1. By a Notice of Motion Application filed under a Certificate of Urgency by the firm of NYAGAKA, MOSOTA, ISABOKE, KEROSI ONDIEKI & ASSOCIATES ADVOCATES, and dated 12th June 2025, the Applicant sought the following orders: -
a. Spent.
b. THAT this Honourable Court be pleased to issue an order directing the Officer Commanding Station (OCS), Kisii Central Police Station, to provide security and protection to the Applicant, to enable her peaceful access, occupation, and/or development of her rightful share of the parcel of land forming part of the estate of the deceased, as per the confirmed grant issued on 29th July, 2021.
c. THAT this Honourable Court be pleased to issue an order directing the release and/or transfer to the Applicant of her rightful share of the funds held at Barclays Bank of Kenya (now Absa Bank Kenya PLC) pursuant to the confirmed grant dated 29th July, 2021, to enable her cater for urgent medical treatment and commence construction of a house on her allocated land.
d. THAT costs of this application be provided for.
2. The grounds on the face of the Application are that a grant of letters of administration was confirmed by this Honourable Court on 29th July, 2021, distributing the estate, including a parcel of land and funds at Barclays Bank of Kenya, to the beneficiaries, including the Applicant who was allocated her rightful share of the land and money. The three co-administrators have persistently refused to sign the necessary transmission forms as ordered by the court, frustrating the Applicant's ability to access her inheritance. That this Honourable Court had already ordered the Deputy Registrar to execute the relevant forms on behalf of non-compliant administrators, but the other administrators have now resorted to harassing and blocking the Applicant from taking possession of her share. The Applicant is under constant threat, intimidation, and obstruction, making it necessary for the police to offer protection to safeguard her rights, and unless the orders sought are granted urgently, Also that the Applicant stands to suffer irreparable harm, including lack of access to medicine and shelter and that it is in the interest of justice, equity, and fair administration of the estate that the orders sought be granted.
3. The Application was supported by an Affidavit sworn by the Applicant on 12th June 2025. She deponed that she is one of the administrators and beneficiaries of the estate of the late JOHNSTON OKEMWA NYAKUNDI, and Grant of Letters of Administration was issued in this cause and subsequently confirmed by this Honorable Court on 29th July, 2021, distributing the estate among the rightful heirs, including herself. And that as per the grant she was allocated her share of the estate, including: A portion of land known as NYARIBARI CHACHE/ KEUMBU/911 and a portion of funds held at Barclays Bank of Kenya (now Absa Bank Kenya PLC), and this court further ordered that in the event any administrator fails to sign the necessary transmission documents, the Deputy Registrar of the High Court shall sign the same on their behalf, and despite the directive the respondents have refused, failed, and/or neglected to sign the requisite transmission forms to facilitate the transfer of her share.
4. In response to the Application the Respondents filed a replying affidavit sworn by KEPHA MARITA OKEMWA on 25th July 2025, Wherein he averred that the funds in the said bank account do not form part of the free estate of the deceased available for distribution or access as the said funds were derived from the proceeds of the sale of specific land parcels, and that the funds were deposited into the deceased’s Absa Bank Account following the sale of land parcel Kisii Municipality Block 2/16, where the proceeds of the sale were utilized to Purchase of the Saika estate Block 127/440 and Block 127/442 in Nairobi and the remaining balance was deposited into the deceased’s Absa Bank account No. 6000547.
5. The Respondents further decried that the ownership, sale and distribution of the said parcels and proceeds thereof are currently a subject of active litigation before the environment and Lands court at Kisii in ELC case No. 27 of 2020 and as such the matter is subjudice and any order to access the said funds would prejudice the on going proceedings, and that it is in the interest of justice that the orders sought by the Applicant be denied until the Environment and Land Court determines the status of the disputed properties and the funds arising therefrom. He Further proposes that the Applicant should take possession of the parcel at Keroka which is Nyaribari Masaba /767.
Analysis and determination
6. Having carefully analysed the Application, the Response thereto, The 3rd respondents position is that the ownership, sale and distribution of the said parcels and proceeds are a subject of active litigation before the Environment and Land court in ELC case NO. 27 of 2020 and as such the, matter is subjudice and any order to access the said funds would prejudice ongoing proceedings.
7. The doctrine of subjudice, prohibits this Court from proceeding with a trial or hearing a matter that is already being considered by another court or Judge. The purpose of this doctrine is to prevent multiple suits on the same issue and ensure consistency in the administration of justice.
