https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10814

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT SIAYA** **SUCCESSION CAUSE NO. E003 OF 2026** **IN THE MATTER OF THE ESTATE OF GEORGE MUGOYE MBEYA (DECEASED)** **EVERLYNE ATIENO OBWANDA.............................................APPLICANT** **-VERSUS-** **JUDITH RAFIMBI SHIUNDU...........................PETITIONER/RESPONDENT** **RULING** 1. The Applicant has filed an application dated 16/2/26 seeking the following reliefs: i) Spent. ii) THAT the Honourable Court do grant special Limited grant to enable the Applicant to access the rental and Business income proceeds of the deceased’s property for purposes of payment of School fees, shelter and maintenance for the needs and welfare of the minors JEAN KIMBERLY MUGOYE and WELLS WAWIYE MUGOYE. iii) THAT the Honourable Court be pleased to order the Respondent to account for the rent collected from Apartment Number B7 on LR NO. 209/2679 at Garden Terraces and House NO. Kisumu Teleposta Maisonette Block 9/420 to date and the Business income generated from NUMEDICAL PHARMA LIMITED where the deceased was the sole director. iv) THAT the Honourable Court do direct that the rental and Business incomes be banked into court and/or a joint account between the Applicant and the Respondent. v) THAT in the alternative the deceased’s children from the Applicant’s house be sheltered at their deceased father’s property House No. KISUMU TELEPOSTA MAISONETTE BLOCK 9/420. vi) THAT the costs of this application be in the cause. 1. The application is supported by the affidavit of Everlyne Atieno Obwanda sworn on 19th March 2026. The Applicant contends that the deceased died intestate on 27th December 2024 survived by two houses: the Respondent’s house (with one child) and the Applicant’s house (with two school-going minors). That the Applicant contends that since December 2024, the Respondent has taken exclusive control of the deceased’s commercial assets without a valid grant of representation. specifically, the Applicant lists the following financial infractions as follows: 2. Garden Terraces (Apartment B7 on LR No. 209/2679): generating Kshs. 120,000/= monthly totaling KES 1,920,000 over 16 months. 3. Kisumu Teleposta Maisonette (Block 9/420**)**: Generating KES 30,000 monthly totaling Kshs. 480,000/= 4. Numedical Pharma Limited: A pharmacy in Hurlingham, Nairobi, where the deceased was the sole director. The Applicant claims that the Respondent illegally changed the payment Paybill details to her personal name/number. 5. Wallartz Kenya Limited: Owning a Toyota Land Cruiser V8 (Reg: KBX 717E) used for car hire allegedly generating Kshs. 10,000/= per day. That the Applicant states further that due to the Respondent's actions, the minors have been evicted from their Kshs. 45,000 per month rented housing due to arrears and are squatting with relatives and face school fees arrears at Jalaram Academy totaling Kshs. 295,500/= alongside projected 2026/2027 expenses. She prays for a combined sum of Kshs. 1,904,458/- to cover these immediate needs or alternatively, that the minors be housed at the Kisumu Teleposta property. 1. In opposition, the Respondent filed a replying affidavit. She does not dispute the deceased’s death but strongly contests the Applicant’s legal status and factual assertions. The Respondent argues that she is the only legally recognized widow of the deceased and questions the validity of the customary marriage asserted by the Applicant. 2. Furthermore, the Respondent asserts that companies like Numedical Pharma Limited and Wallartz Kenya Limited are separate legal entities. She argues that company bank balances, revenues and assets (such as the Toyota Land Cruiser V8 registered under Wallartz Kenya Ltd) belong strictly to the corporate entities and do not form part of the personal estate of the deceased available for distribution or interim allocation under probate proceedings. 3. The Respondent denies intermeddling, stating she is merely preserving the business infrastructure to prevent commercial collapse and contends that the Applicant's financial demands are exaggerated, speculative and premature prior to the full determination of the main petition and the confirmation of the grant. 