'Introduction
1. Before me is the Applicants’ Chamber Summons filed under a Certificate of Urgency of even date and supported by the Supporting Affidavit of Robert Liston Omari Otieno sworn contemporaneously.
2. The Application seeks, inter alia, preservatory and injunctive relief in respect of the parcel known as Ekerubo Settlement Scheme/33. Specifically, the Applicants pray for the following orders:
1) That the Respondents, whether by themselves, their servants or agents, be restrained from excavating, removing rocks, removing soil, harvesting trees, or in any manner altering, damaging or interfering with the estate property known as Ekerubo Settlement Scheme/33 pending the hearing and determination of this cause.
2) That an order of preservation do issue to secure the said parcel from further alteration or degradation until the Court finally determines the succession proceedings.
3) That the OCS or any other relevant law enforcement officer do ensure compliance with any orders of this Court issued in respect of the said property.
4) That the costs of the Application be provided for.
3. In support of the Application, the Applicants rely primarily on the Supporting Affidavit of Robert Liston Omari Otieno sworn on 14th July 2025, in which he sets out the factual basis of the complaint and refers to the photographic evidence said to depict active and substantial excavation on the estate land.
4. The Applicants also rely on the Affidavit of Japher Otieno Omari sworn on the same date in his capacity as a co-administrator and beneficiary, which corroborates the circumstances giving rise to the Application.
5. In addition, counsel for the Applicants amplified these evidential assertions through the written submissions dated 22nd September 2025, wherein the legal foundation for the relief sought is articulated.
6. Opposing the application, the 1st Respondent, Josephat Momanyi, filed a Replying Affidavit sworn on 23rd September 2025 and an Amended Replying Affidavit sworn on even date. The 1st Respondent contends that the activities complained of were limited and confined to removing rocks on a portion of the land which he describes as “rocky and not easily exploitable for farming,” and that the area in question is “less than 1/8 of an acre.” The Respondents’ legal arguments are contained in his written submissions dated 17th November 2025.
7. I have carefully considered the above pleadings, all affidavits on record, the photographs referred to in the Supporting Affidavit, the rival submissions, and the applicable law. I have also borne in mind the overall purpose of succession proceedings namely, the preservation and orderly distribution of estate property under section 45 of the Law of Succession Act.
Issues for Determination
8. From the totality of the pleadings, affidavit evidence, and the authorities cited by both parties including Giella v Cassman Brown, Esso Kenya Ltd v Mark Makwata Okiya, Dr. Simon Waiharo Chege v Paramount Bank, Re Estate of Reuben Mutuku Kiva and Re Estate of Grace Nyambura Kairu the issues that fall for determination may be framed as follows.
1) Whether the Applicants have established a prima facie case with a probability of success
2) Whether the Applicants have demonstrated that they stand to suffer irreparable harm if the orders sought are not granted
3) Where the balance of convenience lies
4) Whether any equitable considerations should guide or limit the Court’s discretion at this interlocutory stage.
Analysis and Determination
1) Whether a prima facie case has been established
9. A prima facie case, as articulated in Giella v Cassman Brown (supra), requires more than an arguable claim. The Applicants must show a right requiring protection, supported by material that demonstrates a real, not speculative threat of violation.
10. The Applicants assert that the 1st Respondents has unlawfully undertaken mechanical excavation on estate land. The Supporting Affidavit sworn on 14th July 2025 refers to photographs showing a large excavator, deep cuts, disturbed topsoil, displaced boulders and what appears to be extensive mechanical earth removal. The Applicants submit that such activities amount to intermeddling prohibited under section 45 of the Law of Succession Act.
11. The 1st Respondent, in both his Replying Affidavit and his Amended Replying Affidavit sworn on 23rd September 2025, offers the explanation that the portion worked on is “rocky and not easily exploitable for farming,” that the purpose of the activity was “to remove the rocks,” and that the area affected is “less than 1/8 of an acre.”
12. Having weighed these explanations against the photographic material referred to in the Supporting Affidavit, the Court finds a marked inconsistency. The explanation of limited removal of rocks to enable cultivation does not reasonably align with the scale and depth of earth disturbance shown in the photographs. The visual evidence referred to by the Applicants suggests significant, mechanical excavation, an activity far more extensive than the Respondent’s description of minor agricultural preparation.
13. The mechanical nature of the works evidenced by the presence of heavy machinery together with the visible extent of ground alteration, is incompatible with the modest description offered in the Respondents’ affidavits.
14. The Court is therefore persuaded that a prima facie case of intermeddling has been made out, consistent with the protective principles enunciated in Re Estate of Reuben Mutuku Kiva (supra) and Re Estate of Grace Nyambura Kairu (supra) (supra).
2) Whether irreparable harm has been demonstrated
15. Under the second limb of Giella v Cassman Brown (supra), harm is irreparable when it cannot be adequately remedied by damages. In Dr. Simon Waiharo Chege v Paramount Bank (supra), the Court emphasised that irreversible or non-pecuniary damage meets the threshold.