8. In the case of Kenya National Commission on Human Rights v Attorney General, Independent Electoral & Boundaries Commission & 16 others [2020] eKLR the Supreme Court of Kenya pronounced itself on the doctrine of sub judice. The Court defined sub judice as "before the Court or Judge for determination." It emphasized that the purpose of the sub judice rule is to prevent the filing of multiple suits between the same parties or those claiming under them, in order to avoid conflicting decisions and complications. The Court further noted that the doctrine aims to ensure that related issues are resolved by one Court only, in order to maintain consistency in the administration of justice related issues are resolved by one Court only, in order to maintain consistency in the administration of justice.
9. In Patel & Patel Ltd and another v Commissioner of Customs and Excise & 6 others [2014] eKLR:
The High Court discussed the application of the doctrine of sub judice. The Court held that the doctrine applies where an issue is pending in a Court of law for determination. It emphasized that when a matter is sub judice, it cannot be the subject of collateral attack in the same Court. The Court further noted that the principle of sub judice is grounded on the basis that, in the interest of parties and the system of administration of justice, multiple suits between the same parties should be avoided.
10. The aforementioned judicial precedents underscore the fundamental application and profound significance of the doctrine of sub-judice within Kenyan jurisprudence. These cases unequivocally demonstrate the imperative of precluding the institution of multiple suits over the same subject matter and the paramount importance of maintaining consistency in the administration of justice. In essence, the doctrine serves as a vital safeguard for the integrity of the judicial process and is instrumental in ensuring the equitable and expeditious resolution of disputes .
11. Back to the instant application, a ruling of an Application dated 3rd March 2022, was delivered on 7th February 2024 by Hon Justice Kizito Magare, who directed Dinah Bosibori Okemwa, Mary Kerubo Okemwa, Kepha Marita Okemwa (who together with Jane Bosibori Okemwa are the joint administrators of the estate of the late Johnson Okemwa Nyakundi the deceased herein) to execute all the relevant instruments required for the transmission of the of the Estate of the deceased herein to the as per the confirmed certificate of Grant dated 29th July 2019 within 14 days he further ordered that in default to comply with the above, the deputy registrar of this court to execute the transfer and incidental instruments to facilitate the completion of Administration. It is outright that the said matter in ELC is a 2020 matter whereas the orders were addressing an application dated 3rd March 2022.
12. The 3rd respondent says that the money at Absa Bank does not form part of the free estate of the deceased herein as the same was derived from sale of land parcel Kisii Municipality Block 2/16 and for purchase of Block 127/440 and Block 127/442 . No further particulars of the alleged sale and purchases were given . I note that paragragh 6 of the distribution schedule in the confirmed the grant provides that the property Nairobi Block 127/440 was to be sold and the proceeds shared equally among all beneficiaries and the money in Absa bank was to be shared among beneficiaries who have been specified in each house. It is that clear that there was some money in the bank during confirmation. No bank statement has been annexed to show what was in the bank at the time of confirmation and what came in after the alleged sale. The pleadings of the alleged land case have also not been produced herein. The 3rd respondent has not established any nexus between the said Land case and money which was in the bank as at the date of death of deceased. This is a family court and it’s role is to ensure enforcement of its orders as per the grant . It is now exactly 4 years since the grant was confirmed but the estate is yet to be fully administered I dismiss the allegation of pending land case by the 3rd respondent a pre-emptive measure that are aiming to further forestall transmission of the estate as per the grant . In any event if there is a dispute concerning one property of the deceased then it is only transmission of that property which can be put on hold but not the entire estate . i find that the instant application is not subjudice .
13. It is not denied that the grant of letters of administration was confirmed by this Honorable Court on 29th July, 2021, distributing the estate, including a parcel of land and funds at Barclays Bank of Kenya that are on question, to the beneficiaries, including the Applicant. According to the grant there 4 houses named that is 1. The house of Dinah Bosibori Okemwa . 2. Mary Kerubo Okemwa 3. Jane Bosibori Okemwa 4. Kepha Marrita Okemwa . In paragraphs 1, 3, 4, 5 ,6, 7, 8, 9, `0, and 11 of the distribution schedule , it is indicated to be used “To be shared equally among the beneficiaries” in paragraph 2 it is indicated ‘’to be shared equally amongst the 4 houses . ‘’ . The applicant argues that the property should be shared in 4 portions as per the grant but the respondents submitted that the sharing should be per the 22 beneficiaries identified by court in the judgment. I have Seen the judgment of Justice Ndungu dated 29.7.21 in this matter. At paragraph 41 of the same it was held that ‘’ The estate shall be shared equally among the 22 listed units with Janet Chepkirui and Gladys Moraa being considered as one unit ‘’. The language used in the said paragraph is clear and leaves no room for argument. It means that all the properties save for the tea plantation on LR no.Kitaru settlement scheme /1 (on paragragh 2 of the distribution schedule ) be shared equally amongst the 22 beneficiaries . It is only the tea plantation which shall be shared amongst the 4 houses .
