Mary Wangui Karanja & another v Rhoda Wairimu Karanja & another [2020] KEELC 3647 (KLR)

The will and the certificate of confirmation of grant dated 2nd December 2005 gave the suit property to the plaintiffs and their sister, and bequeathed 300 acres in Nakuru to the 2nd defendant and his mother. Ownership was confirmed by rulings in the succession cause, upheld through the Court of Appeal. Having set foot on the property in 2006 without lawful right after confirmation of the grant, the 2nd defendant's entry constituted an unjustifiable intrusion on land in the possession of another. The Mergery Marigu Ndwiga case was distinguished because ownership and occupation had been settled here.

The counterclaim was a joint one by both defendants. The court held that the death of the 1st defendant did not affect the counterclaim, so the 2nd defendant did not need to revive it. On the merits, however, the counterclaim failed because no evidence of diversion of estate income or unjust enrichment was adduced; distribution was done in accordance with the will, and any misappropriation claim belonged in the succession cause. The fraud particulars were a thinly veiled attack on the will already settled by the court.

The 2nd defendant argued that Justice Dulu's ruling showed non-compliance with the Succession Act's six-month distribution requirement and that Justice Mutungi's directions had not been fully complied with, rendering the suit premature. The court held that Justice Mutungi's directions required only that ownership be determined by the succession court, which Justice Musyoka did. Justice Mutungi never required full distribution and issuance of titles before the suit could proceed. Standard of proof applied was balance of probabilities, which the plaintiffs met.