1. The Application before me for determination is the latest in a long list of successive Applications filed by the parties over the years since this matter commenced in 2018. The instant one is dated 11/11/2024, and basically seeks an order of injunction seeking preservation of the status quo pending determination of this Succession Cause.
2. The more I handle these Succession cases, the more I get convinced that parties and their Advocates, for some reason, are never keen to resolve these disputes but wish to keep them in Court endlessly. I have always wondered why the parties seem so averse to resolving the disputes which they have themselves brought to Court for resolution, yet some of these issues are not even complicated. I am yet to obtain the answer.
3. Since I took over this matter on 24/05/2023, I have tried to fast-track it as I have on several occasions set it down for viva voce trial for canvassing of all arising matters once and for all but at every turn, as if in some co-ordinated musical orchestra routine, some Application crops up which strangely, all the parties seem very eager to canvass instead of pushing for the viva voce trial. The worst part is that these Applications do nothing significant rather that stalling or delaying the progress of the matter. The irony is that despite all these, everybody out there will, as usual, instead, be heard blaming the Court for delays in resolving Court cases.
4. Back to the matter at hand, it has had a chequered history as shall be demonstrated by the chronology of events captured herein.
5. The deceased, Paul Kipsilgich Koech died on 3/09/2018 at the age of 49 years. 3 years later on 3/08/2021, his widow, Zipporah Jepkemoi Koech and son, Victor Kipruto Silgich, respectively, through Messrs R. M. Wafula & Co. Advocates, petitioned the Court for Grant of Letters of Administration Intestate in respect to the estate. They listed about 16 parcels of land and one motor vehicle as comprising the estate. The Grant of Letters of Administration was then issued to the two Petitioners on 20/12/2021 as joint Administrators,
6. However, by the Summons of Revocation dated 25/02/2022 and filed through Messrs Oundu Associates Advocates, one Fredrick Maina Koech, a brother of the deceased, challenged the Petition claiming, inter alia, that the Petitioners failed to disclose to the Court that some of the properties listed in the Petition were being held by the deceased in trust for their larger family.
7. Another Summons of Revocation dated 11/10/2022 was filed by one Mercy Jelagat Silgich, through Messrs Odhiambo Paul Xistus & Co. Advocates. It challenged the Petition on grounds, inter alia, that the Petitioners failed to disclose to the Court that the deceased had recognized the Applicant as her daughter, and assumed parental responsibility over her, and that she was thus being maintained by the deceased prior to his death.
8. Yet another Summons for Revocation dated 22/11/2022 was filed by a sister of the deceased, one Christine Jepkemoi Kiptui, acting in person. She, too, challenged the Petition on the ground that the Petitioners failed to disclose to the Court that some of the properties listed in the Petition were being held by the deceased in trust for their larger family.
9. I note that sometime around this period, the widow of the deceased, the said Zipporah Jepkemoi Koech, the co-Administrator of the estate, died thus leaving her son, the said Victor Kipruto Silgich, as the sole Administrator.
10. I also note that by the consent order recorded in Court on 4/10/2023, a DNA test was agreed and directed to be conducted in respect to a minor, one Maxwel Gitonga, said to be a son of one Susan Gatwiri, to ascertain whether he was sired by the deceased. I however note that the said minor had been recognized as such by the Petitioners as they had listed him in the Petition as being one of the sons of the deceased, which fact however the Petitioners seem to later disowned. This might explain the recording of the consent order for conducting of the DNA test, whose implementation and fate however remains unclear to me and seems to have been abandoned.
11. The matter was then referred to Court Annexed Mediation which culminated into the Partial Mediation Settlement Agreement said to be dated 6/12/2022, which was then adopted by the Court vide the Order dated 13/12/2022. By the Agreement, the mode of distributing the estate was agreed upon but the issue of who was to be appointed as Administrator was remitted back to the Court for determination. This issue was then resolved by Hon. Justice Nyakundi when on 14/04/2023, he appointed June Jerobon Silgich as an additional Administrator to her brother, the said Victor Kipruto Silgich such as to make the two joint Administrators of the estate. A fresh Grant of Letters of Administration bearing that date was therefore issued.
12. However, by the Notice of Motion dated 28/04/2023, the said Christine Jepkemoi Kiptui, filed an Application claiming that she was not party to the Mediation Settlement Agreement. She did not however seem to have included a prayer seeking the setting aside or variation of the Settlement Agreement. The fate of this Application remains unclear.
13. The said Mercy Jelagat Silgich, by the Notice of Motion dated 26/04/2023, through Messrs Odhiambo Paul Xistus & Co. Advocates, also, separately, sought the setting aside the Mediation Settlement Agreement. The Application also had a prayer seeking the recusal of Hon. Justice R. Nyakundi from the matter. The fate of this Application, too remains unclear.
14. I also note that by the Notice of Appointment dated 22/05/2023, Messrs Oundu & Associates Advocates then took over conduct of the said Christine Jepkemoi Kiptui’s case, in addition to being on record for Fredrick Maina Koech. However, by the subsequent Notice of Change dated 6/11/2023, Messrs Oundu & Associates was itself replaced by Messes Terer & Co. as Advocates for Fredrick Maina Koech. By the Consent dated the following day, 7/11/2023, and the Notice of the same date, filed through the new Advocates, Messes Terer & Co., the Summons for Revocation filed by Fredrick Maina Koech was then withdrawn.
