' 1
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KILGORIS
HCFA CASE NO. E001 OF 2024
(CORAM: HON. CHARLES M. KARIUKI – J)
GIDEON TALALA MUMANKA…………………….……………………...APPELLANT
VS
ANNA KONONE ENE KIRENYI…………………...…………...……1ST RESPONDENT
ESTHER NADUPOI NTULA…………………………………...….….2ND RESPONDENT
SAMSON LEPARAN KIRENYI…………………………...………….3RD RESPONDENT
RULING
03/10/2025
BACKGROUND .
Petitioners/Respondents filed a summons for confirmation of grant in the Magistrate''s Court dated 27/10/2022 over the Estate of Benjamin Kipuki Ole Kirenyi, who died on 12/08/2012. The Estate comprised TRANSMARA/MAGUARRA/69 and LR. NO. 9102/31. Declared had three wives mentioned in pleadings, each with;
1st wife – 5
2nd wife – 5
3rd wife - 5
The Court compromised the distribution of property No. 9102/31 by Agreement for all family members. However, Gideon Talala Kirenyi (Son) of the deceased objected to the distribution of TRANSMARA/MEGUARRA/69. The parcel of land is registered in the name of;
Benjamin Kipuki Ole Kirenyi (Son).
Moses Ntula Ole Kirenyi (Son) and
Gideon Talala Mumenka
The matter was heard as an objection to a confirmation of a grant. The objection was dismissed, and grants were confirmed. This precipitated an Appeal (Memorandum of Appeal not in Record of Appeal), and parties were directed to file Submissions to canvass the Appeal.
APPELLANT SUBMISSIONS :
The genesis of the Appeal before the Court is that, in the ruling delivered by the trial court, the property registered as TRANSMARA/MEGUARRA/69 was distributed entirely as the Estate of the deceased. In contrast, it was registered in the names of two other persons, each holding equal common shares.
The property registration indicates that the property is registered in the names of the Appellant herein, Gideon Talala Mumanka, Benjamin Kipuki Kirenyi, who is deceased, and Moses Kipuki, who is equally deceased, as proprietors in common in equal shares.
The registered acreage on the title and the Green Card is 33.5 Ha, which translates to 82.7785 Acres. Section 91(5) of the Land Registration Act states thus;
"If any land lease or charge is owned in common, each tenant shall be entitled to an undivided share in the whole, and on the death of a tenant, the deceased''s share shall be treated as part of their estate."
With this in mind, the Estate of the deceased Benjamin Kipuki Kirenyi is therefore entitled to a third of the property, which is 27.59 Acres or loosely read as 11.16 Ha.
From reviewing the certificate of confirmation of grant, the Court distributed a total of 83.6 acres, which is significantly above the deceased''s share and the registered acreage.
In the proceedings before and the numerous Applications filed by some of the beneficiaries of the Estate of Benjamin Kipuki Kirenyi, they believed that the entire registered property belongs to their late father and husband and should be distributed in total disregard of the registration status of the other registered proprietors in common.
That is not a new question in law, and the Probate and Administration Rules have addressed such concerns.
Rule 41 (3) of the Probate and Administration Rules provides thus;
" Where a question arises as to the identity, share or Estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or Estate which cannot at that stage be conveniently determined, the Court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or Estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule I of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act proceed to confirm the grant. "
That any claim or allegation or challenge to title as registered could not and cannot be determined by a Probate Court, as that is a function reserved for the Environment and Land Court.
The Allegations contained in the numerous Affidavits in support of the Summons for confirmation of the grant, as found in Pages 45 - 49 and 85 -138 of the record of the Appeal Court, cannot be legally entertained by the probate Court at that point.
The Probate and Administration Rules direct that the Trial Magistrate ought to have stayed the confirmation of grant until the questions of ownership and shares are determined as provided by the Environment and Land Court Act and Article 165(2) of the Constitution of Kenya.
All these are objections which were raised by the Appellant, who was then acting in Person, but which the Court ignored and indicated that it was an objection meant to delay the distribution of the Estate of Benjamin Kipuki.
The Court''s first duty was to establish the properties that form part of the deceased''s Estate. He was therefore to determine the beneficiaries of the deceased and to whom he will share out the property as per the terms of their consent, and when there is no consent, equally to all beneficiaries.
