https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9690

In re Estate of Nzimbi (Deceased) (Miscellaneous Succession Application E031 of 2025) [2026] KEHC 9690 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEHC 9690 (KLR) Republic of Kenya In the High Court at Machakos Miscellaneous Succession Application E031 of 2025 NIO Adagi, J June 10, 2026 IN THE MATER OF THE ESTATE OF JOHN MAEKE NZIMBI (DECEASED) Between Richard Mutua Maeke Applicant and Anthony Wambua Nzau Respondent Ruling 1.The applicant filed a Chamber Summons application dated 2nd October 2025 supported by his supporting affidavit of even date seeking for orders that:-a.Spentb.This honourable court be pleased to issue an order directing the Machakos Lands Registrar from registering any transfer, subdivision, charge, discharge or any partition other that transaction on parcel of land number Masii/Vyulya/1901, Masii/Vyulya/1902 and Masii/Vyulya/1903 until further orders are issued by this honourable court.c.The Respondent together with Andrew Mbaluto Musila both be restrained by an order of this honourable court from using, cultivating selling, charging, transferring, cultivating, grazing, constructing and/or interfering with land parcels number Masii/Vyulya/1901, Masii/Vyulya 1902 and Masii/Vyulya 1903 whether by themselves, their agents, servants or anybody else claiming under them henceforth until further orders issued by this honourable court.d.This honourable court do issue an order for the lower court files succession cause no. 331 of 2019 and succession cause no. 340 of 2019 both for estate of John Makeke Nzimbi at the Chief Magistrates court at Machakos be forwarded to this honourable court and be consolidated with this application for court perusal while hearing this application.e.An order be issued for these files to be placed under key and lock for safety of records.f.This honourable court be pleased to grant the applicant herein leave to appeal the ruling delivered by Hon. J. Kituku, CM on 11/6/2025 in Machakos succession cause no. 331 of 2019.g.Any other order that the court may deem fit and just to grant.h.The cost of this application be in cause 2.The Chamber Summons is premised on the following grounds:-i.That the applicant is a beneficiary in the estate of the deceased herein as his son.ii.That it is for the attention of the honourable court to note that there are two files succession causes at Machakos chief magistrate court for the same estate of the same deceased being succession cause number 331 of 2019 and succession cause number 340 of 2019.iii.That the applicant is the only surviving beneficiary of the deceased herein the late John Makeke Nzimbi. That the co-administrator in cause number 331 of 2019 one Anthony Wambua Nzau is a stranger to the estate of the deceasediv.That the said Anthony Wambua Nzau in collusion with Francis Musembi the area chief for Vyulya Location fraudulently manufactured a letter for filing of succession cause dated 12/9/2019 3 days after the chief had issued me with another letter dated 9/9/2029 for the same issue.v.That the Applicant did not sign the Petition for letters of administration in succession cause number 331 of 2019 and he never participated in the proceedings of succession cause number 331 of 2019 to its confirmation.vi.That as required by law in succession matters that at the stage of hearing for summons for confirmation of grant that all beneficiaries of the deceased must be present in court for the honourable court to ascertain whether they are in consent to the mode of distribution.vii.That this succession cause was confirmed under non material disclosure and concealment.viii.That succession cause number 340 of 2019 followed the right channel to its conclusion.ix.That on 21.7 .2021 Hon. C.A. Ocharo issued an order via a ruling dated the same date for preservation of the estate pending investigations of forgery of signatures to be concluded but therein after other orders were issued by Hon. M. A. Otindo fraudulently issued an order discharging the said orders to give way for transfer by transmission using grants obtained in succession cause number 331 of 2019.x.That the said co-administrator one Antony Wambua Nzau even went further to give a portion to another strange Andrew Mbaluto Musila as shown in the certificate of confirmation of grant in succession cause number 331 of 2019.xi.That the Applicant proceeded to the office of the Director of Criminal Investigations Headquarters who directed the County Criminal Investigation Officer to carry out investigations over the said forgeries via a letter dated 31/5/2021.xii.That the Applicant learnt about the existence of the said title deed and subdivisions via a supplementary affidavit sworn by Andrew Mbaluto Musila dated 23/3/2023.xiii.That the Applicant learnt about the existence of succession cause number 331 of 2019 when he visited the Government Printers offices to collect Gazette Notice for succession cause number 340 of 2019, unfortunately he was issued with a Gazette Notice for succession 331 of 2019.xiv.That this honourable court under section 47 of the succession act has the jurisdiction to entertain any application and conjoins the succession court with all other courts clothing the succession court with powers and jurisdiction to issue the orders which may deem fit and just-to grant.xv.That at