16. What is depicted in the photographs referred to in the Supporting Affidavit is not superficial disturbance but substantial excavation involving the removal of earth and rocks and alteration of the land’s natural features. Such disturbance may permanently change the estate’s topography and diminish its utility and value. Even if quantifiable, monetary compensation would not restore the land to its earlier condition.
17. The Court is therefore satisfied, guided also by Esso Kenya Ltd v Mark Makwata Okiya (supra), that the nature of the harm demonstrated is irreparable.
3) Where the balance of convenience lies
18. Where the Court retains doubt, the balance of convenience assists. In considering the balance of convenience, the Court is guided by the imperative of preserving the status quo, for in succession matters the Court must guard against any act capable of prejudicing, diminishing or compromising the integrity of the estate before its rights and entitlements are finally ascertained at confirmation.
19. The Court has also considered the allegations levelled by the 1st Respondent against the 2nd Applicant, namely that he harvested trees from the estate, collected rent from a shop on the property without accounting, and is allegedly facing a criminal charge related to forgery. These averments are wholly unsubstantiated. In the absence of credible evidential support, the allegations remain bare assertions of no probative value.
20. Even if, for argument’s sake, the allegations against the 2nd Applicant carried any weight, they would still not justify the continuation of mechanical excavation or alteration of estate land. Equity does not permit one alleged wrongdoing to be used as a licence for another. The primary obligation of the Court at this interlocutory stage is the preservation of the estate property, and considerations of justice and equity firmly favour restraint.
Disposition
21. From the foregoing analysis, the Petitioners’/Applicants’ Chamber Summons dated 14t July 2025 is allowed to the extent necessary to preserve the estate pending determination of the substantive succession proceedings and it is hereby ordered:
1) A composite order of status quo and preservation is hereby issued in respect of Ekerubo Settlement Scheme/33.
2) Status quo means that no party shall excavate, operate machinery, remove soil or rocks, harvest trees, clear vegetation, construct, sell or remove materials, or otherwise alter or interfere with the physical condition or integrity of the estate property until further orders of the Court.
3) For the avoidance of doubt, the 1st Respondent, Josephat Momanyi, together with his servants, agents, or any persons acting under his instruction or authority, is hereby specifically restrained from continuing with, resuming, or undertaking any excavation, mechanical activity, or other form of earth disturbance on the estate property until further orders of this Court.
4) Any party who violates the status quo order shall be liable to appropriate sanctions under the Court’s inherent jurisdiction and the Law of Succession Act.
5) The 1st Respondent shall bear the Applicant’s costs of this application
'
1. Before me is the Applicants’ Chamber Summons filed under a Certificate of Urgency of even date and supported by the Supporting Affidavit of Robert Liston Omari Otieno sworn contemporaneously.
2. The Application seeks, inter alia, preservatory and injunctive relief in respect of the parcel known as Ekerubo Settlement Scheme/33. Specifically, the Applicants pray for the following orders:
1) That the Respondents, whether by themselves, their servants or agents, be restrained from excavating, removing rocks, removing soil, harvesting trees, or in any manner altering, damaging or interfering with the estate property known as Ekerubo Settlement Scheme/33 pending the hearing and determination of this cause.
2) That an order of preservation do issue to secure the said parcel from further alteration or degradation until the Court finally determines the succession proceedings.
3) That the OCS or any other relevant law enforcement officer do ensure compliance with any orders of this Court issued in respect of the said property.
4) That the costs of the Application be provided for.
3. In support of the Application, the Applicants rely primarily on the Supporting Affidavit of Robert Liston Omari Otieno sworn on 14th July 2025, in which he sets out the factual basis of the complaint and refers to the photographic evidence said to depict active and substantial excavation on the estate land.
4. The Applicants also rely on the Affidavit of Japher Otieno Omari sworn on the same date in his capacity as a co-administrator and beneficiary, which corroborates the circumstances giving rise to the Application.
5. In addition, counsel for the Applicants amplified these evidential assertions through the written submissions dated 22nd September 2025, wherein the legal foundation for the relief sought is articulated.
6. Opposing the application, the 1st Respondent, Josephat Momanyi, filed a Replying Affidavit sworn on 23rd September 2025 and an Amended Replying Affidavit sworn on even date. The 1st Respondent contends that the activities complained of were limited and confined to removing rocks on a portion of the land which he describes as “rocky and not easily exploitable for farming,” and that the area in question is “less than 1/8 of an acre.” The Respondents’ legal arguments are contained in his written submissions dated 17th November 2025.
7. I have carefully considered the above pleadings, all affidavits on record, the photographs referred to in the Supporting Affidavit, the rival submissions, and the applicable law. I have also borne in mind the overall purpose of succession proceedings namely, the preservation and orderly distribution of estate property under section 45 of the Law of Succession Act.
Issues for Determination
8. From the totality of the pleadings, affidavit evidence, and the authorities cited by both parties including Giella v Cassman Brown, Esso Kenya Ltd v Mark Makwata Okiya, Dr. Simon Waiharo Chege v Paramount Bank, Re Estate of Reuben Mutuku Kiva and Re Estate of Grace Nyambura Kairu the issues that fall for determination may be framed as follows.