15. Back to the Application now before the Court for determination, the Notice of Motion dated 11/11/2024, filed through Messrs KOMM Advocates, the same is filed by the said Susan Gatwiri Ndugui, in her capacity as the mother and next friend of her son, Maxwell Gitonga Kipkurgoi Koech (minor), on whose behalf the Application is said to be filed. It seeks orders as follows:
i) [……..] spent
ii) [……..] spent
iii) That while pending the hearing and determination of this Succession Cause, an order of temporary injunction do issue restraining the Petitioners, either by themselves, their agents, servants and or employees, from howsoever trespassing onto, convening, alienating, destroying property and all developments thereon, or in any other way interfering with a portion of land Title Number Soy Kipsomba Block 11/274 measuring 15 acres wherein the Applicant and her son reside and utilize, without the Applicant permission.
iv) That in the alternative and without prejudice to prayer 3 above, this Honourable court be pleased to issue an Order of maintenance of the initial status quo, pending the hearing and final determination of this Succession Cause,
v) That this Honourable court be pleased to direct the Officer Commanding Police Station, Kipsomba, to ensure compliance with the orders herein.
vi) That the Costs of this Application be borne by the Petitioners.
16. The Application is supported by the Affidavit sworn by the said Susan Gatwiri Ndugui, in which she reiterated that she is the mother of the said minor, who is a biological son of the deceased, and thus one of the beneficiaries of his estate She deponed that on 9/11/2024 at around 7.30 am, the Administrators trespassed onto a portion of the said parcel of land, where she resides with her said son (the minor), with a view to constructively disinheriting the minor of the land that the family had granted him through previous family meetings. She deponed that with the help of 3rd parties, the Administrators deliberately and without lawful justification, constructed a semi-permanent house on a portion of the land. She deponed further that she reported the matter at the Kipsomba Police Station, and that it was through the intervention of the police that she was able to access the land, that however, the Administrators continued with the construction on the next day and continued to plough the land. She urged that the actions are in direct contravention of her and her son's rights under Articles 3, 27 and 40 of the Constitution of Kenya, and also Section 82 of the Law of Succession Act.
17. I note that in the pleadings herein, the Applicant has been referred to as the 3rd Objector. I am however reluctant to refer to her as such, at this stage, since I have not come across any formal Objection of any kind filed by her so far. Needless to state, that does not in any way, in my view, bar her from filing the instant Application.
Replying Affidavits
18. The Administrators, in opposition to the Application, swore separate Replying Affidavits, both filed through their Advocates, Messrs R.M. Wafula & Co. The one sworn by the 1st Administrator, June Jerobon Silgich, on 13/11/2024 is however the main Affidavit as the one sworn by the 2nd Administrator, Victor Kipruto Silgich, simply adopts and supports the contents of the former.
19. In her Affidavit, the 1st Administrator deponed that the Applicant’s Affidavit is full of falsehoods and non-disclosure. She deponed that at no time did the deceased marry the Applicant or sire a child with her, and that the two other names “Kipkurgoi Silgich” added to the minor’s name have been introduced by the mother to mislead the Court, and that the minor is not a biological son of the deceased nor a beneficiary. He exhibited a Certificate of Birth said to be for the minor, to buttress this fact and termed the version exhibited by the Applicant a forgery and if genuine, was obtained when this Cause was already in Court. He then referred to the Affidavit sworn by their late mother, Zipporah Jepkemoi Koech, on 2/03/2022, which is on record, and wherein she denied the linkage of the deceased to the minor’s paternity. He deponed that like their mother, the Administrators, too, demand for a DNA test. He also referred to the statement made by their mother in her said Affidavit that the minor’s name found its way into this Cause through pressure/force from their extended family and local administration.
20. He added that the Applicant was married by a Kenya Defence Force (KDF) Officer, and which marriage subsists to date, and he exhibited a photograph said to be taken at the wedding, and in which their late mother and the deceased were the best couple. He also referred to the consent order recorded herein on 4/10/2023 to the effect that the minor be subjected to a DNA test and in respect whereof the body of the deceased was to be exhumed, and deponed that after the consent was recorded, the Applicant vowed not to allow blood sample to be extracted from the minor hence the whole exercise was frustrated and the order set aside. According to him, the Applicant has been intermeddling with the estate and her acts of impunity should now be stopped. He deponed further that that subject parcel of land, Title Soy Kipsomba Block 11/274 is approximately 80 acres, and not 15 acres, as alleged by the Applicant, and that their grandmother (the mother of the deceased), the Administrators’ siblings, and their paternal uncle all live on the said land. He therefore denied the Applicant’s claim that the Administrators had only targeted a small portion of the land, and reiterated that the Applicant and the minor are not entitled to any portion thereof.
21. He also downplayed the “family “resolutions exhibited by the Applicant and urged that only the Court can distribute the estate, and that if the family distributed the estate as alleged, then that was act of intermeddling with the estate. He also deponed that the Applicant and the minor no longer reside in the land and also denied the allegation that they used violence against the Applicant and the minor. He alleged further, that the Applicant is the Director of Human Resource at the Uasin Gishu County and that she has been using that office, the local administration and the police to intimidate the Administrators. He then gave instances when these acts of intimidation allegedly occurred and claimed that the Applicant had threatened to kill them and their workers, and that therefore their lives are in danger. He claimed further that by the time that they were served with the Court order granting interim orders of injunction, they had already constructed the structure the Applicant is complaining about. He urged further that since they have been on the land and have made developments, the Applicant is wrong to apply for orders that the Administrators be restrained, and that if the Applicant wanted them to be evicted, then she ought to have sought an order of mandatory injunction. In conclusion, he deponed that the Applicant has not given an undertaking as regards damages, and also that she has not satisfied the legal prerequisites for granting of the orders sought.