this stage this honourable court has the powers to issue any order either to revoke the title deeds or revoke the grant and certificate of confirmed grant in succession cause number 331 of 2019 at Chief Magistrates court at Machakos law courts.xvi.That the Applicant has filed several applications to plead with the honourable lower courts about the existence of these two matters but all in vain.xvii.That this honourable court has also the jurisdiction to make a declaration that one Francis Musembi the area chief for Vyulya location is not fit to hold public office due to the facts of the two letters dated 12/9/2019 and 9/9/2019 issue by him which acts amount to fraud which is against chapter six of the constitution of Kenya 2010 on issues of integrity which amounts to abuse of Public Office .xviii.That unless the application is heard on priority basis and the sought orders granted the Applicant stands to irreparably suffer loss and damages and be same be rendered nugatory. 3.The application is opposed by the Respondent vide the Replying affidavit sworn on 27th November 2025. The Respondent avers that the applicant's present application is not only res judicata, but also grossly incompetent, procedurally defensive, an afterthought, misconceived, a blow in darkness, a non stater and an abuse of the process of the Court. 4.The Respondent avers that the applicant is guilty of non disclosure of material facts and therefore undeserving of the orders sought. The applicant is abusing the process of the Court in that he filed a litany of similar applications in the Subordinate Court all of which were dismissed. 5.That the Estate of the late John Makeke Nzimbi was succeeded in accordance with the Law of Succession Act with the applicant being one of the Administrators as shown in the copies of the grant of Letters of Administration Intestate and the Certificate of Confirmation of a Grant. 6.The Respondent contends that the applicant attempted to move the subordinate court for revocation of the Confirmed grant made in P & A 331 of 2019 but his bid was nipped in the bud by Hon C. A. Ocharo, in her ruling delivered on 21/07/2021. The Applicant never appealed against the ruling of 21/07/2021. 7.That in a blatant act of abuse of the process of the Court, the Applicant filed another Succession Cause in respect of the same John Makeke Nzimbi (deceased), being Succession Number 340 of 2019 at Machakos Chief Magistrate’s Court. In Succession Cause Number 340 of2019 - In the matter of the Estate of John Makeke Nzimbi, the Applicant filed an application thereof which application was intended to mislead the Court. Vide a ruling delivered by Hon. Charity Oluoch on 02/10 /2024, the applicant's vexatiousness was exposed in that his application was dismissed after the Court found, and properly so, that the Applicant was playing lottery with the judicial process. Again, he did not challenge the ruling delivered on 02/10/2024. 8.The Applicant filed yet another application in Succession Cause Number 331 of 2019 (Machakos) - In the matter of the Estate of John Makeke Nzimbi, which was dismissed by Hon. J. K. Kituku on 11/06/2025. No appeal was preferred against the said ruling. 9.On 24/08/2022, Hon M. A. Otindo issued an Order discharging the Preservatory Order of 21/07/2021 and removal of the restriction consequent upon which the deceased's estate was distributed. 10.That the Applicant benefitted from the deceased's estate in P & A 331 of 2019, In the matter of the Estate of John Makeke Nzimbi. In fact, he has a Title Deed issued to him being Masii/Vyulya/190 which is valid for all purposes and intents. The said title has never been challenged or revoked. 11.That the Applicant is outrightly abusing the process of the honourable Court by filing the instant application. 12.That the Court is divested of jurisdiction to entertain the instant application as there is no appeal against the decisions of the Subordinate Courts. Further, the procedure adopted by the Applicant is unknown to law. The Respondent prays that the application be dismissed with costs. 13.The applicant filed a further affidavit sworn by him on 3rd December 2025 basically stating that this honourable court has the jurisdiction to entertain this application and that the contents of the replying affidavit are only meant to fight against justice and the fact is the Respondent lied to the subordinate court for his personal interest and that does not give him interest over the Applicant in my father's estate. 14.The Applicant filed written submissions dated 3rd December 2025 to canvass the application. The Respondent’s Counsel informed court that they would rely on the replying affidavit on record. Analysis and Determination 15.I have carefully considered the application, the replying affidavit, the further affidavit and the applicant’s submissions. Order 3 Rule 1 of the Civil Procedure Rules stipulates that a suit may be commenced by way of a Plaint, a Petition/or originating Summons, Judicial Review. The instant proceedings were instituted by way of Miscellaneous Application which, I note, may not offer the parties an opportunity to be heard on the substance of the suit. 16.A perusal of the Respondent’s replying affidavit reveals that the Estate of the late John Makeke Nzimbi (Deceased) was succeeded in accordance with the Law of Succession Act with the