4. The Applicant filed a further affidavit sworn on 28/4/2026 in response to the Respondent’s replying affidavit wherein she averred inter alia; that the Respondent has been economical with the truth regarding the pharmacy business which runs into millions of shillings; that she believes that there is sufficient funds which should be used to cater for the school fees of the minors; that this court should compel the Respondent to furnish the court with the certified copy of the statement on Paybill Number 1000372; that changing payment from bank account No. 1284208222 KCB to Paybill 1000372 was done without legal authority by the Respondent and thus amounted to intermeddling of the state which is punishable by law; that the deceased’s motor vehicle registration number KBX 717E is still registered in the name of the deceased and has not been transferred; that even though the LSK pays some monies for the children, the same is not sufficient; that loans and debts by the deceased fall under the category of creditors who are to be ascertained by the legally authorized administrator by the court and not as asserted by the Respondent; that it is not true that it is only two assets namely the pharmacy and the Kisumu property that are assets generating income; that since the Respondent resides on Apartment No. 9 Block C Jade Gardens on LR 330/683 Riara Road with her son, then the Applicant should be allowed to occupy L.R No. Kisumu Teleposta Maisonette Block 9/420 for shelter for her children; that the other beneficiaries are adults who have moved on and can wait for the distribution of the estate later as the young children need to be considered first; that the sum of Kshs 360,000/ received from the Kisimu property should be shared equally so that the same can be used to pay school fees for the children. 5. The Application was canvassed by way of written submissions. Both parties filed their respective submissions. 6. The Applicant relies on section 45(1) and (2)(a) of the Law of Succession Act (Cap 160) which explicitly prohibits any person from taking possession, disposing of or otherwise intermeddling with any free property of a deceased person without express authorization by the Act, other written law or a grant of representation. The statute provides that any person who contravenes this provision commits an offence and is liable to a fine not exceeding ten thousand shillings or a term of imprisonment not exceeding one year or to both. 7. It is submitted for the Applicant that paragraphs 10, 14, 19, 20, 21, 23, 25, 26 and 33 of her supporting affidavit provide clear evidence of the Respondent’s intermeddling. This includes the unauthorized collection of rents from Apartment Number B7 at Garden Terraces and House No. Kisumu Teleposta Maisonette Block 9/420 alongside receiving business income from Anumedical Pharma Limited without a full grant of representation. The Applicant emphasizes that in paragraphs 11, 12 and 13 of her Replying Affidavit dated 22nd April 2026, the Respondent admits to dealing with the estate assets without having obtained a full grant. 8. Invoking the judicial precedent in **Francis Kamau Mbugua and Another v. James Mbugua Mbugua [Nairobi High Court Civil Case No. 10040]**, the Applicant submits that Section 45 strictly bars the Respondent from handling the estate without legal vestment. Because the Respondent holds neither a full nor a limited grant of representation, her actions constitute textbook intermeddling and the court ought to deter her from further meddling with the deceased’s estate. 9. Having established that the Respondent is intermeddling without legal authority, the Applicant submits that the Respondent must be held accountable. That the Respondent should be ordered to lay before the court a full and accurate statement of accounts detailing all rents and business proceeds collected from the estate's assets alongside an explanation of how those funds were applied. 10. To anchor this demand, the Applicant points to **In the Matter of the Estate of Wilson Nzuki Ntolo (Deceased) [Machakos High Court Probate and Administration No. 152 of 2000]**, where the court directed an intermeddler to lay a full and accurate statement of account before the court regarding rents collected from an estate asset and explain their application. 11. Furthermore, the Applicant cites **In the Matter of David Wahinya Mathene (Deceased) [Nairobi High Court Succession Cause No. 1670 of 2004]**, which affirmed that the appropriate remedy against an executor or individual who handles estate affairs without taking out a grant is through a formal call for accountability. The Applicant therefore reiterates her prayer for full financial disclosure. 12. The Applicant draws the court's attention to Section 54 of the Law of Succession Act which empowers the court to limit any grant of representation according to the circumstances of the case, as described under the Fifth Schedule. It is submitted that paragraphs 5, 6, 7, 8, 29, 30, 31, 32 and 38 of the supporting affidavit demonstrate that the minors were entirely provided for by their late father during his lifetime. The Applicant asserts that under Article 53 of the Constitution of Kenya (2010), the court has a primary duty to ensure that the best interests of children encompassing food, shelter, education and basic needs are protected. That the attached birth certificates conclusively establish that the minors are the biological children of the deceased. 