https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6822

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI FAMILY DIVISION SUCCESSION CAUSE NO. 2423 OF 2010 IN THE MATTER THE ESTATE OF ELIUD NJOROGE KURIA (DECEASED) PETER KURIA ………………………………..……………….. APPLICANT VERSES PHILIS WANGARE ……………………..…………….. 1ST RESPONDENT SIMON MUHIA ………………………………………... 2ND RESPONDENT BERNARD NJOROGE ………..………………………. 3RD RESPONDENT AND MARGARET WANJIRU & 6 OTHERS ……….. INTERESTED PARTIES RULING 1. This ruling relates to the application dated 15th October, 2025 filed by the Applicant, Joseph Njoroge; seeking for ORDERS THAT: SUCCESSION CAUSE NO. 2423 OF 2010 RULING Page 1 of 17 po/ hkc 1. The Honourable Court confirms that the Administrators/Interested Parties are in default of the Ruling dated 17th July, 2025 regarding the subdivision of Muguga/Jet Scheme/1682. 2. The Honourable Court do hereby adopt the Survey Report and Subdivision Plan for Muguga/Jet Scheme/1682 dated 29th September, 2025 by LANDMETRIC SURVEYORS AND GEO- CONSULTANTS, which divided the property into two equal portions, Plot A (0.16 HA) and Plot B (0.16 HA) 3. Pursuant to the confirmed default, the Honourable Deputy Registrar (DR) be directed and authorized pursuant to Order 2 of the Ruling dated 17th July, 2025, to forthwith execute ALL necessary conveyancing documents to register the subdivision, specifically including:  Form LRA 39 (Transfer to Personal Representative as/Administrator) to effect the necessary transmission of Muguga/Jet Scheme/1682 from the Deceased's name to the Administrators.  Form LRA 27 (Mutation Form) for the formal registration of the subdivision of the property into the two new parcels (Plot A and Plot.  All other necessary conveyancing documents to fully execute the subdivision process. SUCCESSION CAUSE NO. 2423 OF 2010 RULING Page 2 of 17 po/ hkc 4. Upon registration of the subdivided parcels, the Honourable Court proceeds to determine and finalize the allocation of the two resultant parcels to the two beneficiaries (Margaret Wanjiru and Phyllis Wangari Njoroge) as it deems fit and just, utilizing the power reserved in the Ruling, and taking into consideration the existing developments and evidence of occupation. 2. The application is based on the grounds thereof and supported by affidavit sworn by Joseph Njoroge on 15th October, 2025. 3. He avers inter alia that the ruling directed the Deputy Registrar to adopt a survey report and complete the subdivision and conveyancing process within ninety days, a period which was due to lapse around 15th October, 2025. He states that despite the survey process having substantially been completed, the Administrators had failed to execute the requisite conveyancing documents, thereby frustrating implementation of the Court’s orders. 4. He explains that the subdivision process had initially been undertaken by mutual agreement of the parties. He annexes evidence showing that on 30th May, 2022, the parties jointly instructed S. Kigathi Geomatic Services to conduct a survey of the property and made a joint payment of Kshs. 31,000/= toward the exercise. A survey report dated 21st August, 2025 was subsequently prepared confirming that the property measured approximately 0.32 SUCCESSION CAUSE NO. 2423 OF 2010 RULING Page 3 of 17 po/ hkc hectares and was divisible into two equal portions measuring 0.16 hectares each. 5. The report also reflected the existing developments on the land, namely that one section contained a storey building while another portion contained a grave site, thereby complying with the Court’s earlier directives that existing occupation and developments be considered. 6. He further avers that following the ruling, co-Administrator Phyllis Wangari Njoroge demonstrated readiness to comply with the Court orders and invited the other beneficiaries and Administrators to participate in the subdivision exercise. Correspondence annexed to the affidavit shows that formal invitations were sent through advocates and directly to the parties notifying them of the proposed survey dates and requesting cooperation. 7. In a letter dated 18th September, 2025, Phyllis Wangari Njoroge informed the other parties that unless they proposed an alternative surveyor or date, she would proceed with the survey using her appointed surveyor to ensure compliance with the Court’s ninety-day deadline. 8. A subsequent invitation dated 26th September, 2025 confirmed that the Court-ordered survey would take place on 29th September, 2025 at 2:00 p.m. at the suit property. He further states that the physical subdivision was undertaken on 29th September, 2025 in the presence of Phyllis Wangari Njoroge, Joseph Kuria Njoroge, the appointed surveyor and local administrative SUCCESSION CAUSE NO. 2423 OF 2010 RULING Page 4 of 17 po/ hkc representatives, including the Assistant Chief of Kerwa Sub- location. Attendance records annexed to the application show participation by survey officials, neighbours and local administration officers. 9. The survey exercise involved equal demarcation of the property into Plot A and Plot B, reflection of the existing structures on the ground and preparation of the requisite mutation forms for registration purposes. The Applicant contends that despite completion of the technical and physical subdivision process, some Administrators failed to attend the exercise or execute the necessary conveyancing documentation, including Form LRA 27, thereby occasioning default under the Court order. 