HIGH COURT PROBATE AND ADMINISTRATION CAUSE NO. 62 OF 2002
IN THE MATTER OF THE ESTATE OF JOSEPH MUNENE MAINA (DECEASED)
BEATRICE MURUGI MUNENE………………………………APPLICANT
VERSUS
MARY WANJIKU GAKUU ……………….…………..……RESPONDENT
RULING
1. Before this Court for determination is the Notice of Motion dated 8 th
October 2025 by which the Applicant BEATRICE MURUGI MUNENE who seeks the following orders;-
“1. SPENT
2. Pending the hearing and determination of THIS application and/or the main application dated 11 th June 2025, this Honorable Court do issue an interim conservatory order restraining the Intended Respondent, her agents, servants or any person acting on her behalf from collecting, receiving, demanding or in any way interfering with the collection of rent from the estate properties of the deceased;
3. That this Honourable Court do appoint a neutral rent
receiver/agent, to be agreed upon by the parties or otherwise appointed by the Court, to collect, manage and remit all the rent from the estate properties pending the determination of the main application;
4. That the Intended Respondent be compelled to
immediately remit to the Applicant her rightful share of
rent arrears already collected from the estate properties,
pending the final distribution; and
5. That costs of this application be in the cause.”
2. The application was supported by the affidavit of even date sworn by the
Applicant.
3. The Respondent MARY WANJIKU GAKUU opposed the application by
way of the Replying Affidavit dated 10 th November 2025 . The
application was canvassed by way of written submissions. The Applicant
filed the written submissions dated 8 th October 2025 whilst the
Respondent relied upon her written submissions dated 10 th November
2025.
BACKGROUND
4. This succession cause relates to the estate of the late JOSEPH MUNENE
MAINA (hereinafter ‘the Deceased) who died intestate on 27 th
September 2001 . A copy of the Death Certificate Serial No. 636072
is in the Original file.
5. There has been much litigation in this cause which culminated in the
Mediation Settlement Agreement which was filed in the High Court on
23 rd October 2021 . (see Annexture ‘ BMM2’ to the Notice of Motion
dated 11 th June 2025 .) By that Mediation Agreement it was agreed
that Beatrice Murugu (the Applicant) and Mary Wanjiku Gakuu (the
Respondent) be appointed as the joint administrators for the estate
6. The Applicant avers that she is a widow of the Deceased and a joint
administrator of the estate. The Applicant complains that the
Respondent who is the co-administrator has unilaterally taken control of
all rent collection to the exclusion of the applicant.
7. The Applicant states that she is an elderly widow, frail in health who
requires medical care. That she is apprehensive that the actions of the Respondent may lead to the dissipation of the estate to the prejudice of the Applicant and the other beneficiaries. Hence the present application seeking to have the rental income collected by a neutral agent.
8. The Respondent opposed the application. She states that the parties
initially agreed that the Respondent take up the day to day running of the estate due to the frail nature of the Applicant. The Respondent asserts that all the rental income collected is used for the benefit of the estate i.e paying rates.
9. The Respondent opposes the suggestion that a neutral agent be engaged
to collect rents as this would only add to the estates expenses.
ANALYSIS AND DETERMINATION
10. I have carefully considered the application before this court, the reply
filed thereto as well as the written submissions filed by both parties.
11. The Applicant sought conservatory orders to restrain the Respondent
and her agents from collecting rents from the estate properties.
12. In order for an injunction to be issued, the applicant must satisfy the
three requirements as was laid out in the case of Giella v Cassman
Brown [1973] EA 348 where the court held that an applicant must demonstrate that they have a prima facie case with a probability of success, demonstrate irreparable injury which cannot be compensated by an award of damages if a temporary injunction is not granted, and if the court is in doubt show that the balance of convenience is in their favour.
13. In the case of Nguruman Limited Vs Jan Bonde Nielson & 2 Others
[2014] eKLR , the Court of Appeal expounded on the decision in
Giella as follows:-
“In an interlocutory injunction application, the applicant has
to satisfy the triple requirements to;
a. Establish his case only at a prima facie level,
b. Demonstrate irreparable injury if a temporary injunction is not granted, and
c. Ally any doubts as to (b) showing that the balance of convenience is in his favour. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct, and logical hurdles that he applicant is expected to surmount sequentially.”