Further Affidavit
22. The Applicant then filed the Further Supporting Affidavit sworn on 18/02/2025 and filed through Messrs Tum & Associates Advocates, which had by the Notice of Change dated 12/02/2025, now replaced the firm of KOMM Advocates as the law firm on record for the Applicant.
23. In the Affidavit, the Applicant deponed that the parties had agreed that the minor is a beneficiary of the estate herein and is entitled to a portion measuring 15 acres in the said parcel number Soy/Kipsomba Block 11(Kipsomba) 274, 1 acre in parcel number Pioneer/Ngeria Block 1(EATEC) /819, and 1/8 acre in parcel number Nakuru Municipality Block 4/233. She urged that the beneficiaries agreed on the said mode of distribution during Mediation and which agreement was adopted by the Court on 13/12/2022. She also reiterated that she has been utilizing the 12 acres portion of the parcel number Soy/Kipsomba Block 11(Kipsomba) 274, and has been cultivating the same to provide for the minor (her son). She reiterated that the Administrators have invaded the portion of land and evicted her and cultivated the same, felled down trees and destroyed properties thereon. She pointed out that the Court had issued an order of injunction restraining the Administrators from trespassing thereto, which orders the Petitioners were well informed of, and were also served. According to her, the Administrators ought to be held in contempt of the Court order issued on 12/11/2024.
Hearing of the Application
24. The parties then filed written Submissions on the Application. The Applicant, through Messrs Tum & Associates, filed the Submissions dated 21/02/2025, while the Administrators, through Messrs R.M Wafula & Co. Advocates, filed the Submissions dated 24/03/2025.
Applicant’s Submissions
25. Counsel for the Applicant, after reciting the background of the matter and reiterating the matters already deponed in the Supporting Affidavit, urged that the Administrators have been going on with construction in the subject land and that despite directions and orders made by the Court on 12/11/2024, they have evicted the Applicant and her son. According to her, the evidence adduced shows a prima facie case that indeed the parcel of land has been ploughed and construction of a house is ongoing and, there is no indication that the Administrators have any authority to plough or deal with the property. She cited the case of Floris Pierro & another v Giancarlo Falasconi (As the Administrator of the Estate of Santuzza Billioti alias Mei Santuzza) (2014) eKLR. She submitted further that the bundle of photographs exhibited is enough proof that the Administrators have invaded the 15 acres portion of the land, and which portion was allocated to the minor in accordance with the consent order adopted on 13/12/2022.
26. Counsel also referred to the case of Giella v. Cassman Brown and Company Ltd EA 348, and also the case of Mrao Ltd V First American Bank of Kenya Limited and 2 others (2003) eKLR. According to her, a prima facie case is easily discernible from the pleadings as they show that a right exists which may be infringed if an injunction is not issued, and she reiterated that the Administrators have never been in possession of the said portion. On “irreparable damage”, she cited the case of In Re Estate of Domenico De Masi (deceased) (2020) KEHC 4712(KLR), and on “balance of convenience”, she cited the case of Re Estate of Magdalene Kabon Sawe (deceased) (Succession Cause No. E034 of 2023) (2024) KEHC 9228 (KLR) (31 July 2024) (Ruling). She then urged that the “balance of convenience” tilts in favour of granting the orders of injunction.
Respondents’ Submissions
27. Counsel for the Respondent, in his lengthy Submissions, after reciting the background of the case, reiterated that the Applicant has frustrated implementation of the consent order requiring the minor to be subjected to a DNA test, and as such the paternity of the minor remains unproven. He also submitted that the Applicant claims to have entered the land after the death of the deceased and termed this an admission of intermeddling with the estate.
28. He also wondered how the Administrators can be restrained from accessing their own home. Counsel also urged that the Applicant is improperly before Court for lack of locus standi. He cited the definition contained in the Blacks’ Law Dictionary, and also the case of In re Estate of Edward Ngangira Wamagata (Deceased) [20241 KEHC 6312 (KLR). He also cited the provisions of Section 29(a) of the Law of Succession Act and restated that it defines a “dependent” to include the wife or wives, of former wife or wives, and the children of the deceased. He reiterated the fact that the minor’s Certificate of Birth relied on by the Applicant was issued on 3/02/2023 when this Cause had already been filed. He also reiterated the contents of the different but earlier issued version of the same minor’s Certificate of Birth exhibited by the Administrators, bearing a different serial number and details, and dated 4/11/2011, even before the deceased passed on. Counsel therefore submitted that even assuming that the minor was indeed a biological son of the deceased, still, the Applicant (his guardian) has not moved the Court in the prescribed way in order to obtain audience.
29. According to him, locus standi as regards the estate of a deceased is only obtained via a Grant of Letters of Administration. He cited the case of Isaya Masira Momanyi -vs- Daniel Omwoyo & Another (2017) eKLR. He then revisited the issue of the Applicant not filing an Objection and submitted that the Applicant ought to have objected to the making of a Grant in favour of the Administrators as prescribed in Rule 17 of the Probate and Administration Rules. He cited the case of In re Estate of Johnstone Ochwang’i Moronge (Deceased) [2022] KEHC 1159 (KLR). He also contended that even after expiration of the period prescribed, a party may still apply for Revocation under Section 76 of the Law of Succession Act. He also cited Rule 44 of the Probate and Administration Rules. On the issue of locus standi, he also cited the case of In re Estate of the Late Charles Mutinda Ngeene (Deceased) [2024] KEHC 2344 (KLR). Counsel also faulted the Applicant for moving the Court by way of Notice of Motion, for which he cited the case of In re Estate of Njeru Ngariko (Deceased) [2020] KEHC 3500 (KLR), and submitted that the Application is defective by reason thereof.
