https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10733

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **SUCCESSION CAUSE NO. 17 OF 2018** **IN THE MATTER OF THE ESTATE OF DUNCAN IKINYA NGAIRE** **SICILY WANGECI IKINYA ………..……………..……….…….……PETITIONER (DCD)** **PHYLIS WANJIKU IKINYA** ....**……….…………………………………..…….APPLICANT** **VERSUS** **HUDSON IKINYA NGAIRE.……………..………………….....................1ST RESPONDENT** **ROBINSON NJOGU IKINYA………………….........................................2ND RESPONDENT** **ALBERT MUNENE IKINYA.………………………….............................3RD RESPONDENT** **MARY KARUANA NJIRAINI.…………/…….………............................4TH RESPONDENT** **MUTHONI MURIITHI ....……………………….………..........................5TH RESPONDENT** **SHADRACK MUTHII IKINYA.………..………………...........................6TH RESPONDENT** **MARGARET WANGITHI IKINYA.……………………..........................7TH RESPONDENT** **AND** **JOHN DUNCAN KIRAGU………………………....…………………INTERESTED PARTY** **RULING** 1. The Intended Interested Party/applicant filed Summons dated 14th October, 2025 seeking the following orders: * + 1. The applicant be enjoined in the proceedings as an interested party. 2. The applicant be allowed to file his statements. 3. Costs be costs in cause. 2. The application is supported by the supporting affidavit of the applicant, John Duncan Kiragu setting out his case is that the deceased whose estates herein relate is his father. The 1st, 2nd & 3rd respondents herein are his step brothers while the 4th, 5th, 6th & 7th respondents are his blood sisters and brother. His late father Duncan Ikinya Ngaire was a polygamous man with two (2) houses. The deceased’s first wife is his mother the late Prisilla Wainoi Ikinya with whom he sired Five (5) children namely (i) John Duncan Kiragu (applicant) (ii) Mary Karuana Njiraini (iii) Muthoni Muriithi (iv) Shadrack Muthii Ikinya and (v) Margaret Wangithi Ikinya. 3. The applicant avers that the deceased’s second wife is the late Cicily Wangeci Ikinya with whom he sired eight (8) children namely: (i) Hudson Ikinya Ngaire (ii) Robin Son Njogu Ikinya (iii) Albert Munene Ikinya (iv) Stella Nyawira Muchira (deceased) but survived by her three (3) children, Lilian Muringi Muchina, Gloria Wangeci Muchina & Lennah wanjiku Muchina, (v) Bilha Wanjiru Munyua, (vi) Sheila Wacera Ikinya, (vii) Phylis Wanjiku Ikinya (The Applicant Herein) & (viii) Gladwell Kaguu Ikinya. 4. The applicant avers that his late father during demarcation of land as given land parcel No MUTIRA/KAGUYU/589 consisting of 8.80 Ha by the “ACERA” clan of the branch of “GICOGU”. The deceased during his lifetime was influenced by his 2nd house to subdivide his land into four portions of six (6) acres each times 3 and 4 acres’ resultant numbers being MUTIRA/KAGUYU/1503, 1504, 1505 & 1506 respectively. 5. Further, the applicant avers that the deceased passed on later on 14th August, 2003 having not transferred the said parcels of land to anyone. The 1st, 2nd & 3rd Respondents herein who are the deceased sons from the 2nd house through the court annexed mediation caused the honourable court to direct the Land Registrar to reconstitute the land parcels No. Mutira/Kaguyu/1503, 1504, 1505 & 1506 to the original No. Mutira/Kaguyu/589 which is the current position of the estate. 6. Moreover, the deceased petitioner when filing the petition for the letters of administration failed to list all the deceased assets as she left out the deceased, share with Fortune Sacco, K.T.D.A & Plot No. Nairobi/DAGORET/KANGEMI/T27 7. Lastly, the applicant avers that as the first born son to the deceased it is necessary he be enjoined as interested party in the proceedings in regard to the deceased estate and as one of the deceased dependent. The Chief’s introduction letter to the Honourable court recognized him as one of the deceased’s children. ***The responses*** 1. The 1st respondent did not oppose the joinder of the applicant. In a replying Affidavit sworn on 28th October 2025 while responding to the Intended Interested Party’s affidavit in support of application states that the intended Interested Party *“does not state his support or objection to the Summons for revocation of Grant but instead introduces new properties which he has failed to show any proof of ownership”* and that *“upon proof of ownership of the additional properties, the same can be distributed through review of the grant as it does not warrant existing grant to be revoked.”