14. In Mrao Ltd v First American Bank of Kenya Limited and 2
Others [2003] eKLR the Court of Appeal described a ‘prima facie’
case as:-
“a case in which on the material presented to the Court, a
tribunal properly directing itself will conclude that there
exists a right which has apparently been infringed by the
opposite party to call for an explanation or rebuttal from the
latter.”
15. The Applicant has alleged that the Respondent has more or less pushed
her out of the management of the estate. She states that the
Respondent has been unilaterally collecting the rental income and has
failed to account for the same to the other beneficiaries. She expresses
the apprehension that the estate may be dissipated.
16. The Applicant has not tendered any proof of the alleged misuse of the
rental income. There is no evidence of diversion of any of the said
rental income.
17. By her own admission and based on the attached medical documents it
is clear that the Applicant is an elderly woman who is frail and quite ill. Given her condition, it would be quite difficult for her to play an active role in the management of the estate.
18. I find that the Applicant has failed to establish a prima facie case to
warrant issuance of the conservatory orders.
19. Having said that Section 83 of the Law of Succession Act Cap 160
Laws of Kenya sets out the duties of personal representatives of an
estate.
Section 83(e) provides that an administrator has a duty to
“(e) within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full accurate account of all dealings therewith upto the date of the account.”
20. The Respondent concedes that she has been managing the estate
including collecting and dealing with the rental income. She expresses
her willingness to render accounts of her management of the estate this
far. I am not inclined to grant the prayer for an appointment of an
agent to collect the rental income as I do agree with the Respondent that
to do so would only increase expenses of the estate.
21. Section 47 of the Law of Succession Act and Rule 73 of the Probate
and Administration Rules give the probate court wide discretionary
powers. Section 47 of the Law of Succession Act provides:
The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.
Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.
Rule 73 of the Probate and Administration Rules provides that:-
Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”
22. Finally I dismiss this application in its entirety. However I do direct that
the Respondent file within sixty (60) days full and accurate accounts
of her management and dealings with the estate. This being a family
matter each side will bear its own costs.
Dated in Nyeri this 20 th day of February, 2026
HIGH COURT PROBATE & ADMINISTRATION CAUSE NO. 62 OF 2002 RULING Page 9 of 9
IN THE MATTER OF THE ESTATE OF JOSEPH MUNENE MAINA (DECEASED)
BEATRICE MURUGI MUNENE………………………………APPLICANT
VERSUS
MARY WANJIKU GAKUU ……………….…………..……RESPONDENT
RULING
1. Before this Court for determination is the Notice of Motion dated 8 th
October 2025 by which the Applicant BEATRICE MURUGI MUNENE who seeks the following orders;-
“1. SPENT
2. Pending the hearing and determination of THIS application and/or the main application dated 11 th June 2025, this Honorable Court do issue an interim conservatory order restraining the Intended Respondent, her agents, servants or any person acting on her behalf from collecting, receiving, demanding or in any way interfering with the collection of rent from the estate properties of the deceased;
3. That this Honourable Court do appoint a neutral rent
receiver/agent, to be agreed upon by the parties or otherwise appointed by the Court, to collect, manage and remit all the rent from the estate properties pending the determination of the main application;
4. That the Intended Respondent be compelled to
immediately remit to the Applicant her rightful share of
rent arrears already collected from the estate properties,
pending the final distribution; and
5. That costs of this application be in the cause.”
2. The application was supported by the affidavit of even date sworn by the
Applicant.
3. The Respondent MARY WANJIKU GAKUU opposed the application by
way of the Replying Affidavit dated 10 th November 2025 . The
application was canvassed by way of written submissions. The Applicant
filed the written submissions dated 8 th October 2025 whilst the
Respondent relied upon her written submissions dated 10 th November
2025.
BACKGROUND
4. This succession cause relates to the estate of the late JOSEPH MUNENE
MAINA (hereinafter ‘the Deceased) who died intestate on 27 th
September 2001 . A copy of the Death Certificate Serial No. 636072
is in the Original file.
5. There has been much litigation in this cause which culminated in the
Mediation Settlement Agreement which was filed in the High Court on
23 rd October 2021 . (see Annexture ‘ BMM2’ to the Notice of Motion
dated 11 th June 2025 .) By that Mediation Agreement it was agreed
that Beatrice Murugu (the Applicant) and Mary Wanjiku Gakuu (the
Respondent) be appointed as the joint administrators for the estate
6. The Applicant avers that she is a widow of the Deceased and a joint
administrator of the estate. The Applicant complains that the
Respondent who is the co-administrator has unilaterally taken control of
all rent collection to the exclusion of the applicant.
