'
1. The Application for determination is dated 06/09/2024 and is brought under sections 1A, 1B & 3A of the Civil Procedure Act, Sections 45, 47 & 50 of the Law of Succession Act, Cap 160, Rules 49 of the Probate & Administration Rules 1980 & all other enabling provisions of the law. It seeks the following orders;
a) Spent
b) Spent
c) THAT this Honorable Court be pleased to issue an order directing the District Land Registrar - Makueni to register restrictions over land Parcels MAKUENI/UNOA/9456 up to MAKUENI/UNOA/9554 which parcels were as a result of sub-dividing Land Parcel MAKUENl/UNOA/133, pending the hearing and determination of the present appeal.
d) THAT this Honourable Court be pleased to issue an order directed to the District Land Registrar - Makueni barring them from releasing title deeds of Land Parcels MAKUENl/UNOA/9456 up to MAKUENI/UNOA/9554 to their respective beneficiaries pending the hearing and determination of the present Appeal.
e) THAT this Honourable Court be pleased to issue an order directing the District Land Registrar - Makueni and the District Surveyor ~Makueni from implementing the sub-divisions of Land Parcel MAKUENI/UNOA/133 on the ground pending the hearing and determination of this Appeal.
2. The Application was supported by the grounds on its face and the supporting affidavit of Stephen Mutinda sworn on the same date. He deponed that he is one of the administrators of the deceased’s estate hence competent to swear the affidavit, he filed this appeal contesting the appointment of Benson Maengo Kitetu & Joel Wang’uti as administrators of the deceased’s estate after the grant had been confirmed and the fact that they were appointed as administrators after confirmation of the grant even without making an application for such appointment. A copy of the memorandum of appeal is annexed as SMM-1.
3. He deponed that sometimes on 05/06/2024 after filing this appeal, he registered a restriction over land parcel Makueni/Unoa/133 and that on 03/09/2024, he was informed that the restriction had been removed and the land sub-divided without his knowledge. He annexed copies of the restriction & green card are as SMM-2 & 3 respectively. That the removal of the restriction and sub-division were done in haste and with a lot of impunity in order to defeat his appeal and deny justice to the bonafide beneficiaries of the estate.
4. He deponed further that the land has been sub-divided into about 99 parcels , most of which are to be given to purchasers he and other beneficiaries do not know yet some of the beneficiaries who have constructed their homesteads on the land have been left out. That this court has jurisdiction to hear, determine and call the acts of the District Surveyor and Land Registrar to order in order to serve justice to all the parties otherwise, some beneficiaries of the deceased’s estate will be rendered homeless and destitute.
5. He deponed that according to advice from his advocates the trial court erred in distributing the estate to the purchasers without giving priority to beneficiaries who were on the land and in amending the grant after confirmation and without an application to back the said amendment.
The Response
6. The Application was opposed through a Replying Affidavit sworn on 13/09/2024 by Benson Kitetu and a joint affidavit sworn by Muindi Kavivya and Joel Wang’uti Mwau on 18/09/2024.
7. Benson Kitetu deponed that he is one of the Respondents with authority to swear the affidavit on his own behalf and on behalf of 97 others.
8. He deponed that after succession cause No. 127 of 2018 was legally completed, the Applicant herein failed, neglected and/or refused to surrender title to LR No. Makueni/Unoa/133 registered in the name of the deceased the late Kavinya Muli, whose estate was the subject of the succession cause in question. That the Respondents moved to court vide Application dated 16/02/ 2024 praying for orders;
a) That the Honorable Court do authorize the executive officer of this Honourable Court to sign Mutation forms, Transfer forms and/or any other form in respect of LR No. Makueni/Unoa/133 registered in the names of the deceased so that the land can be transferred to the Applicant and other beneficiaries in line with the Certificate of confirmation of grant issued by this Honourable Court on 2nd November 2023.
b) That the land Registrar Makueni be and is hereby ordered to dispense with the production of the original Title Deed pertaining to LR No. Makueni/Unoa/133 before proceeding to register the Applicants and/or other beneficiaries as proprietors of the suit property in line with the Certificate of Confirmation of Grant issued by this Honourable Court on 2nd November 2023.
c) Costs of this Application be provided for
9. That the Application was allowed through a ruling of Hon. Gesora annexed as BK1 which has never been stayed although an appeal was lodged against it, and that despite the express terms of the ruling ordering the Makueni District Registrar on what to do, the Appellant /Applicant went and placed a restriction on LR Makueni Unoa/133 knowing very well that the Registrar was not obligated to place a caveat without any orders of the court that had ordered for the transfers. In the circumstances the Respondents instructed their advocates to demand for the said restriction to be removed vide the demand letter marked BK2. As a result , the Registrar invited both parties for hearing on 03/09/2024 through the summons marked BK3 but the Applicant and his advocate chose not to appear and at 10.50am, the Registrar heard the objection and held that the court decision was binding and proceeded to lift the restriction as can be seen from the green card marked BK4, and days later, the Registrar issued title deeds.
