https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6695

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT FAMILY SUCCESSION CAUSE NO. 582 OF 2014** **IN THE MATTER OF THE ESTATE OF WALTER KIUNGE MUNDIA alias KIUNGE S/O MUNDIA (DECEASED)** **RULING** 1. Before this Court is the Summons dated **10th November 2025** by which the Applicant **JIDRAPH MUNDIA KIUNGE** and **HILARY KIMARU KIUNGE** seek the following orders;- **“1. SPENT.** **2. SPENT.** **3. SPENT.** **4. THAT MANDATORY INJUNCITON do issue restraining the Respondents or persons claiming from them from selling, mortgaging, subdividing, parting, charging, leasing, surveying or otherwise dealing in any manner with land parcel L.R. No. RUGURU/GACHIKA/692 pending the hearing and determination.** **5. THAT the Respondents and persons claiming on from them be condemned to bear the cost of this Application.** **6. THAT the OCS Kiganjo Police Station do ensure compliance of this Orders.** **7. Such other and further Orders that this Honourable Court deems fit to grant in the circumstances.”** 2. The application which was premised upon **Section 47 of the Law of Succession Act and Rules 49 and 73** of the **Probate and Administration** **Rules** was supported by the affidavit of even date sworn by the 1st Applicant. 3. The Respondents **DAVID KARIUKI KIUNGE** and **PENINAH KAGURE** **KIUNGE** filed the Grounds of Opposition dated **18th** **November 2025**. 4. The matter was canvassed by way of written submissions. The Applicants filed the written submission dated **17th February 2026** whilst the Respondents relied upon their written submissions also dated **17th February 2026**. **BACKGROUND** 5. This succession cause relates to the estate of the late **WALTER** **KIUNGE MUNDIA** **alias KIUNGE S/O MUNDIA** who died way back on **9th March 2006**. Unfortunately today **twenty (20) years** later due to protracted litigation the estate is yet to be distributed to the beneficiaries. 6. Vide a judgment delivered on **22nd October 2025** this Court gave directions on how the estate was to be distributed. That judgment which has not been appealed against remains valid and enforceable. 7. Following the said judgment Grant of letters of administration were on **22nd October 2025** issued to the four (4) administrators **Jidraph** **Mundia Kiunge**, **Hilary Kimaru Kiunge**, **David Kariuki Kiunge** and **Peninah Kagure Mwangi**. On the same date **22nd October 2025** a rectified certificate of confirmation of Grant was issued to the four (4) administrators. 8. Instead of proceeding to distribute the estate as directed by the court two of the administrators have filed yet another application before the court against their fellow administrators. 9. The applicants claim that certain strangers or persons claiming on behalf of the Respondents have been trespassing on the estate property, and have been fencing and putting up beacons without the involvement and/or participation of the Respondents. That despite the applicants having sought assistance from the OCS Kiganjo the police have been complacent and unco-operative. 10. The Applicants further allege that plans are afoot to dispose by way of sale some of the estate property which the Applicants are apprehensive may be prejudicial to themselves and to the other beneficiaries. As such the applicants are seeking a mandatory injunction to prevent any further interference of the estate. 11. The Respondents in the Grounds of Opposition to the application stated that the application was misconceived and had no basis in law. They prayed that the same be dismissed. **ANALYSIS AND DETERMINATION** 12. I have carefully considered this application, the grounds of opposition filed by the Respondents as well as the written submissions filed by both parties. The only question is whether the applicants have put forward a prima facie case to warrant the issuance of the injunction sought. 13. The grounds upon which an injunction may be issued were set out in the case of **GIELLA -VS- CASMAN BROWN [1973] E.A 348** where the Court stated that an applicant is required to establish a prima facie case with a probability of success. 14. In the case of **Nguruman Limited Vs Jan Bonde Nielson & 2 Others [2014] eKLR**, the **Court of Appeal** expounded on this when it held that; **“In an interlocutory injunction application, the applicant has to satisfy the triple requirements which are:-** 1. **to establish his case only at a prima facie level,** 2. **to demonstrate irreparable injury if a temporary injunction is not granted, and** 3. **to ally any doubts as to (b) by showing that the balance of convenience is in his favour.** 15.These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. All the above three conditions and stages are to be applied as separate, distinct, and logical hurdles that the applicant is expected to surmount sequentially. 16. The definition of a ‘**Prima facie’** case was given in the case of **MRAO** **LTD -VS- FIRST AMERICAN BANK OF KENYA LIMITED & 2 Others [2003] eKLR** as follows:- **“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 to call for an explanation or rebuttal from the latter.”** 17. Litigation must at some point come to an end. The Applicants claim that strangers have invaded the suit land. They allege that these strangers are acting on behalf of the Respondents. Firstly no evidence has been adduced to show that unauthorized persons have indeed invaded the suit land. Nor is there any evidence by way of Sale Agreements or contracts to show that the Respondents have any plans to sell off the land. The photographs annexed to the summons only show fences – there is nothing to implicate the Respondents. I do believe this is why the police have been reluctant to involve themselves in the matter. 18. Secondly the Respondents just like the applicants are administrators of the estate and beneficiaries to the suit land. Their presence in the area cannot be said to be illegal and/or suspicious. I find no prima facie case has been shown to warrant issuance of injunctive orders. 19. In my view this application is frivolous and borders on being an abuse of court process. Instead of running to court with irrelevant applications the Applicants would be well advised to proceed immediately with the distribution of the estate. There is no reason to continue dragging out this matter in court. 20. Finally I find no merit in this application. The same is dismissed in its entirety. Costs will be met by the Applicants. **Dated in Nyeri this 15th day of May 2026.** **……………………….** **MAUREEN A. ODERO** **JUDGE**