[2025] KEHC 4331 (KLR)

In re Estate of James Mutua Mwania (Deceased) (Succession Appeal E003 of 2025) [2025] KEHC 4331 (KLR) (3 April 2025) (Ruling)

Neutral citation: [2025] KEHC 4331 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Appeal E003 of 2025

EN Maina, J

April 3, 2025

Between

Onsemus Musyoki Mutua

Appellant

and

Francis Mwania Mutua

Respondent

Ruling

1. Before this court is a Notice of Motion application dated 5th March, 2025 seeking to stay execution of the orders issued in the Ruling of Hon. Daffline Nyaboke Sure (PM) in Kangundo Chief Magistrate’s Court Succession Cause No. 57 of 2016 (In the matter of the Estate of James Mutua Mwania (deceased) delivered on 25th February, 2025 pending hearing and determination of this appeal.

2. The application is supported by the Affidavit of the Appellant/Applicant sworn on 5th March, 2025 wherein he deposes that he is apprehensive that he may be arrested at any time consequently subjecting him to untold pain and suffering. (By the time of hearing this application the Applicant had already been arrested and committed to civil jail for six (6) months.

3. The application was opposed through a Replying Affidavit sworn by the Respondent on 21st March, 2025. The Respondent deposes that the prayers sought have been overtaken by events as the Appellant/Applciant was arrested on 13th March, 2025 and is serving a sentence of six (6) months civil jail at the Machakos Prison.

Submissions 4. The application was canvassed by way of oral submissions with counsel for the Applicant urging this court to release the Appellant/Applicant from civil jail due to his age and state of health. Counsel stated that the Appellant was advised not to attend court on 13th March, 2025 by his Advocate who undertook to do so on his behalf. As a result, and due to his failure to attend court as ordered by the court, a warrant of arrest was issued. Counsel contended that the Appellant is 76 years old; that he has had an open-heart surgery before and is on blood pressure medication. Counsel also submitted that the Appellant/Applicant disputes that he destroyed beacons placed by the Administrator of their father’s estate which is what gave rise to the warrant of arrest and contends that the said land is still his land which he has been farming all his life.

5. In response, Miss Ngulukyo Counsel for the Respondent, stated that the Appellant/Applciant has on two occasions destroyed the beacons placed on the suit land making it difficult for the Respondent, who is the Administrator of their late father’s estate, to administer the estate. That an issue therefore was raised in an Environment and Land Court (ELC) case at Kangundo; that the trial magistrate in the ELC case directed that the application be canvassed within the succession cause. That it was then that the court made an order for a Surveyor to visit the land and demarcate the land into 50x100 plots in place of the previous 40x100 plots; that the Appellant/Applicant occupies 8. 5 plots instead of 4. 5 plots and has declined to hand over the others to the other beneficiaries despite fully participating in the succession process and it is for that reason that he keeps on removing the beacons so as to occasion delay and to frustrate the other beneficiaries. Counsel urged this court not to grant this application as that is the only way the Appellant/Applicant will allow the administration of the estate to be concluded.

6. In reply, the Appellant/Applicant submitted that this is a family matter which can be resolved through mediation while the Appellant/Applicant is out of jail. She urged this court to grant the application.

Determination and Analysis 7. This court has considered the application, the responses thereto, the submissions of the parties, the impugned ruling and the law.

8. This matter arises from a succession cause. The Respondent is the administrator of the estate of his late father and the Appellant/Applicant is his brother. The Appellant/Applicant was committed to civil jail for frustrating the administration of the estate by constantly uprooting the beacons affixed upon the land, the asset in the succession cause, as a means of identifying the shares of the beneficiaries. From the ruling the succession cause was concluded in the year 2017 but due to the conduct of the Appellant/Applciant the administration of the estate has never ended as is required under Section 83(g) of the Law of Succession Act.

9. Rule 73 of the Probate & Administration Rules vests the court in conduct of a succession cause with inherent power to make such orders as may be necessary for the end of justice and I believe that it is pursuant to the said inherent power that the impugned order was made.

10. The conduct of the Appellant/Applicant of ploughing and removing the beacons despite having participated and agreed to the confirmation and mode of distribution is in my view unsatisfactory and contrary to the law as there are provisions in the law which an aggrieved party ought to follow.

11. Be that as it may I am of the considered view that given the age of the Appellant/Applicant and the state of his health, which is likely to be aggravated by his being imprisoned, the trial magistrate ought to have tempered justice with mercy by exploring other mechanisms dispute resolution so as to resolve the dispute between the Appellant/Applicant and his siblings. The court is encouraged to do so under Act 159 of the Constitution.

12. It is for the above reason that this court makes an order for the immediate release of the Appellant/Applicant so that he can be reunited with his family. Any disputes arising from the estate should be resolved by use of other mechanisms other than civil jail. That however is not to say that the Appellant/Applicant should continue obstructing the course of justice at will. The time he has spent in civil jail should serve as a lesson that such conduct is unbecoming and that it is always wrong to take the law in one’s hands.

13. I think I have said enough to show that the application is allowed. The Appellant/Applicant shall be released from civil jail forthwith and a signal to that effect shall issue.

14. On the issue of costs this being a family issue the order that best commends itself to me is that each party should bear its own costs.Orders accordingly.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 3RD DAY OF APRIL, 2025. E. N. MAINAJUDGEIn the presence of:Ms Ngulukyo for RespondentMs Kioko for Appellant/ApplicantC/A: Geoffrey