10. It is the view of his advocate that the Application herein is frivolous, vexatious, an abuse of the process of the Honourable Court; is time barred and overtaken by events as the title deeds in question have already been issued. That, the orders sought will be in vain as the actions prayed to be stopped have already been done and court orders are never issued in vain. Hence that the application should be dismissed with cots .
11. Further that the Appellant/ Applicant herein slept on this cardinal right and opportunity to seek from this court or the lower court for stay of the lower court orders and the Respondents should not be blamed for their eager will to have title deeds issued.
12. Further, he deponed that being a grandchild, the Applicant has no locus standi to file the current Application and can only claim the share of his deceased father from the estate of Kavivya Muli and cannot be heard on matters relating to the mode of distribution as his rights are secondary to those of the children and wife of the deceased. In addition, that the Applicant has come to this court contrary to the agreement and aspirations of the family as clearly demonstrated in the affidavit of Muindi Kavivya and Joel Wang’uti Mwau sworn on 18/09/2024.
13. On their part, Muindi Kavivya and Joel Wang’uti Mwau deponed that Muindi Kavivya is the only surviving son of the 1st wife of the deceased as indicated in the copy of ID marked MJ1. That, Joel Wang’uti Mwau is a grandson of the deceased from the 2nd wife’s family as indicated in the copy of ID marked MJ2. That, the Appellant is also a grandson from the 3rd wife’s family.
14. They deponed that contrary to the Appellant’s allegations, the deceased had, prior to his death, sold part of his land, Makueni/Unoa/133 to the Respondents herein and other absentee purchasers. That, they met as a family and agreed that it is only fair to have the purchasers included as creditors of the estate as per the minutes marked MJ3 & 4. That, the advice they have been given by their advocates which they verily believe to be true is that the deceased’s children and spouses are always given priority over any other person including grandchildren.
15. They deponed that as a family, they agreed on the mode of distribution as given by Hon. Gesora on 02/11/2023 (MJ5) and were very shocked when they heard that the Appellant had moved to the High Court to appeal the same despite the fact that he signed the Application for confirmation of grant (MJ6). That, the Application and Memorandum of Appeal are not only frivolous, vexatious but also an abuse of the court process because the Appellant is estopped from challenging what he participated in. That, he is taking the honorable court in circles effectively preventing the Respondents from enjoying their rights as stated in the certificate of confirmation of grant.
16. The Application was canvassed through written submissions.
Applicant’s Submissions
17. For the Applicant the issue for determination is whether the Appellant/Applicant is entitled to the orders sought.
18. Relying on section 76 of the Land Registration Act, it was submitted that the duty to place the restrictions is on the Land Registrar. That, a restriction is registered in three instances to wit; for the prevention of fraud, to curb improper dealings in land and for any sufficient cause. Further reliance was placed on the following authorities;
a) David Macharia Kinyuru -vs- District Land Registrar, Naivasha & Anor; Nakuru ELC Misc. Application No. 331 of 2016 where the court held;
“…the purpose of a restriction is aimed essentially at stemming fraud or improper dealings over land. The Land Registrar may also place a restriction where there is other sufficient cause. Restrictions are to endure for a particular time, or until the occurrence of an event, or the making of a further order. It is not the purpose of this section of the law to have restrictions remain indefinitely. The reasoning is that a restriction should only hold a property in abeyance, as the underlying issue leading to the restriction is being resolved, since a restriction by itself does not solve a dispute…”
b) Matoya -vs- Standard Chartered Bank (K) Ltd & Others (2003) E.A 140 where the court held;
“A restriction is ordered to prevent any fraud or any improper dealing with a given parcel of land and the land Registrar does this whether on his own motion or if so asked by way of an Application by the person interested in that land but before ordering the restriction, the Registrar is bound by law to make inquiries, send out notices and hear all those other people he may think fit first and he is not to move by whim, caprice or whatever influence personal or otherwise just to impose a restriction since he has a duty to inquire and be satisfied that his duty to order restriction is not hurting a person who has not heard and that indeed the restriction is in general good that fraud and other improper dealings are prevented.”
19. It was contended that the Applicant was not given a hearing before the Land Registrar prior to removal of the restriction contrary to the principle of natural justice hence the removal was unreasonable, in bad faith and intended to achieve ulterior motives despite the Land Registrar’s awareness that there was a pending appeal over the land parcel. It was submitted that courts have a duty to ensure that public power and authority are not used as tools to intimidate, harass and achieve ulterior motives not pertaining to that which the system was formed to perform.
20. It was submitted that the removal of the restriction and subsequent sub-divisions were done in haste in order to disinherit some bonafide beneficiaries of their rightful shares. That, this is a clear indication that there is fraud involved hence the need for registration of a restriction over the land parcel in order to stop the improper dealings until the appeal is heard and determined. Reliance was placed on Republic -vs- National Land Commission & Thika District Land Registrar ex-parte Esther Waringa Ndirangu & 2 Others (2014) eKLR where the court observed;
‘Therefore, there are circumstances under which the Court would be entitled to intervene even in the exercise of discretion. Whereas I appreciate the fact that the decision whether or not to register the transfer in favour of the Applicant by the Respondents is an exercise of discretion this Court is empowered to interfere with the exercise of discretion in the following situations: (1) where there is an abuse of discretion; (2) where the decision-maker exercises discretion for an improper purpose; (3) where the decision-maker is in breach of the duty to act fairly; (4) where the decision-maker has failed to exercise statutory discretion reasonably; (5) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (6) where the decision-maker fetters the discretion given; (7) where the decision-maker fails to exercise discretion; (8) where the decision-maker is irrational and unreasonable.”
