RULING
1. Wilson Musembi Ndetei died on 12/5/2022. He was previously married to Agnes Mutindi Muema Ndetei. It is not disputed that there was a divorce in 2014 when the decree was issued .
2. By then, they had 4 children, date of birth - 1972, 1975, 1978, and 1981 respectively.
3. They filed citation Milimani HCFPA E 3016 /2022
4. From the pleadings these children, now all adults live out of the country Kenya.
5. The applicant/Citee Mary Nduku Musembi avers in her affidavit sworn on 4/6/2023 that she is the legal widow of John Kathuku Mulandi who she married under Kamba Customary Law. She does not say when. It is also evident from the face of it that the person she names here is not the deceased in this estate.
6. She has brought this application dated 4/6/2023 seeking a temporary injunction /other interlocutory orders to restrain the children of the deceased from accessing the property plot no. 598 Mukaange Settlement Scheme within Kibwezi Subcounty.
7. It emerges from the affidavit supporting the application that this application was provoked when the children of the deceased invaded the home of the deceased, according to the applicant, on the pretext of the visiting the grave of the deceased. She avers that the children of the deceased had vowed to hold a memorial ceremony at the home of the applicant without her consent or permission.
8. On 19/7/2023 the applicant was granted interim orders by the Hon. Maureen Odero J - and the hon Judge , noting that the property was in Makueni County transferred the matter here - where it acquired this number 16BB of 2023
9. The children of the deceased through Agnes Ndetei Kamau responded to the application – stating firstly that they did not know the said John Kathuku Mulandi the applicant averred she was married to.
10. That she had not provided any proof to show that she was the wife of their deceased father.
11. That the property in question was their home where their parents had raised them, where their father was buried - that this property was their rural home and there was no justification by the applicant to deny them access, that it was most suppressing for them that the applicant would seek to bar them and their mother from accessing their ancestral home – that they do not need permission to enter their home.
12. The record shows that the children of the deceased filed this citation on 15/9/2022 in which they cited the applicant as the “alleged wife “of their deceased father at the time of his demise.
13. They also sought prohibitions against the applicant with a view to preserve the estate.
14. On 18/10/2022 - counsel appeared before Hon. Maureen Odero J - in court - Mr. Thuku for Citors, Mr. Mutava for Citee - Mr Mutava told the court that his client was the widow of the deceased and was ready to petition for grant of letters of administration. He was granted orders to file the petition and serve upon the citors within 21 days. The matter was fixed for mention on 14th November 2022 for directions.
15. She never did. On that date she sought more time , 30 days .
16. On 27th February 2022, it was reported before DR that they were having challenges with getting a letter from the chief. 30 more days were granted. On 3rd April 2024, she sought 14 more days. On 24th April 2023, she told the court that she was waiting for the citors to provide their choice of administrator. Counsel for citors told the court he would have a nominee by COB the next day. They asked for 14 more days.
17. One can see how the matter travelled before the Deputy Registrar up to the end of 2022 and mid 2023 - when the issue of the deceased’s memorial arose and this application was filed. The matter that had begun as citation for parties to get an administrator (administrators ) for the estate of the deceased has clearly morphed into something else.
18. Issues that ought to be dealt with within the Petition are being dealt with in the citation . I have before me submissions by both the applicant and respondents addressing issue of interlocutory orders, who is beneficially entitled to the estate, who is intermeddling with the estate of the deceased all supported by numerous authorities.
19. All these are obfuscating the real issue which is, who is entitled to be the administrator of the estate of the deceased?
20. And in the same breath, whether the applicant deserves the orders sought?
21. Let us begin with the prayer for a restraining order against the citors: - it is not in dispute that the citors are the children of the deceased, and that is the home of their father who died on 12/5/2022. Hence from the record , his anniversary fell on the 12th May 2023 . It has not been demonstrated that that the Citors had a different home from the one occupied by the citee. They have stated that it is their ancestral home and was their home before their father and mother parted ways - and before their father died. The fact that their parents divorced, and the applicant became their alleged step mother does not make them persona non grata in their home.
22. If , as the applicant says, the deceased was divorced from his wife their mother in 2014, she could only have become a legal wife after 2014 making her an occupant of the home for 8 years- by then the eldest child of the deceased was 42 years old. Hence from her own averments, she cannot claim to have a higher claim to the homestead, or the grave of the deceased than the children of the deceased. Unless, she can demonstrate that was her home only, not homestead of the deceased as she found it - it would be unfair , unjust , unacceptable to deny the children who grew up in that home access - and whose father is buried there access to do as normal a thing as a memorial service of their father. This court would not grant orders restraining the citors from coming to their home or conducting a memorial service for their father, and would have expected, that instead of resisting this activity, that is a normal activity among family members
23. I note that each side accuses the other of being uncooperative in filing the petition for grant of letters of administration.
24. The applicant has not placed anything before the court to show that she is the widow of the deceased as alleged. The citors however did recognise her as the alleged wife of their father - cited her. That ought to have drawn some cooperation.
25. Be that as it may, it is my considered view the application for restraining orders is not merited in the circumstances, and the same is dismissed. The interim orders are hereby vacated .
26. In the exercise of my discretion and to bring this estate into some control I make the following orders: Within 30 days hereof;
1) The citors and the citee are directed to file a joint petition for letters of administration for this estate.
2) If that does not work either of them can file and serve the other.
3) No orders as to costs.
4) Orders accordingly.
Dated, signed and delivered virtually this 4th April 2025
Mumbua T Matheka
Judge