14. There was ‘’ evidence ‘’adduced from the bar that the there was Ksh 4,998, 735/= in the Absa account of the deceased account of deceased . No documentary evidence was produced and the bank manager did not attend court to confirm the same. The applicant submitted that it that is the case then she is entitled to Ksh. 1,249,643/= as a house and not the Ksh. 227,215/= per beneficiary as proposed . I dismiss the issue of Ksh. 1,249,643/= in the bank as heresay .
15. Courts orders are not issued in vain; they must be obeyed by the parties unless appealed. If not, the court can take steps to enforce them. There's no evidence the Respondents has been willing to take the necessary steps to implement the confirmed Certificate of Grant, which was the result of a consent order between the three parties. I can only conclude the reason for this reluctance is to deny the beneficiary the enjoyment of the fruits of the judgment. His reluctance even drove the Applicant to this Honourable court in an effort to implement the Grant.
16. In the upshot is that I find the application dated 12th June 2025 to be merited. I therefore allow it and make the following orders:-
a. The OCS Kisii Central police Station to provide security and protection to the applicant to enable her peacefully access her rightful shares of parcels of land forming part of the estate of the deceased.
e. The Kisii Branch manager ABSA Bank Kenya PLC is directed to divide the monies held in account no. 6000547 equally amongst the 22 beneficiaries herein and release to each his rightful share pursuant to Paragragh. 9 of the schedule of distribution in the confirmed grant dated 29.7.21 . In particular it is urgent that the share of the applicant be released to her forthwith to enable her cater for urgent medical treatment expenses and commence construction of a house on her allocated land.
b. . The manager to file a report his compliance within 7 days from today.
c. This being a family matter there are no orders as to costs.
d. Mention on 10.9.25.
T.A ODERA
JUDGE
1.8.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 1ST DAY OF AUGUST 2025 IN THE PRESENCE OF MOSOTA FOR THE APLICANT AND MR OCHOKI FOR JANE OKEMWA . CA- KINYA.
a. Spent.
b. THAT this Honourable Court be pleased to issue an order directing the Officer Commanding Station (OCS), Kisii Central Police Station, to provide security and protection to the Applicant, to enable her peaceful access, occupation, and/or development of her rightful share of the parcel of land forming part of the estate of the deceased, as per the confirmed grant issued on 29th July, 2021.
c. THAT this Honourable Court be pleased to issue an order directing the release and/or transfer to the Applicant of her rightful share of the funds held at Barclays Bank of Kenya (now Absa Bank Kenya PLC) pursuant to the confirmed grant dated 29th July, 2021, to enable her cater for urgent medical treatment and commence construction of a house on her allocated land.
d. THAT costs of this application be provided for.
2. The grounds on the face of the Application are that a grant of letters of administration was confirmed by this Honourable Court on 29th July, 2021, distributing the estate, including a parcel of land and funds at Barclays Bank of Kenya, to the beneficiaries, including the Applicant who was allocated her rightful share of the land and money. The three co-administrators have persistently refused to sign the necessary transmission forms as ordered by the court, frustrating the Applicant's ability to access her inheritance. That this Honourable Court had already ordered the Deputy Registrar to execute the relevant forms on behalf of non-compliant administrators, but the other administrators have now resorted to harassing and blocking the Applicant from taking possession of her share. The Applicant is under constant threat, intimidation, and obstruction, making it necessary for the police to offer protection to safeguard her rights, and unless the orders sought are granted urgently, Also that the Applicant stands to suffer irreparable harm, including lack of access to medicine and shelter and that it is in the interest of justice, equity, and fair administration of the estate that the orders sought be granted.
3. The Application was supported by an Affidavit sworn by the Applicant on 12th June 2025. She deponed that she is one of the administrators and beneficiaries of the estate of the late JOHNSTON OKEMWA NYAKUNDI, and Grant of Letters of Administration was issued in this cause and subsequently confirmed by this Honorable Court on 29th July, 2021, distributing the estate among the rightful heirs, including herself. And that as per the grant she was allocated her share of the estate, including: A portion of land known as NYARIBARI CHACHE/ KEUMBU/911 and a portion of funds held at Barclays Bank of Kenya (now Absa Bank Kenya PLC), and this court further ordered that in the event any administrator fails to sign the necessary transmission documents, the Deputy Registrar of the High Court shall sign the same on their behalf, and despite the directive the respondents have refused, failed, and/or neglected to sign the requisite transmission forms to facilitate the transfer of her share.