21. It was submitted that the Land Registrar exercised discretion wrongly and the court should intervene in order to defeat the possible wrong distribution of the estate.
Submissions by the Respondents
22. For the Respondents these issues arose for determination:
a) Whether or not the Applicant was/is entitled to orders of injunction at the interim stage.
b) Whether or not the Applicant has established a good case to entitle him to the orders sought.
c) Who will bear the costs of the Application?
23. As to whether the Applicant was/is entitled to orders of injunction at the interim stage, it was submitted in the negative on the ground that the Applicant did not meet the threshold of Giella -vs- Cassman Brown and Co. Limited (1973 EA 358). It was submitted that the requirement for Prima facie case with a probability of success is paramount and this huddle must be crossed first before considering the second and third conditions.
24. It was submitted that court orders are never given in vain and that the injunction sought against the Makueni District Land Registrar to release or surrender title deeds emanating from Land parcel No. Makueni/Unoa/133 had already been overtaken by events since the said land Registrar had already released the said Title deeds to the Respondents rendering the Application frivolous, vexatious and an abuse of the process of the Honourable Court.
25. As to whether the Applicant is entitled to the orders sought, it was submitted that there is a well-established principle stating that he who goes to equity must do equity and equity requires an Applicant to go to it with clean hands. That the Applicant herein has not come to this court with clean hands ;from the Respondents pleadings and the two replying affidavits, the Applicant had not disclosed that he is not party to the succession cause at Makueni Chief Magistrate court as a grandson of the deceased Kavivya Muli and was only entitled to claim the inheritance entitled to his late father and not directly from the estate of the deceased , that he has no locus standi but is a busy body whose application the court ought not to entertain.
26. It was submitted that from the Respondents pleading, the Makueni Land Registrar was only obeying the court order issued on 2nd November 2024 which order is still in force as the Applicant has never applied to stay or set it aside, and the Land Registrar, Makueni Chief Magistrate Courts Executive officer/Administrator are still bound to obey the same.
27. It was submitted that this Court should never give orders that are contradictory to the orders of Makueni Chief Magistrates Court.
28. It was submitted that the Application is not only confusing but ambiguous in that he is challenging the Makueni District Registrar’s decision to lift a caution placed by him on LR Makueni/Unoa/133 as if he is appealing against the ruling of the subordinate court yet he could have challenged it through a Judicial Review. That, he has failed to disclose to this Honourable Court that he was summoned for hearing by the said Registrar before lifting the said caution when the Respondents herein raised an objection to the same before lifting the caution. That, he has also failed to disclose that after being summoned, he deliberately ignored, failed, neglected and/or refused to appear during the hearing.
29. On costs of the Application, it was submitted that this court has full discretion to determine who will bears the same, Republic of Kenya between Godfrey Musaina and The National Social Security Fund Board of Trustees and Salaries and Remuneration Commission: Nakuru High Court Petition No. E019 of 2023 was cited for the submission that costs follow the event. This court was urged to dismiss the Application and to award costs to the Respondents.
30. In their supplementary submissions dated 22/10/2025, the Respondents relied on Order 42 of the Civil Procedure Rules for the submission that an appeal does not automatically operate as a stay of execution. It was contended that the Applicant has failed to meet the threshold for grant of stay orders.
31. It was contended that the object of the Application has been frustrated as the Respondents are now holding their title deeds. That, the Application is moot and the court should decline to grant orders in vain.
32. I have carefully considered the Application, the responses and rival submissions. The issue for determination is whether the Application is merited.
33. It is important to set out the history of this to give context to the application
34. The petition for grant of letters of administration to the estate of the deceased was filed by Muindi Kavivya Muli and Stephen Mutinda Mwau (Applicant herein) wherein they described themselves as the son and grandson of the deceased respectively. The surviving beneficiaries of the estate were stated to be; Muindi Kavivya Muli (son), Joel Wang’uti Mwau (grandson) and Stephen Mutinda Mwau (grandson). The only asset of the estate was stated to be Land Parcel Makueni/Unoa/133 (the subject matter herein) and no liabilities were indicated.
35. The matter was gazetted on 26/09/2018 and a grant issued on 07/11/2018. An application for confirmation of grant was filed on 23/09/2019 and the record shows that the three beneficiaries consented to the same. The distribution clause was that; ‘The Land Parcel No. Makueni/Unoa/133 measuring approximately 32.0 acres to be registered in the names of Muindi Kavivya Muli and Stephen Mutinda Mwau to hold in trust for themselves and on behalf of the other beneficiary.’