Given that the property presented in Court was registered to three persons, the Court ought to have distributed what belongs to the deceased Person, which is a third of the property, and any disputes relating to the registration of the Estate should have been referred to the Environment and Land Court for determination. Reliance made on the case of In re Estate of Atibu Oronje Asioma (Deceased) [20221 KEHC 1 1046 (KLR.
A judgment/Decree of the ELC Court would then be adopted if, by any chance, it increased the shares of the Deceased''s Estate. In the circumstances, we pray that this Court finds in favour of the Memorandum of Appeal by setting aside the Certificate of confirmation and the Ruling of the Court delivered on the May 20, 2024 and directing parties to Appear before another Trial Magistrate for proper distribution of the deceased''s property on account of the undisputed equal share in common he held in property TRANSMARA/MEGUARA/69.
SUBMISSIONS RESPONDENTS:
The element of holding the land in equal shares was deleted by an amendment that he himself confessed to having done in 1984 or thereabouts, during his cross-examination. The element of holding the land in common was in place as of October 4, 1978, as per entry number 1. However, it was removed and struck out, as shown in the Green Card and as attached by the Respondents in the Petition for Letters of Administration, which Green Card was duly certified by the Land Registrar as a true reflection of the land''s records on August 17, 2021.
On 30.5.84, under entry number 2, and on 6.10.2009, under entry number 3, and on 15.10.2009, under entry number 4, the issues of the proprietors holding the land as proprietors in common in equal shares were never reflected when the title deed was again issued on 12.1.2021 under entry number 5. Therefore, his theory of being a proprietor in common in equal shares is merely a mirage, a caricature of his own machinations that is not supported by any provision in the title documents or the official documents at the land registry.
Further, his own exhibit, which is a copy of the official search dated 2.3.2023(see page 79 of the record of Appeal) that he annexed to his affidavit in protest, Green Card certified on 17.8.2021(see page 81 of the record of Appeal) & the Title Deed dated 12.1.2021(see page 147-148 of the record of Appeal) does not in any way show any entry of being proprietors common in equal shares. Let alone all the searches that he has conducted, none of them reveal any statement indicating that he is as such.
Therefore, the Court is urged not to be misled by the Appellant''s theory of being a proprietor in common in equal shares, an entry that was deleted long ago by his own actions and now lacks material support and an anchor in any known law. We urge the Court to find as such.
Furthermore, the Appellant stated in his written submissions that the disputed parcel was jointly owned and that the property cannot pass under the law of succession, which would be a total denial of justice if the principle of survivorship were not applied. PW1-PW5 as witnesses called by the Respondents during the lower court hearing, stated in their evidence-in-chief and in their affidavits in support of confirmation of grant and corroborated the evidence of PW2 who was a member of the demarcation committee & the evidence of PW6 & PW7 which was to the effect that the land was majorly held in trust by first born sons of each house in Meguarra Area and that when the younger ones came of age, they will always get their share.
The current occupation is the wish of the late Benjamin, and no one had any issues until recently, when the Appellant started sending threatening messages to his brothers.
It is therefore illegal and immoral for the Appellant to deny the beneficiaries what rightfully belongs to them, and we urge and submit that the Court find as such.
C) Whether the Appeal is merited?
Upon looking at the entire evidence as elaborated hereinabove and having looked at the various quoted authorities that are related to this current situation, we urge the Court to find that the Respondent''s proposed mode of Distribution of Parcel number TRANSMARA/MEGUARRA/69, as passed in the lower Court in the ruling dated 20.5.2024, is merited. We urge the Court to uphold it in toto.
ISSUES ANALYSIS AND DETERMINATION
After reviewing the trial court''s pleadings record and the parties'' submissions, the issues are whether the Appeal has merit and whether costs are applicable. The genesis of the Appeal before the Court is that in the ruling delivered by the trial Court, the entire property registered as TRANSMARA/MEGUARRA/69 was distributed as though the same was wholly the Estate of the deceased, whilst the same was registered to two other persons in equal common shares.
