https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7288

In re Estate of Ainea Muchisu (Deceased) (Succession Cause 438 of 1994) [2026] KEHC 7288 (KLR) (25 May 2026) (Ruling) Neutral citation: [2026] KEHC 7288 (KLR) Republic of Kenya In the High Court at Kakamega Succession Cause 438 of 1994 S Mbungi, J May 25, 2026 Between Philip Busula Applicant and Susan Muchisu Administrator Ruling 1.The Applicant herein, Philip Busula filed a Notice of Motion application dated 8th November 2024 under Order 40 Rule 1, Order 51 Rule 1& 3 of the Civil Procedure Rules, section 1A,1B and section 3A of the Civil Procedure Act seeking the following orders;a.That this Application be certified urgent and be heard ex-parte in the first instance;( spent)b.That the Administrator/ Respondent herein Susan Muchisu be restrained by way of a Temporary Injunction, from subdividing, selling, transferring or otherwise distributing land known as North/Kabras/Malava/ 545 and its alleged sub-divisions known as North/Kabras/Malava/5578 and North Kabras 5577 pending the hearing and determination of this Application;c.That upon hearing the instant Application, this Honourable court be pleased to issue an order directed at the Land Registrar to cancel the Titles North/Kabras/Malava/5578 and North/Kabras/Malava/5578 and all resultant sub-divisions thereto and revert to the mother title North/ Kabras/Malava/545 for proper subdivision;d.That costs of the Application be in the cause. 2.The application is supported by the affidavit of the Applicant sworn on the same day. He avers that he is a beneficiary to the estate of the late Ainea Muchisu Busula who died on 10th September 1987. 3.He states that the Respondent is the administrator of the estate of the late Ainea Muchisu Busula having been issued with a certificate of confirmation of grant on 28th November 2019 via a judgment issued by Hon. Justice Musyoka on 9th October 2019. 4.From the judgment, the judge had sub-divided the deceased property North/ Kabras/Malava/545 between the houses of Damara Muchisu and Susan Muchisu in the ration of 3:4 respectively which was to devolve upon the surviving widow during their lifetime and thereafter the children in equal shares in accordance to section 40 of the Law of Succession Act. 5.According to the Applicant, the co-administrator Susan Muchisu failed or refused to sub divide the property as directed by the court which he claimed has disenfranchised the other beneficiaries and that she has used fraudulent means and misrepresentation to subdivide the property of the deceased and is on the verge of selling it to third parties. 6.He made reference to a report by the Land registrar dated 2nd August 2024 which recommended for court to issue an order to cancel sub division of parcel North/ Kabras/Malava/545 as no proper sub division had been done on the parcel of land in accordance with the certificate of confirmation of grant. 7.He asserts that the total acreage of the land is 2.0 hectares which is 4.942 acres as per the surveyor’s report dated 6th May 2024 and states that no party will be prejudiced if the land parcel is distributed to the beneficiaries as the court orders. 8.In responses to their application, the respondent filed their replying affidavit dated 5th May 2025. 9.She confirmed that the court issued the certificate of confirmation of the grant upon conclusion of the succession process. She claimed that she engaged a surveyor who prepared a mutation form for the sub-division of the land parcel North Kabras/Malava/545 which measured 2.17 HA. She claimed that with the mutation form the certificate of confirmation and court orders the proposed submission was in two portion 5577 measuring 1.22 HA and (B) measuring 0.98 HA bringing the total to 2.17 HA. 10.She claimed that she registered the mutation and the new titles in the name of Damaras Chesongo Muchisu that is 5578 and 5577 in her name. 11.She claimed that she did the whole transaction when her co-administrator was still alive and in her knowledge and once the sub-division was done it was to be distributed to their respective children and heirs. She avers that she looked at the report by the surveyor dated 2/8/2024 which confirms that on the ground land measuring 2.0 HA instead of 2.17 HA which meant that a neighbour may have encroached on the 0.17 HA 1which is registered in the name of DAMARA CHEDONGA MUCHISU. 12.She contends that she had already subdivided the land and distributed her share to her children and has finished with her administrative obligation and the fact that the other administrator did not contribute any amount for the process and she incurred the whole process should not be used against her as it would occasion her a great injustice. 13.She avers that she will have no problem if the portion encroached by the neighbours should be reclaimed and included in the applicant’s portion. 14.At the time of writing the ruling none of the parties had filled their written submissions. Analysis and determination 15.I have had an opportunity to look at the pleadings as well as the annexures by the parties presented as evidence and find the following issues for determination being;I.Whether the Application meets the threshold for a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules.II.Whether the court should order cancellation of the sub divided titles and whether it should revert back to the original title. 16.To start with, the governing principles for interlocutory injunctions was quoted in the case of Giella v Cassman Brown & Co. Ltd EA 358, the court held that an Applicant must establish a prima facie case with a probability of success, they must demonstrate that irreparable injury would otherwise occur if the injunction is not granted and that if the court is in doubt, the matter is determined on a balance of convenience. 17.The Court of Appeal in Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others [2003] eKLR stated that a prima facie case is one that discloses an apparent right which has been infringed and which calls for an answer from the respondent. 18.In Kenya Breweries Limited & another v Washington O. Okeyo [2002] eKLR, the Court of Appeal held that such an order may issue at an interlocutory stage only in the clearest of cases and upon special circumstances. The same caution was restated in Nation Media Group & 2 others v. John Harun Mwau [2014] eKLR, where the Court emphasized that interlocutory relief exists to preserve the subject matter, not to finally determine the dispute. 