36. The trial court record of 05/02/2020 shows that the application for confirmation dated 23/09/2019 was rejected as the trial magistrate, Hon. J. Mwaniki found that the petitioners had not onboarded all the beneficiaries. On the same date, the 2nd petitioner (Stephen Mutinda Mwau) informed court that; “The land in question is already sold to purchasers. We only want to have them get their title deeds.”
37. Through an application dated 22/08/2023, the two administrators sought to have Joel Wang’uti Mwau and Silvester Muema Kavita included as administrators of the estate and that the estate asset be distributed to beneficiaries and buyers listed in the distribution schedule. The said list has 97 individuals. The affidavit in support of the application however, listed the additional administrators to be Benson Maengo Kitetu and Joel Wang’uti Mwau. The affidavit was sworn by Muindi Kavivya Muli and Stephen Mutinda Mwau on 03/10/2023.
38. The Application for additional administrators was allowed and the grant confirmed on 02/11/2013. The addition of the purchasers in the Application for confirmation was pursuant to a meeting held on 09/05/2023 between Kavivya Muli’s Family members and Malawi Plot Owners group. The minutes show that the family members present and who executed the minutes were; Stephen Mutinda Mwau, Joel Wang’uti Mwau, Muindi Kavivya, Rose Mueni Musyoka and Jennifer Mutheu Mutisya.
39. On 12/02/2024, the purchasers/creditors of the estate (Respondent’s herein) filed an application in the trial court seeking leave to institute contempt of court proceedings against Stephen Mutinda Mwau for refusing to surrender the title deed to land parcel Makueni/Unoa/133 in order to allow for sub-division and transfer to the purchasers pursuant to the certificate of confirmation issued on 02/11/2023.
40. After an inter-partes hearing of the Application, the trial court ordered that;
“The Respondent is hereby ordered to surrender the title deed attaining to Land Parcel No. Makueni/Unoa/133 registered in the names of the deceased herein to allow the Applicant to sub-divide and transfer to the purchasers and other beneficiaries in terms of the Certificate of Confirmation of grant issued by this Honorable Court on 2nd November 2023.”
41. It appears that Stephen Mutinda Mwau defied that order as the purchasers returned to the trial court via Application dated 16/02/2024 seeking for orders that the Executive Officer of the court be authorized to sign mutation forms, transfer forms and/or any other form in respect of LR No. Makueni/Unoa/133 in order to facilitate its transfer as per the certificate of confirmation of grant. The Application also sought an order that the Land Registrar Makueni be ordered to dispense with the production of the original title deed before registering the Applicants as proprietors.
42. After inter-partes hearing of the Application, the orders prayed for were granted via a ruling delivered on 23/05/2024 thus triggering the Applicant’s move to this court.
Analysis& Determination
43. It is evident from the memorandum of appeal that there are real issues with the manner in which some persons came to be administrators of the estate and how their inclusion led to the distribution of the estate. It is also evident from the memorandum of appeal that there are issues on the distribution of the estate without the involvement of other members of the family of the deceased.
44. It is evident from the Memorandum of Appeal that the trial court did not interrogate how the name of Benson Kitetu found itself as an administrator of the estate. From the record, it is clear that the application dated 22/08/2023 contained a prayer for rectification of grant in order to include the additional administrators. These additional administrators were members of the family as can be seen from the Notice of Motion. The name Benson Kitetu appears in the supporting affidavit and ends up in the grant- yet minutes supplied indicate that he was only to be the go between for the purchasers and the family, but not an administrator of the estate of the deceased. Hence the complaint is grounded.
45. Regarding the distribution, I have looked at the Certificate of Confirmation of grant and it appears to me that no beneficiary from the family of the deceased received any share of the estate. It is not clear whether the whole estate was sold or whether there was an error on the part of the trial court not to interrogate this . In addition, it appears to me from the record that the other beneficiaries (from the family) were not present when the grant was confirmed and their views were not sought. The record shows thar the distribution of the estate was only with respect to the for the purchasers only .
46. Further, the Appellant is complaining that the trial court distributed the estate to the purchasers of the estate instead of the estate devolving to the beneficiaries for subsequent distribution to the purchasers. Ideally , where a purchaser’s interest is in dispute the purchaser will have to establish that right and then claim it as against the estate. That dispute is usually not for the P&A court but for the ELC Court. It is trite that the primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the court’s work would be complete. See re Estate of Alice Mumbua Mutua (Deceased) [2017] KEHC 8289 (KLR) to wit;
“Clearly, disputes as between the estate and third parties need not be determined within the succession cause. The legal infrastructure in place provides for resolution elsewhere, and upon a determination being made by the civil court, the decree or order is then made available to the probate court for implementation.”
47. In the circumstances of this case as set out herein above I am persuaded that the justice of this matter calls for stay of all proceedings pending the hearing and determination of the appeal.
48. The attending order is that the status quo as at 2nd November 2024 be maintained and that no further activity is to take place on the land until the matter of the all the beneficiaries and their shares is settled.
