https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9889

In re Estate of M'Kiambati (Deceased) (Succession Cause 230 of 1993) [2026] KEHC 9889 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KEHC 9889 (KLR) Republic of Kenya In the High Court at Meru Succession Cause 230 of 1993 SM Githinji, J July 6, 2026 Between Julius Mutua Kwaria 1st Petitioner Victor Mugute Kwaria 2nd Petitioner and Julius Muriungi Rukaria Applicant Ruling 1.For determination is the Summons dated 3/12/2024 pursuant to Sections 47 and 83 (d) of the Law of Succession Act and Rules 41 (3) and 73 of the Probate and Administration Rules, seeking that:1.This honourable court be pleased to grant an order staying any further proceedings in this matter pending the hearing and determination of the ELC Case No. E023 of 2024 at Meru Law Courts involving the parties and subject matter in this matter.2.In the alternative this honourable court be pleased to set aside and preserve two properties L.R Abothuguchi/L-Kiija/670 and 671 erroneously and irregularly included in this matter as3.part of the estate of the deceased pending the hearing and determination of ELC Case No. E023 of 2024.4.This honourable court be pleased to grant any further orders in the interest of justice.5.The costs of this application be provided for. 2.The application is premised on the grounds that L.R Nos. Abothuguchi/L-Kiija/670 and 671 (hereinafter referred to as the suit properties) were irregularly and erroneously included as part of the estate properties, yet they are lawfully registered in the Applicant’s name. The Applicant has since filed his claim before the Environment and Land Court to protect his interests, and unless the orders sought are granted, the suit properties shall be distributed to the Respondents, and dissipated. 3.The Respondents herein opposed the application vide replying affidavits sworn by the 2nd Respondent on 7/5/2025 and 21/7/2025. He averred that the Applicant’s previous request to have the suit properties excluded from distribution as they did not form part of the estate, was denied by this Court. According to him, this court is functus officio, and the Applicant’s only option is to appeal against the said Ruling to a Higher Court. It is trite Law under the Succession Act, a succession Court lacks jurisdiction to determine claims regarding ownership, and urged the court to deem the application res judicata. In praying for the dismissal of the application with costs, he averred that the Respondents and their siblings have all their lives lived on the suit properties and the deceased transferred to the Applicant parcel L.R NO.Abothuguchi/L-Kiija/370, which is distinct from the suit properties. 4.The application was canvassed by way of written submissions, which were duly filed by Counsel. Disposition 5.Before delving into the merits of the application, it is imperative to address the question whether the application is res judicata, following the dismissal of the earlier application dated 18/9/2023. The dismissal of the earlier application was informed by the Applicant’s failure to adduce evidence of the alleged purchase and/or transfer of the suit properties to his name. Evidently, the said dismissal was thus on a technicality and cannot therefore be the basis upon which the principle of res judicata, can be properly invoked. 6.On merits, the certificates of official searches and titles deeds adduced by the Applicant are prima facie evidence that the suit properties are registered in his name. Whether that registration is lawful or otherwise pends determination before another Court. 7.Rule 41 (3) of the Probate and Administration Rules empowers the succession court to set aside disputed properties pending the determination of the ownership thereof by the ELC Court, as follows; “Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act, proceed to confirm the grant.” 8.In order to avert any prejudice that may be occasioned on the Applicant should the proceedings before Environment and Land Court ultimately be determined in his favour, the most prudent course is to set aside the suit properties, pending the determination of the question of ownership. 9.Nevertheless, I am dissuaded that a stay of these proceedings is warranted, as it would unnecessarily impede the administration and distribution of the undisputed properties, to the detriment of the beneficiaries. Since the suit properties can adequately be preserved by being set aside and subsequently dealt with upon conclusion of the ELC Case, I find no basis for staying these proceedings. 10.In the interests of justice therefore, the suit properties shall abide the outcome of the proceedings before Environment and Land Court. 11.The upshot from the foregoing is that the application dated 3/12/2024 is merited and it is hereby allowed in terms of prayer 2 thereof. DATED AND DELIVERED AT MERU THIS 6TH DAY OF JULY, 2026.S.M. GITHINJI –JUDGE6/7/2026In the presence:-Mr. Gikunda Anampiu for the Applicant.Mr. Otieno C. for the Respondent