https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11087

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **SUCCESSION APPEAL NO. E006 OF 2026** **IN THE MATTER OF THE ESTATE OF THE LATE DAUDI LIBABA (DECEASED)** **TIMETEO SENERWA LIBABA............................1ST APPELLANT/APPLICANT** **WALTER JARENGA LIBABA..............................2ND APPELLANT/APPLICANT** **VERSUS** **JACKSON KAROMBA KIDORO ...............................................RESPONDENT** **AN APPEAL FROM THE RULING/ORDER OF THE HONOURABLE LAVENDER A. MBOSS RESIDENT MAGISTRATE DELIVERED ON THE 7TH DAY OF MAY 2026 IN HAMISI SUCCESSION CAUSE NO. E159 OF 2024** **BETWEEN** **TIMETEO SENERWA LIBABA.............................1ST OBJECTOR/APPLICANT** **WALTER JARENGA LIBABA ..............................2ND OBJECTOR/APPLICANT** **VERSUS** **JACKSON KAROMBA KIDORO..........................PETITIONER/RESPONDENT** **Coram: Before Justice R. Nyakundi** **D.C Chitwa & Co. Advocates** **Samba, Odeck & Mulama Co. Advocates** **RULING** 1. Before this Court is a Notice of Motion dated 8th day of May 2026, expressed to be brought under Section 47 of the Law of Succession Act, Rule 49 and Rule 73 of the Probate and Administration Rules, Sections 1A, 1B, 3A and 79G of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules, Article 159 of the Constitution of Kenya, and all other enabling provisions of the law. 2. *Spent.* 3. *THAT pending the hearing of this application inter partes, this Honourable Court be pleased to issue a temporary injunction restraining the Respondent, his agents, servants, relatives and/or anybody acting under his instructions from burying the body of his deceased brother josphat Azenga on land parcel number KAKAMEGA/IVORA/1125.* 4. *THAT pending the hearing and determination of the appeal herein, this Honourable Court be pleased to issue an order preserving and maintain the status quo over land parcel number KAKAMEGA/IVORA/1125.* 5. *THAT pending the hearing and determination of the appeal herein, the Respondent be restrained from interfering with, wasting, alienating, occupying, burying on and/or otherwise dealing with land parcel number KAKAMEGA/IVORA/1125 in a manner prejudicial to the estate.* 6. *The OCS Gambogi Police Station do supervise and ensure compliance with the orders of this Honourable Court and maintain peace.* 7. *Costs of this application be provided for.* 8. The application is based on the following grounds: 9. *The suit property forms part of the estate of the late Daudi Libaba.* 10. *The Respondent obtained letters of administration which are presently under challenge through revocation proceedings pending before Court.* 11. *The Respondent intends to bury his deceased brother Josphat Azenga Karomba on the disputed estate land.* 12. *The lower Court declined jurisdiction and refused to issue preservatory orders.* 13. *The intended burial may alter the status quo and prejudice the pending succession proceedings before Hamisi Succession Cause E159 of 2024.* 14. *Unless this Honorable Court intervenes urgently, the intended burial may proceed thereby rendering the appeal nugatory.* 15. *It is in the interests of justice that the estate property be preserved pending determination of the appeal.* 16. In support of the application is the sworn affidavit of one Timateo Senerwa Libaba who deponed as follows: 17. *That I am the 1st Appellant/Applicant herein, a son of the deceased, DAUDI LIBABA, and therefore competent to swear this affidavit on behalf of my own behalf and on behalf of the 2nd Appellant/Applicant.* 18. *That the deceased DAUDI LIBABA was my father.* 19. *That the Respondent is a grandson of the deceased.* 20. *THAT the estate of the late DAUDI LIBABA is the subject of pending succession proceedings before Hamisi Court in Succ E159 of 2024.* 21. *THAT the Respondent petitioned for and obtained letters of administration in respect of the estate without involving all beneficiaries of the estate including myself and Walter Libaba. (Annexed hereto and marked TSL-1 is a copy of the grant of letter of administration intestate).* 22. *THAT owing to the said concealment and non-disclosure, we subsequently filed summons for revocation of grant dated 13/10/2025 which is still pending before Court.* 23. *THAT land parcel number KAKAMEGA/IVORA/1125 forms part of the estate property of the late DAUDI LIBABA under dispute and distribution thereof has not been determined.* 24. *THAT the Respondent lost his brother Josphat Azenga Karomba on 4/5/2026 and now intends to bury his deceased brother on the said parcel of land with the help of the area chief.* 25. *THAT we objected to the intended burial and filed an urgent application before the lower Court seeking preservatory and injunctive orders restraining the intended burial pending the determination of the succession proceedings. (Annexed hereto and marked TSL-4 is a copy of the Application filed under certificate dated 7/5/2026).* 26. *THAT on the same day 7th May, 2026 the lower Court delivered a ruling dismissing the application and holding that the matter ought to be filed before the Environment and Land Court.* 27. *THAT I am advised by my advocates on record, which advice I verily believe to be true, that the learned magistrate erred in law and fact by declining jurisdiction to preserve the estate property in a pending succession cause.* 28. *THAT I am further advised by my advocates on record that the succession Court has jurisdiction under section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules to issue preservatory orders aimed at protecting estate property pending determination of disputes among beneficiaries.