4. In response to the Application the Respondents filed a replying affidavit sworn by KEPHA MARITA OKEMWA on 25th July 2025, Wherein he averred that the funds in the said bank account do not form part of the free estate of the deceased available for distribution or access as the said funds were derived from the proceeds of the sale of specific land parcels, and that the funds were deposited into the deceased’s Absa Bank Account following the sale of land parcel Kisii Municipality Block 2/16, where the proceeds of the sale were utilized to Purchase of the Saika estate Block 127/440 and Block 127/442 in Nairobi and the remaining balance was deposited into the deceased’s Absa Bank account No. 6000547.
5. The Respondents further decried that the ownership, sale and distribution of the said parcels and proceeds thereof are currently a subject of active litigation before the environment and Lands court at Kisii in ELC case No. 27 of 2020 and as such the matter is subjudice and any order to access the said funds would prejudice the on going proceedings, and that it is in the interest of justice that the orders sought by the Applicant be denied until the Environment and Land Court determines the status of the disputed properties and the funds arising therefrom. He Further proposes that the Applicant should take possession of the parcel at Keroka which is Nyaribari Masaba /767.
Analysis and determination
6. Having carefully analysed the Application, the Response thereto, The 3rd respondents position is that the ownership, sale and distribution of the said parcels and proceeds are a subject of active litigation before the Environment and Land court in ELC case NO. 27 of 2020 and as such the, matter is subjudice and any order to access the said funds would prejudice ongoing proceedings.
7. The doctrine of subjudice, prohibits this Court from proceeding with a trial or hearing a matter that is already being considered by another court or Judge. The purpose of this doctrine is to prevent multiple suits on the same issue and ensure consistency in the administration of justice.
8. In the case of Kenya National Commission on Human Rights v Attorney General, Independent Electoral & Boundaries Commission & 16 others [2020] eKLR the Supreme Court of Kenya pronounced itself on the doctrine of sub judice. The Court defined sub judice as "before the Court or Judge for determination." It emphasized that the purpose of the sub judice rule is to prevent the filing of multiple suits between the same parties or those claiming under them, in order to avoid conflicting decisions and complications. The Court further noted that the doctrine aims to ensure that related issues are resolved by one Court only, in order to maintain consistency in the administration of justice related issues are resolved by one Court only, in order to maintain consistency in the administration of justice.
9. In Patel & Patel Ltd and another v Commissioner of Customs and Excise & 6 others [2014] eKLR:
The High Court discussed the application of the doctrine of sub judice. The Court held that the doctrine applies where an issue is pending in a Court of law for determination. It emphasized that when a matter is sub judice, it cannot be the subject of collateral attack in the same Court. The Court further noted that the principle of sub judice is grounded on the basis that, in the interest of parties and the system of administration of justice, multiple suits between the same parties should be avoided.
10. The aforementioned judicial precedents underscore the fundamental application and profound significance of the doctrine of sub-judice within Kenyan jurisprudence. These cases unequivocally demonstrate the imperative of precluding the institution of multiple suits over the same subject matter and the paramount importance of maintaining consistency in the administration of justice. In essence, the doctrine serves as a vital safeguard for the integrity of the judicial process and is instrumental in ensuring the equitable and expeditious resolution of disputes .
11. Back to the instant application, a ruling of an Application dated 3rd March 2022, was delivered on 7th February 2024 by Hon Justice Kizito Magare, who directed Dinah Bosibori Okemwa, Mary Kerubo Okemwa, Kepha Marita Okemwa (who together with Jane Bosibori Okemwa are the joint administrators of the estate of the late Johnson Okemwa Nyakundi the deceased herein) to execute all the relevant instruments required for the transmission of the of the Estate of the deceased herein to the as per the confirmed certificate of Grant dated 29th July 2019 within 14 days he further ordered that in default to comply with the above, the deputy registrar of this court to execute the transfer and incidental instruments to facilitate the completion of Administration. It is outright that the said matter in ELC is a 2020 matter whereas the orders were addressing an application dated 3rd March 2022.