49. Orders accordingly,
Dated, signed and delivered via CTS on 5th December 2025
Mumbua T Matheka
Judge
'
1. The Application for determination is dated 06/09/2024 and is brought under sections 1A, 1B & 3A of the Civil Procedure Act, Sections 45, 47 & 50 of the Law of Succession Act, Cap 160, Rules 49 of the Probate & Administration Rules 1980 & all other enabling provisions of the law. It seeks the following orders;
a) Spent
b) Spent
c) THAT this Honorable Court be pleased to issue an order directing the District Land Registrar - Makueni to register restrictions over land Parcels MAKUENI/UNOA/9456 up to MAKUENI/UNOA/9554 which parcels were as a result of sub-dividing Land Parcel MAKUENl/UNOA/133, pending the hearing and determination of the present appeal.
d) THAT this Honourable Court be pleased to issue an order directed to the District Land Registrar - Makueni barring them from releasing title deeds of Land Parcels MAKUENl/UNOA/9456 up to MAKUENI/UNOA/9554 to their respective beneficiaries pending the hearing and determination of the present Appeal.
e) THAT this Honourable Court be pleased to issue an order directing the District Land Registrar - Makueni and the District Surveyor ~Makueni from implementing the sub-divisions of Land Parcel MAKUENI/UNOA/133 on the ground pending the hearing and determination of this Appeal.
2. The Application was supported by the grounds on its face and the supporting affidavit of Stephen Mutinda sworn on the same date. He deponed that he is one of the administrators of the deceased’s estate hence competent to swear the affidavit, he filed this appeal contesting the appointment of Benson Maengo Kitetu & Joel Wang’uti as administrators of the deceased’s estate after the grant had been confirmed and the fact that they were appointed as administrators after confirmation of the grant even without making an application for such appointment. A copy of the memorandum of appeal is annexed as SMM-1.
3. He deponed that sometimes on 05/06/2024 after filing this appeal, he registered a restriction over land parcel Makueni/Unoa/133 and that on 03/09/2024, he was informed that the restriction had been removed and the land sub-divided without his knowledge. He annexed copies of the restriction & green card are as SMM-2 & 3 respectively. That the removal of the restriction and sub-division were done in haste and with a lot of impunity in order to defeat his appeal and deny justice to the bonafide beneficiaries of the estate.
4. He deponed further that the land has been sub-divided into about 99 parcels , most of which are to be given to purchasers he and other beneficiaries do not know yet some of the beneficiaries who have constructed their homesteads on the land have been left out. That this court has jurisdiction to hear, determine and call the acts of the District Surveyor and Land Registrar to order in order to serve justice to all the parties otherwise, some beneficiaries of the deceased’s estate will be rendered homeless and destitute.
5. He deponed that according to advice from his advocates the trial court erred in distributing the estate to the purchasers without giving priority to beneficiaries who were on the land and in amending the grant after confirmation and without an application to back the said amendment.
The Response
6. The Application was opposed through a Replying Affidavit sworn on 13/09/2024 by Benson Kitetu and a joint affidavit sworn by Muindi Kavivya and Joel Wang’uti Mwau on 18/09/2024.
7. Benson Kitetu deponed that he is one of the Respondents with authority to swear the affidavit on his own behalf and on behalf of 97 others.
8. He deponed that after succession cause No. 127 of 2018 was legally completed, the Applicant herein failed, neglected and/or refused to surrender title to LR No. Makueni/Unoa/133 registered in the name of the deceased the late Kavinya Muli, whose estate was the subject of the succession cause in question. That the Respondents moved to court vide Application dated 16/02/ 2024 praying for orders;
a) That the Honorable Court do authorize the executive officer of this Honourable Court to sign Mutation forms, Transfer forms and/or any other form in respect of LR No. Makueni/Unoa/133 registered in the names of the deceased so that the land can be transferred to the Applicant and other beneficiaries in line with the Certificate of confirmation of grant issued by this Honourable Court on 2nd November 2023.
b) That the land Registrar Makueni be and is hereby ordered to dispense with the production of the original Title Deed pertaining to LR No. Makueni/Unoa/133 before proceeding to register the Applicants and/or other beneficiaries as proprietors of the suit property in line with the Certificate of Confirmation of Grant issued by this Honourable Court on 2nd November 2023.
c) Costs of this Application be provided for
9. That the Application was allowed through a ruling of Hon. Gesora annexed as BK1 which has never been stayed although an appeal was lodged against it, and that despite the express terms of the ruling ordering the Makueni District Registrar on what to do, the Appellant /Applicant went and placed a restriction on LR Makueni Unoa/133 knowing very well that the Registrar was not obligated to place a caveat without any orders of the court that had ordered for the transfers. In the circumstances the Respondents instructed their advocates to demand for the said restriction to be removed vide the demand letter marked BK2. As a result , the Registrar invited both parties for hearing on 03/09/2024 through the summons marked BK3 but the Applicant and his advocate chose not to appear and at 10.50am, the Registrar heard the objection and held that the court decision was binding and proceeded to lift the restriction as can be seen from the green card marked BK4, and days later, the Registrar issued title deeds.