30. On grant of injunctions, Counsel appreciated that this Court has the necessary powers to so grant under Section 47 of the Law of Succession Act, and also Rule 73 of the Probate and Administration Rules. He then cited the case of Giella vs. Cassman Brown & Co. Ltd [1973] EA 358, the case of Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR, and also the case of Mrao Ltd vs First American Bank of Kenya & 2 Others (2003) KLR, and restated the applicable principles.
31. He urged that in this case, the minutes of the meetings that the Applicant relies on was disputed by the Administrators’ late mother and the Administrators are also vigorously disputing the same, and that further, the said land parcel No. Soy Kipsomba Block 2/274 has never been sub-divided or distributed, that it measures approximately 80 acres and there has never been a demarcation of the alleged 15 acres claimed by the Applicant. According to him therefore, nobody can claim to own any portion thereof, and also, that even if the Court were to grant the orders sought, there does not exist a parcel of land in respect to which the orders will apply. He submitted that the Applicant, having threatened the Administrators, has not come to Court with clean hands. He cited the case of MN - vs - TAN & another [2015] eKLR. He also urged that he who asserts must prove and for this, and for this, he cited the case of In re Estate of Maria Gatitu King’ori (Deceased) [2024] 1 KEHC 9872 (KLR), and also Section 107, 108 and 109 of the Evidence Act. The rest of the matters submitted are basically repetitions and duplications which I find no need to again recount.
Determination
32. The one broad issue that arises for determination in this case is “whether this Court should issue orders of injunction restraining the Administrators from interfering with the Applicant’s occupation and/or use of a portion comprising 15 acres of the property known as Soy Kipsomba Block 11/274, pending the hearing and determination of this Cause.”
33. Regarding the law, it is now agreed, as was held in the Court of Appeal case of Floris Pierro & another v Giancarlo Falasconi (as the administrator of the estate of Santuzza Billioti alias Mei Santuzza) [2014] eKLR, that a Probate Court has powers under Section 47 of the Law of Succession Act, and also Rule 73 of the Probate and Administration Rules, to grant temporary injunctions.
34. Section 47 aforesaid provides as follows:
“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.
35. On its part, 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.”
36. The principles guiding the handling of Applications for temporary injunctions are now well settled and are as was set out in the case of Giella vs. Cassman Brown & Co. Ltd [1973] EA 358, and also in American Cyanamid Co. v Ethicom Limited (1975) A AER. Following the said cases, the Court of Appeal in the case of Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR, guided 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) allay any doubts as to (b) by 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 which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between. It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.”
37. The important consideration before granting a temporary injunction is therefore proof that the property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or that the defendant threatens or intends to remove or dispose the property. The question that therefore arises is whether the present Application meets the threshold for the grant of orders of temporary injunction.
38. The Court of Appeal, in the case of Mrao Ltd v First American Bank of Kenya and 2 others, (2003) KLR 125, which it also cited with approval in its subsequent case of Moses C. Muhia Njoroge & 2 others v Jane W Lesaloi and 5 others, (2014) eKLR, defined a prima facie case as follows:
"A Prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later”.
39. Applying the above principles to the facts of this case, it is clear that the Applicant and her son, a minor, have been in occupation of the said 15 acres portion of the parcel of land in issue herein, which in aggregate measures 80 acres or thereabouts. That is clear from the pleadings. The Administrators are not denying that the Applicant was lawfully and peaceably allowed to take the possession, with full authority and knowledge of the members of the family of the deceased. The Applicant did not just drop on the said portion of land from heaven, and neither did she forcefully invade it. My understanding is that she took possession as a consequence of resolutions reached in family meetings. To this extent, her forceful removal from the land without a Court order, amounts to “rule of the jungle” and is clearly anarchist and without justification. To make it even worse, there is indication that the Administrators and their agents even went ahead and started constructing structures thereon. It is quite preposterous for the Administrators to turn around and argue that the orders sought are overtaken by events because the Applicant and her son are already out of the land and are no longer in possession, when they know very well that her being out of the land is because it is they (Administrators) who have extra-judicially forced her out in the first place,
40. It is not clear what prompted the Administrators to forcefully remove the Applicant in the course of this litigation but the history of this matter is that the Applicant claims have got a child (the minor herein) with the deceased during the latter’s lifetime, and that the child was allegedly being maintained by the deceased. It appears that this claim was accepted by the family, including the family matriarch, the widow of the deceased and mother to the Administrators, the late Zipporah Jepkemoi Koech. I say so because in the Petition which the late widow filed together with the current 2nd Petitioner, they expressly included and listed the said minor as one the sons of the deceased. It is also clear that in the family meetings, the minor was allocated some properties, one of which was the subject 15 acres portion of the land in issue herein. The parties were also referred to Court Annexed Mediation and returned with a Mediation Settlement Agreement which also recognized the minor. Although from the record, it appears that the said Agreement has been disregarded as it did not include all presumed beneficiaries, there is equally no indication that it has been set aside, or that its contents should not be considered.
41. I gather that however, sometime in the course of this matter, the family matriarch seems to have changed her mind and sought to disown the minor, including his recognition as a son of the deceased and also the allocations given to him. I note that the family matriarch now claimed that her inclusion of the minor in her list of beneficiaries was as a result of duress and pressure imposed upon her by the extended family members and the local administration. This claims, the Administrators seem to have also now embraced.
