In re Estate of Mochama (Deceased) (Probate & Administration E015 of 2025) [2026] KEHC 13286 (KLR) (30 July 2026) (Ruling)

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYAMIRA** **(CHERERE-J)** **HCFP&A E015 OF 2025** **IN THE MATTER OF THE ESTATE OF DAVID CHIEF MAUTI MOCHAMA (DECEASED)** **BETWEEN** **JACKLINE KEMUNTO MAUTI......................PETITIONER/APPLICANT** **AND** **SAMWEL OIGARA MAUTI……………………………1ST RESPONDENT CYNTHIAH KERUBO MAUTI………………………..2ND RESPONDENT DORCAS NYAKERARIO MAUTI……………………3RD RESPONDENT NANCY BOSIBORI MAUTI………………………...…4TH RESPONDENT GLORIAH MORAA MAUTI………………………..…5TH RESPONDENT DARLINE NYANDUKO MAUTI ………………….…6TH RESPONDENT** **RULING** 1. **Jackline Kemunto Mauti, t**he Applicant moved the Court by the **Chamber Summons dated 03rd July 2026**, expressed to be brought under Sections 45 and 47 of the Law of Succession Act, Rule 73 of the Probate and Administration Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law. 2. The application is supported by the Applicant's **affidavit sworn on even date**. She depones that she is the surviving widow of the deceased and a petitioner in these succession proceedings. She states that the Respondents unlawfully commenced harvesting, cutting, selling and disposing of trees on **Land Parcel No. Manga Settlement Scheme/1300**, which forms part of the deceased's estate, without any lawful authority. She further depones that she reported the matter to **Manga Police Station**, but was informed that the police could not intervene in the absence of a court order. It is her case that the continued harvesting poses a real risk of wastage of the estate and will prejudice the beneficiaries unless restrained by the Court. She also contends that the Respondents have failed to account for the trees already harvested and the proceeds realized therefrom. On those grounds, the Applicant seeks the following orders: 3. **That pending the hearing and determination of the succession cause, the Respondents be restrained from harvesting, cutting, removing, transporting, selling, disposing of or in any other manner dealing with any trees, timber or forest produce on Land Parcel No. Manga Settlement Scheme/1300**, **or otherwise intermeddling with the said property.** 4. **That the Respondents be ordered to render a true and complete account of all trees, timber and forest produce harvested from Land Parcel No. Manga Settlement Scheme/1300**, including **the proceeds realized therefrom.** 5. **That the Officer Commanding Station (OCS), Manga Police Station, do provide assistance in enforcing the Court's orders.** 6. **That the costs of the application be provided for.** 7. The application is opposed by the **1st Respondent, Samwel Oigara Mauti**, through the **Replying Affidavit sworn on 21st July 2026**. He depones that the Applicant withdrew KES.3,000,000 from the deceased's bank account without the authority of the Court. He contends that the withdrawal left the estate financially constrained. He further states that the trees were harvested to raise funds for school fees and other family expenses after he had approached the Applicant for permission to do so. According to him, he assumed that the Applicant had acquiesced because she did not object to the request. He adds that the harvesting ceased immediately upon service of the interim orders issued by the Court. He further depones that the Respondents intend to seek the Court's approval to utilize estate assets to meet educational expenses. 8. The Applicant filed a **Supplementary Affidavit sworn on 23rd July 2026** in which she contends that the replying affidavit was filed outside the timelines prescribed by the **Court Order dated 07th July 2026**and should therefore be struck out. She denies withdrawing **KES 3,000,000** from the deceased's bank account and states that the allegation is unsupported by any evidence. She further depones that it is the Respondents who have persistently intermeddled with the estate of the deceased. She states that despite being served with the interim orders issued on 07th July 2026, the Respondents continued harvesting and selling trees on **Land Parcel No. Manga Settlement Scheme/1300** in disobedience of those orders. She also disputes the allegation that the harvesting was undertaken to raise school fees, contending that no evidence has been produced to support that assertion. Finally, she depones that the Respondents have failed to render any account of the trees harvested or the proceeds realized therefrom. 9. Having considered the application, the response and the supplementary affidavit, the issues falling for determination are: 1. **Whether the replying affidavit should be struck out for having been filed out of time.