10. It is the view of his advocate that the Application herein is frivolous, vexatious, an abuse of the process of the Honourable Court; is time barred and overtaken by events as the title deeds in question have already been issued. That, the orders sought will be in vain as the actions prayed to be stopped have already been done and court orders are never issued in vain. Hence that the application should be dismissed with cots .
11. Further that the Appellant/ Applicant herein slept on this cardinal right and opportunity to seek from this court or the lower court for stay of the lower court orders and the Respondents should not be blamed for their eager will to have title deeds issued.
12. Further, he deponed that being a grandchild, the Applicant has no locus standi to file the current Application and can only claim the share of his deceased father from the estate of Kavivya Muli and cannot be heard on matters relating to the mode of distribution as his rights are secondary to those of the children and wife of the deceased. In addition, that the Applicant has come to this court contrary to the agreement and aspirations of the family as clearly demonstrated in the affidavit of Muindi Kavivya and Joel Wang’uti Mwau sworn on 18/09/2024.
13. On their part, Muindi Kavivya and Joel Wang’uti Mwau deponed that Muindi Kavivya is the only surviving son of the 1st wife of the deceased as indicated in the copy of ID marked MJ1. That, Joel Wang’uti Mwau is a grandson of the deceased from the 2nd wife’s family as indicated in the copy of ID marked MJ2. That, the Appellant is also a grandson from the 3rd wife’s family.
14. They deponed that contrary to the Appellant’s allegations, the deceased had, prior to his death, sold part of his land, Makueni/Unoa/133 to the Respondents herein and other absentee purchasers. That, they met as a family and agreed that it is only fair to have the purchasers included as creditors of the estate as per the minutes marked MJ3 & 4. That, the advice they have been given by their advocates which they verily believe to be true is that the deceased’s children and spouses are always given priority over any other person including grandchildren.
15. They deponed that as a family, they agreed on the mode of distribution as given by Hon. Gesora on 02/11/2023 (MJ5) and were very shocked when they heard that the Appellant had moved to the High Court to appeal the same despite the fact that he signed the Application for confirmation of grant (MJ6). That, the Application and Memorandum of Appeal are not only frivolous, vexatious but also an abuse of the court process because the Appellant is estopped from challenging what he participated in. That, he is taking the honorable court in circles effectively preventing the Respondents from enjoying their rights as stated in the certificate of confirmation of grant.
16. The Application was canvassed through written submissions.
Applicant’s Submissions
17. For the Applicant the issue for determination is whether the Appellant/Applicant is entitled to the orders sought.
18. Relying on section 76 of the Land Registration Act, it was submitted that the duty to place the restrictions is on the Land Registrar. That, a restriction is registered in three instances to wit; for the prevention of fraud, to curb improper dealings in land and for any sufficient cause. Further reliance was placed on the following authorities;
a) David Macharia Kinyuru -vs- District Land Registrar, Naivasha & Anor; Nakuru ELC Misc. Application No. 331 of 2016 where the court held;
“…the purpose of a restriction is aimed essentially at stemming fraud or improper dealings over land. The Land Registrar may also place a restriction where there is other sufficient cause. Restrictions are to endure for a particular time, or until the occurrence of an event, or the making of a further order. It is not the purpose of this section of the law to have restrictions remain indefinitely. The reasoning is that a restriction should only hold a property in abeyance, as the underlying issue leading to the restriction is being resolved, since a restriction by itself does not solve a dispute…”
b) Matoya -vs- Standard Chartered Bank (K) Ltd & Others (2003) E.A 140 where the court held;
“A restriction is ordered to prevent any fraud or any improper dealing with a given parcel of land and the land Registrar does this whether on his own motion or if so asked by way of an Application by the person interested in that land but before ordering the restriction, the Registrar is bound by law to make inquiries, send out notices and hear all those other people he may think fit first and he is not to move by whim, caprice or whatever influence personal or otherwise just to impose a restriction since he has a duty to inquire and be satisfied that his duty to order restriction is not hurting a person who has not heard and that indeed the restriction is in general good that fraud and other improper dealings are prevented.”
19. It was contended that the Applicant was not given a hearing before the Land Registrar prior to removal of the restriction contrary to the principle of natural justice hence the removal was unreasonable, in bad faith and intended to achieve ulterior motives despite the Land Registrar’s awareness that there was a pending appeal over the land parcel. It was submitted that courts have a duty to ensure that public power and authority are not used as tools to intimidate, harass and achieve ulterior motives not pertaining to that which the system was formed to perform.
20. It was submitted that the removal of the restriction and subsequent sub-divisions were done in haste in order to disinherit some bonafide beneficiaries of their rightful shares. That, this is a clear indication that there is fraud involved hence the need for registration of a restriction over the land parcel in order to stop the improper dealings until the appeal is heard and determined. Reliance was placed on Republic -vs- National Land Commission & Thika District Land Registrar ex-parte Esther Waringa Ndirangu & 2 Others (2014) eKLR where the court observed;
‘Therefore, there are circumstances under which the Court would be entitled to intervene even in the exercise of discretion. Whereas I appreciate the fact that the decision whether or not to register the transfer in favour of the Applicant by the Respondents is an exercise of discretion this Court is empowered to interfere with the exercise of discretion in the following situations: (1) where there is an abuse of discretion; (2) where the decision-maker exercises discretion for an improper purpose; (3) where the decision-maker is in breach of the duty to act fairly; (4) where the decision-maker has failed to exercise statutory discretion reasonably; (5) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (6) where the decision-maker fetters the discretion given; (7) where the decision-maker fails to exercise discretion; (8) where the decision-maker is irrational and unreasonable.”