The property registration indicates that the property is registered in the names of the Appellant herein, Gideon Talala Mumanka, Benjamin Kipuki Kirenyi, who is deceased, and Moses Kipuki, who is equally deceased, as proprietors in common in equal shares. The registered acreage on the title and the Green Card is 33.5 Ha, which translates to 82.7785 Acres.
Section 91(5) of the Land Registration Act states thus.
" If any land lease or charge is owned in common, each tenant shall be entitled to an undivided share in the whole and on the death of a tenant, the deceased''s share shall be treated as part of their estate."
With this in mind, the Estate of the deceased Benjamin Kipuki Kirenyi is presumably therefore entitled to a third of the property, which is 27.59 Acres or loosely read as 11.16 Ha.
The certificate of confirmation of grant indicates that the trial Court distributed a total of 83.6 Acres, which is significantly above the share of the deceased and even exceeds the registered acreage. In the proceedings before and the numerous Applications filed by some of the beneficiaries of the Estate of Benjamin Kipuki Kirenyi, they believed that the entire registered property belongs to their late father and husband and should be distributed in total disregard of the registration status of the other registered proprietors in common. The above scenario has been addressed in law by the Probate and Administration Rules.
Rule 41(3) of the Probate and Administration Rules provides thus.
" Where a question arises as to the identity, share or Estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or Estate which cannot at that stage be conveniently determined, the Court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or Estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule I of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act proceed to confirm the grant. "
That any claim or allegation or challenge to title as registered could not and cannot be determined by a Probate Court, as that is a function reserved for the Environment and Land Court.
The Probate and Administration Rules direct that the Trial Magistrate ought to have stayed the confirmation of grant until the questions of ownership and shares are determined as provided by the Environment and Land Court Act and Article 165(2) of the Constitution of Kenya.
The Court''s first duty was to establish the properties that form part of the Estate of the deceased. The Court was therefore to determine the beneficiaries of the deceased and to share out the property according to the terms of their consent, or, in the absence of consent, equally among all beneficiaries.
Given that the property presented in Court was registered to three persons, the Court ought to have distributed what belongs to the deceased Person, which is presumably a third of the property, and any disputes relating to the registration of the Estate should have been referred to the Environment and Land Court for determination.
In the case of In Re Estate of Atibu Oronje Asioma (Deceased) [2021] KEHC 1 1046 (KLR), the Court, in relation to the property of a deceased person under dispute, held.
" The central areas of concern in probate and administration were the dead Person and his property. Regarding the deceased Person, what would be of importance would be whether there was proof of their death. Once that was established, the next consideration would be the determination of the individuals entitled to the property. If he died testate, having left a valid will, the individuals named as beneficiaries in the will would be the beneficiaries. If he died intestate, without a will, the persons entitled under the applicable law of intestacy would be the beneficiaries. With respect to the only critical consideration, whether he owned any property. Modern property was subject to registration, and whether a person owned a piece of property was evidenced by documents, registration, or ownership.
The probate court only distributed assets that were undisputedly owned by the deceased. Unencumbered assets or the subject of ownership was not undisputedly owned by the deceased and were not available for distribution by the Court until the encumbrances were removed or the ownership disputes resolved. Property available for distribution was defined in section 3 of the Law of Succession Act as the free property of the deceased.
The design of the Law of Succession Act was that the probate court''s mandate was limited to the distribution of assets. Where a dispute arose over the ownership of any asset, it should be placed in another forum, not the succession cause, for litigation and determination. That was the spirit of rule 4.1 (3) of the Probate and Administration Rules. "
A judgment/Decree of the ELC Court would then be adopted if, by any chance, it increased the shares of the Deceased''s Estate. In the circumstances, this Court finds in favour of the Appellant''s Appeal and makes the orders.
That the Certificate of confirmation and the Ruling of the Court delivered on May 20, 2024, as far as it purported to have shared TRANSMARA/MEGUARA/69, are set aside.
The proceedings on the distribution of TRANSMARA/MEGUARA/69 is stayed and the matter is referred to the ELC court to determine the deceased''s shares for the purposes of probate court to apportion the respective beneficiaries shares thereof, who will share thereafter.