** 2. **Whether the Applicant is entitled to the injunctive orders sought.** 3. **Whether the Respondents should be ordered to render an account.** 4. **Whether the Officer Commanding Station, Manga Police Station, should be directed to enforce the Court's orders.** 5. **Who should bear the costs of the application.** 10. The Applicant urges the Court to strike out the **Replying Affidavit sworn on 21st July 2026** for non-compliance with the timelines contained in the **Court Order dated 07th July 2026**. The affidavit was filed outside the prescribed time. However, the Applicant responded fully through the **Supplementary Affidavit sworn on 23rd July 2026** and has not shown that she suffered any prejudice incapable of being remedied by an appropriate order. As the Court of Appeal observed in [**Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] KECA 113 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2013/113/eng%402013-11-22)**,** courts should administer substantive justice rather than pay undue regard to procedural technicalities. Striking out the affidavit would elevate procedural default over substantive justice. The objection is therefore declined. 11. Concerning the preservation of **Land Parcel No. Manga Settlement Scheme/1300** pending the determination of the succession cause, the 1st Respondent admits harvesting trees from the estate. Whatever the purpose, **section 45 of the Law of Succession Act** prohibits intermeddling with the free property of a deceased person**.** In [**Saoina & 7 others v Kajiado & 2 others [2026] KECA 556 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2026/556/eng%402026-03-13)**,** the Court of Appeal emphasized that dealings with estate property must strictly comply with the law and that unauthorized dispositions of estate assets cannot be sanctioned. The admitted harvesting of trees, undertaken without the sanction of the Court, warrants the preservation of the property pending the determination of the succession cause. The prayer for an injunction therefore succeeds. 12. The Applicant also seeks an order directing the Respondents to render an account of the trees harvested and the proceeds realized therefrom. Any person who deals with the property of a deceased person is accountable for such dealings. The Court is empowered under **sections 45 and 47 of the Law of Succession Act,** read together with **Rule 73 of the Probate and Administration Rules**, to make such orders as are necessary to safeguard the estate and ensure proper accountability in its administration. An order directing the Respondents to render an account is therefore warranted. 13. The Applicant further seeks an order directing the **Officer Commanding Station, Manga Police Station**, to supervise the enforcement of the Court's orders. This is a civil dispute, and no exceptional circumstances have been demonstrated to justify police involvement in the enforcement of the Court's orders. The prayer is accordingly declined. 14. As this is a dispute arising in the course of the administration of the estate involving members of the same family, I consider it appropriate that the costs of the application abide the outcome of the succession cause. 15. Accordingly, the Chamber Summons dated 03rd July 2026 succeeds to the extent stated above, and the Court makes the following orders: * 1. **The temporary injunction issued on 07th July 2026 is hereby confirmed pending the hearing and determination of the succession cause or until further orders of the Court.** 2. **The Respondents are hereby restrained from harvesting, cutting, removing, transporting, selling, disposing of, or otherwise dealing with any trees, timber or forest produce on Land Parcel No. Manga Settlement Scheme/1300, or otherwise intermeddling with the estate pending the determination of the succession cause.** 3. **The Respondents shall, within sixty (60) days from the date hereof, render a true and complete account of all trees, timber and forest produce harvested from Land Parcel No. Manga Settlement Scheme/1300, including the proceeds realized and the manner in which those proceeds were utilized.** 4. **The costs of the application shall abide the outcome of the succession cause.** 5. **Mention on 02nd November 2026 before the DR to confirm gazettement and compliance with these orders** **DELIVERED AT NYAMIRA THIS 30th DAY OF July 2026**  **WAMAE.T. W. CHERERE** **JUDGE** **Appearances** **Court Assistant - Hilda** **For Applicant - Mr. Onduso for K.O.Obae & Co. Advocates** **For Respondents – Ms. Mutua for Ongwenyi Mirieri & Co. Advocates**