21. It was submitted that the Land Registrar exercised discretion wrongly and the court should intervene in order to defeat the possible wrong distribution of the estate.
Submissions by the Respondents
22. For the Respondents these issues arose for determination:
a) Whether or not the Applicant was/is entitled to orders of injunction at the interim stage.
b) Whether or not the Applicant has established a good case to entitle him to the orders sought.
c) Who will bear the costs of the Application?
23. As to whether the Applicant was/is entitled to orders of injunction at the interim stage, it was submitted in the negative on the ground that the Applicant did not meet the threshold of Giella -vs- Cassman Brown and Co. Limited (1973 EA 358). It was submitted that the requirement for Prima facie case with a probability of success is paramount and this huddle must be crossed first before considering the second and third conditions.
24. It was submitted that court orders are never given in vain and that the injunction sought against the Makueni District Land Registrar to release or surrender title deeds emanating from Land parcel No. Makueni/Unoa/133 had already been overtaken by events since the said land Registrar had already released the said Title deeds to the Respondents rendering the Application frivolous, vexatious and an abuse of the process of the Honourable Court.
25. As to whether the Applicant is entitled to the orders sought, it was submitted that there is a well-established principle stating that he who goes to equity must do equity and equity requires an Applicant to go to it with clean hands. That the Applicant herein has not come to this court with clean hands ;from the Respondents pleadings and the two replying affidavits, the Applicant had not disclosed that he is not party to the succession cause at Makueni Chief Magistrate court as a grandson of the deceased Kavivya Muli and was only entitled to claim the inheritance entitled to his late father and not directly from the estate of the deceased , that he has no locus standi but is a busy body whose application the court ought not to entertain.
26. It was submitted that from the Respondents pleading, the Makueni Land Registrar was only obeying the court order issued on 2nd November 2024 which order is still in force as the Applicant has never applied to stay or set it aside, and the Land Registrar, Makueni Chief Magistrate Courts Executive officer/Administrator are still bound to obey the same.
27. It was submitted that this Court should never give orders that are contradictory to the orders of Makueni Chief Magistrates Court.
28. It was submitted that the Application is not only confusing but ambiguous in that he is challenging the Makueni District Registrar’s decision to lift a caution placed by him on LR Makueni/Unoa/133 as if he is appealing against the ruling of the subordinate court yet he could have challenged it through a Judicial Review. That, he has failed to disclose to this Honourable Court that he was summoned for hearing by the said Registrar before lifting the said caution when the Respondents herein raised an objection to the same before lifting the caution. That, he has also failed to disclose that after being summoned, he deliberately ignored, failed, neglected and/or refused to appear during the hearing.
29. On costs of the Application, it was submitted that this court has full discretion to determine who will bears the same, Republic of Kenya between Godfrey Musaina and The National Social Security Fund Board of Trustees and Salaries and Remuneration Commission: Nakuru High Court Petition No. E019 of 2023 was cited for the submission that costs follow the event. This court was urged to dismiss the Application and to award costs to the Respondents.
30. In their supplementary submissions dated 22/10/2025, the Respondents relied on Order 42 of the Civil Procedure Rules for the submission that an appeal does not automatically operate as a stay of execution. It was contended that the Applicant has failed to meet the threshold for grant of stay orders.
31. It was contended that the object of the Application has been frustrated as the Respondents are now holding their title deeds. That, the Application is moot and the court should decline to grant orders in vain.
32. I have carefully considered the Application, the responses and rival submissions. The issue for determination is whether the Application is merited.
33. It is important to set out the history of this to give context to the application
34. The petition for grant of letters of administration to the estate of the deceased was filed by Muindi Kavivya Muli and Stephen Mutinda Mwau (Applicant herein) wherein they described themselves as the son and grandson of the deceased respectively. The surviving beneficiaries of the estate were stated to be; Muindi Kavivya Muli (son), Joel Wang’uti Mwau (grandson) and Stephen Mutinda Mwau (grandson). The only asset of the estate was stated to be Land Parcel Makueni/Unoa/133 (the subject matter herein) and no liabilities were indicated.
35. The matter was gazetted on 26/09/2018 and a grant issued on 07/11/2018. An application for confirmation of grant was filed on 23/09/2019 and the record shows that the three beneficiaries consented to the same. The distribution clause was that; ‘The Land Parcel No. Makueni/Unoa/133 measuring approximately 32.0 acres to be registered in the names of Muindi Kavivya Muli and Stephen Mutinda Mwau to hold in trust for themselves and on behalf of the other beneficiary.’