13. The Applicant relies heavily on **In the Matter of the Estate of SMM (Deceased) [2021] eKLR**. In that case, despite the applicant's marital status being contested and unproven by documentation, the court prioritized the interests of the children who were facing school exclusion. The court issued a special limited grant to the mother to access a specific bank account for school fees and upkeep dispensing with the need for two administrators due to the urgent unique nature of the application. 14. Additionally, the Applicant cites **In the Matter of the Estate of Wilson Waithaka Wainaina (Deceased) [2025] eKLR**, where the court invoked Rule 73 of the Probate and Administration Rules to meet the ends of justice granting an applicant authority to withdraw KES 300,000/- from the deceased’s family bank account solely for the children’s educational expenses. 15. Consequently, the Applicant submits that since she has satisfied the threshold showing that the minors are biological children in dire financial need. it is in the interest of justice and the paramount interests of the children under Article 53 of the Constitution to grant her the Special Limited Grant to access the rental and business proceeds. 16. Regarding the alternative prayer, the Applicant submits that paragraphs 29, 31, 32, 36 and 38 of her supporting affidavit clearly demonstrate that the deceased’s children are in urgent need of shelter. Because shelter directly impacts the best interests of the minors under Article 53 of the Constitution, the Applicant invokes Rule 73 of the Probate and Administration Rules which grants the Honourable Court inherent powers to make any necessary orders to meet the ends of justice. It is therefore submitted that the children should be allowed to occupy House No. Kisumu Teleposta Maisonette Block 9/420 as their interim shelter. 17. In conclusion, the Applicant implores the Honourable Court to allow her application dated 19th March 2026 as prayed. She underscores that doing so serves the ends of justice and protects the paramount interests of the minor children while ensuring that the Respondent is held legally accountable for intermeddling with the estate without a grant. 18. The Respondent argues that the Applicant bears the sole legal burden of demonstrating that the Respondent dealt with the "free property" of the deceased in a manner prohibited by Section 45(1) of the Law of Succession Act (Cap 160). Invoking the statutory definition under **Section 3** of the Act, the Respondent notes that "free property" only encompasses assets that the deceased was legally competent to freely dispose of during his lifetime and which did not terminate upon death. Relying on **In re Estate of M'Ngarichi M'Miriti [2017] KEHC 7904 (KLR)**, the Respondent notes that while intermeddling encompasses unauthorized acts that dissipate or put free property at risk, it cannot arise where the property does not form part of the deceased’s free estate. 19. The Respondent argues that characterizing her as an intermeddler is legally untenable due to the following reasons; The Respondent is the legally registered spouse of the deceased as evidenced by a valid Marriage Certificate. The Applicant claims a marriage timeline that is legally impossible. In an affidavit sworn by the Applicant on 16th January 2025, she claims to have been married to the deceased on 14th January 2025 which is weeks after the deceased passed away on 27th December 2024. The Respondent submits that a party cannot marry a deceased person as death terminates legal capacity and a corpse cannot offer mutual consent. When the Applicant first moved the court as a Citor in Cause No. E016 of 2025, she cited the Respondent as the Citee to take out letters of administration. The Respondent argues the Applicant is speaking from both sides of her mouth by alleging intermeddling on one hand while formally recognizing the Respondent's priority right to administer the estate on the other. The Applicant explicitly conceded in an affidavit dated 27th November 2025 that the Respondent had been running the estate prior to the deceased’s passing. The Respondent asserts that had the Applicant been a lawful wife, she would have had concurrent access but she had zero access, which explains why her prior *ad colligenda bona* application failed to list basic estate assets. 