https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9402

In re Estate of Faraj (Deceased) (Succession Cause 792 of 1995) [2026] KEHC 9402 (KLR) (Family) (24 June 2026) (Ruling) Neutral citation: [2026] KEHC 9402 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 792 of 1995 CJ Kendagor, J June 24, 2026 IN THE MATTER OF THE ESTATE OF ZAMZAM ABDUL FARAJ (DECEASED) Between Butuli Hassan 1st Applicant Zahra Ahmed 2nd Applicant Aziz Atitala Suleiman 3rd Applicant and Fatuma Ali Suleiman Respondent Ruling 1.Zamzam Abdul Faraj died on 17th August, 1986. Letters of administration intestate were granted to Juma Suleiman (the deceased’s son) on 4th July, 1995. 2.The Grant was subsequently confirmed on 18th October, 1996 and the file was closed. The only property of the estate, Nairobi/Block 61/98, was allocated to Ali Haidar Suleiman (the deceased’s son). 3.The matter was subsequently brought back before the Court by an application dated 2nd April, 2025, seeking revocation of the Grant, and this is the subject of the current Ruling. 4.The Applicants and the Respondent are stated to be the deceased’s grandchildren. 5.The Respondent is also the administrator of the estate of Ali Haidar Suleiman, vide Nairobi Kadhi Court Succession Cause No. E069 of 2023, and the subject property is vested in that estate. 6.This court, in a ruling delivered on 13th November, 2025, found no merit in the application seeking revocation of the grant and the same was dismissed with costs to the Respondent. 7.The Applicants have filed an appeal at the Court of Appeal – E291 of 2026 and have moved this court via an application dated 6th February, 2026 in which they seek the following reliefs pending the hearing and determination of the appeal;i.Spentii.Spentiii.That until further orders, this Honourable Court be pleased to grant an order of injunction restraining the Respondent from selling, transferring, charging or otherwise dealing with the property LR No. Nairobi/Block 61/98;iv.That pending the lodging, hearing and determination of the intended appeal, this Honourable Court be pleased to grant an order of injunction restraining the Respondent from selling, transferring, charging or otherwise dealing with the property LR No. Nairobi/Block 61/98;v.That costs of the application be provided for. 8.The application is supported by an affidavit sworn by the 1st Applicant on 6th February, 2026 and a supplementary affidavit dated 22nd April, 2026 by counsel confirming that the appeal had been lodged at the Court of Appeal. 9.The Respondent opposed the application vide a Replying Affidavit dated 17th April, 2026. 10.Both sides filed submissions. The Applicants’ case 11.The Applicants argue that the court should grant the injunctive relief sought to prevent the Respondent from dealing with the subject property in an adverse manner pending the hearing and determination of the appeal. 12.They argue further that if the injunctive relief is not granted, the Respondent is likely to distribute the subject property and dispose of it or deal with it in a manner that will keep it out of reach, therefore rendering the appeal nugatory. The Respondent’s case 13.The Respondent argues that the court cannot issue the injunctive relief having already determined the summons for revocation of grant. 14.Further, that the Applicants have not met the threshold for the grant of an injunction. Analysis and determination 15.Having carefully considered the application and the grounds therein, the supporting affidavits as well as the affidavit in response and the submissions filed in totality, it is my considered view that the issues arising for determination are:i.Whether the court should grant an order of temporary injunction pending the hearing and determination of the appeal;ii.Who shall bear the costs of the application. 16.In matters concerning the intestate and testamentary disposition and administration of estates, the issuance of injunctions in succession causes may be appropriately sought under Section 47 of the Law of Succession Act as well as Rule 73 of the Probate and Administration Rules. grant the probate court broad, inherent jurisdiction. Together, these provisions confer on the probate court broad inherent jurisdiction, enabling it to hear succession disputes and issue orders to prevent abuse of the court process and to ensure justice is served. 