https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11427

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **SUCCESSION CAUSE NO. 525 OF 1997** **IN THE MATTER OF THE ESTATE OF SIMON MUGWERU WATHIRWA (DECEASED)** **CONSOLIDATED WITH** **NYERI SUCCESSION CAUSE NO. 250 OF 2007** **IN THE MATTER OF THE ESTATE OF** **MAAKA MUKUHI** **MUGWERU (DECEASED)** **MARTIN MUGWERU .………….……………..…………. APPLICANT** **VERSUS** **LOISE WAIRIMU MUGWERU ….….…………… 1ST RESPONDENT** **RUTH WANJIRU MUGWERU ….….………...…. 2ND RESPONDENT** **MIRIAM WANJIKU MUGWERU ……………….. 3RD RESPONDENT** **ELLEN NYATETU MUGWERU ….….………..….. 4TH RESPONDENT** **AND** **ZABLON NJOROGE** **t/a SEVEN SUNDAY SECOND** **HAND CLOTHES ………………………….. 1ST INTERESTED PARTY** **WILSON KIRETAI** **t/a WILLY ELECTRICALS SALES** **& SERVICE …………………………….….. 2ND INTERESTED PARTY** **BARAKA BUTCHERY …………………….. 3RD INTERESTED PARTY** **RULING** 1. Before this Court is the Notice of Motion Application dated **18th March 2025,** brought pursuant to Section 1A, 1B and 3A and 63(c) of the Civil Procedure Act, Orders 22 Rule 28(1) and 40 Rule 3 (1) of the Civil Procedure Rules, Section 45, 47 and 55 of the Law of Succession Act and Rules 49 and 73 of the Probate and Administration Rules, in which the Applicant seeks the following orders: * 1. **Spent;** 2. **That the Respondents herein be cited in these proceedings as having intermeddled with property of the deceased (Maaka Mukuhi Mugweru);** 3. **That the Respondents herein be detained in prison for a term not exceeding six (6) months for disobedience and breach of orders issued by the Honourable Court (Hon. Justice M.S.A Makhandia on 19th September 2007;** 4. **Spent;** 5. **Spent;** 6. **That this Honourable Court be pleased to direct or issue orders directing the 1st Interested Party from remaining in possession, continuing the illegal and violent entry, if already in, of the commercial premises that he was illegally lease by the Respondents herein;** 7. **That this Honourable Court be pleased to issue eviction orders directing the 2nd Interested party to vacate from the commercial premises that he was illegally leased by the Respondents herein;** 8. **That this Honourable Court be pleased to issue eviction orders directing the 3rd Interested party to vacate from the premises known as KARATINA BLOCK 1/206 that he was illegally leased by the Respondents herein;** 9. **That this Honourable Court be pleased to issue orders directing the officer commanding station and the officer commanding police division, Karatina Police Station, be directed to enforce and supervise the eviction of 1st and 2nd Interested Parties;** 10. **That the costs of this application be in cause.** 11. **That this Honourable Court be pleased to grant any other orders as it may deem just and fit to meet ends of justice.** 2. The Application is supported by the supporting affidavit of MARTIN MUGWERU on the grounds that Hon Justice M.S.A Makhandia issued orders on 19th September 2007 prohibiting any dealings with the Estate of the deceased herein. That the Respondents disobeyed these orders by leasing one of the estate properties namely KARATINA BLOCK 1/186 to the 1st, 2nd and 3rd Interested Parties herein. He states that, as a co-administrator of the estate, he has a duty to safeguard the estate and therefore seeks the Court's intervention. 3. The 1st and 2nd Respondents filed Preliminary Objections dated 3rd April 2025 and 2nd April 2025 respectively on the grounds that the application offends Rule 49 and rule 59(1) of the Probate and Administration Rules and Rule 39 (1) of the Court Annexed Mediation Rules 2022. 4. This Court will first address the **Preliminary Objections**. 5. The principles to be met in a Preliminary Objections, were set out in Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors [1969] EA 696, and as endorsed by the Supreme Court of Kenya in the case of **Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others, Petition No. 10 of 2013, [2014] eKLR [paragraph 31]** as: ***“To restate the relevant principle from the precedent-setting case, Mukisa*** ***Biscuit Manufacturing Co. Ltd v West End Distributors (1969) EA 696:*** ***‘a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion’.”*** 6. This Court finds that the application is properly anchored on Section 47 of the Law of Succession Act and Rules 49 and 73 of the Probate and Administration Rules. The inclusion of provisions of the Civil Procedure Act and the Civil Procedure Rules does not render the application incompetent. Accordingly, the Preliminary Objection lacks merit and is dismissed, and the application shall proceed for determination on its merits. 7. In response to the Application here, the 1st and 2nd Respondent filed their Replying Affidavits dated 10th June 2025 and 23rd June 2025 respectively. **ISSUES FOR DETERMINATION** 8. Having considered the pleadings and the prayers sought, I am of the view that the sole issue for determination is whether the Applicant has established a sufficient legal and factual basis to warrant the grant of the orders sought in the application. **ANALYSIS AND DETERMINATION** 9. This Court notes that, by its orders of 26th January 2023, this matter was referred to Court-Annexed Mediation. While such referral did not divest the Court of its jurisdiction over the succession cause, where the mediation process is pending and has neither been concluded nor terminated, the Court ought not to entertain substantive interlocutory applications that are likely to circumvent, undermine or prejudice that process, save in exceptional circumstances. 10. The prayers sought in the present application concern the very issues that were the subject of the mediation process. In the absence of any exceptional circumstances warranting the Court's intervention, it would not have been appropriate to determine the application before the conclusion of the mediation process. 11. The record further shows that the mediation process was subsequently concluded, and on 27th March 2025 this Court adopted the Mediation Settlement Agreement as an order of the Court. Consequently, the issues raised in the present application have been overtaken by events and are now governed by the adopted settlement. The application has therefore been rendered moot and no useful purpose would be served by determining it on its merits. 12. **Accordingly, the application is disallowed with no order as to costs.** **Dated signed and delivered via video link at Nairobi this 23rd day of July 2026.** **H.K. CHEMITEI** **JUDGE, FCIArb.**