36. The trial court record of 05/02/2020 shows that the application for confirmation dated 23/09/2019 was rejected as the trial magistrate, Hon. J. Mwaniki found that the petitioners had not onboarded all the beneficiaries. On the same date, the 2nd petitioner (Stephen Mutinda Mwau) informed court that; “The land in question is already sold to purchasers. We only want to have them get their title deeds.”
37. Through an application dated 22/08/2023, the two administrators sought to have Joel Wang’uti Mwau and Silvester Muema Kavita included as administrators of the estate and that the estate asset be distributed to beneficiaries and buyers listed in the distribution schedule. The said list has 97 individuals. The affidavit in support of the application however, listed the additional administrators to be Benson Maengo Kitetu and Joel Wang’uti Mwau. The affidavit was sworn by Muindi Kavivya Muli and Stephen Mutinda Mwau on 03/10/2023.
38. The Application for additional administrators was allowed and the grant confirmed on 02/11/2013. The addition of the purchasers in the Application for confirmation was pursuant to a meeting held on 09/05/2023 between Kavivya Muli’s Family members and Malawi Plot Owners group. The minutes show that the family members present and who executed the minutes were; Stephen Mutinda Mwau, Joel Wang’uti Mwau, Muindi Kavivya, Rose Mueni Musyoka and Jennifer Mutheu Mutisya.
39. On 12/02/2024, the purchasers/creditors of the estate (Respondent’s herein) filed an application in the trial court seeking leave to institute contempt of court proceedings against Stephen Mutinda Mwau for refusing to surrender the title deed to land parcel Makueni/Unoa/133 in order to allow for sub-division and transfer to the purchasers pursuant to the certificate of confirmation issued on 02/11/2023.
40. After an inter-partes hearing of the Application, the trial court ordered that;
“The Respondent is hereby ordered to surrender the title deed attaining to Land Parcel No. Makueni/Unoa/133 registered in the names of the deceased herein to allow the Applicant to sub-divide and transfer to the purchasers and other beneficiaries in terms of the Certificate of Confirmation of grant issued by this Honorable Court on 2nd November 2023.”
41. It appears that Stephen Mutinda Mwau defied that order as the purchasers returned to the trial court via Application dated 16/02/2024 seeking for orders that the Executive Officer of the court be authorized to sign mutation forms, transfer forms and/or any other form in respect of LR No. Makueni/Unoa/133 in order to facilitate its transfer as per the certificate of confirmation of grant. The Application also sought an order that the Land Registrar Makueni be ordered to dispense with the production of the original title deed before registering the Applicants as proprietors.
42. After inter-partes hearing of the Application, the orders prayed for were granted via a ruling delivered on 23/05/2024 thus triggering the Applicant’s move to this court.
Analysis& Determination
43. It is evident from the memorandum of appeal that there are real issues with the manner in which some persons came to be administrators of the estate and how their inclusion led to the distribution of the estate. It is also evident from the memorandum of appeal that there are issues on the distribution of the estate without the involvement of other members of the family of the deceased.
44. It is evident from the Memorandum of Appeal that the trial court did not interrogate how the name of Benson Kitetu found itself as an administrator of the estate. From the record, it is clear that the application dated 22/08/2023 contained a prayer for rectification of grant in order to include the additional administrators. These additional administrators were members of the family as can be seen from the Notice of Motion. The name Benson Kitetu appears in the supporting affidavit and ends up in the grant- yet minutes supplied indicate that he was only to be the go between for the purchasers and the family, but not an administrator of the estate of the deceased. Hence the complaint is grounded.
45. Regarding the distribution, I have looked at the Certificate of Confirmation of grant and it appears to me that no beneficiary from the family of the deceased received any share of the estate. It is not clear whether the whole estate was sold or whether there was an error on the part of the trial court not to interrogate this . In addition, it appears to me from the record that the other beneficiaries (from the family) were not present when the grant was confirmed and their views were not sought. The record shows thar the distribution of the estate was only with respect to the for the purchasers only .
46. Further, the Appellant is complaining that the trial court distributed the estate to the purchasers of the estate instead of the estate devolving to the beneficiaries for subsequent distribution to the purchasers. Ideally , where a purchaser’s interest is in dispute the purchaser will have to establish that right and then claim it as against the estate. That dispute is usually not for the P&A court but for the ELC Court. It is trite that the primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the court’s work would be complete. See re Estate of Alice Mumbua Mutua (Deceased) [2017] KEHC 8289 (KLR) to wit;
“Clearly, disputes as between the estate and third parties need not be determined within the succession cause. The legal infrastructure in place provides for resolution elsewhere, and upon a determination being made by the civil court, the decree or order is then made available to the probate court for implementation.”
47. In the circumstances of this case as set out herein above I am persuaded that the justice of this matter calls for stay of all proceedings pending the hearing and determination of the appeal.
48. The attending order is that the status quo as at 2nd November 2024 be maintained and that no further activity is to take place on the land until the matter of the all the beneficiaries and their shares is settled.
49. Orders accordingly,
Dated, signed and delivered via CTS on 5th December 2025
Mumbua T Matheka
Judge
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