17.This position was enunciated in the Court of Appeal decision in Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] KECA 250 (KLR). In this matter, the Court of Appeal referenced its previous decision in Floris Pierro v Giancario Falasconi, Civil Appeal No. 145 of 2012 (UR), where it pronounced itself as hereunder;“The appellants took the position that the Court had no such jurisdiction whereas the respondent took the contrary position. However, the High Court was persuaded that rule 73 of the Probate and Administration Rules reserved the Court’s inherent jurisdiction to allow for the grant of injunction in deserving cases. We are in total agreement with this conclusion.We have no doubt at all that the Law of Succession Act gives the Court wide jurisdiction in dealing with testamentary and administration issues of an estate. Indeed section 47 of the said Act gives the Court jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decree and orders as may be expedient. It cannot be said that such decrees and orders would exclude injunctive orders. In other words, we are of the firm view that section 47 of the Act gives the Court all embracing powers to make necessary orders, including injunctions where appropriate to safeguard the deceased’s estate. This section must be read together with rule 73 of the Probate and Administration Rules which further emboldens Court’s jurisdiction to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court. We would imagine such orders would also include injunctive orders.” 18.Rule 63 of the Rules also incorporates the application of Order 40 of the Civil Procedure Rules, which deals with temporary injunctions and interlocutory orders in proceedings under these Rules. 19.In the cited authority of Madhupaper International Ltd v Kerr [1985] KLR, the Court of Appeal held that the High Court could entertain an application for an injunction pending appeal from its decision on an injunction to the Court of Appeal. 20.In the celebrated case of Giella vs Cassman Brown [1973] EA348 the court held that an applicant must demonstrate that they have a prima facie case with a probability of success, demonstrate irreparable harm which cannot be compensated by an award of damages if a temporary injunction is not granted, and if the court is in doubt, show that the balance of convenience is in their favour. 21.In this matter, the special nature of the consideration of the injunctive reliefs sought is that the court already determined the application seeking revocation of the grant. It found that it was not merited. This therefore means that the grant issued on 4th July, 1995 is upheld, and the estate remains as distributed, in terms of the certificate of confirmation of grant dated 18th October, 1996. In this case, in favour of Ali Haidar Suleiman, deceased. 22.It is not disclosed whether there is any appeal from the decision of the Nairobi Kadhi Court in Succession Cause No. E069 of 2023, delivered in respect of the estate of Ali Haidar Suleiman, which found that the property belonged to his estate. Be it as it may, the certificate of confirmation of grant in the succession cause before this court is what vested the property in Late Ali. 23.This court already made a determination on the issue that the Applicants do not possess independent rights in this case as they are not dependants within the meaning of Section 29 of the Law of Succession Act; their entitlements are rooted in the rights of their parents, who are the children of the late Zamzam. The late Zamzam’s children, all deceased, by consent and by implied conduct, agreed to vest the property absolutely in the late Ali. 24.This court also determined that, as grandchildren, the Applicants cannot assert their entitlement or ‘sway’ their parents’ decisions regarding their grandmother’s estate now, even as they may feel strongly about their entitlement or disagree with their parents’ choices. 25.In my opinion, the Applicants have failed to establish a prima facie case necessary for obtaining the injunctive relief sought from this Court. Since this threshold is not met, the other grounds need not be evaluated. The application dated 6th February, 2026 is without merit and is dismissed with costs. 26.At the time the Applicants filed the application dated 6th February, 2026 they had not yet lodged the appeal at the Court of Appeal. However, as stated in the Supplementary Affidavit dated 22nd April, 2026, the Applicants filed their appeal on 2nd April, 2026. Consequently, the Applicants are entitled to pursue relief from the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules. 27.Orders accordingly. DATED AND SIGNED AT NAIROBI ON THIS 24TH DAY OF JUNE, 2026.…………………………C. KENDAGORJUDGEIn the presence of:Court Assistant: Beryl