7. The Applicant states that she is an elderly widow, frail in health who
requires medical care. That she is apprehensive that the actions of the Respondent may lead to the dissipation of the estate to the prejudice of the Applicant and the other beneficiaries. Hence the present application seeking to have the rental income collected by a neutral agent.
8. The Respondent opposed the application. She states that the parties
initially agreed that the Respondent take up the day to day running of the estate due to the frail nature of the Applicant. The Respondent asserts that all the rental income collected is used for the benefit of the estate i.e paying rates.
9. The Respondent opposes the suggestion that a neutral agent be engaged
to collect rents as this would only add to the estates expenses.
ANALYSIS AND DETERMINATION
10. I have carefully considered the application before this court, the reply
filed thereto as well as the written submissions filed by both parties.
11. The Applicant sought conservatory orders to restrain the Respondent
and her agents from collecting rents from the estate properties.
12. In order for an injunction to be issued, the applicant must satisfy the
three requirements as was laid out in the case of Giella v Cassman
Brown [1973] EA 348 where the court held that an applicant must demonstrate that they have a prima facie case with a probability of success, demonstrate irreparable injury which cannot be compensated by an award of damages if a temporary injunction is not granted, and if the court is in doubt show that the balance of convenience is in their favour.
13. In the case of Nguruman Limited Vs Jan Bonde Nielson & 2 Others
[2014] eKLR , the Court of Appeal expounded on the decision in
Giella as follows:-
“In an interlocutory injunction application, the applicant has
to satisfy the triple requirements to;
a. Establish his case only at a prima facie level,
b. Demonstrate irreparable injury if a temporary injunction is not granted, and
c. Ally any doubts as to (b) showing that the balance of convenience is in his favour. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct, and logical hurdles that he applicant is expected to surmount sequentially.”
14. In Mrao Ltd v First American Bank of Kenya Limited and 2
Others [2003] eKLR the Court of Appeal described a ‘prima facie’
case as:-
“a case in which on the material presented to the Court, a
tribunal properly directing itself will conclude that there
exists a right which has apparently been infringed by the
opposite party to call for an explanation or rebuttal from the
latter.”
15. The Applicant has alleged that the Respondent has more or less pushed
her out of the management of the estate. She states that the
Respondent has been unilaterally collecting the rental income and has
failed to account for the same to the other beneficiaries. She expresses
the apprehension that the estate may be dissipated.
16. The Applicant has not tendered any proof of the alleged misuse of the
rental income. There is no evidence of diversion of any of the said
rental income.
17. By her own admission and based on the attached medical documents it
is clear that the Applicant is an elderly woman who is frail and quite ill. Given her condition, it would be quite difficult for her to play an active role in the management of the estate.
18. I find that the Applicant has failed to establish a prima facie case to
warrant issuance of the conservatory orders.
19. Having said that Section 83 of the Law of Succession Act Cap 160
Laws of Kenya sets out the duties of personal representatives of an
estate.
Section 83(e) provides that an administrator has a duty to
“(e) within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full accurate account of all dealings therewith upto the date of the account.”
20. The Respondent concedes that she has been managing the estate
including collecting and dealing with the rental income. She expresses
her willingness to render accounts of her management of the estate this
far. I am not inclined to grant the prayer for an appointment of an
agent to collect the rental income as I do agree with the Respondent that
to do so would only increase expenses of the estate.
21. Section 47 of the Law of Succession Act and Rule 73 of the Probate
and Administration Rules give the probate court wide discretionary
powers. Section 47 of the Law of Succession Act provides:
The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.
Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.
Rule 73 of the Probate and Administration Rules provides that:-
Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”
22. Finally I dismiss this application in its entirety. However I do direct that
the Respondent file within sixty (60) days full and accurate accounts
of her management and dealings with the estate. This being a family
matter each side will bear its own costs.
Dated in Nyeri this 20 th day of February, 2026
HIGH COURT PROBATE & ADMINISTRATION CAUSE NO. 62 OF 2002 RULING Page 9 of 9