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Background
Before the Court is the Notice of Motion dated 05 th May 2025 filed by the 1 st and 2 nd Objectors/Applicants seeking orders restraining the Petitioner/Respondent from intermeddling with the estate of the late Thomas Nyasetia Ongare , and in particular with the property known as GESIMA/SETTLEMENT SCHEME/52 , pending the hearing and determination of this cause.
The application is premised on the grounds set out therein and supported by the Supporting Affidavit of Mary Kwamboka Somoni sworn on 05 th May 2025. The Applicants aver that the Respondent has engaged in acts of intermeddling by undertaking subdivisions, fencing off portions of the estate , and allowing or undertaking the erection of structures on certain portions of the estate land. They contend that these activities were undertaken after the death of the deceased and without any lawful authority or grant of representation.
The Applicants assert that the said acts materially alter the character of the estate, place certain portions under exclusive occupation contrary to the rights of the beneficiaries, and expose the estate to fragmentation and loss before administration has even commenced. They therefore seek preservatory orders pursuant to section 45 of the Law of Succession Act.
The application is opposed through the Replying Affidavit of Felistus Moraa Ogata sworn on 17 th June 2025 . She denies all allegations of intermeddling and terms the application false, speculative, scandalous, malicious, discriminatory, and lacking evidential foundation.
The Respondent avers that she has never sold, leased, charged, mortgaged, alienated, or otherwise dealt with the estate property or any portion thereof. She challenges the Applicants to produce documentary proof of their allegations and asserts that no sale agreements, mutation forms, consents, or relevant records have been exhibited.
She further states that she has, at all times, acted lawfully and in good faith as the Petitioner under the Court’s supervision, and that the application is a veiled attempt to vilify her and frustrate the succession process. She characterizes the application as an abuse of court process and prays that it be dismissed with costs.
Submissions
The Applicants filed written submissions dated 24 th July 2025 , reiterating that the estate has undergone recent physical alterations inconsistent with preservation obligations under section 45. The Respondent elected to rely on her Replying Affidavit sworn on 17 th June 2025.
Issues for Determination
I have considered the application in light of the replying affidavit and the submissions filed by the Applicants. The issues arising for determination are:
Whether the Applicants have demonstrated that the Respondent has intermeddled with the estate property within the meaning of section 45 of the Law of Succession Act
Whether the preservatory orders sought should issue.
Analysis and Determination
Whether the Respondent has engaged in intermeddling
Section 45(1) of the Law of Succession Act prohibits any person from, inter alia, taking possession, disposing of, or intermeddling with the free property of a deceased person except under authority of the Act or a grant of representation. The purpose of the section is to preserve the estate pending formal administration.
The Applicants’ complaint centres on physical changes to the estate land, including subdivisions, fencing, and the erection of structures. These are, by nature, tangible and verifiable acts which, if undertaken without a grant, constitute classic examples of intermeddling.
The Respondent has issued a blanket denial and states that the Applicants have produced no documentary proof. However, the Applicants’ case concerns on-the-ground activities , not paper transactions. Subdivisions, fencing, and the construction of structures do not arise spontaneously; they require initiative, resources, and access to the land.
At this interlocutory stage, the Court is not tasked with making a definitive finding on who undertook the works. The applicable threshold is whether the Applicants have demonstrated a reasonable apprehension of ongoing or potential intermeddling, warranting intervention to preserve the estate.
The Respondent is the Petitioner , the only party who has initiated the succession process, and the person presently exercising practical control and proximity to the estate. She has not identified any third party responsible for the alleged activities, nor has she provided any counter-evidence—such as dated photographs, reports, or documentation to show that the developments predated the death of the deceased or were lawfully undertaken.
Where physical alterations occur on estate land and the Respondent, who is the principal party in control, offers only a bare denial, the Court is legally entitled to draw the inference that the person with access, opportunity, and control is either responsible for the acts or has allowed them to occur. Either scenario constitutes intermeddling within the meaning of section 45.
The Court’s obligation under section 45 is preventive . Once it is shown that the estate is at risk of alteration, fragmentation, or alienation, the Court must intervene to preserve it. Even where responsibility is contested, the overriding consideration is the protection of the estate pending full hearing.
On the material before the Court, I am persuaded that the Applicants have established a prima facie case of potential intermeddling , and the Respondent’s denial, unsupported by counter-evidence, does not displace the need for preservatory intervention.
Disposition
In the result, the Notice of Motion dated 05 th May 2025 is meritorious . I accordingly make the following orders: A preservatory order is hereby issued restraining the Petitioner/Respondent, her agents, servants, or any other persons acting under her authority from subdividing, fencing, constructing upon, selling, transferring, charging, leasing, or in any other manner dealing with GESIMA/SETTLEMENT SCHEME/52, or any alleged subdivisions thereof, pending the hearing and determination of this succession cause.
The parties shall maintain the status quo as at the date of this ruling with respect to occupation, use, boundaries, and any structures on the property.
The Respondent shall not undertake or permit any further developments or alterations on the estate land without prior leave of the Court.
Mention on 18 th December 2025 to confirm filing of application for confirmation of the grant
Costs of the application shall be in the cause .
Orders accordingly.