20. The Respondent submits uncontroverted evidence that this property is registered in the joint names of the deceased and the Respondent via a Lease dated 31st March 2009. Invoking Sections 91, 92 and 93 of the Land Registration Act 2012 and the judicial precedent in **In re Estate of Joseph Kipkemoi Limo (Deceased) [2025] KEHC 1623 (KLR)**, the Respondent submits that joint tenancy is governed by the doctrine of survivorship. Upon death, the interest automatically vests in the survivor and does not form part of the free estate for administration. Therefore, allegations of intermeddling regarding this property are legally untenable. 21. The Respondent admits this property belongs to the estate but denies misappropriation. She states she has received a monthly rent of Kshs. 30,000.00 /=since April 2025, which has been strictly utilized to preserve the estate and service its crushing liabilities which stood at Kshs. 18,209,193.00/= and continue to rise. The Respondent points out that while the Applicant demands maintenance, she is silent on how these debts are to be serviced adding that the Respondent’s own son has school fees arrears of Kshs. 2,704,142.00/= proving that cash is not being hoarded 22. The Respondent states that she continued running the pharmacy purely to preserve it as a going concern, maintain goodwill and meet operational overheads. The business incurred expenditures totaling Kshs. 4,815,342.00/= for rent, staff salaries and stock requiring the Respondent to inject personal funds to keep it afloat. She expresses no objection to rendering full accounts for the business as directed by the court. 23. The Respondent explains that the Paybill was originally linked to the Deceased's KCB Account No. 1284208222. Following his passing, the bank aggressively exercised its right of set-off automatically siphoning every paybill deposit to clear outstanding liabilities between February and August 2025 leaving a meager balance of Kshs. 3,459.00/= Rerouting the paybill was a clear commercial necessity to prevent the total collapse of the business, pay suppliers, and meet statutory duties. 24. The Respondent clarifies that this vehicle valued at Kshs. 4,800,000.00/= was sold prior to the deceased's death to fund his medical treatment for advanced Prostate Cancer between 2022 and 2024. The family exhausted close to Kshs. 11,000,000.00/= on intensive care and selling the vehicle was a desperate and necessary measure to offset accumulating bills; thus, it never formed part of the estate. 25. The Respondent submits that the grant of interim relief is not automatic and that under Sections 107, 108 and 109 of the Evidence Act (Cap 80), the burden of proof rests squarely on the Applicant. Citing **Baya v. Kipkemboi [2025] KEHC 12071 (KLR)**, **Anne Wambui Ndiritu v. Joseph Kiprono Ropkoi & Another [2005] 1 EA 334**, and **Palace Investments Limited v. Geoffrey Kariuki Mwenda & Another [2015] KECA 616 (KLR)**, the Respondent emphasizes that civil cases are decided on a balance of probabilities and courts cannot anchor decisions in mere assertions, equal probabilities or speculative allegations. 26. The Respondent reiterates that the estate must support its valid beneficiaries namely: Judith Rafimbi Shiundu, Clare Beryl Ojere, Wayne Odhiambo and George Mugoye Junior. Since the only stable income is the Kshs 30,000.00/= monthly rent from the Kisumu property, any interim provision must equitably account for all genuine beneficiaries (excluding the Applicant, who is not a beneficiary) and the estate's recurrent debts rather than being diverted exclusively to two individuals. 27. Regarding the prayer to deposit monies into court, the Respondent invokes the biblical narrative of King Solomon in1 Kings 3:16-28.She argues that it is illogical to lock money in court while the estate incurs daily liabilities. She asserts that the Applicant having never managed the estate does not know "where the shoe pinches" and can easily make claims without regarding the estate's extensive financial strains. 28. Furthermore, the Respondent strongly opposes the alternative prayer for the Applicant to gain access to the Kisumu Teleposta property. She submits the Applicant never had possession of it during the deceased's lifetime and is wittingly trying to gain possession to force it as a major factor at the distribution stage to the detriment of the other beneficiaries. The Respondent urges the court to frown upon this invitation to "put the cart before the horse" and alter the status quo prematurely. 