10. The annexed Landmetric Surveyors and Geo-consultants report dated 29th September, 2025 confirms that the property was surveyed and subdivided into two equal portions, each measuring 0.16 hectares. The report notes that the property could not practically be subdivided horizontally because of the configuration of the land and existing developments and therefore vertical subdivision was adopted to achieve economic viability while preserving the existing structures and occupation on the land. A sketch map attached to the report illustrates the proposed subdivision, identifying Plot A as containing the existing house and Plot B comprising the remaining portion fronting the tarmac road. SUCCESSION CAUSE NO. 2423 OF 2010 RULING Page 5 of 17 po/ hkc 11. The Applicant also annexes a certificate of proceedings confirming that certain Administrators and interested parties failed to attend the subdivision exercise and execute the necessary documents despite notice having been issued. He therefore urges the Court to invoke the authority reserved under the ruling dated 17th July, 2025 by directing the Deputy Registrar to execute all conveyancing documents necessary to complete transmission and subdivision of the property, including Forms LRA 39 and LRA 27. 12. He further requests the Court, after registration of the subdivided parcels, to determine and finalize allocation of Plot A and Plot B among the beneficiaries while considering the existing developments, occupation and evidence of continuous possession, including utility payment records annexed to the application. 13. The application is opposed vide grounds of opposition by Peter on 16th December, 2025. He avers inter alia that the application is contradictory because Joseph Njoroge had previously filed an application dated 3rd July, 2025 seeking to set aside the same orders which he now seeks to enforce. It is argued that the Applicant cannot approbate and reprobate by challenging the orders at one stage and subsequently seeking their execution. 14. He further avers that the Court’s directives concerning fresh survey and subdivision of Muguga/Jet Scheme/1682 have already been complied with through SUCCESSION CAUSE NO. 2423 OF 2010 RULING Page 6 of 17 po/ hkc the survey undertaken by Phyllis Wangari, as evidenced by the annexed survey documents and the Compliance Status Report dated 1st December, 2025. He maintains that the subdivision exercise constituted only the first stage of the distribution process and that the remaining stages, namely balloting and eventual transfer of the subdivided parcels to beneficiaries, are yet to occur. 15. According to the him, the Court had earlier clarified through orders relating to another estate property, namely Njoro/Njororo/Block 1/39 (Kikapu), that estate distribution involving landed property proceeds in three stages: survey and subdivision, allotment through balloting and transfer of the resultant portions to beneficiaries. 16. The objector additionally contends that allocation of the subdivided portions of Muguga/Jet Scheme/1682 cannot proceed because there exists a pending dispute concerning developments erected on the property. He states that Margaret Wanjiru disputes the house allegedly constructed by Phyllis Wangari on the land and seeks demolition orders in Environment and Land Court Case No. E180 of 2025 pending before the Environment and Land Court at Thika. 17. He argues that because the dispute concerning the developments remains unresolved before another competent Court, distribution or allocation of the subdivided portions should be suspended until the ELC matter is determined. SUCCESSION CAUSE NO. 2423 OF 2010 RULING Page 7 of 17 po/ hkc 18. In support of this position, the objector relies on previous examples within the succession proceedings where distribution of estate assets was deferred pending resolution of related disputes in other Courts. He cites orders relating to Gilgil Farm LR No. A2/280, where the Court directed that distribution await determination of a pending Naivasha civil suit, as well as the distribution of shares in Hotstar Investments Limited, which was only undertaken after resolution of disputes concerning company operations in a separate commercial petition. He therefore urges the Court to similarly defer execution and allocation of Muguga/Jet Scheme/1682 until the pending Environment and Land Court dispute is resolved. 19. Peter Kuria has filed written submissions dated 16th January, 2026. The written submissions filed by Peter Kuria address the applications dated 3rd July, 2025 and 15th October, 2025 filed by Joseph Kuria Njoroge in the succession proceedings relating to the estate of Eliud Njoroge Kuria. 20. Peter Kuria contends that although the Applicant complains of not having been accorded an opportunity to be heard before the Deputy Registrar regarding various estate properties and accounts, the Applicant failed to comply with procedural directions issued by the Court and the Deputy Registrar. 21. He states that all parties were present when the matter was fixed for mention on 13th January ,2025 and later for SUCCESSION CAUSE NO. 2423 OF 2010 RULING Page 8 of 17 po/ hkc interrogation on 3rd February, 2025, but the Applicant neither filed a case summary nor formally sought participation at the appropriate stage. According to Peter Kuria, the Applicant only sought to be heard after the interrogation had already taken place and therefore cannot legitimately claim denial of a hearing. 