12. The 3rd respondent says that the money at Absa Bank does not form part of the free estate of the deceased herein as the same was derived from sale of land parcel Kisii Municipality Block 2/16 and for purchase of Block 127/440 and Block 127/442 . No further particulars of the alleged sale and purchases were given . I note that paragragh 6 of the distribution schedule in the confirmed the grant provides that the property Nairobi Block 127/440 was to be sold and the proceeds shared equally among all beneficiaries and the money in Absa bank was to be shared among beneficiaries who have been specified in each house. It is that clear that there was some money in the bank during confirmation. No bank statement has been annexed to show what was in the bank at the time of confirmation and what came in after the alleged sale. The pleadings of the alleged land case have also not been produced herein. The 3rd respondent has not established any nexus between the said Land case and money which was in the bank as at the date of death of deceased. This is a family court and it’s role is to ensure enforcement of its orders as per the grant . It is now exactly 4 years since the grant was confirmed but the estate is yet to be fully administered I dismiss the allegation of pending land case by the 3rd respondent a pre-emptive measure that are aiming to further forestall transmission of the estate as per the grant . In any event if there is a dispute concerning one property of the deceased then it is only transmission of that property which can be put on hold but not the entire estate . i find that the instant application is not subjudice .
13. It is not denied that the grant of letters of administration was confirmed by this Honorable Court on 29th July, 2021, distributing the estate, including a parcel of land and funds at Barclays Bank of Kenya that are on question, to the beneficiaries, including the Applicant. According to the grant there 4 houses named that is 1. The house of Dinah Bosibori Okemwa . 2. Mary Kerubo Okemwa 3. Jane Bosibori Okemwa 4. Kepha Marrita Okemwa . In paragraphs 1, 3, 4, 5 ,6, 7, 8, 9, `0, and 11 of the distribution schedule , it is indicated to be used “To be shared equally among the beneficiaries” in paragraph 2 it is indicated ‘’to be shared equally amongst the 4 houses . ‘’ . The applicant argues that the property should be shared in 4 portions as per the grant but the respondents submitted that the sharing should be per the 22 beneficiaries identified by court in the judgment. I have Seen the judgment of Justice Ndungu dated 29.7.21 in this matter. At paragraph 41 of the same it was held that ‘’ The estate shall be shared equally among the 22 listed units with Janet Chepkirui and Gladys Moraa being considered as one unit ‘’. The language used in the said paragraph is clear and leaves no room for argument. It means that all the properties save for the tea plantation on LR no.Kitaru settlement scheme /1 (on paragragh 2 of the distribution schedule ) be shared equally amongst the 22 beneficiaries . It is only the tea plantation which shall be shared amongst the 4 houses .
14. There was ‘’ evidence ‘’adduced from the bar that the there was Ksh 4,998, 735/= in the Absa account of the deceased account of deceased . No documentary evidence was produced and the bank manager did not attend court to confirm the same. The applicant submitted that it that is the case then she is entitled to Ksh. 1,249,643/= as a house and not the Ksh. 227,215/= per beneficiary as proposed . I dismiss the issue of Ksh. 1,249,643/= in the bank as heresay .
15. Courts orders are not issued in vain; they must be obeyed by the parties unless appealed. If not, the court can take steps to enforce them. There's no evidence the Respondents has been willing to take the necessary steps to implement the confirmed Certificate of Grant, which was the result of a consent order between the three parties. I can only conclude the reason for this reluctance is to deny the beneficiary the enjoyment of the fruits of the judgment. His reluctance even drove the Applicant to this Honourable court in an effort to implement the Grant.
16. In the upshot is that I find the application dated 12th June 2025 to be merited. I therefore allow it and make the following orders:-
a. The OCS Kisii Central police Station to provide security and protection to the applicant to enable her peacefully access her rightful shares of parcels of land forming part of the estate of the deceased.
e. The Kisii Branch manager ABSA Bank Kenya PLC is directed to divide the monies held in account no. 6000547 equally amongst the 22 beneficiaries herein and release to each his rightful share pursuant to Paragragh. 9 of the schedule of distribution in the confirmed grant dated 29.7.21 . In particular it is urgent that the share of the applicant be released to her forthwith to enable her cater for urgent medical treatment expenses and commence construction of a house on her allocated land.
b. . The manager to file a report his compliance within 7 days from today.
c. This being a family matter there are no orders as to costs.
d. Mention on 10.9.25.
T.A ODERA
JUDGE
1.8.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 1ST DAY OF AUGUST 2025 IN THE PRESENCE OF MOSOTA FOR THE APLICANT AND MR OCHOKI FOR JANE OKEMWA . CA- KINYA.