Parties to bear their own costs
DATED AND DELIVERED THROUGH MICROSOFT TEAMS AT KILGORIS THIS 3RD OCTOBER 2025
CHARLES KARIUKI
JUDGE
'
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KILGORIS
HCFA CASE NO. E001 OF 2024
(CORAM: HON. CHARLES M. KARIUKI – J)
GIDEON TALALA MUMANKA…………………….……………………...APPELLANT
VS
ANNA KONONE ENE KIRENYI…………………...…………...……1ST RESPONDENT
ESTHER NADUPOI NTULA…………………………………...….….2ND RESPONDENT
SAMSON LEPARAN KIRENYI…………………………...………….3RD RESPONDENT
RULING
03/10/2025
BACKGROUND .
Petitioners/Respondents filed a summons for confirmation of grant in the Magistrate''s Court dated 27/10/2022 over the Estate of Benjamin Kipuki Ole Kirenyi, who died on 12/08/2012. The Estate comprised TRANSMARA/MAGUARRA/69 and LR. NO. 9102/31. Declared had three wives mentioned in pleadings, each with;
1st wife – 5
2nd wife – 5
3rd wife - 5
The Court compromised the distribution of property No. 9102/31 by Agreement for all family members. However, Gideon Talala Kirenyi (Son) of the deceased objected to the distribution of TRANSMARA/MEGUARRA/69. The parcel of land is registered in the name of;
Benjamin Kipuki Ole Kirenyi (Son).
Moses Ntula Ole Kirenyi (Son) and
Gideon Talala Mumenka
The matter was heard as an objection to a confirmation of a grant. The objection was dismissed, and grants were confirmed. This precipitated an Appeal (Memorandum of Appeal not in Record of Appeal), and parties were directed to file Submissions to canvass the Appeal.
APPELLANT SUBMISSIONS :
The genesis of the Appeal before the Court is that, in the ruling delivered by the trial court, the property registered as TRANSMARA/MEGUARRA/69 was distributed entirely as the Estate of the deceased. In contrast, it was registered in the names of two other persons, each holding equal common shares.
The property registration indicates that the property is registered in the names of the Appellant herein, Gideon Talala Mumanka, Benjamin Kipuki Kirenyi, who is deceased, and Moses Kipuki, who is equally deceased, as proprietors in common in equal shares.
The registered acreage on the title and the Green Card is 33.5 Ha, which translates to 82.7785 Acres. Section 91(5) of the Land Registration Act states thus;
"If any land lease or charge is owned in common, each tenant shall be entitled to an undivided share in the whole, and on the death of a tenant, the deceased''s share shall be treated as part of their estate."
With this in mind, the Estate of the deceased Benjamin Kipuki Kirenyi is therefore entitled to a third of the property, which is 27.59 Acres or loosely read as 11.16 Ha.
From reviewing the certificate of confirmation of grant, the Court distributed a total of 83.6 acres, which is significantly above the deceased''s share and the registered acreage.
In the proceedings before and the numerous Applications filed by some of the beneficiaries of the Estate of Benjamin Kipuki Kirenyi, they believed that the entire registered property belongs to their late father and husband and should be distributed in total disregard of the registration status of the other registered proprietors in common.
That is not a new question in law, and the Probate and Administration Rules have addressed such concerns.
Rule 41 (3) of the Probate and Administration Rules provides thus;
" Where a question arises as to the identity, share or Estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or Estate which cannot at that stage be conveniently determined, the Court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or Estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule I of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act proceed to confirm the grant. "
That any claim or allegation or challenge to title as registered could not and cannot be determined by a Probate Court, as that is a function reserved for the Environment and Land Court.
The Allegations contained in the numerous Affidavits in support of the Summons for confirmation of the grant, as found in Pages 45 - 49 and 85 -138 of the record of the Appeal Court, cannot be legally entertained by the probate Court at that point.
The Probate and Administration Rules direct that the Trial Magistrate ought to have stayed the confirmation of grant until the questions of ownership and shares are determined as provided by the Environment and Land Court Act and Article 165(2) of the Constitution of Kenya.
All these are objections which were raised by the Appellant, who was then acting in Person, but which the Court ignored and indicated that it was an objection meant to delay the distribution of the Estate of Benjamin Kipuki.
The Court''s first duty was to establish the properties that form part of the deceased''s Estate. He was therefore to determine the beneficiaries of the deceased and to whom he will share out the property as per the terms of their consent, and when there is no consent, equally to all beneficiaries.
