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Case Brief · caselaw.co.ke
MagistratePartially AllowedSuccession Cause No. 328 of 2019

In the Matter of the Estate of Teresia Njoki Aluoch alias Telesia Njoki Aluoch (Deceased)

Chief Magistrate's Court at Murang'a
7 October 2026
5,383 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reopen an estate distribution ruling and confirmed two grandchildren can now collect rent from ground floor rooms.

What this practically means

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Executive summary

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This ruling by Senior Resident Magistrate Grace Waithĩra in the estate of Teresia Njoki Aluoch deals with two applications arising from the court's distribution ruling of 5th February 2026, in which the grandchildren Fauzia Njoki Opiyo and Fatuma Wanjiku Opiyo were allocated all ground floor rooms of Plot No 89 to compensate for the sale of land parcel Mwerua/Kagio/4980 and their exclusion from rental income. Thomas Mboya Aluoch sought review of that ruling, contending the administrator's accounts were incomplete and that fresh summons for confirmation of grant were required. The court, applying Section 63(1) of the Probate and Administration Rules and Order 45 of the Civil Procedure Rules, and the Court of Appeal's decision in National Bank of Kenya Ltd v Njau, dismissed the application. It found Thomas Mboya was represented throughout six months of account-rendering mentions and never responded to the accounts; the green card he produced disclosed no new matter, as the administrator had already revealed the subdivision; and his complaints about the court's exposition of law were grounds for appeal, not review. Fauzia's application seeking to cite Thomas Mboya for contempt was partially pursued: she abandoned the contempt prayers and sought enforcement. The court declared Fauzia and Fatuma beneficial owners of all ground floor rooms, entitled to collect rent forthwith, holding the February orders remained binding and that Thomas had no justification for occupying an allocated room. The court declined to reinstate tenancies or order evictions, lacking probate jurisdiction over such matters under the Land Act. Each party bears their own costs as a family matter.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the orders of the court issued on 5th February 2026 ought to be reviewed and the administrator directed to give a comprehensive audit of the estate
  2. 2.Whether Thomas Mboya should be cited for contempt for disobeying the orders of the court issued on 5th February 2026 and the manner in which those orders should be enforced

Key legal issues

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01

Whether the orders of 5th February 2026 should be reviewed

Holding

Review refused; no new and important matter, no error apparent on the face of the record, and alleged misconstruction of law is a ground for appeal only

Reasoning

The court found Thomas Mboya was represented throughout the six months of account-rendering mentions and never filed a response to the administrator's accounts. The green card he produced did not raise new facts since the administrator had already disclosed the subdivision in her supplementary affidavit of 25th November 2025. His complaints about the law were matters for appeal, not review.

p. 23
02

Whether Thomas Mboya should be cited for contempt and how the orders of 5th February 2026 should be enforced

Holding

Contempt prayers abandoned; enforcement granted to the extent that Fauzia and Fatuma are declared beneficial owners of the ground floor rooms and may collect rent forthwith

Reasoning

The orders of 5th February 2026 remain in force, not having been set aside, reviewed or appealed against. Thomas Mboya did not deny occupying a ground floor room operating a cybercafé. The court found no justifiable reason for his occupation and held that management expenses can be deducted from estate proceeds, management vesting in the administrator.

p. 26

Legal principles established

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  • A probate court's review powers are governed by Section 63(1) of the Probate and Administration Rules as read with Order 45 of the Civil Procedure Rules
  • A wrong conclusion or misconstruction of law is a ground for appeal, not review
  • A party who was represented and had opportunity to respond to accounts cannot unravel the process at the review stage
  • A probate court has no jurisdiction to reinstate tenancies or order evictions; those are matters under the Land Act

Court orders

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  1. 1.The application dated 2nd March 2026 is dismissed
  2. 2.Fauzia Njoki Opiyo and Fatuma Wanjiku Opiyo are declared the beneficial owners of all the rooms on the ground floor of Plot No. 89 and are allowed to collect rent from the said rooms in equal proportions forthwith
  3. 3.Each party to bear their own costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Probate and Administration Rules, Section 63(1) as read with Order 45 of the Civil Procedure Rules

Relief refused

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Review of the ruling of 5th February 2026 and direction for a comprehensive audit of the estate

Grounds for review under Order 45 not established; no new and important matter; alleged errors of law are grounds for appeal, not review

p. 24

Contempt proceedings against Thomas Mboya (prayers 2 to 4)

Abandoned by the applicant in submissions

p. 25

Reinstatement of previous tenant and eviction of the new tenant

Probate court lacks jurisdiction over tenancy and eviction matters, which are governed by the Land Act

p. 27

Costs

Being a family matter, the parties shall bear their own costs of the application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The application dated 2nd March 2026 is found to be lacking in merit and is hereby dismissed;
p. 28disposition - review application dismissed
The application dated 21st May 2026 is merited to extent that Fauzia Njoki Opiyo and Fatuma Wanjiku Opiyo are hereby declared the beneficial owners of all the rooms on the ground floor of Plot No. 89 and are allowed to collect rent from the said rooms in equal proportions forthwith;
p. 29disposition - enforcement of distribution orders
Being a family matter, the parties shall bear their own costs of the application.
p. 29costs
A wrong conclusion of the law is a good ground for appeal and not for review.
p. 24scope of review
This court, sitting as a probate court, has no jurisdiction to reinstate the tenancy of previous tenants or issue eviction orders.
p. 27jurisdiction of probate court
It is noteworthy that the orders of the court issued on 5th February 2026 have not been set aside, reviewed or appealed against. They remain in force and binding to all parties.
p. 26binding effect of unchallenged orders

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In the Matter of the Estate of Teresia Njoki Aluoch alias Telesia Njoki Aluoch (Deceased)", Case Analysis (2026). Succession Cause No. 328 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/1013/eng@2026-10-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.