https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12153

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **SUCCESSION CASUE NO. E094 OF 2022** **IN THE MATTER OF THE ESTATE OF PETER NDUNGU MUKIRI** MARY WANJIKU NDUNGU …………………………..……………… APPLICANT -VERSUS- AGNES WAMBUI NDUNGU ……...… 1ST RESPONDENTS/ADMINISTATOR PETER MUKIRI NDUNGU ………..…2ND RESPONDENTS/ADMINISTATOR STEPHEN MATHENGE NDUNGU… 3RD RESPONDENTS/ADMINISTATOR **RULING** 1. The subject matter of this ruling is the Notice of Motion dated 14th May, 2026 where **Mary Wanjiku Ndungu** the applicant herein sought for the following orders inter alia: 2. ***Pending the hearing and determination of the Succession Cause herein this court be pleased to issue preservatory and inhibition orders against all the immovable properties namely:*** 3. ***Tetu/Karaihu/387*** 4. ***Plot No. 6 Githakwa Market Tetu*** 5. ***Euauso Nyiro/Suguroi Block VI/68*** 6. ***Kiambu/Munyu/391*** 7. ***Nairobi/Umoja/Block 109/891/1099*** 8. ***L.R No. 209/11373/193 – Nairobi*** 9. ***L.R No. 209/11373/141 – Nairobi*** 10. ***Mavoko Municipality Block 6/441*** 11. ***L.R. No. 336/646 – Nairobi*** 12. ***L.R. No. 336/389 – Nairobi*** 13. ***L.R No. 1/260/140 or Nakuru Municipality Block 3/743*** 14. ***Nakuru/Turi/6*** Prohibiting any dealings, transfers, subdivisions, leases, charges, constructions, developments and or registrations adverse to the estate. 1. The applicant filed the affidavit she swore in support of the application. The Respondents, **Agnes Wambui Ndungu** and **Peter Mukiri Ndungu** the 1st and 2nd Respondent respectively filed a replying affidavit they swore to oppose the motion. 2. It is the averment of the applicant that succession proceedings relating to the estate are still pending before this court and no lawful confirmation and or complete distribution of the estate has been undertaken. 3. The applicant has complained that the Respondents have unlawfully commenced acts of intermeddling with the estate contrary to section 45 of the Law of Succession Act which include constructions, developments and occupation of the estate properties with the intention of unlawfully creating possession, occupation rights, perceived ownership and unfair advantage over portions of the estate. 4. The applicant further accused the respondents of making unauthorized withdrawals, dissipation and utilization of monies belonging to the estate from the deceased’s bank accounts and estate income. 5. It is also argued that the Respondents have refused and neglected to render accounts. 6. In response to the applicant’s application, the Respondents averred that this court delivered its ruling on 17th June, 2025 on the summons for confirmation whereof the court distributed the entire estate amongst all the beneficiaries. The Respondents aver therefore that the cause therefore is not pending determination. 7. The Respondents also argued that transmission of the assets to the beneficiaries as determined by the court in its distribution has not been effected by the administrators owing to the fact that a certificate of confirmation of grant is yet to be issued by the court and therefore the administrators cannot be faulted for that. 8. The Respondents further argued that this court became *functus officio* upon rendering its ruling of 17th June, 2025 and therefore any party aggrieved should approach the Court of Appeal. 9. The Respondents have denied unlawfully withdrawing, utilizing, appropriating and dissipating monies belonging to estate. They averred that they have no access to the bank accounts in the absence of a certificate of confirmation of grant. 10. I have considered the grounds set out on the face of the motion plus the facts deponed in the rival affidavits. It is apparent from the averments presented to this court that on 17th June, 2025 that the Hon. Justice Samuel Mohochi delivered a judgment. 11. It is clear from aforesaid judgment that the court allowed the summons for confirmation of grant thereby distributing the deceased’s estate. It is obvious also that the court proceeded to dismiss the protest. With respect, I agree with the Respondents submissions that upon delivering its judgment on 17th June, 2026, this court became *functus officio.* 12. The only recourse the applicant has is to approach the Court of Appeal. I am also persuaded by the applicant’s argument that the Respondents have not implemented the certificate of confirmation of grant because the same had not been extracted and issued to the parties. 13. In the end I find the motion dated 14th May, 2026 to be without merit**. It is dismissed with each party bearing their own costs.** This court has been orally asked to extend time to appeal to the Court of Appeal. It is not in dispute this court delivered it judgment on 17th June, 2025. 14. In paragraph 38 of the aforesaid judgment, this court gave any aggrieved party leave of 45 days to appeal to the Court of Appeal. It is also not in dispute that the judgment of the court was not uploaded in the CTS until the time given to appeal lapsed. 15. The High Court under Section 7 of the Appellate Jurisdiction Act is clothed with power to extend time for giving a notice of intention to appeal. I find the oral request made by the applicant reasonable. 16. **I grant the applicant an extension of 10 days to lodge or give a notice of intention to appeal against the judgment of this court to the Court of Appeal.** **Dated, signed and delivered this 15th day of July, 2026 at Nakuru.** **J. K. SERGON** **JUDGE** **In presence of:** Jamleck/Rutto C/A Bosibori holding brief for Ndubi for Administrator N/A for the Respondent