22. The submissions further state that the Deputy Registrar had recommended further interrogation concerning certain unresolved estate assets, including shares held in Murata Sacco Limited and the whereabouts of the title deed for Kiambogo/Kiambogo/Block 2/683. Peter Kuria alleges that Simon Muhia unlawfully diverted proceeds from the deceased’s coffee farming operations by closing the estate’s Murata Sacco account and redirecting proceeds into his personal account. He contends that despite previous Court orders requiring Simon Muhia to account for the proceeds, the alleged diversion continued until the coffee farms were sold in 2022. 23. He further argues that the estate suffered loss of funds that ought to have accrued to beneficiaries and urges the Court to subject the Administrators to further interrogation and accountability proceedings. 24. Regarding the application dated 15th October, 2025, Peter Kuria submits that distribution of Muguga/Jet Scheme/1682 involves a three-stage process, namely survey and subdivision, allotment by balloting, and eventual transfer of the subdivided portions to SUCCESSION CAUSE NO. 2423 OF 2010 RULING Page 9 of 17 po/ hkc beneficiaries. He acknowledges that the survey and subdivision exercise was completed and accepted by Margaret Wanjiru, resulting in two equal parcels. However, he contends that allocation cannot proceed because a dispute remains pending before the Environment and Land Court in Thika concerning a house allegedly constructed unlawfully on the property by Phyllis Wangari before subdivision. 25. According to the submissions, the pending ELC proceedings seeking demolition of the house must first be resolved before allotment and transfer of the subdivided portions can occur. The submissions also raise concerns regarding custody and concealment of title deeds belonging to various estate properties, including Muguga/Jet Scheme/1682, Njoro/Njoro Block 1/39 (Kikapu) and Kiambogo/Kiambogo/Block 2/683. 26. Peter Kuria alleges that some Administrators, particularly Simon Muhia and Bernard Njoroge, removed title documents from safe custody at Family Bank and thereafter concealed or mishandled them, thereby frustrating implementation of the confirmed grant. He further alleges collusion and fraudulent conduct in relation to purported sale documents concerning Kiambogo/Kiambogo/Block 2/683 and disputes the authenticity of the alleged transfer documents relied upon by third parties. SUCCESSION CAUSE NO. 2423 OF 2010 RULING Page 10 of 17 po/ hkc 27. In addition, the submissions address disputes concerning other estate assets, including Gilgil Farm LR No. A2/280, shares in Hotstar Investments Limited, and the Embakasi property. Peter Kuria asserts that several Administrators have persistently acted in contempt of Court orders, failed to account for estate assets, obstructed transfer processes and prioritized personal interests over the welfare of beneficiaries. He accuses some Administrators of using estate disputes to exert pressure in relation to control and directorship of Hotstar Investments Limited and argues that beneficiaries continue to suffer because of continued disobedience of Court orders. 28. He therefore urges the Court to direct the Deputy Registrar to commence execution of the confirmed grant, conduct further interrogation of Administrators regarding misappropriated or concealed estate assets, and recommend sanctions, including possible committal to civil jail for contempt of Court. 29. Josphat Njoroge has not filed written submissions. BACKGROUND 30. The genesis of the instant application is the ruling delivered on 17th July, 2025 adopting, as an order of the Court, the Hon. Deputy Registrar’s report on the parties’ progress on distribution of the deceased’s estate. The parties were directed to comply with the recommendations in the report within 90 days, save for those matters that are pending for SUCCESSION CAUSE NO. 2423 OF 2010 RULING Page 11 of 17 po/ hkc litigation. The Deputy Registrar was also empowered to sign any necessary conveyancing documents, should the parties fail to do so. The Deputy Registrar’s report was recorded on 30th January, 2025. 31. From the Deputy Registrar’s proceedings of 30th January, 2025, Land Registration Number Muguga/Jet Scheme/1682 was devolved between the two widows of the deceased. The 1st respondent has since put up a permanent residential house on the land. The house was put up without the consent of all the Administrators. The 1 st respondent divided the property into two parts in the absence of the 1st interested party. The issue in dispute is participation of the 1st interested party in the survey process. ANALYSIS AND DETERMINATION 32. I have carefully considered the application dated 15th October, 2025, the supporting affidavit and annexures thereto, the grounds of opposition, the submissions filed by Peter Kuria and the entire record herein. 