* 29. *THAT unless this Honourable Court intervenes urgently, the Respondent may proceed with the burial thereby altering the status quo irreversibly.* 30. *THAT the intended burial is likely to prejudice the pending revocation proceedings and rendering this appeal nugatory.* 31. *THAT the intended burial is likely to interfere with the pending succession proceedings, occasion tension, conflict and possible breach of peace among family members.* 32. *THAT it is fair, just and in the interests of justice that this Honorable Court preserves the estate property pending hearing and determination of this appeal.* 33. **MEMORANDUM OF APPEAL** 34. *THAT the learned Magistrate erred in law and fact in declining jurisdiction to entertain the Appellants’ application for preservatory and injunctive orders in a succession cause.* 35. *THAT the learned Magistrate erred in law in holding that the dispute fell exclusively within the jurisdiction of the Environment and Land Court despite the matter concerning preservation of estate property pending succession proceedings.* 36. *THAT the learned Magistrate failed to appreciate that land parcel number KAKAMEGA/IVORA/1125 forms part of an UNDISTRIBUTED estate of DAUDI LIBABA which is subject to pending succession and revocation proceedings before Hamisi Succession cause No. E159 of 2024.* 37. *THAT the learned Magistrate failed to appreciate that the succession Court has jurisdiction under Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules to preserve estate property and maintain status quo.* 38. *THAT the learned Magistrate failed to consider that the intended burial would alter the status quo and potentially render the succession proceedings nugatory.* 39. *THAT the learned Magistrate failed to exercise judicial discretion judiciously and in the interests of justice.* 40. *THAT the learned Magistrate failed to sufficiently consider the interests and rights of all beneficiaries of the estate and the need to preserve the estate pending determination of disputes among beneficiaries.* 41. *THAT the Ruling occasioned a miscarriage of justice.* 42. *REASONS WHEREFORE the Appellants pray that:* 1. *The appeal be allowed;* 2. *The ruling delivered on 7/5/2026 be set aside;* 3. *This honorable Court do issue preservatory and injunctive orders preserving land parcel number KAKAMEGA/IVORA/1125 pending determination of the succession proceedings;* 4. *Costs of the Appeal be awarded to the Appellants* 43. The Appellant field written submissions dated30th Day of June 2026 in which she highlighted as follows: * *That That there is a pending succession dispute regarding the estate of the deceased DAUDI LIBABA;* * *That the suit land forms part of the undistributed estate;* * *That revocation proceedings remain pending before the lower Court;* * *That the intended burial will permanently alter the estate property;* * *That failure to preserve the estate will render 'his appeal nugatory; and* * *That the interests of justice overwhelmingly favour maintenance of the status quo.* 1. In support of learned Counsel submissions, she invited the Court to be guided by the following case law: *Nguruman Ltd v Jan Bonde Nielsen & 2 Others [2014] eKLR, in re estate of M’mboroki M’marete (deceased) [2016] eKLR and re estate of GKK (Deceased) [2017] eKLR*. 2. It appears that the Respondent did not favour us with his legal perspectives on the pending notice of motion **Decision** 1. In Kenya’s legal system the provisions on grant of injunction are provided for under Order 40 Rule 1 and 2 of the CPR. The triple requirements are as settled in the locus classicus case of *Giella v Cassman Brown & Co. Ltd [1973] EA 358*, these principles require the Applicant to show a prima facie case with a probability of success, prove irreparable injury not compensable by damages and a favour the balance of convenience. 2. A temporary/interlocutory injunction is a Court order made in the early stages of a lawsuit or petition which prohibits the parties from doing an act in order to preserve the status quo until a pending ruling or outcome. The purpose of a temporary/interlocutory injunction is to keep the parties, while the suit is pending, as much as possible in the respective positions they occupied when the suit began and to preserve the Court’s ability to render a meaningful decision after a trial on the merits. 3. The fundamental question to be answered is basically on the first crucial criteria on whether in the panoramic view of the Court the pending suit, claim, or petition can be brought within the definition of a prima facie case with a probability of success. On what a prima facie case is the case *of Mrao v First American Bank of Kenya Limited & 2 Others [2003] eKLR,* the Court of Appeal defined the same when the Court held*; “So what is a prima facie case? I would say that in civil cases it is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter. … But as I earlier endeavoured to show, and I cited ample authority for it, a prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of success of the Applicant’s case upon trial. That is clearly a standard which is higher than an arguable case.”* 4. The Court also addressed this issue by being emphatic that a *prima facie* case is not the only yardstick an Applicant must meet for the exercise judicial discretion to be extended to him or her within the provisions of Order 40 Rule 1 and 2 of the CPR. The Court of appeal in the case of *Nguruman Limited Vs Jan Bonde Nielson & 2 Others [2014] eKLR* stated further as follows that: *“In an interlocutory injunction application, the Applicant has to satisfy the triple requirements to; … a. establish his case only at a prima facie level, b. demonstrate irreparable injury if a temporary injunction is not granted, and c. ally any doubts as to (b) by showing that the balance of convenience is in his favour. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the Applicant is expected to surmount sequentially. See Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the Applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the Court must further be satisfied that the injury the Respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the Respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the Applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the Applicant to injunction directly without crossing the other hurdles in between. the second factor, that the Applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the Applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the Applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”* 1. The bone of contention in the matter of the estate of Daudi Libaba concerns the affidavit evidence in which the Applicant Timateo Senerwa is alleging that the Respondent who is a cousin and the grandson of the deceased as petitioned the call of grant of letter of administration secretly without obtained eth necessary consent from the direct beneficiaries under Section of the Law of Succession Act. That following the grant of letter of administration the Respondent has filed summons for confirmation of grant purporting to reallocate himself half of the share of the parcel of land reference Kakamega/Ivora/1125 without taking into account the rest of the family members. The summons for revocation of grant according to the Applicants are yet to be heard and determined by the Court but notwithstanding that the Respondent is set to bury his deceased brother Josephat Asanga Karomba in the disputed estate land. Hence the need for injunctive orders so that the merits of the disputed can be heard and determined without rendering it pointless or nugatory. 2. The issue before this Court is on inheritance rights involving the estate of the late Daudi Libaba in which the Applicants are claiming their legitimacy or dependency under Section 29(a) of the Law of Succession Act in which they alleged that the Respondent applied for grant of letters of administration without their consent or inclusion. It is the case for the Applicant/Appellants that if the Respondent is not restrained pertaining to the suit property and is allowed to proceed to bury and inter the body of his brother Josphat Azenga they would suffer irreparable harm which cannot be quantified by way of monetary damages. The basis of it according to the Applicant is that they have a substantial interest in the property of the late David Libaba and if the proceedings in the said case are conducted without impleading the Applicants to the case then they would suffer serious loss. In such a situation the Applicants contention is that for the resolution of the succession cause it would be necessary in the interest of justice that an order be passed to stay the proceedings by way of an injunction which would also restrain the burial ceremony together underway the same property which would ultimately occasion prejudice and injustice of their secured rights on inheritance under the Law of Succession Act. 3. It is well settled that fulfilment of certain conditions noted above in the cases referenced to are a must for a grant of interim injunctions. That is the *prima facie* case, balance of convenience and irreparable injury. For the Court to make a finding as to whether a prima facie case has been established it is a question of evidential material by the Applicant. However, while arriving at such a finding of fact the Court not only must arrive at a conclusion that the case filed at the trial raises serious issue for adjudication but also factors requisite for grant of injunction exist. In my analysis and appreciation of the affidavit evidence by the Applicants, they have shown that they themselves were not at fault and were not responsible for bringing about the state of things complained of and they were not unfair or inequitable in their dealings with the Respondent against whom they are seeking the relief of injunction under Order 40 Rule 1 and 2 of the CPR. As I exercise judicial discretion, I bear in mind that a finding of a *prima facie* case in favour of the Applicants should not be confused with *prima facie* success of the pending suit or application, but it simply means there is a serious question to be tried as between the Applicants and the Respondent. That merit test of adjudication cannot be set in motion by this Court at this interim state of affairs. 4. In the present case the Applicants are desirous of being included in the inheritance rights of the intestate estate of the deceased comprising *inter alia* land parcel Kakamega/Ivora/1125 in which the Respondent ought to be restrained from interfering with it by interring the body of his brother before the succession cause is fully heard and determined. In earlier round of litigation the Respondent is alleged to have obtained grant of letters of administration by non-disclosure of material facts which ultimately made the trial Court to act on misrepresentation of true facts as to the legitimate heirs to the intestate estate. 