https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10700

Miyare t/a Miyare & Company Advocates v Gatungo & 3 others (Miscellaneous Application 94 of 2017) [2026] KEHC 10700 (KLR) (Family) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10700 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Miscellaneous Application 94 of 2017 HK Chemitei, J July 16, 2026 Between George Miyare t/a Miyare & Company Advocates Advocate and aika Nyangara Gatungo 1st Client Lissa Wangu Gatungo 2nd Client Susan Wanjiru Gatungo 3rd Client and Moran Auctioneers Proposed Interested Party Ruling 1.The Notice of Motion Application dated 17th November 2025 filed by the Clients/Applicants herein seeking ORDERS:1.Spent;2.Spent;3.Pending the interpartes hearing and determination of this application, an order be and is hereby issued restraining the Advocate herein together with Moran Auctioneers either by themselves, employees, agents or anyone acting under their instructions from intermeddling in any manner whatsoever with any property of the late Captain Patrick George Musyoki;4.Spent;5.The warrants of attachment issued on 13th November 2025 by this court to Moran Auctioneers be and are hereby set aside ex-debito justitiae;6.The proclamation of attachment Notice dated 13th November 2025 and issued by Moran Auctioneers be and are hereby set aside ex-debito justitiae;7.Pending the hearing and determination of the succession matter to wit Milimani High Court Succession Cause No.407 of 2019, in the matter of the estate of the late Captain Patrick George Musyoki (deceased), an order be and is hereby issued restraining the Advocate herein together with Moran Auctioneers either by themselves, employees, agents or anyone acting under their instructions from intermeddling in any manner whatsoever with any property of the late Captain Patrick George Musyoki;8.Costs for this application be provided for. 2.The Application is grounded on the affidavit of AIKA NYANGARA GATUNGO filed here with together with the grounds thereof. 3.The Applicant depones that Section 45 of the Law of Succession Act, CAP 160, Laws of Kenya prohibits any person from dealing with the property of the Estate of a deceased person without a grant of representation from court. 4.That there is a pending succession matter to wit Milimani High Court Succession Cause No.407 of 2019, in the matter of the estate of the late Captain Patrick George Musyoki (deceased). The clients herein are all beneficiaries of the said estate, them being the daughters and wife respectively of the deceased person. 5.The Applicant further depones that on 14th November 2025, the proposed Interested Party, purported to issue a proclamation of attachment Notice dated 13th November 2025 containing a list of 12 items intended for attachment and sale via auction in an effort to recover legal fees owing to the Advocate herein. The said items are owned by the estate of the late Captain Patrick George Musyoki (deceased). 6.Further that the purported execution is therefore irregular and unlawful on the grounds that the properties proclaimed are owned by the estate of the deceased above and in the interest of justice the intended auction by the proposed interested party be restrained by the orders sought in this application. Issues For Determination 7.I have considered the application and the affidavit in support thereof. The Respondent did not file any response to the Application. Further, neither party filed written submissions. 8.Upon considering the pleadings and the material placed before the Court, I find that the following issues arise for determination:a.Whether the proclamation of attachment Notice dated 13th November 2025 in respect of the twelve (12) proclaimed items is lawful and regular.b.If the answer to the first issue is in the negative, whether the Applicants are entitled to the injunctive and consequential orders sought. Analysis And Determination 9.Section 3 of the Law of Succession Act defines “Estate” as “the free property of a deceased person.” 10.Section 45 of the Law of Succession Act, provides:“45.No intermeddling with property of deceased person(1)Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.(2)Any person who contravenes the provisions of this section shall — (a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and (b) be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.” 11.In essence, Section 45 of the Law of Succession Act protects the estate of a deceased person by prohibiting any unauthorized person from taking possession of, disposing of, or otherwise dealing with the deceased's property before a grant of representation has been issued. Any such unauthorized interference constitutes intermeddling, attracts criminal liability, and renders the offender accountable to the personal representative of the estate. 