19.In this case, the dispute arises within the succession process being the non- compliance of the orders that had been issued by Justice Musyoka in the judgment that was issued on 9th October 2019 and must therefore be viewed through the lens of the Law of Succession Act, Cap. 160. 20.Upon confirmation of grant, the succession process is not yet done. The administrators that were appointed by this court are required to distribute the estate according to the grant that was confirmed and how the court had directed. Section 83 of the Law of Succession Act highlights the role of a personal representative by stating that they hold the estate property in trust for the beneficiaries and is obliged to implement the confirmed grant faithfully. 21.According to the Applicant, his step mother who was appointed as a co-administrator Susan Muchisu also the Respondent in this case were appointed as administrators together with Damara Muchisu in the ration of 3:4 respectively being the wives of the deceased and they were to hold the property as personal representatives and the same was to devolve to their children in equal shares. 22.That being said, this court must distinguish first on whether the confirmed grant had been implemented according to the orders issued by this court on 9th October 2019 and whether the Applicant has proven his case for the court to cancel the titles already registered. 23.Sections 26 and 80 of the Land Registration Act, 2012, protects validly of a registered owner who acquired title lawfully. But it also permits rectification of the land register by order of the court where fraud, mistake, or illegality is proved. In this case, the applicant avers that the administrator has started sub dividing the land meant for the beneficiaries however for the court to order for cancellation of the title the applicant has to prove that there was an illegality which he has failed to prove. 24.In this case the Administrators held property as trustees for the beneficiaries in accordance to section 84 of the Law of Succession Act and in case of any deviation of how the court mandated the distribution would constitute a breach of their duties distribution constitutes a breach of duty. Section 45 prohibits intermeddling with the estate without a grant. 25.That being said there is evidence presented by the Respondent Susan Watora Muchisu that sub division was already undertaken, the mutation forms prepared dated 22/06/2023 , and titles deeds issued to both the co-administrators being Damara Muchisu N/Kabras/Malava/5578(0.95 HA) to hold in trust for herself and her children and Susan Watora Muchisu N/Kabras/Malava/5577(1.22 HA) and that the apparent acreage variance may arise from encroachment on the ground rather than from unlawful disposal by the administrator. 26.From the record in court, the co-administrators were already issued with their respective title deeds to hold in trust for their children and according to the judgment issued on 9th October 2019, that has been done. 27.The applicant now has raised another issue being that the land has not been divided properly according to the certificate of confirmed grant. He is seeking for a resurvey of the parcel of land and re-distribution of the estate. 28.The dispute raised by the Applicant is not one of a clear and admitted breach, but one requiring full interrogation at trial or in execution/consequential proceedings. At this stage, the court is not persuaded that the Applicant has demonstrated such certainty of fraudulent alienation as would justify the final order of cancellation sought in prayer. 29.He relied on a land registrar’s report dated 2nd August 2024 and a surveyor’s report dated 6th May 2024 suggesting that the ground measurements do not tally with the registry position and that there may be encroachment. 30.Those facts may well justify a deeper inquiry, but they do not, at this interlocutory stage, establish a clear case of fraud or illegality warranting injunctive interference with already existing titles. In Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86 the court stated that equitable relief is discretionary and must be guided by fairness and the surrounding circumstances. Here, the dispute is still contestable and requires proper evidence on the record. 31.The prayer for cancellation of titles North/Kabras/Malava/5578 and North/Kabras/Malava/5577 and restoration of the mother title North/Kabras/Malava/545 is in substance a final mandatory order. Such relief cannot properly be granted at the interlocutory stage unless the matter is plain and the circumstances are exceptional. The court is not persuaded that this is such a case. 32.The allegations of fraud and improper subdivision require strict proof, and where the competing versions remain unresolved, the court should not make final orders that would amount to a determination of the whole succession dispute on affidavit evidence alone. The Applicant may have a legitimate complaint, but legitimacy of complaint is not the same as proof sufficient for mandatory cancellation at this stage. 33.Having considered the material presented before me and the law, I find that the Applicant has not satisfied the threshold for a temporary injunction under Giella v Cassman Brown and Mrao Ltd v First American Bank. I further find that the mandatory order for cancellation of titles and restoration of the mother title is premature and unsupported by the exceptional circumstances required in Kenya Breweries Ltd v Washington Okeyo. The succession framework under the Law of Succession Act and the register rectification regime under the Land Registration Act require fuller evidence and, if necessary, proper substantive proceedings. 34.Accordingly, the Notice of Motion dated 8th November 2024 is dismissed. 35.As this is a family dispute each party shall bear its own cost. 36.The parties are advised to engage surveyors to rectify the problem on the said land and implement the certificate of grant. If there are any confrontations the administrator to take legal action. 37.Orders accordingly. 38.Mention 18.11.2026 for further directions. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA 25TH DAY OF MAY, 2026.S.MBUNGIJUDGEIn the Presence of:-CA: Zilda/VelmaRespondent-present.Applicant-absent.