33. The principal issue arising for determination is whether the Court should invoke the powers reserved under the ruling dated 17th July, 2025 by directing the Deputy Registrar to execute the conveyancing and subdivision documents relating to Muguga/Jet Scheme/1682 and thereafter proceed with allocation of the resultant portions to the beneficiaries. SUCCESSION CAUSE NO. 2423 OF 2010 RULING Page 12 of 17 po/ hkc 34. At paragraph 27 of Henry Musemate Murwa v Francis Owino, Principal Secretary, Ministry of Public Service, Youth And Gender Affairs & another [2021] eKLR, Judge Maureen Onyango cited with authority the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR where Mativo J. restated the test for establishing contempt in his decision and stated – “40. It is an established principle of law that in order to succeed in civil contempt proceedings, the Applicant has to prove (i) the terms of the order (ii) Knowledge of these terms by the Respondent, (iii) Failure by the Respondent to comply with the terms of the order. Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand who succinctly stated: - SUCCESSION CAUSE NO. 2423 OF 2010 RULING Page 13 of 17 po/ hkc "There are essentially four elements that must be proved to make the case for civil contempt. The Applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that: - a) the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant; b) the defendant had knowledge of or proper notice of the terms of the order; c) the defendant has acted in breach of the terms of the order; and d) the defendant's conduct was deliberate…” 35. The record demonstrates that by the ruling delivered on 17th July, 2025, this Court adopted the Deputy Registrar’s report and directed the parties to comply with the recommendations therein within ninety days. The Court further expressly empowered the Deputy Registrar to execute all necessary conveyancing documents in the event of non-compliance by the parties. 36. The material placed before Court shows that a survey and subdivision exercise was subsequently undertaken on 29th September, 2025 by Landmetric Surveyors and Geo- consultants, resulting in the property being subdivided into SUCCESSION CAUSE NO. 2423 OF 2010 RULING Page 14 of 17 po/ hkc two equal portions measuring approximately 0.16 hectares each. 37. The survey report further considered the existing developments on the land, including the residential house and grave site and proposed a vertical subdivision aimed at preserving the existing occupation and structures on the property. The Applicant also demonstrated that notices and invitations were issued to the parties prior to the survey exercise and that certain Administrators failed or declined to participate and execute the resultant conveyancing documents. 38. In the Court’s view, the evidence sufficiently establishes substantial compliance with the first phase of the Court’s earlier directives concerning survey and subdivision of the property. 39. Simon Muhia’s argument that the application is contradictory because the Applicant had previously challenged the orders sought to be enforced is not persuasive in the circumstances of this matter. Parties are not precluded from subsequently seeking implementation of subsisting Court orders merely because they had earlier questioned procedural aspects relating to their issuance, particularly where the orders remain valid, binding and have not been set aside on appeal or review. 40. The central consideration for this Court is whether the orders of 17th July, 2025 remain operative and whether there has been non-compliance warranting invocation of SUCCESSION CAUSE NO. 2423 OF 2010 RULING Page 15 of 17 po/ hkc the Deputy Registrar’s authority. The Court is satisfied that the Administrators’ failure to execute the requisite conveyancing documents within the timelines set by the Court constitutes sufficient default to justify activation of the powers already reserved to the Deputy Registrar under the earlier ruling. 41. However, the Court also takes cognizance of the pending proceedings before the Environment and Land Court in ELC Case No. E180 of 2025 concerning the legality of the house allegedly constructed on the suit property by Phyllis Wangari. The existence of that dispute does not, in itself, prevent implementation of the subdivision and transmission process already directed by this Court, particularly because the survey report expressly preserved the existing developments pending further determination. 42. Nonetheless, allocation and final vesting of the resultant parcels in favour of specific beneficiaries may directly affect or prejudice the issues pending before the Environment and Land Court. In the circumstances, while the Court finds no impediment to execution of conveyancing documents necessary for transmission and registration of the subdivision, prudence dictates that final allocation of Plot A and Plot B be deferred pending determination of the ELC proceedings or further directions of the Court. This approach preserves the substratum of both proceedings while avoiding paralysis of implementation of the confirmed grant. SUCCESSION CAUSE NO. 2423 OF 2010 RULING Page 16 of 17 po/ hkc 43. Consequently, I hold: (a) That the application dated 15th October, 2025 partially succeeds and the same is allowed in terms of prayers 2 and 3 only. (b) That determination and allocation of the resultant parcels to the beneficiaries remains in abeyance pending determination of ELC Case No. E180 of 2025. (c) Each party to bear its costs. Dated signed and delivered via video link at Nairobi this 21st day of May 2026. H K CHEMITEI JUDGE SUCCESSION CAUSE NO. 2423 OF 2010 RULING Page 17 of 17 po/ hkc