42. Similarly, the Petitioners having included the minor in the Petition and expressly named him as one of the sons of the deceased, the presumption was that the subject of the minor’s paternity was not in issue. The family matriarch, again, in the course of this litigation seems to have changed her mind about the matter. There were also the interesting claims, complete with photographs, that the Applicant was married to another man and it is the late widow and the deceased herein who were, in fact, the best couple at the wedding. Be that as it may, the parties at some point recorded a consent order whereof they agreed that the minor be subje
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2. The more I handle these Succession cases, the more I get convinced that parties and their Advocates, for some reason, are never keen to resolve these disputes but wish to keep them in Court endlessly. I have always wondered why the parties seem so averse to resolving the disputes which they have themselves brought to Court for resolution, yet some of these issues are not even complicated. I am yet to obtain the answer.
3. Since I took over this matter on 24/05/2023, I have tried to fast-track it as I have on several occasions set it down for viva voce trial for canvassing of all arising matters once and for all but at every turn, as if in some co-ordinated musical orchestra routine, some Application crops up which strangely, all the parties seem very eager to canvass instead of pushing for the viva voce trial. The worst part is that these Applications do nothing significant rather that stalling or delaying the progress of the matter. The irony is that despite all these, everybody out there will, as usual, instead, be heard blaming the Court for delays in resolving Court cases.
4. Back to the matter at hand, it has had a chequered history as shall be demonstrated by the chronology of events captured herein.
5. The deceased, Paul Kipsilgich Koech died on 3/09/2018 at the age of 49 years. 3 years later on 3/08/2021, his widow, Zipporah Jepkemoi Koech and son, Victor Kipruto Silgich, respectively, through Messrs R. M. Wafula & Co. Advocates, petitioned the Court for Grant of Letters of Administration Intestate in respect to the estate. They listed about 16 parcels of land and one motor vehicle as comprising the estate. The Grant of Letters of Administration was then issued to the two Petitioners on 20/12/2021 as joint Administrators,
6. However, by the Summons of Revocation dated 25/02/2022 and filed through Messrs Oundu Associates Advocates, one Fredrick Maina Koech, a brother of the deceased, challenged the Petition claiming, inter alia, that the Petitioners failed to disclose to the Court that some of the properties listed in the Petition were being held by the deceased in trust for their larger family.
7. Another Summons of Revocation dated 11/10/2022 was filed by one Mercy Jelagat Silgich, through Messrs Odhiambo Paul Xistus & Co. Advocates. It challenged the Petition on grounds, inter alia, that the Petitioners failed to disclose to the Court that the deceased had recognized the Applicant as her daughter, and assumed parental responsibility over her, and that she was thus being maintained by the deceased prior to his death.
8. Yet another Summons for Revocation dated 22/11/2022 was filed by a sister of the deceased, one Christine Jepkemoi Kiptui, acting in person. She, too, challenged the Petition on the ground that the Petitioners failed to disclose to the Court that some of the properties listed in the Petition were being held by the deceased in trust for their larger family.
9. I note that sometime around this period, the widow of the deceased, the said Zipporah Jepkemoi Koech, the co-Administrator of the estate, died thus leaving her son, the said Victor Kipruto Silgich, as the sole Administrator.
10. I also note that by the consent order recorded in Court on 4/10/2023, a DNA test was agreed and directed to be conducted in respect to a minor, one Maxwel Gitonga, said to be a son of one Susan Gatwiri, to ascertain whether he was sired by the deceased. I however note that the said minor had been recognized as such by the Petitioners as they had listed him in the Petition as being one of the sons of the deceased, which fact however the Petitioners seem to later disowned. This might explain the recording of the consent order for conducting of the DNA test, whose implementation and fate however remains unclear to me and seems to have been abandoned.
11. The matter was then referred to Court Annexed Mediation which culminated into the Partial Mediation Settlement Agreement said to be dated 6/12/2022, which was then adopted by the Court vide the Order dated 13/12/2022. By the Agreement, the mode of distributing the estate was agreed upon but the issue of who was to be appointed as Administrator was remitted back to the Court for determination. This issue was then resolved by Hon. Justice Nyakundi when on 14/04/2023, he appointed June Jerobon Silgich as an additional Administrator to her brother, the said Victor Kipruto Silgich such as to make the two joint Administrators of the estate. A fresh Grant of Letters of Administration bearing that date was therefore issued.
12. However, by the Notice of Motion dated 28/04/2023, the said Christine Jepkemoi Kiptui, filed an Application claiming that she was not party to the Mediation Settlement Agreement. She did not however seem to have included a prayer seeking the setting aside or variation of the Settlement Agreement. The fate of this Application remains unclear.
13. The said Mercy Jelagat Silgich, by the Notice of Motion dated 26/04/2023, through Messrs Odhiambo Paul Xistus & Co. Advocates, also, separately, sought the setting aside the Mediation Settlement Agreement. The Application also had a prayer seeking the recusal of Hon. Justice R. Nyakundi from the matter. The fate of this Application, too remains unclear.
14. I also note that by the Notice of Appointment dated 22/05/2023, Messrs Oundu & Associates Advocates then took over conduct of the said Christine Jepkemoi Kiptui’s case, in addition to being on record for Fredrick Maina Koech. However, by the subsequent Notice of Change dated 6/11/2023, Messrs Oundu & Associates was itself replaced by Messes Terer & Co. as Advocates for Fredrick Maina Koech. By the Consent dated the following day, 7/11/2023, and the Notice of the same date, filed through the new Advocates, Messes Terer & Co., the Summons for Revocation filed by Fredrick Maina Koech was then withdrawn.
