as sought in the application dated 16th February, 2026.* 5. *What orders ought to issue in the interest of preserving the estate pending determination of the application for rectification and redistribution*. **Whether the Applicants have established a basis for preservation and status quo orders** 1. The application dated 6th August, 2025, was precipitated by the death of Naomi Ndulu Kimeu on 16th July, 2025. The material before the Court demonstrates that Naomi Ndulu Kimeu was not only the widow of the deceased but also the sole administrator of the estate, following confirmation of grant on 6th October, 2014. It is not contested that, at the time of her death, there existed a pending application dated 19th October, 2023 seeking rectification of the confirmed grant and redistribution of Land Parcel No. MBITINI/MATHA/415. 2. The significance of this fact cannot be overstated. The dispute regarding parcel MBITINI/MATHA/415 did not arise upon Naomi’s death; rather, it had already been formally placed before the Court by the administrator herself during her lifetime. Consequently, the question whether the Respondent is entitled to retain the entirety of the parcel remains undetermined and awaits substantive determination. 3. The Applicants contend that, following Naomi’s death, the Respondent asserted exclusive control over the property by changing locks, restricting access, introducing employees, evicting Charles Kyalo Kimeu, and treating the property as exclusively his. They rely on police reports, local administrative correspondence, and witness accounts to demonstrate an escalation of hostility and exclusion. 4. The Respondent, on the other hand, maintains that the property was lawfully allocated to him under the confirmed grant and that his actions were limited to securing his residence from intrusion. He further asserts that access to family gravesites has never been denied and accuses the Applicants of interfering with property rightfully allocated to him. 5. What emerges from the foregoing is the existence of an entrenched and escalating conflict over control and occupation of the property. The competing allegations, ranging from threats and alleged assaults to unlawful entry and disputes over livestock, employees, and household effects, demonstrate a deterioration of family relations. Crucially, neither party disputes that the application for redistribution remains undetermined. Additionally, following the death of Naomi Ndulu Kimeu, there is presently no administrator in office. The estate is therefore without a lawful representative responsible for its management and preservation. 6. In such circumstances, the duty of this Court is not to determine rights of ownership at an interlocutory stage but to preserve the estate pending resolution of the substantive dispute. I am guided by Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules, which confer upon the Court wide discretionary powers to make such orders as may be necessary for the ends of justice and the preservation of estate assets. 7. It is also significant that parcel MBITINI/MATHA/415 is not ordinary agricultural land. The material before the Court shows that it comprises the ancestral home, gravesites of the deceased and his widow, and assets used by various family members. Photographic evidence confirms the presence of the family homestead and burial sites, facts acknowledged by both parties. 8. Courts in succession matters have consistently favoured preservation over granting one faction effective control of disputed estate property prior to final determination. Given the subsistence of the redistribution application and the absence of a lawful administrator, the necessity of preserving the estate is even more pronounced. I therefore find that the Applicants have established sufficient grounds for the grant of preservation and status quo orders pending determination of the pending application for redistribution and pending appointment of administrators *de bonis non*. **Whether the Respondent is entitled to unfettered access and use of Land Parcel No. MBITINI/MATHA/415 as sought in the application dated 16th February, 2026.** 1. The Respondent seeks orders granting him and his employees unfettered access to his residence and all parts of parcel MBITINI/MATHA/415. 2. The fundamental difficulty with this prayer is that it presupposes the absence of any dispute regarding ownership or entitlement. However, the allocation of this parcel is the very subject of the pending application dated 19th October, 2023. While the Respondent relies on the Certificate of Confirmation of Grant dated 6th October, 2014, it is equally undisputed that the administrator subsequently challenged that distribution through an application that remains unresolved. Accordingly, although the confirmed grant subsists, its propriety is under active challenge. 3. Further, the prayer for “unfettered access” is, in the context of succession proceedings, overly broad and potentially prejudicial. Granting such an order would effectively confer exclusive control upon the Respondent, thereby undermining the rights and access of other beneficiaries, particularly with respect to the ancestral home and gravesites. The evidence demonstrates that the Applicants and other beneficiaries continue to assert beneficial interests in the property. It is not contested that the house was constructed by their parents and comprises sections historically used by family members 4. While the question of the Respondent’s residence, whether in Kenya or abroad, remains contested, it is not determinative at this stage. Residence alone cannot confer entitlement, nor can reliance on a confirmed grant defeat a subsisting application for redistribution prior to its determination. 5. The allegations of assault, unlawful entry, and eviction remain sharply contested. The Applicants deny those allegations and contend that the Respondent's arrest was a lawful intervention by police to prevent a breach of peace Given that these matters cannot be conclusively determined on affidavit evidence alone and would require viva voce evidence and cross-examination, this Court refrains from making definitive findings on those issues at this interlocutory stage. 6. What is clear, however, is that the relationship between the parties has deteriorated considerably. Granting the Respondent unrestricted access and control would likely exacerbate, rather than ameliorate, the existing conflict. 7. Accordingly, I find that the Respondent has failed to establish a sufficient legal basis for orders granting him exclusive or unfettered access, occupation, and use of the entirety of parcel MBITINI/MATHA/415 pending determination of the redistribution application. **What orders ought to issue in the interests of preservation of the estate.** 1. Having declined the Respondent’s application, this Court must now fashion orders that preserve the estate while maintaining peace among the parties. The absence of an administrator further underscores the necessity of interim protective measures. 2. I find that the status quo as contemplated in the orders issued on 16th October, 2025, provides the most appropriate interim arrangement. The evidence indicates that, prior to Naomi Ndulu Kimeu’s death, the family homestead remained accessible to family members while she resided there. That state of affairs should, as far as possible, be preserved pending resolution of the substantive dispute. 3. Consequently, I make the following orders: 4. **Pending the hearing and determination of the application dated 19th October, 2023, and/or further orders of the Court, the status quo prevailing prior to the death of Naomi Ndulu Kimeu shall be maintained with respect to access to and use of Land Parcel No. MBITINI/MATHA/415 by all beneficiaries.** 5. **None of the beneficiaries shall sell, transfer, lease, charge, waste, dispose of, cut trees on, alienate, or otherwise interfere with the estate assets situated on parcel MBITINI/MATHA/415 without leave of the Court.** 6. **All parties are hereby restrained from engaging in acts of violence, intimidation, harassment, forcible eviction, destruction of property, or any conduct that interferes with the peaceful use of the estate by other beneficiaries.** 7. **The Officer Commanding Kikumini Police Post shall provide assistance in maintaining peace and ensuring compliance with these orders whenever called upon to do so.** 8. **Costs of the applications shall be in the cause.** ***Delivered, Dated and Signed virtually this 29th day of June, 2026*** **RHODA RUTTO** **JUDGE**