29. The Respondent submits that the Applicant failed to disclose the substantial liabilities affecting the estate and notes that the deceased’s employer, the Law Society of Kenya has continued to contribute towards the children's school fees. The maintenance sought is deemed wholly disproportionate to the estate's financial position and the alternative housing prayer is described as an attempt to determine property rights before the main succession proceedings are concluded. 1. Invoking Section 27(1) of the Civil Procedure Act (Cap 21) and **Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others [2014] KESC 41 (KLR)**, the Respondent submits that costs should follow the event. Having been compelled to incur legal costs defending against unsubstantiated allegations born out of a material misapprehension of the law, the Respondent prays that the Chamber Summons dated 19th March 2026 be dismissed with costs. 2. Having perused the pleadings, the chamber summons and the rival submissions made by parties, this Court identifies the central issue for determination as to whether the Application has merit. 3. The Applicant contends that the operational revenues of *Numedical Pharma Limited* and the Toyota Land Cruiser V8 (Reg: KBX 717E) owned by *Wallartz Kenya Limited* should be pooled into an estate account to pay maintenance. The Respondent counters that these are distinct corporate bodies. 4. The law on this point is absolute. Under Section 3 of the Law of Succession Act (Cap 160), the "free property" of a deceased person is defined strictly as property which that person was legally competent to dispose of during their lifetime. 5. In law, there exists a distinction between shares held by a shareholder and the assets (including Bank Accounts) and property of the said company. In the celebrated case of **Salmon vs Salmon & Co Limited [1897] ACC** it was held that: “a limited company enjoys a separate legal existence apart from its shareholders. It can own property. It can sue and be sued and it has perpetual existence, which means it can continue to exist despite the demise of its owners, the shareholders”. 1. In **Victor Mabachi & Another vs Nurtun Bates Limited [2013] eKLR** the court held that: “This being the case Mediacom as a body corporate is a person jurisica’ with separate independent identity in law; distinct from its shareholders, directors and agents unless there are factors warranting a lifting of the veil”. 1. The company therefore in law is an entity separate and distinct from the deceased. 2. In the matter of the **Estate of Gitere Kahura & another (both Deceased) [2018] eKLR** the court stated that: ‘‘The relationship between the deceased persons and the company was that they were shareholders in the company by virtue of the two shares they held. The fact of being shareholders did not constitute them owners of the property of the company. That remained property of the company for their sole interest in the company were the shares. It is the said shares that are available for distribution herein amongst the survivors of the deceased. Should the survivors have no interest in continuing to have the company exist, then it is up to them to wind it up or to liquidate it so as to have access to its assets. However, that cannot happen until after the shares in the company have been distributed to the beneficiaries. The jurisdiction of the probate court lies with distribution of the shares but not the liquidation of the company or the distribution of its assets.’’ 1. In Re the matter of the **Estate of Charles Karuga Koinange [2017] eKLR,** court held that: ‘‘shares held in a limited liability company by the deceased person are assets which the deceased’s family has power to distribute in the succession cause relating to such deceased’s estate’’. 1. The CR12 for Numedical Pharma Limited shows the deceased was the sole director and held 1,000 ordinary shares. The motor vehicle KBX 717E is registered to Wallartz Kenya Limited. The revenues, bank accounts and physical assets of these companies belong to the respective corporate entities not to the deceased personally. What forms part of the deceased’s estate are the shares he held in those companies not the company's gross operational revenue or individual corporate assets. 2. Consequently, this Court sitting as a probate court cannot directly order the division, freezing or banking of corporate revenues into court or into a joint personal account. The management of company bank accounts (such as KCB A/C 1284208222) must follow corporate governance regulations including the formal transmission of shares and restructuring of board directorships. 