Given that the property presented in Court was registered to three persons, the Court ought to have distributed what belongs to the deceased Person, which is a third of the property, and any disputes relating to the registration of the Estate should have been referred to the Environment and Land Court for determination. Reliance made on the case of In re Estate of Atibu Oronje Asioma (Deceased) [20221 KEHC 1 1046 (KLR.
A judgment/Decree of the ELC Court would then be adopted if, by any chance, it increased the shares of the Deceased''s Estate. In the circumstances, we pray that this Court finds in favour of the Memorandum of Appeal by setting aside the Certificate of confirmation and the Ruling of the Court delivered on the May 20, 2024 and directing parties to Appear before another Trial Magistrate for proper distribution of the deceased''s property on account of the undisputed equal share in common he held in property TRANSMARA/MEGUARA/69.
SUBMISSIONS RESPONDENTS:
The element of holding the land in equal shares was deleted by an amendment that he himself confessed to having done in 1984 or thereabouts, during his cross-examination. The element of holding the land in common was in place as of October 4, 1978, as per entry number 1. However, it was removed and struck out, as shown in the Green Card and as attached by the Respondents in the Petition for Letters of Administration, which Green Card was duly certified by the Land Registrar as a true reflection of the land''s records on August 17, 2021.
On 30.5.84, under entry number 2, and on 6.10.2009, under entry number 3, and on 15.10.2009, under entry number 4, the issues of the proprietors holding the land as proprietors in common in equal shares were never reflected when the title deed was again issued on 12.1.2021 under entry number 5. Therefore, his theory of being a proprietor in common in equal shares is merely a mirage, a caricature of his own machinations that is not supported by any provision in the title documents or the official documents at the land registry.
Further, his own exhibit, which is a copy of the official search dated 2.3.2023(see page 79 of the record of Appeal) that he annexed to his affidavit in protest, Green Card certified on 17.8.2021(see page 81 of the record of Appeal) & the Title Deed dated 12.1.2021(see page 147-148 of the record of Appeal) does not in any way show any entry of being proprietors common in equal shares. Let alone all the searches that he has conducted, none of them reveal any statement indicating that he is as such.
Therefore, the Court is urged not to be misled by the Appellant''s theory of being a proprietor in common in equal shares, an entry that was deleted long ago by his own actions and now lacks material support and an anchor in any known law. We urge the Court to find as such.
Furthermore, the Appellant stated in his written submissions that the disputed parcel was jointly owned and that the property cannot pass under the law of succession, which would be a total denial of justice if the principle of survivorship were not applied. PW1-PW5 as witnesses called by the Respondents during the lower court hearing, stated in their evidence-in-chief and in their affidavits in support of confirmation of grant and corroborated the evidence of PW2 who was a member of the demarcation committee & the evidence of PW6 & PW7 which was to the effect that the land was majorly held in trust by first born sons of each house in Meguarra Area and that when the younger ones came of age, they will always get their share.
The current occupation is the wish of the late Benjamin, and no one had any issues until recently, when the Appellant started sending threatening messages to his brothers.
It is therefore illegal and immoral for the Appellant to deny the beneficiaries what rightfully belongs to them, and we urge and submit that the Court find as such.
C) Whether the Appeal is merited?
Upon looking at the entire evidence as elaborated hereinabove and having looked at the various quoted authorities that are related to this current situation, we urge the Court to find that the Respondent''s proposed mode of Distribution of Parcel number TRANSMARA/MEGUARRA/69, as passed in the lower Court in the ruling dated 20.5.2024, is merited. We urge the Court to uphold it in toto.
ISSUES ANALYSIS AND DETERMINATION
After reviewing the trial court''s pleadings record and the parties'' submissions, the issues are whether the Appeal has merit and whether costs are applicable. The genesis of the Appeal before the Court is that in the ruling delivered by the trial Court, the entire property registered as TRANSMARA/MEGUARRA/69 was distributed as though the same was wholly the Estate of the deceased, whilst the same was registered to two other persons in equal common shares.