Appearances
Court Assistant - Hilda
For Applicants/Objectors - Mr. Miruka for Enock Anyona Miruka & Company Advocates
For Petitioner/Respondent – Mr. Akiro for Akiro & Associates Advocates
For Respondent - Ms.Oloo for Ochoki & Co. Advocates
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Background
Before the Court is the Notice of Motion dated 05 th May 2025 filed by the 1 st and 2 nd Objectors/Applicants seeking orders restraining the Petitioner/Respondent from intermeddling with the estate of the late Thomas Nyasetia Ongare , and in particular with the property known as GESIMA/SETTLEMENT SCHEME/52 , pending the hearing and determination of this cause.
The application is premised on the grounds set out therein and supported by the Supporting Affidavit of Mary Kwamboka Somoni sworn on 05 th May 2025. The Applicants aver that the Respondent has engaged in acts of intermeddling by undertaking subdivisions, fencing off portions of the estate , and allowing or undertaking the erection of structures on certain portions of the estate land. They contend that these activities were undertaken after the death of the deceased and without any lawful authority or grant of representation.
The Applicants assert that the said acts materially alter the character of the estate, place certain portions under exclusive occupation contrary to the rights of the beneficiaries, and expose the estate to fragmentation and loss before administration has even commenced. They therefore seek preservatory orders pursuant to section 45 of the Law of Succession Act.
The application is opposed through the Replying Affidavit of Felistus Moraa Ogata sworn on 17 th June 2025 . She denies all allegations of intermeddling and terms the application false, speculative, scandalous, malicious, discriminatory, and lacking evidential foundation.
The Respondent avers that she has never sold, leased, charged, mortgaged, alienated, or otherwise dealt with the estate property or any portion thereof. She challenges the Applicants to produce documentary proof of their allegations and asserts that no sale agreements, mutation forms, consents, or relevant records have been exhibited.
She further states that she has, at all times, acted lawfully and in good faith as the Petitioner under the Court’s supervision, and that the application is a veiled attempt to vilify her and frustrate the succession process. She characterizes the application as an abuse of court process and prays that it be dismissed with costs.
Submissions
The Applicants filed written submissions dated 24 th July 2025 , reiterating that the estate has undergone recent physical alterations inconsistent with preservation obligations under section 45. The Respondent elected to rely on her Replying Affidavit sworn on 17 th June 2025.
Issues for Determination
I have considered the application in light of the replying affidavit and the submissions filed by the Applicants. The issues arising for determination are:
Whether the Applicants have demonstrated that the Respondent has intermeddled with the estate property within the meaning of section 45 of the Law of Succession Act
Whether the preservatory orders sought should issue.
Analysis and Determination
Whether the Respondent has engaged in intermeddling
Section 45(1) of the Law of Succession Act prohibits any person from, inter alia, taking possession, disposing of, or intermeddling with the free property of a deceased person except under authority of the Act or a grant of representation. The purpose of the section is to preserve the estate pending formal administration.
The Applicants’ complaint centres on physical changes to the estate land, including subdivisions, fencing, and the erection of structures. These are, by nature, tangible and verifiable acts which, if undertaken without a grant, constitute classic examples of intermeddling.
The Respondent has issued a blanket denial and states that the Applicants have produced no documentary proof. However, the Applicants’ case concerns on-the-ground activities , not paper transactions. Subdivisions, fencing, and the construction of structures do not arise spontaneously; they require initiative, resources, and access to the land.
At this interlocutory stage, the Court is not tasked with making a definitive finding on who undertook the works. The applicable threshold is whether the Applicants have demonstrated a reasonable apprehension of ongoing or potential intermeddling, warranting intervention to preserve the estate.
The Respondent is the Petitioner , the only party who has initiated the succession process, and the person presently exercising practical control and proximity to the estate. She has not identified any third party responsible for the alleged activities, nor has she provided any counter-evidence—such as dated photographs, reports, or documentation to show that the developments predated the death of the deceased or were lawfully undertaken.
Where physical alterations occur on estate land and the Respondent, who is the principal party in control, offers only a bare denial, the Court is legally entitled to draw the inference that the person with access, opportunity, and control is either responsible for the acts or has allowed them to occur. Either scenario constitutes intermeddling within the meaning of section 45.
The Court’s obligation under section 45 is preventive . Once it is shown that the estate is at risk of alteration, fragmentation, or alienation, the Court must intervene to preserve it. Even where responsibility is contested, the overriding consideration is the protection of the estate pending full hearing.
On the material before the Court, I am persuaded that the Applicants have established a prima facie case of potential intermeddling , and the Respondent’s denial, unsupported by counter-evidence, does not displace the need for preservatory intervention.
Disposition
In the result, the Notice of Motion dated 05 th May 2025 is meritorious . I accordingly make the following orders: A preservatory order is hereby issued restraining the Petitioner/Respondent, her agents, servants, or any other persons acting under her authority from subdividing, fencing, constructing upon, selling, transferring, charging, leasing, or in any other manner dealing with GESIMA/SETTLEMENT SCHEME/52, or any alleged subdivisions thereof, pending the hearing and determination of this succession cause.
The parties shall maintain the status quo as at the date of this ruling with respect to occupation, use, boundaries, and any structures on the property.
The Respondent shall not undertake or permit any further developments or alterations on the estate land without prior leave of the Court.
Mention on 18 th December 2025 to confirm filing of application for confirmation of the grant
Costs of the application shall be in the cause .
Orders accordingly.
Appearances
Court Assistant - Hilda
For Applicants/Objectors - Mr. Miruka for Enock Anyona Miruka & Company Advocates
For Petitioner/Respondent – Mr. Akiro for Akiro & Associates Advocates
For Respondent - Ms.Oloo for Ochoki & Co. Advocates
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