3. The properties known as Apartment B7 at Garden Terraces and Kisumu Teleposta Maisonette (Block 9/420) are registered in the personal name of the deceased. They generate Kshs 120,000/= and Kshs.30,000/= monthly, respectively. The Applicant has demonstrated that the Respondent has taken exclusive possession of these funds and altered paybill details to her personal name. 4. Section 45(1) of the Law of Succession Act explicitly states: *"Except so far as expressly authorized by this Act, or by any other written law, no person shall, for any purpose, take possession of, dispose of, or otherwise intermeddle with, any free property of a deceased person."* 1. In **John Kasyoki Kieti vs Tabitha Nzivulu Kieti and another Machakos HCCC No. 95 of 2001,** Mwera J stated that doing anything affecting the estate of the deceased, including commencing action on behalf of the estate before obtaining representation amounted to intermeddling with the estate. Nambuye J, in **Re Katumo and another [2003] 2EA 508** stated that altering the state or condition of an asset which forms part of the estate amounts to intermeddling with the asset. 2. While the Respondent claims she did this to preserve the estate,good intentions do not sanitize intermeddling. The law requires that anyone dealing with the property of a deceased person must be cloaked with legal authority via a grant of representation. 3. Rent collected from real properties owned by the deceased personally (such as Apartment B7 at Garden Terraces and House No. Kisumu Teleposta Block 9/420) constitutes the *free property* of the deceased. Neither the Petitioner nor the Applicant has a legal right to exclusively pocket or redirect these funds to personal accounts via unauthorized paybills prior to the determination of representation. 4. The Respondent’s action of altering the paybills to her personal details even if intended for "preservation," technically crosses into the threshold of intermeddling. Property rents must be strictly preserved, accounted for and utilized transparently for the benefit of all legitimate dependants and the estate’s liabilities. 5. The Respondent challenges the status of the Applicant as a lawful spouse demanding that no funds be released until her marriage is proved. However, the biological status of the minors (Jean Kimberly Mugoye and Wells Wawiye Mugoye) as children of the deceased is uncontested. 6. Under Section 26 of the Law of Succession Act, the court is empowered to make reasonable provision out of the estate for dependants who have been left without adequate maintenance. Section 29(a) explicitly defines the children of the deceased as dependants, irrespective of the marital status of their mother. 7. This statutory provision must be read alongside Article 53(2) of the Constitution of Kenya (2010) which mandates that: *"A child’s best interests are of paramount importance in every matter concerning the child."* 1. The children cannot be locked out of education or left homeless while adults litigate their marital status. The record reflects substantial school fees arrears at Jalaram Academy and a state of homelessness following eviction from their previous residence. It is imperative that the estate provides immediate, controlled relief for their shelter and education. 2. In view of the foregoing observations and in order to secure the preservation of the estate while directly upholding the constitutional rights of the minor dependants, the Applicant’s application dated 19/3/2026 succeeds to the extent as follows: 3. the Petitioner/Respondent is directed to file a comprehensive, sworn account of all rental income collected from Apartment B7 (Garden Terraces) and Kisumu Teleposta Maisonette Block 9/420 from 27th December 2024 to date within twenty-one (21) days of this Ruling. 4. The Applicant and the Respondent are ordered to jointly open a dual-signatory Estate Bank Account at a tier-one commercial bank within fourteen (14) days. All subsequent rental income from the deceased's personal properties must be deposited exclusively into this account. 5. A sum of **Kshs 295,500/-** shall be paid out of the accumulated rental income directly to Jalaram Academy, Kisumu to clear the outstanding fees arrears for the minors within fourteen (14) days. 6. the Applicant and her two minor children are hereby granted an interim right of occupancy to occupy the deceased’s property known as House No. KISUMU TELEPOSTA MAISONETTE BLOCK 9/420 as their residence pending the hearing and determination of the main succession cause. 7. Each party to bear their own costs. Orders accordingly. **Dated, signed and delivered at Siaya this 17th day of July 2026** **D. KEMEI** **JUDGE** **In the presence of:** **N/A Ochanda………………………...………for Applicant** **M/S Anyango for Orende………………………. for Petitioner/ Respondent** **Maurine…………………………….……. Court Assistant**