The property registration indicates that the property is registered in the names of the Appellant herein, Gideon Talala Mumanka, Benjamin Kipuki Kirenyi, who is deceased, and Moses Kipuki, who is equally deceased, as proprietors in common in equal shares. The registered acreage on the title and the Green Card is 33.5 Ha, which translates to 82.7785 Acres.
Section 91(5) of the Land Registration Act states thus.
" If any land lease or charge is owned in common, each tenant shall be entitled to an undivided share in the whole and on the death of a tenant, the deceased''s share shall be treated as part of their estate."
With this in mind, the Estate of the deceased Benjamin Kipuki Kirenyi is presumably therefore entitled to a third of the property, which is 27.59 Acres or loosely read as 11.16 Ha.
The certificate of confirmation of grant indicates that the trial Court distributed a total of 83.6 Acres, which is significantly above the share of the deceased and even exceeds the registered acreage. In the proceedings before and the numerous Applications filed by some of the beneficiaries of the Estate of Benjamin Kipuki Kirenyi, they believed that the entire registered property belongs to their late father and husband and should be distributed in total disregard of the registration status of the other registered proprietors in common. The above scenario has been addressed in law by the Probate and Administration Rules.
Rule 41(3) of the Probate and Administration Rules provides thus.
" Where a question arises as to the identity, share or Estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or Estate which cannot at that stage be conveniently determined, the Court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or Estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule I of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act proceed to confirm the grant. "
That any claim or allegation or challenge to title as registered could not and cannot be determined by a Probate Court, as that is a function reserved for the Environment and Land Court.
The Probate and Administration Rules direct that the Trial Magistrate ought to have stayed the confirmation of grant until the questions of ownership and shares are determined as provided by the Environment and Land Court Act and Article 165(2) of the Constitution of Kenya.
The Court''s first duty was to establish the properties that form part of the Estate of the deceased. The Court was therefore to determine the beneficiaries of the deceased and to share out the property according to the terms of their consent, or, in the absence of consent, equally among all beneficiaries.
Given that the property presented in Court was registered to three persons, the Court ought to have distributed what belongs to the deceased Person, which is presumably a third of the property, and any disputes relating to the registration of the Estate should have been referred to the Environment and Land Court for determination.
In the case of In Re Estate of Atibu Oronje Asioma (Deceased) [2021] KEHC 1 1046 (KLR), the Court, in relation to the property of a deceased person under dispute, held.
" The central areas of concern in probate and administration were the dead Person and his property. Regarding the deceased Person, what would be of importance would be whether there was proof of their death. Once that was established, the next consideration would be the determination of the individuals entitled to the property. If he died testate, having left a valid will, the individuals named as beneficiaries in the will would be the beneficiaries. If he died intestate, without a will, the persons entitled under the applicable law of intestacy would be the beneficiaries. With respect to the only critical consideration, whether he owned any property. Modern property was subject to registration, and whether a person owned a piece of property was evidenced by documents, registration, or ownership.
The probate court only distributed assets that were undisputedly owned by the deceased. Unencumbered assets or the subject of ownership was not undisputedly owned by the deceased and were not available for distribution by the Court until the encumbrances were removed or the ownership disputes resolved. Property available for distribution was defined in section 3 of the Law of Succession Act as the free property of the deceased.
The design of the Law of Succession Act was that the probate court''s mandate was limited to the distribution of assets. Where a dispute arose over the ownership of any asset, it should be placed in another forum, not the succession cause, for litigation and determination. That was the spirit of rule 4.1 (3) of the Probate and Administration Rules. "
A judgment/Decree of the ELC Court would then be adopted if, by any chance, it increased the shares of the Deceased''s Estate. In the circumstances, this Court finds in favour of the Appellant''s Appeal and makes the orders.
That the Certificate of confirmation and the Ruling of the Court delivered on May 20, 2024, as far as it purported to have shared TRANSMARA/MEGUARA/69, are set aside.
The proceedings on the distribution of TRANSMARA/MEGUARA/69 is stayed and the matter is referred to the ELC court to determine the deceased''s shares for the purposes of probate court to apportion the respective beneficiaries shares thereof, who will share thereafter.
Parties to bear their own costs
DATED AND DELIVERED THROUGH MICROSOFT TEAMS AT KILGORIS THIS 3RD OCTOBER 2025
CHARLES KARIUKI
JUDGE
'