* 2. The 2nd to 6th Respondent field a Replying Affidavit objecting that no tangible reason has been given by the intended interested party as to why he wishes to be enjoined in this suit 21 years after the suit was commenced neither has there been an explanation as to why he never participated in the proceedings all those years yet nobody barred him from doing so. The entire family is shocked at the allegations made by the intended interested party that the deceased was influenced by the 2nd family to subdivide the suit land into four portions during his lifetime whereas the intended interested party was bequeathed LR NO. MUTIRA/KAGUYU 593 measuring 5.782 acres of land in a separate location away from the suit land during the lifetime of their father which he currently resides in. 3. The respondents aver that the intended interested party was therefore never interested in the succession cause as he was always satisfied with the 5.782 acres that he got during the lifetime of their father and he is therefore guilty of concealing that information. They aver that the intended interested party was very keen at accompanying his late mother and ourselves to the mediation sessions which can even be confirmed by the mediator and even the mediation agreement quotes his land and he was to remain settled on his land and he cannot therefore claim that he was left out as a beneficiary. 4. Lastly, the respondents aver no evidence of the properties alleged left out of this succession cause has been brought before the honourable court to satisfy the court that indeed there was existence of the properties alluded to and whether the same belonged to the deceased. ***Supplementary affidavit*** 1. The applicant filed a further affidavit entitled Reply to the Replying Affidavit stating that in reply to paragraph 5 of the Respondents replying affidavit, all the beneficiaries of an estate and particular the children of the deceased must be brought on board during the succession proceedings and the inclusivity of such beneficiaries has no limitation of time as per the Succession Act. 2. The applicant avers that in answer to paragraph 16 of the 2nd to 6th Respondents replying affidavit he avers that I am ready to provide all the evidence required over the deceased estate that was left out once he is made a party in the present succession cause proceedings in regard to his late father’s estate. **Applicant submissions** *2nd to 6th Respondent submissions* 1. The respondents submit that enjoining of a party in succession proceedings is discretionary and must be exercised judiciously. The Applicant must demonstrate: A direct and legally recognizable interest in the estate; and That such interest cannot be adequately addressed without enjoinment. 2. They rely on the case in **Re Estate of M'Ngarithi M'Miriti (Deceased) [2017] eKLR**, the Court held**: “Not every person claiming an interest in the estate is entitled to be joined. The interest must be legal, demonstrable, and timely.”** 3. The respondents submit that the 20 years’ delay is inexcusable. Allowing enjoinment at this stage would be prejudice the beneficiaries who have relied on confirmed grants and distribution. 4. Lastly, the respondents submit that the grant herein was confirmed on 28th June, 2022. As a result, there from, distribution been fully implemented. They submit that once a grant has been confirmed and acted upon, the court becomes functus officio except as provided under Section 76 of the Law of Succession Act. They also cite **Re Estate of Gitau (Deceased) [2020] eKLR**, where the Court stated that ***“Succession proceedings must Come to an end. Endless reopening of estates undermines certainty in property rights.”*** **Issue** 1. Whether the Applicant has established sufficient grounds to warrant his enjoinment in these succession proceedings. **Analysis** 1. The jurisdiction of this Court in succession matters is donated by the provisions of the Law of Succession Act. Section 47 thereof grants this Court wide jurisdiction to entertain disputes and determine all matters relating to estates of deceased persons. 2. Rule 73 of the Probate and Administration Rules further preserves the inherent powers of the Court to make such orders as may be necessary for the ends of justice. 3. The Court is also guided by the overriding objective embodied under Sections 1A and 1B of the Civil Procedure Act which obligates courts to facilitate the just, expeditious and proportionate resolution of disputes. 4. The Law of Succession does not provide for joinder of interested parties. The law relating to joinder of parties is to governed by order 1 rule 10(2) of the Civil Procedure Rules 2010. Order 1 is not one of the provisions that is imported into the Probate proceedings by rule 63 of the Probate and Administration Rules. 5. The Court respectfully notes the decision in **re Estate of Stone Kathuli Muinde (Deceased) [2016] KEHC 3725 (KLR)** where Musyoka J. held thus- *Joinder of parties to a suit is concept in the ordinary civil process, where suits in the proper sense of the word are between two rival or contending sides. Other persons or entities not named as parties in the dispute may be joined, on application, to the suit if they meet certain conditions. The Civil Procedure Rules have provisions on joinder of parties, especially in Order 1 thereof. Usually, a person or entity will be joined where they have complementary claims with the parties arising from the same facts.