15. Back to the Application now before the Court for determination, the Notice of Motion dated 11/11/2024, filed through Messrs KOMM Advocates, the same is filed by the said Susan Gatwiri Ndugui, in her capacity as the mother and next friend of her son, Maxwell Gitonga Kipkurgoi Koech (minor), on whose behalf the Application is said to be filed. It seeks orders as follows:
i) [……..] spent
ii) [……..] spent
iii) That while pending the hearing and determination of this Succession Cause, an order of temporary injunction do issue restraining the Petitioners, either by themselves, their agents, servants and or employees, from howsoever trespassing onto, convening, alienating, destroying property and all developments thereon, or in any other way interfering with a portion of land Title Number Soy Kipsomba Block 11/274 measuring 15 acres wherein the Applicant and her son reside and utilize, without the Applicant permission.
iv) That in the alternative and without prejudice to prayer 3 above, this Honourable court be pleased to issue an Order of maintenance of the initial status quo, pending the hearing and final determination of this Succession Cause,
v) That this Honourable court be pleased to direct the Officer Commanding Police Station, Kipsomba, to ensure compliance with the orders herein.
vi) That the Costs of this Application be borne by the Petitioners.
16. The Application is supported by the Affidavit sworn by the said Susan Gatwiri Ndugui, in which she reiterated that she is the mother of the said minor, who is a biological son of the deceased, and thus one of the beneficiaries of his estate She deponed that on 9/11/2024 at around 7.30 am, the Administrators trespassed onto a portion of the said parcel of land, where she resides with her said son (the minor), with a view to constructively disinheriting the minor of the land that the family had granted him through previous family meetings. She deponed that with the help of 3rd parties, the Administrators deliberately and without lawful justification, constructed a semi-permanent house on a portion of the land. She deponed further that she reported the matter at the Kipsomba Police Station, and that it was through the intervention of the police that she was able to access the land, that however, the Administrators continued with the construction on the next day and continued to plough the land. She urged that the actions are in direct contravention of her and her son's rights under Articles 3, 27 and 40 of the Constitution of Kenya, and also Section 82 of the Law of Succession Act.
17. I note that in the pleadings herein, the Applicant has been referred to as the 3rd Objector. I am however reluctant to refer to her as such, at this stage, since I have not come across any formal Objection of any kind filed by her so far. Needless to state, that does not in any way, in my view, bar her from filing the instant Application.
Replying Affidavits
18. The Administrators, in opposition to the Application, swore separate Replying Affidavits, both filed through their Advocates, Messrs R.M. Wafula & Co. The one sworn by the 1st Administrator, June Jerobon Silgich, on 13/11/2024 is however the main Affidavit as the one sworn by the 2nd Administrator, Victor Kipruto Silgich, simply adopts and supports the contents of the former.
19. In her Affidavit, the 1st Administrator deponed that the Applicant’s Affidavit is full of falsehoods and non-disclosure. She deponed that at no time did the deceased marry the Applicant or sire a child with her, and that the two other names “Kipkurgoi Silgich” added to the minor’s name have been introduced by the mother to mislead the Court, and that the minor is not a biological son of the deceased nor a beneficiary. He exhibited a Certificate of Birth said to be for the minor, to buttress this fact and termed the version exhibited by the Applicant a forgery and if genuine, was obtained when this Cause was already in Court. He then referred to the Affidavit sworn by their late mother, Zipporah Jepkemoi Koech, on 2/03/2022, which is on record, and wherein she denied the linkage of the deceased to the minor’s paternity. He deponed that like their mother, the Administrators, too, demand for a DNA test. He also referred to the statement made by their mother in her said Affidavit that the minor’s name found its way into this Cause through pressure/force from their extended family and local administration.
20. He added that the Applicant was married by a Kenya Defence Force (KDF) Officer, and which marriage subsists to date, and he exhibited a photograph said to be taken at the wedding, and in which their late mother and the deceased were the best couple. He also referred to the consent order recorded herein on 4/10/2023 to the effect that the minor be subjected to a DNA test and in respect whereof the body of the deceased was to be exhumed, and deponed that after the consent was recorded, the Applicant vowed not to allow blood sample to be extracted from the minor hence the whole exercise was frustrated and the order set aside. According to him, the Applicant has been intermeddling with the estate and her acts of impunity should now be stopped. He deponed further that that subject parcel of land, Title Soy Kipsomba Block 11/274 is approximately 80 acres, and not 15 acres, as alleged by the Applicant, and that their grandmother (the mother of the deceased), the Administrators’ siblings, and their paternal uncle all live on the said land. He therefore denied the Applicant’s claim that the Administrators had only targeted a small portion of the land, and reiterated that the Applicant and the minor are not entitled to any portion thereof.
21. He also downplayed the “family “resolutions exhibited by the Applicant and urged that only the Court can distribute the estate, and that if the family distributed the estate as alleged, then that was act of intermeddling with the estate. He also deponed that the Applicant and the minor no longer reside in the land and also denied the allegation that they used violence against the Applicant and the minor. He alleged further, that the Applicant is the Director of Human Resource at the Uasin Gishu County and that she has been using that office, the local administration and the police to intimidate the Administrators. He then gave instances when these acts of intimidation allegedly occurred and claimed that the Applicant had threatened to kill them and their workers, and that therefore their lives are in danger. He claimed further that by the time that they were served with the Court order granting interim orders of injunction, they had already constructed the structure the Applicant is complaining about. He urged further that since they have been on the land and have made developments, the Applicant is wrong to apply for orders that the Administrators be restrained, and that if the Applicant wanted them to be evicted, then she ought to have sought an order of mandatory injunction. In conclusion, he deponed that the Applicant has not given an undertaking as regards damages, and also that she has not satisfied the legal prerequisites for granting of the orders sought.
Further Affidavit
22. The Applicant then filed the Further Supporting Affidavit sworn on 18/02/2025 and filed through Messrs Tum & Associates Advocates, which had by the Notice of Change dated 12/02/2025, now replaced the firm of KOMM Advocates as the law firm on record for the Applicant.