12.In Jane Kagige Geoffrey & Another v Wallace Ireri Njeru & 2 others [2016] eKLR it was held that: -“…The spirit behind sections 45 and 82 of the Act, in my view, is to preserve the property of a deceased person until the beneficiaries and their respective shares are identified, ascertained and distributed. If intermeddling is allowed, the likelihood of the innocent beneficiaries being prejudiced by having their shares affected by reduction is real whereby, there may be no settlement and or peaceful co-existence or end to disputes between of the family members. In this regard, it is for the purposes of preserving the social fabric, cohesion and peaceful co-existence of or end to disputes between family members who are beneficiaries to estates that the law restricts, indeed prohibits any dealings with an estate until the grant is confirmed. The net effect of the aforesaid provisions of the law and decided cases is that, the estate of the deceased cannot be dealt with without the sanction of the court. Before the grant of letters of administration are confirmed, no one including the administrators of the estate of the deceased can deal with the property of a deceased by way of intermeddling therewith or effect a sale of immovable property belonging to the estate. Anyone who purports to purchase property from the estate before confirmation therefore does so at his own peril.” 13.From the annexures placed before this Court, it is evident that twelve (12) items were proclaimed. However, the Applicants have only demonstrated, through documentary evidence, that two of the proclaimed items belong to the estate of Captain Patrick George Musyoki (deceased) i.e., motor vehicle registration numbers KXW 584 and KYB 168. 14.In respect of the remaining motor vehicles and motorcycle, the logbooks exhibited do not correspond with the registration numbers contained in the Proclamation Notice dated 13th November 2025. Similarly, with regard to the other proclaimed items, including refrigerators, televisions, and other household goods, the Applicants have not produced any documentary evidence, such as receipts or other proof of ownership, to establish that the said items form part of the deceased's estate. 15.Accordingly, I find as a matter of fact and law that the motor vehicle registration numbers KXW 584 and KYB 168 proclaimed in the Proclamation Notice dated 13th November 2025 are the only listed items that form part of the free property of the deceased and therefore belongs to the estate of the late Captain Patrick George Musyoki (deceased). It follows therefore that motor vehicle registration numbers KXW 584 and KYB 168 are subject to the protection of this Court under the Law of Succession Act. 16.Consequently, this Court finds that the Applicants have demonstrated that, of the twelve (12) items listed in the Proclamation Notice dated 13th November 2025, only items 1 and 5, namely motor vehicle registration numbers KXW 584 and KYB 168, have been proved to form part of the estate of the late Captain Patrick George Musyoki (deceased). Their attachment therefore amounted to intermeddling with the deceased's estate contrary to section 45 of the Law of Succession Act. 17.Although the Advocate and the Interested Party may have acted in good faith in executing the warrants of attachment issued by the Court, the law does not permit execution against property forming part of a deceased person's estate outside the succession process. 18.I reiterate the statement made in Re Estate of Michael Onditi Nyariki (Deceased) (Succession Cause E035 of 2025) [2025] KEHC 13677 (KLR) (30 September 2025) (Ruling) where the judge observed that;“A balance must be struck between preserving the estate from unlawful dissipation and recognizing the rights of decree-holders. Section 66 of the Law of Succession Act recognizes creditors as persons entitled to lodge claims in succession proceedings. The Respondent is at liberty to present his claim in this succession cause or to seek leave under Section 37 of the Civil Procedure Act to execute against the legal representatives.” 19.Accordingly, it is declared that:a.Motor Vehicle Registration Numbers KXW 584 and KYB 168 listed in the Proclamation Notice dated 13th November 2025, form part of the estate of the late Captain Patrick George Musyoki (deceased).b.The attachment and intended sale of Motor Vehicle Registration Numbers KXW 584 and KYB 168 by the Advocate herein together with Moran Auctioneers either by themselves, employees, agents or anyone acting under their instructions amounts to unlawful intermeddling with the estate of the late Captain Patrick George Musyoki (deceased).c.That the Interested Party herein as agent of the Advocate herein, shall forthwith remove from the items proclaimed Motor Vehicle Registration Numbers KXW 584 and KYB 168;d.As the Application has only partially succeeded, each party shall bear its own costs. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 16TH DAY OF JULY 2026.H.K. CHEMITEIJUDGE, FCIArb.