5. While examining these parameters for the grant or refusal or interim relief as articulated in the *Cassman, Mrao and Nguruman (Supra)* authorities the Court must satisfy itself that each element has been properly considered and that satisfaction need not occur in a rigid or mechanical version where each element is separately discussed in isolation, rather the Courts application of mind must be assessed holistically taking into account that in a process of examining one parameter related aspects of the notice of motion may also be inherently addressed. Again under the Law of Succession intermeddling of the property of the deceased is even a criminal offence and it matters not whether the operations of burying the deceased are going to be brought to a standstill and jeopardize through injunctive relief for justice must not only be done but must be seen to be done in so far as the present dispute on inheritance is concerned. The principal question to be addressed at an opportune time is whether non-disclosure of material facts by the Respondent during the petitioning for grant of letters of administration was fatal to the Applicants claim right to inheritance in the matter of the estate of the late Daudi Libaba (Deceased). 6. There is no evidence from the Respondent that the Applicants have approached this Court with unclean hands or with a conduct which is inequitious so that this Court should not entitle them to any equity in the form of reliefs of injunctions or preservation of the intestate estate from being intermeddled pending the hearing and determination of the Succession Cause which initially had been filed before the Magistrate’s Court. 7. In my view the principles in this case of *Nottingham Building Society v Eurodynamics Systems [1993] FSR 468 at p. 474*: are apt; *“In my view the principles to be applied are these. First, this being an interlocutory matter, the overriding consideration is which course is likely to involve the least risk of injustice if it turns out to be wrong' in the sense described by Hoffmann J. Secondly, in considering whether to grant a mandatory injunction, the Court must keep in mind that an order which requires a party to take some positive step at an interlocutory stage, may well carry a greater risk of injustice if it turns out to have been wrongly made than an order which merely prohibits action, thereby preserving the status quo. Thirdly, it is legitimate, where a mandatory injunction is sought, to consider whether the Court does feel a high degree of assurance that the plaintiff will be able to establish this right at a trial. That is because the greater the degree of assurance the plaintiff will ultimately establish his right, the less will be the risk of injustice if the injunction is granted. But, finally, even where the Court is unable to feel any high degree of assurance that the plaintiff will establish his right, there may still be circumstances in which it is appropriate to grant a mandatory injunction at an interlocutory stage. Those circumstances will exist where the risk of injustice if this injunction is refused sufficiently outweigh the risk of injustice if it is granted.”* 1. In the instant case, I find that there is nothing arising on the material before me that indicates an injunction restraining the Respondent from intermeddling with the suit property Kakamega*/*Ivora/1125by executing his intention to bury the deceased Josphat Azenga Karomba before the rights of inheritance are fully heard and determined by a Probate Court as between the parties would not cause any irremediable prejudice to the Defendant even if it turns out the Respondent is successful at the trial. This in light of the fact that the Respondent and/or the deceased seems to also be claiming some proprietary or even equitable interest in the suit property. Conversely, I find that if the injunction is not granted allowing the Respondent or his agents to access the suit property and proceed to inter the body of his late brother the deceased in the disputed parcel of land and if the Applicants were to be successful at the trial they are more likely to suffer irremediable prejudice and risk of injustice under Article 40 of the Constitution on rights to private property. That cannot be compensated by way of damages to the Applicants. 2. Accordingly, I make the following orders: * 1. *A mandatory temporary injunction be and is hereby granted in terms of prayer No. 2 of the motion which reads as follows:* *“THAT pending the hearing and determination of the appeal herein, this Honourable Court be pleased to issue an order preserving and maintain the status quo over land parcel number KAKAMEGA/IVORA/1125. Which includes inter alia a freezing order of burying the body of his deceased brother Josphat Azenga”.* * + 1. *That pending the hearing and determination of the appeal herein the Respondent, or his agents or servants be and are hereby restrained from interfering with****,*** *wasting, alienating, occupying, burying on and/or otherwise dealing with land parcel number KAKAMEGA/IVORA/1125 in a manner prejudicial to the estate.* 2. *The OCS Gambogi Police Station do supervise and ensure compliance with the orders of this Honourable Court and maintain security.* 3. *That Deputy Registrar of the High Court shall monitor compliance of the above orders.* 4. *That the Appellants shall proceed to pursue for summons of revocation before the PM’s Court at Hamisi or any such other forum of the level Courts as destined by our Constitution and the Magistrate’s Court Act and have it listed on priority basis given the compelling circumstances involving the rights of the family of the deceased as the law recognizes posthumous dignity imposing duties on the living to respect the deceased’s bodily integrity, last wishes and ensuring a decent burial.* 5. *That the costs of this application to abide the outcome of any other litigation on the merits between the Applicants and the Respondents.* **DATED, SIGNED AND DELIVERED THIS 23RD DAY OF JULY 2026.** **………………………………………** **R. NYAKUNDI** **JUDGE**