23. In the Affidavit, the Applicant deponed that the parties had agreed that the minor is a beneficiary of the estate herein and is entitled to a portion measuring 15 acres in the said parcel number Soy/Kipsomba Block 11(Kipsomba) 274, 1 acre in parcel number Pioneer/Ngeria Block 1(EATEC) /819, and 1/8 acre in parcel number Nakuru Municipality Block 4/233. She urged that the beneficiaries agreed on the said mode of distribution during Mediation and which agreement was adopted by the Court on 13/12/2022. She also reiterated that she has been utilizing the 12 acres portion of the parcel number Soy/Kipsomba Block 11(Kipsomba) 274, and has been cultivating the same to provide for the minor (her son). She reiterated that the Administrators have invaded the portion of land and evicted her and cultivated the same, felled down trees and destroyed properties thereon. She pointed out that the Court had issued an order of injunction restraining the Administrators from trespassing thereto, which orders the Petitioners were well informed of, and were also served. According to her, the Administrators ought to be held in contempt of the Court order issued on 12/11/2024.
Hearing of the Application
24. The parties then filed written Submissions on the Application. The Applicant, through Messrs Tum & Associates, filed the Submissions dated 21/02/2025, while the Administrators, through Messrs R.M Wafula & Co. Advocates, filed the Submissions dated 24/03/2025.
Applicant’s Submissions
25. Counsel for the Applicant, after reciting the background of the matter and reiterating the matters already deponed in the Supporting Affidavit, urged that the Administrators have been going on with construction in the subject land and that despite directions and orders made by the Court on 12/11/2024, they have evicted the Applicant and her son. According to her, the evidence adduced shows a prima facie case that indeed the parcel of land has been ploughed and construction of a house is ongoing and, there is no indication that the Administrators have any authority to plough or deal with the property. She cited the case of Floris Pierro & another v Giancarlo Falasconi (As the Administrator of the Estate of Santuzza Billioti alias Mei Santuzza) (2014) eKLR. She submitted further that the bundle of photographs exhibited is enough proof that the Administrators have invaded the 15 acres portion of the land, and which portion was allocated to the minor in accordance with the consent order adopted on 13/12/2022.
26. Counsel also referred to the case of Giella v. Cassman Brown and Company Ltd EA 348, and also the case of Mrao Ltd V First American Bank of Kenya Limited and 2 others (2003) eKLR. According to her, a prima facie case is easily discernible from the pleadings as they show that a right exists which may be infringed if an injunction is not issued, and she reiterated that the Administrators have never been in possession of the said portion. On “irreparable damage”, she cited the case of In Re Estate of Domenico De Masi (deceased) (2020) KEHC 4712(KLR), and on “balance of convenience”, she cited the case of Re Estate of Magdalene Kabon Sawe (deceased) (Succession Cause No. E034 of 2023) (2024) KEHC 9228 (KLR) (31 July 2024) (Ruling). She then urged that the “balance of convenience” tilts in favour of granting the orders of injunction.
Respondents’ Submissions
27. Counsel for the Respondent, in his lengthy Submissions, after reciting the background of the case, reiterated that the Applicant has frustrated implementation of the consent order requiring the minor to be subjected to a DNA test, and as such the paternity of the minor remains unproven. He also submitted that the Applicant claims to have entered the land after the death of the deceased and termed this an admission of intermeddling with the estate.
28. He also wondered how the Administrators can be restrained from accessing their own home. Counsel also urged that the Applicant is improperly before Court for lack of locus standi. He cited the definition contained in the Blacks’ Law Dictionary, and also the case of In re Estate of Edward Ngangira Wamagata (Deceased) [20241 KEHC 6312 (KLR). He also cited the provisions of Section 29(a) of the Law of Succession Act and restated that it defines a “dependent” to include the wife or wives, of former wife or wives, and the children of the deceased. He reiterated the fact that the minor’s Certificate of Birth relied on by the Applicant was issued on 3/02/2023 when this Cause had already been filed. He also reiterated the contents of the different but earlier issued version of the same minor’s Certificate of Birth exhibited by the Administrators, bearing a different serial number and details, and dated 4/11/2011, even before the deceased passed on. Counsel therefore submitted that even assuming that the minor was indeed a biological son of the deceased, still, the Applicant (his guardian) has not moved the Court in the prescribed way in order to obtain audience.
29. According to him, locus standi as regards the estate of a deceased is only obtained via a Grant of Letters of Administration. He cited the case of Isaya Masira Momanyi -vs- Daniel Omwoyo & Another (2017) eKLR. He then revisited the issue of the Applicant not filing an Objection and submitted that the Applicant ought to have objected to the making of a Grant in favour of the Administrators as prescribed in Rule 17 of the Probate and Administration Rules. He cited the case of In re Estate of Johnstone Ochwang’i Moronge (Deceased) [2022] KEHC 1159 (KLR). He also contended that even after expiration of the period prescribed, a party may still apply for Revocation under Section 76 of the Law of Succession Act. He also cited Rule 44 of the Probate and Administration Rules. On the issue of locus standi, he also cited the case of In re Estate of the Late Charles Mutinda Ngeene (Deceased) [2024] KEHC 2344 (KLR). Counsel also faulted the Applicant for moving the Court by way of Notice of Motion, for which he cited the case of In re Estate of Njeru Ngariko (Deceased) [2020] KEHC 3500 (KLR), and submitted that the Application is defective by reason thereof.