* 1. It is not disputed that the Applicant is a son of the deceased. Indeed, the Respondents themselves acknowledge that fact though they contend that he had already benefited from the deceased during his lifetime. As a child of the deceased, he has a clear interest as an heir in terms of sections 35-40 of the Law of Succession Act. He would be entitled to move the Court for adequate provision of dependant under Section 29 of the Law of Succession Act, as children of a deceased person are recognized as dependants for purposes of succession proceedings. It therefore follows that every child of a deceased person has a legitimate interest in the administration and distribution of the deceased’s estate. 2. Moreover, an application for revocation of Grant under section 76 is at the behest of a ***party interested***, and revocation may be ordered even upon a Confirmed grant. If there were properties which are not included in the Confirmed Grant, even if it is accepted that there is a valid will as asserted by the Respondents, the Court would be called upon to make further orders for the administration and distribution of the new assets. 3. The Respondents have argued that the Applicant delayed in bringing the present application. While it is true that the succession cause has been pending for some time, succession proceedings are unique in nature and the dispute is better resolved than buried under a time lapse. The duty of the probate court is to ensure that the estate of a deceased person is administered fairly and in accordance with the law. If a party has occasioned much delay such party may be punished by an award of costs at the hearing but the Court should strive to give vent to reasonable claim/objection. 4. The Court notes that the Applicant alleges that some assets were omitted from the succession proceedings and that not all beneficiaries participated in the process. Such allegations cannot be casually dismissed without according the Applicant an opportunity to ventilate his claim. 5. The **section 42** [law of Succession Act] issue whether the Applicant had previously received his entitlement during the lifetime of the deceased is a substantive matter that can only be conclusively determined after hearing all parties. Particularly, the Court has noted that the purported mediation agreement was not signed by the applicant, and his claim that he was refused a hearing at the mediation may have some weight. 6. At this stage, however, the Court is only concerned with the issue of joinder, whether the Applicant should be joined and accorded audience in the proceedings. 7. While considering the issue of joinder under the Civil Procedure Rules, which by analogy apply to the question of joinder of the Intended Interested Party herein, the Court of Appeal in C***ivicon Limited v. Kivuwatt Limited, Smart Cargo Limited & Commissioner, Kenya Revenue Authority Customs Services Department, Civil Appeal 45 2014,*** [2015] eKLR summarized the position as follows: *“From the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in Order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the execution of the order sought in the suit, in the event that the plaintiff should succeed.* ***We may add that all that a party needs to do is to demonstrate sufficient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.”*** 1. The applicant has demonstrated sufficient interest as a person affected by the determination that he has already benefitted by a gift and an arguable case that some of the deceased’s assets were excluded. An arguable case does not mean one that must succeed at the hearing. But as a person affected by the determination of the Court. he should be afforded an opportunity to be heard. 2. In the circumstances of this case, the Court is satisfied that the Applicant, as a child of the deceased, has sufficient interest in the estate of the deceased to warrant his joinder in these proceedings. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds merit in the application dated and it is allowed in terms: * + 1. The applicant now joined as an Interested Party may file such affidavits presenting his case in the matter as necessary, within fourteen (14) days. 2. The Court shall give directions as to the hearing of the pending applications in the matter on **25/6/2026.** 2. There shall be no orders as to costs. *Orders accordingly.* **DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Kamuga for the Applicant. N/A for the 1st Respondent. Ms. Machira for the 2-6 Respondents. Ms. Maragaret Wangithi 7th Respondent in person. Intended Interested Party/Applicant in person.