Zanul Sadrudin Hasham Mohamed (3rd Co - Executor/Protestor) v Mohamed & 2 others

her jurisdiction by issuing orders that eectively altered the mode of administration of the estate and authorized the disposal of assets without the concurrence of all executors. She deposes that the intended appeal raises serious questions of law regarding the powers of co-executors under the Law of Succession Act, (LSA), the legality of compelling the sale of estate assets, and whether the High Court properly exercised its discretion in directing the implementation of the conrmed grant. 4. A substantial part of the applicant's complaint concerns Flat No. 3, Ismailia Parklands Housing Cooperative Society Limited, (Flat No. 3), which she avers does not form part of the deceased's estate. That although the property was registered jointly in her name and that of the deceased, she solely nanced its acquisition and the deceased's name was included only as a trustee. She, therefore, contends that the learned Judge erred in treating the property as an asset of the estate available for sale and distribution. That unless execution is stayed, the estate properties, including Flat No. 3, may be sold to third parties, thereby rendering the intended appeal nugatory. 5. The respondents oppose the applications through the replying adavit sworn by Farouk Sadrudin Hasham Mohamed, the 2nd respondent on 8th January, 2026. They contend that the applications are misconceived and amounts to an attempt to delay the administration of an estate that has remained undistributed for several years, and that the High Court merely issued administrative directions intended to facilitate the implementation of an already conrmed grant. It did not determine any fresh proprietary rights. 6. Regarding Flat No. 3, the respondents dispute the applicant's assertion that it belongs exclusively to her. They contend that the property formed part of the estate and was properly dealt with by the High Court. They assert that the applicant has not demonstrated any exceptional circumstances warranting a stay of the administration of the estate. 7. The applicant led written submissions dated 27th January 2026, and urged that the application satises the twin principles governing the exercise of this Court's jurisdiction under rule 5(2)(b). We note that although the authorities she relied on were not cited in full in the submissions, she provided the full citation in the case digest. 8. On the arguability of the intended appeal, the applicant submits that the appeal raises several substantial questions of law and fact deserving consideration by this Court. Foremost among them is whether the learned Judge erred in law by holding that the administration and distribution of the estate could proceed on the basis of a majority decision of the executors, thereby excluding the appellant from the administration of the estate. 9. The applicant argues that such a holding was contrary to the settled principle that executors constitute one corporate body, whose powers must ordinarily be exercised jointly. It is further contended that the nding was inconsistent with the agreement recorded by the parties before the High Court stating that no majority decision would apply in the administration of the estate. In support of that proposition, she cites the cases of Jeremiah Kamau Gitahi v Wandai [1989] eKLR and In re Estate of M'Ngarithi M'Miriti (Deceased) [2017] eKLR. 10. The applicant further submits that the learned Judge exceeded her jurisdiction by introducing, suo motu, the concept of majority decision-making among the executors, notwithstanding that no such relief had been sought by any of the parties. According to the applicant, the court thereby improperly interfered with the statutory authority and discretion vested in executors under the LSA, and erred in authorizing the sale and distribution of immovable property without the unanimous consent of all the executors, contrary to the mandatory provisions of section 82 (b) (ii) of the LSA. She cites the case of In re Estate of G.K.K. (Deceased) [2017] eKLR, where the court underscored the statutory safeguards governing dealings with immovable property forming part of a deceased's estate. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1737/eng@2026-09-25 2