1) Whether the Applicants have established a prima facie case with a probability of success
2) Whether the Applicants have demonstrated that they stand to suffer irreparable harm if the orders sought are not granted
3) Where the balance of convenience lies
4) Whether any equitable considerations should guide or limit the Court’s discretion at this interlocutory stage.
Analysis and Determination
1) Whether a prima facie case has been established
9. A prima facie case, as articulated in Giella v Cassman Brown (supra), requires more than an arguable claim. The Applicants must show a right requiring protection, supported by material that demonstrates a real, not speculative threat of violation.
10. The Applicants assert that the 1st Respondents has unlawfully undertaken mechanical excavation on estate land. The Supporting Affidavit sworn on 14th July 2025 refers to photographs showing a large excavator, deep cuts, disturbed topsoil, displaced boulders and what appears to be extensive mechanical earth removal. The Applicants submit that such activities amount to intermeddling prohibited under section 45 of the Law of Succession Act.
11. The 1st Respondent, in both his Replying Affidavit and his Amended Replying Affidavit sworn on 23rd September 2025, offers the explanation that the portion worked on is “rocky and not easily exploitable for farming,” that the purpose of the activity was “to remove the rocks,” and that the area affected is “less than 1/8 of an acre.”
12. Having weighed these explanations against the photographic material referred to in the Supporting Affidavit, the Court finds a marked inconsistency. The explanation of limited removal of rocks to enable cultivation does not reasonably align with the scale and depth of earth disturbance shown in the photographs. The visual evidence referred to by the Applicants suggests significant, mechanical excavation, an activity far more extensive than the Respondent’s description of minor agricultural preparation.
13. The mechanical nature of the works evidenced by the presence of heavy machinery together with the visible extent of ground alteration, is incompatible with the modest description offered in the Respondents’ affidavits.
14. The Court is therefore persuaded that a prima facie case of intermeddling has been made out, consistent with the protective principles enunciated in Re Estate of Reuben Mutuku Kiva (supra) and Re Estate of Grace Nyambura Kairu (supra) (supra).
2) Whether irreparable harm has been demonstrated
15. Under the second limb of Giella v Cassman Brown (supra), harm is irreparable when it cannot be adequately remedied by damages. In Dr. Simon Waiharo Chege v Paramount Bank (supra), the Court emphasised that irreversible or non-pecuniary damage meets the threshold.
16. What is depicted in the photographs referred to in the Supporting Affidavit is not superficial disturbance but substantial excavation involving the removal of earth and rocks and alteration of the land’s natural features. Such disturbance may permanently change the estate’s topography and diminish its utility and value. Even if quantifiable, monetary compensation would not restore the land to its earlier condition.
17. The Court is therefore satisfied, guided also by Esso Kenya Ltd v Mark Makwata Okiya (supra), that the nature of the harm demonstrated is irreparable.
3) Where the balance of convenience lies
18. Where the Court retains doubt, the balance of convenience assists. In considering the balance of convenience, the Court is guided by the imperative of preserving the status quo, for in succession matters the Court must guard against any act capable of prejudicing, diminishing or compromising the integrity of the estate before its rights and entitlements are finally ascertained at confirmation.
19. The Court has also considered the allegations levelled by the 1st Respondent against the 2nd Applicant, namely that he harvested trees from the estate, collected rent from a shop on the property without accounting, and is allegedly facing a criminal charge related to forgery. These averments are wholly unsubstantiated. In the absence of credible evidential support, the allegations remain bare assertions of no probative value.
20. Even if, for argument’s sake, the allegations against the 2nd Applicant carried any weight, they would still not justify the continuation of mechanical excavation or alteration of estate land. Equity does not permit one alleged wrongdoing to be used as a licence for another. The primary obligation of the Court at this interlocutory stage is the preservation of the estate property, and considerations of justice and equity firmly favour restraint.
Disposition
21. From the foregoing analysis, the Petitioners’/Applicants’ Chamber Summons dated 14t July 2025 is allowed to the extent necessary to preserve the estate pending determination of the substantive succession proceedings and it is hereby ordered:
1) A composite order of status quo and preservation is hereby issued in respect of Ekerubo Settlement Scheme/33.
2) Status quo means that no party shall excavate, operate machinery, remove soil or rocks, harvest trees, clear vegetation, construct, sell or remove materials, or otherwise alter or interfere with the physical condition or integrity of the estate property until further orders of the Court.
3) For the avoidance of doubt, the 1st Respondent, Josephat Momanyi, together with his servants, agents, or any persons acting under his instruction or authority, is hereby specifically restrained from continuing with, resuming, or undertaking any excavation, mechanical activity, or other form of earth disturbance on the estate property until further orders of this Court.
4) Any party who violates the status quo order shall be liable to appropriate sanctions under the Court’s inherent jurisdiction and the Law of Succession Act.
5) The 1st Respondent shall bear the Applicant’s costs of this application
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