applicant being one of the Administrators as shown in the copies of the grant of Letters of Administration Intestate and the Certificate of Confirmation of a Grant. The Applicant attempted to move the subordinate court for revocation of the Confirmed grant made in P & A 331 of 2019 but his bid was nipped in the bud by Hon C. A. Ocharo, in her ruling delivered on 21/07/2021. The Applicant never appealed against the ruling of 21/07/2021. That in a blatant act of abuse of the process of the Court, the Applicant filed another Succession Cause in respect of the same John Makeke Nzimbi (deceased), being Succession Number 340 of 2019 at Machakos Chief Magistrate’s Court. In Succession Cause Number 340 of2019 - In the matter of the Estate of John Makeke Nzimbi, the Applicant filed an application thereof which application was intended to mislead the Court. Vide a ruling delivered by Hon. Charity Oluoch on 02/10/2024, the Applicant's vexatiousness was exposed in that his application was dismissed after the court found, and properly so, that the Applicant was playing lottery with the judicial process. Again, he did not challenge the ruling delivered on 02/10/2024. 17.The Applicant filed yet another application in Succession Cause Number 331 of 2019 (Machakos) - In the matter of the Estate of John Makeke Nzimbi, which was dismissed by Hon. J. K. Kituku on 11/06/2025. No appeal was preferred against the said ruling. 18.On 24/08/2022, Hon M. A. Otindo issued an order discharging the preservatory order of 21/07/2021 and removal of the restriction consequent upon which the deceased's estate was distributed. In fact the Applicant benefitted from the deceased's estate in P & A 331 of 2019 - In the matter of the Estate of John Makeke Nzimbi and he has a Title Deed issued to him being Masii/Vyulya/190 which is valid for all purposes and intents. The said title has never been challenged or revoked. 19.In the instant application, the Applicant seeks for a myriad of prayers including:a.injunctions against persons who are not parties to this application like Land Registrar, Machakos, Andrew Mbaluto Musila;b.consolidation of suits;c.placing of the files under key and lock;d.leave to appeal,e.a declaration against one Francis Musembi, the area Chief of Vyulya Location; andf.revocation of title deeds, the grant and certificate of confirmation. 20.This court does not only find the prayers sought by the Applicant to be incompetent and incurably defective but also to be very confusing, misconceived and incapable of being granted. For instance, the named Chief, Land Registrar and one Andrew Mbaluto Musila are not parties to this application and have not been able to address the allegations made against them. Further, this court cannot revoke title deeds, the grant and certificate of confirmation as sought by the Applicant in this miscellaneous application. The orders sought as stated above are substantive orders which must be supported by a substantive relief in the main pleading. 21.Courts have taken the position that substantive orders cannot be issued in Miscellaneous Applications. This is the position that was adopted by Limo J. in Witmore Investment Limited V County Government of Kirinyaga & 3 Others [2016] eKLR wherein it was held:-“So where a party such as an applicant herein seeks an order that in effect appears to resolve with finality an issue in controversy or a contested issue, the application ceases to be interlocutory and it is a misconception to describe it as such. If the applicant wanted to move this court for a final resolution of the issues in controversy raised in the application, it should have moved this court properly in the manner provided by law.” 22.Similarly in Nairobi West Hospital Limited V Joseph Kariha & Another [2018] eKLR it was held:-“…….In my view this substantive order which for all intents and purposes cannot be issued through a miscellaneous application. A perusal of Order 3 Rule 1 of the Civil Procedure Rules will reveal hat suit may be commenced by way of a plaint, a petition and or originating summons which is not the case here. The miscellaneous application may not offer the parties the opportunity to be heard. The order for discharge of a patient who is suffering from a rare condition stated to be ametrophyic lateral scelorsis and still admitted in the Intensive Care Unit of the applicant’s hospital is strenuously opposed…. consequently, the preliminary objection is upheld and this suit is ordered struck out.” 23.In Anastacia Wagiciengo v Ezekiel Wafula [2018] eKLR, the court held that an order in the nature of a mandatory injunction must be supported by a substantive relief in the main pleading. 24.Applying the principle adopted in the above cited cases to the present application, I find that the instant application is incurably defective and incompetent and I therefore strike it out. 25.Despite this matter being a family dispute, the conduct of the Applicant as demonstrated, does compel this court to order the Applicant to pay the Respondent costs of the application assessed at Kshs.15,000/=. 26.Orders accordingly. This file is closed. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 10TH JUNE 2026NOEL I. ADAGIJUDGEDELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 10TH JUNE 2026In the presence of :Applicant in personMr. Ngolya for RespondentMilly Grace -Court Assistant