1. The Petitioners' Notice of Motion dated 2nd July 2026 seeks orders restraining the Respondents from preventing or interfering with the survey and subdivision of Land Parcel No. East Kitutu/Kebirichi/2354, an order directing the Officer Commanding Station (OCS), Keroka Police Station, to provide security during the survey exercise, and costs of the application.
2. The application is supported by the affidavit of 1st Petitioner, Chrisantos Ondieki Mbaka sworn on the same date. He avers that a Certificate of Confirmation of Grant was issued on 24th September 2025 and that, in implementation of the confirmed grant, the services of a land surveyor were engaged to demarcate and subdivide the estate property and facilitate its transmission to the beneficiaries. It is further stated that, after the necessary payments were made, the surveyor visited the property to undertake the exercise but was prevented from doing so by the Respondents, who frustrated the survey process.
3. The affidavit of service sworn on 20th July 2026 shows that the Respondents were personally served with the application and the Court's directions but did not file any response or submissions.
4. The issue for determination is whether the Petitioners have established a basis for the grant of the orders sought. Although the application is unopposed, that fact alone does not entitle the Petitioners to the relief sought. The burden of proving the facts relied upon remains with the party asserting them.
5. Section 107(1) of the Evidence Act, Cap. 80, Laws of Kenya, provides:
"Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist."
6. This principle has recently been reaffirmed by the Court of Appeal in Technical University of Kenya v Kuria & 20 others [2026] KECA 1383 (KLR) where the Court of Appeal emphasized that the burden of proving alleged facts remains with the party asserting them and that uncontroverted allegations, without sufficient evidence, do not automatically establish the facts pleaded.
7. The Petitioners contend that the Respondents frustrated the survey exercise and thereby impeded the implementation of the confirmed grant. While that allegation has not been controverted, the Court is nevertheless required to evaluate whether the evidence placed before it is sufficient to warrant the orders sought.
8. Having carefully considered the supporting affidavit, I find that the material presented does not establish, on a balance of probabilities, that the Respondents obstructed or otherwise interfered with the survey exercise. The Petitioners have therefore failed to discharge the burden of proof resting upon them.
9. The Court further notes that the Certificate of Confirmation of Grant was issued on 24th September 2025. Under Section 83(g) of the Law of Succession Act, personal representatives are required, within six months of confirmation of the grant, to complete the administration of the estate in respect of all matters other than continuing trusts and to produce to the Court a full and accurate account of the completed administration. More than six months have elapsed since confirmation of the grant, yet the estate has not been distributed.
10. Consequently, the Notice of Motion dated 02nd July 2026 is hereby dismissed.
11. The Petitioners shall, however, appear before this Court on 12th October 2026 to explain why the administration of the estate has not been completed in accordance with Section 83(g) of the Law of Succession Act, despite the Certificate of Confirmation of Grant having been issued on 24th September 2025, and to account for the steps taken towards the implementation of the confirmed grant.
2. The application is supported by the affidavit of 1st Petitioner, Chrisantos Ondieki Mbaka sworn on the same date. He avers that a Certificate of Confirmation of Grant was issued on 24th September 2025 and that, in implementation of the confirmed grant, the services of a land surveyor were engaged to demarcate and subdivide the estate property and facilitate its transmission to the beneficiaries. It is further stated that, after the necessary payments were made, the surveyor visited the property to undertake the exercise but was prevented from doing so by the Respondents, who frustrated the survey process.
3. The affidavit of service sworn on 20th July 2026 shows that the Respondents were personally served with the application and the Court's directions but did not file any response or submissions.
4. The issue for determination is whether the Petitioners have established a basis for the grant of the orders sought. Although the application is unopposed, that fact alone does not entitle the Petitioners to the relief sought. The burden of proving the facts relied upon remains with the party asserting them.
5. Section 107(1) of the Evidence Act, Cap. 80, Laws of Kenya, provides:
"Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist."
6. This principle has recently been reaffirmed by the Court of Appeal in Technical University of Kenya v Kuria & 20 others [2026] KECA 1383 (KLR) where the Court of Appeal emphasized that the burden of proving alleged facts remains with the party asserting them and that uncontroverted allegations, without sufficient evidence, do not automatically establish the facts pleaded.
7. The Petitioners contend that the Respondents frustrated the survey exercise and thereby impeded the implementation of the confirmed grant. While that allegation has not been controverted, the Court is nevertheless required to evaluate whether the evidence placed before it is sufficient to warrant the orders sought.
8. Having carefully considered the supporting affidavit, I find that the material presented does not establish, on a balance of probabilities, that the Respondents obstructed or otherwise interfered with the survey exercise. The Petitioners have therefore failed to discharge the burden of proof resting upon them.
9. The Court further notes that the Certificate of Confirmation of Grant was issued on 24th September 2025. Under Section 83(g) of the Law of Succession Act, personal representatives are required, within six months of confirmation of the grant, to complete the administration of the estate in respect of all matters other than continuing trusts and to produce to the Court a full and accurate account of the completed administration. More than six months have elapsed since confirmation of the grant, yet the estate has not been distributed.
10. Consequently, the Notice of Motion dated 02nd July 2026 is hereby dismissed.
11. The Petitioners shall, however, appear before this Court on 12th October 2026 to explain why the administration of the estate has not been completed in accordance with Section 83(g) of the Law of Succession Act, despite the Certificate of Confirmation of Grant having been issued on 24th September 2025, and to account for the steps taken towards the implementation of the confirmed grant.