30. On grant of injunctions, Counsel appreciated that this Court has the necessary powers to so grant under Section 47 of the Law of Succession Act, and also Rule 73 of the Probate and Administration Rules. He then cited the case of Giella vs. Cassman Brown & Co. Ltd [1973] EA 358, the case of Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR, and also the case of Mrao Ltd vs First American Bank of Kenya & 2 Others (2003) KLR, and restated the applicable principles.
31. He urged that in this case, the minutes of the meetings that the Applicant relies on was disputed by the Administrators’ late mother and the Administrators are also vigorously disputing the same, and that further, the said land parcel No. Soy Kipsomba Block 2/274 has never been sub-divided or distributed, that it measures approximately 80 acres and there has never been a demarcation of the alleged 15 acres claimed by the Applicant. According to him therefore, nobody can claim to own any portion thereof, and also, that even if the Court were to grant the orders sought, there does not exist a parcel of land in respect to which the orders will apply. He submitted that the Applicant, having threatened the Administrators, has not come to Court with clean hands. He cited the case of MN - vs - TAN & another [2015] eKLR. He also urged that he who asserts must prove and for this, and for this, he cited the case of In re Estate of Maria Gatitu King’ori (Deceased) [2024] 1 KEHC 9872 (KLR), and also Section 107, 108 and 109 of the Evidence Act. The rest of the matters submitted are basically repetitions and duplications which I find no need to again recount.
Determination
32. The one broad issue that arises for determination in this case is “whether this Court should issue orders of injunction restraining the Administrators from interfering with the Applicant’s occupation and/or use of a portion comprising 15 acres of the property known as Soy Kipsomba Block 11/274, pending the hearing and determination of this Cause.”
33. Regarding the law, it is now agreed, as was held in the Court of Appeal case of Floris Pierro & another v Giancarlo Falasconi (as the administrator of the estate of Santuzza Billioti alias Mei Santuzza) [2014] eKLR, that a Probate Court has powers under Section 47 of the Law of Succession Act, and also Rule 73 of the Probate and Administration Rules, to grant temporary injunctions.
34. Section 47 aforesaid provides as follows:
“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.
35. On its part, 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.”
36. The principles guiding the handling of Applications for temporary injunctions are now well settled and are as was set out in the case of Giella vs. Cassman Brown & Co. Ltd [1973] EA 358, and also in American Cyanamid Co. v Ethicom Limited (1975) A AER. Following the said cases, the Court of Appeal in the case of Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR, guided 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) allay any doubts as to (b) by 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 which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between. It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.”
37. The important consideration before granting a temporary injunction is therefore proof that the property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or that the defendant threatens or intends to remove or dispose the property. The question that therefore arises is whether the present Application meets the threshold for the grant of orders of temporary injunction.
38. The Court of Appeal, in the case of Mrao Ltd v First American Bank of Kenya and 2 others, (2003) KLR 125, which it also cited with approval in its subsequent case of Moses C. Muhia Njoroge & 2 others v Jane W Lesaloi and 5 others, (2014) eKLR, defined a prima facie case as follows:
"A Prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later”.
39. Applying the above principles to the facts of this case, it is clear that the Applicant and her son, a minor, have been in occupation of the said 15 acres portion of the parcel of land in issue herein, which in aggregate measures 80 acres or thereabouts. That is clear from the pleadings. The Administrators are not denying that the Applicant was lawfully and peaceably allowed to take the possession, with full authority and knowledge of the members of the family of the deceased. The Applicant did not just drop on the said portion of land from heaven, and neither did she forcefully invade it. My understanding is that she took possession as a consequence of resolutions reached in family meetings. To this extent, her forceful removal from the land without a Court order, amounts to “rule of the jungle” and is clearly anarchist and without justification. To make it even worse, there is indication that the Administrators and their agents even went ahead and started constructing structures thereon. It is quite preposterous for the Administrators to turn around and argue that the orders sought are overtaken by events because the Applicant and her son are already out of the land and are no longer in possession, when they know very well that her being out of the land is because it is they (Administrators) who have extra-judicially forced her out in the first place,
40. It is not clear what prompted the Administrators to forcefully remove the Applicant in the course of this litigation but the history of this matter is that the Applicant claims have got a child (the minor herein) with the deceased during the latter’s lifetime, and that the child was allegedly being maintained by the deceased. It appears that this claim was accepted by the family, including the family matriarch, the widow of the deceased and mother to the Administrators, the late Zipporah Jepkemoi Koech. I say so because in the Petition which the late widow filed together with the current 2nd Petitioner, they expressly included and listed the said minor as one the sons of the deceased. It is also clear that in the family meetings, the minor was allocated some properties, one of which was the subject 15 acres portion of the land in issue herein. The parties were also referred to Court Annexed Mediation and returned with a Mediation Settlement Agreement which also recognized the minor. Although from the record, it appears that the said Agreement has been disregarded as it did not include all presumed beneficiaries, there is equally no indication that it has been set aside, or that its contents should not be considered.
41. I gather that however, sometime in the course of this matter, the family matriarch seems to have changed her mind and sought to disown the minor, including his recognition as a son of the deceased and also the allocations given to him. I note that the family matriarch now claimed that her inclusion of the minor in her list of beneficiaries was as a result of duress and pressure imposed upon her by the extended family members and the local administration. This claims, the Administrators seem to have also now embraced.
42. Similarly, the Petitioners having included the minor in the Petition and expressly named him as one of the sons of the deceased, the presumption was that the subject of the minor’s paternity was not in issue. The family matriarch, again, in the course of this litigation seems to have changed her mind about the matter. There were also the interesting claims, complete with photographs, that the Applicant was married to another man and it is the late widow and the deceased herein who were, in fact, the best couple at the wedding. Be that as it may, the parties at some point recorded a consent order whereof they agreed that the minor be subje
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