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11. The applicant faults the learned Judge for prescribing timelines for the administration of the estate, appointing an estate agent, and authorizing the Deputy Registrar to execute documents in default of the executors without any statutory foundation, or prayer before the court. She argues that those directions eectively supplanted the statutory role of the executors and curtailed their discretion in the administration of the estate and relied on the case of Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR. 12. The applicant argues that the learned Judge erred in treating certain assets as estate property, while excluding others without proper legal basis. In particular, it is submitted that Flat No. 3, was acquired exclusively through the applicant's resources and was held by the deceased in trust for her. Therefore, it ought not to be included as part of the estate available for distribution. For this argument she placed reliance on Echaria v Echaria [2007]eKLR and Isack M'Inanga Kiebia v Isaaya Theuri M'Lintari & Another [2018]eKLR, which articulate the principles governing resulting and constructive trusts. 13. The applicant submits that the learned Judge failed to consider extensive adavit evidence alleging intermeddling with the estate and breach of duciary duty by the respondents. That her constitutional right to a fair hearing was violated when the matter was determined without oral evidence and without referring it to mediation, despite an application to that eect. 14. The applicant assails the learned Judge for: misapprehending the nature of the dispute by characterizing it as a challenge to the validity of the deceased's will, rather than its implementation; disregarding evidence of the deceased's testamentary intentions; failing to recognize an undisputed loan advanced by the applicant to the estate; improperly osetting that loan against rental income; treating a Kenyan joint bank account as an estate asset while excluding a foreign joint account; conrming distribution on the basis of an adavit sworn by the 2nd respondent without the authority of the 1st and 3rd respondents; and, sanctioning a mode of distribution inconsistent with the express provisions of the will. 15. On the nugatory aspect, the applicant submits that the substratum of the intended appeal comprises immovable properties forming part of the deceased's estate. That should the sale, transfer or alienation of those properties proceed before the appeal is heard, third-party proprietary rights will inevitably crystallize, thereby rendering restoration of the status quo impossible and the intended appeal nugatory. She refers to Reliance Bank Limited v Norlake Investments Limited [2002]1 EA 227, for the principle that the Court ought to preserve the subject matter where its loss would defeat the appeal. She adds that the risk of irreparable prejudice is particularly pronounced in relation to Flat No. 3, which is her personal property held in trust by the deceased and not an asset of the estate, and once transferred to third parties, it would no longer be recoverable, regardless of the outcome of the appeal. 16. On the balance of convenience, the appellant submits that preserving the status quo would occasion no prejudice to the respondents beyond a delay in the administration of the estate, which is compensable. Conversely, refusal to grant a stay would expose the appellant and the beneciaries to irreversible loss through the dissipation of estate assets. She invokes the holding in Githunguri v Jimba Credit Corporation Ltd (No.2) [1988] KLR 838 to urge that where the subject matter is in danger of being dissipated, the balance of convenience favours preservation thereof pending appeal. 17. The rm of Ngatia and associate Advocates, acting for the 1st, 2nd and 3rd respondents led written submissions dated 30th January 2026, opposing the applications and contending that they do not satisfy the well-established requirements under rule 5(2)(b). On whether the intended appeal is arguable, Mr. Ngatia, Senior Counsel submits that the intended appeal discloses no bona de issue deserving the consideration of this Court. That the learned Judge neither rewrote the deceased’s will, nor altered https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1737/eng@2026-09-25 3

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the testamentary scheme, but merely gave eect to the deceased's expressed wishes by issuing practical directions necessary to facilitate the administration of an estate that had remained substantially unadministered for over ve years. To buttress this argument he relied on the case of Re Estate of Mohamed Anwar Fatehdin (Deceased) [2025] KEHC 654 (KLR). 18. Counsel submits that the learned Judge properly rejected the alleged oral pronouncements relied on by the applicant, having correctly found that they were unsigned, unsupported and devoid of legal eect. According to the respondents, the court was obligated to give eect to the deceased's written will, and not to unsupported allegations inconsistent with it. In support of that argument, he cited the case of Re Estate of Joel Dindi Magero (Deceased) [2025] KEHC 1580 (KLR). 19. Counsel argues that the estate has remained largely unadministered for over ve years due principally, to the applicant's insistence that administration could only proceed upon adoption of her proposed alterations to the will. He contends that the present application merely perpetuates that obstruction and rule 5(2)(b) ought not to be employed to sanction further delay in the administration of the estate. It is urged that the learned Judge did not diminish the authority of the executors but merely introduced a procedural mechanism to resolve the impasse that had stalled the administration. By permitting any three executors to act where unanimity could not be achieved, the court was, according to the respondents, exercising its supervisory jurisdiction over estate administration. The case of Shah v Mbogo [1967] EA 116 was cited in support of this submission. 20. Regarding the complaint that the applicant was denied a fair hearing, counsel submits that the application before the High Court was determined on written submissions in accordance with Order 51 Rule 16 of the Civil Procedure Rules, and both parties were aorded opportunity to present their respective cases. Consequently, it is argued that no violation of the applicant's constitutional right to a fair hearing has been demonstrated. That the applicant's dissatisfaction lies not in any error of law committed by the court, but in the court's refusal to adopt her preferred interpretation of the evidence and to validate unsupported alterations to the deceased's testamentary wishes. Counsel submits that the intended appeal is frivolous and falls short of the threshold of arguability under rule 5(2)(b). 21. On the nugatory aspect, counsel submits that the applicant has failed to demonstrate that implementation of the impugned orders would occasion irreparable prejudice. It is argued that the orders merely facilitate the orderly administration of the estate through valuation and sale of assets under professional supervision, within dened timelines and subject to continuing judicial oversight and the applicant's benecial entitlement under the will, remains intact, ascertainable and capable of restoration should the appeal ultimately succeed. In that regard he cites the case of Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd & 2 Others [2009] KECA 201 (KLR). 22. Counsel argues that the equitable jurisdiction under rule 5(2)(b) requires the Court to balance the competing interests of the parties. Whereas the applicant alleges speculative harm, the estate continues to suer measurable prejudice through prolonged stagnation of its administration. Invoking Article 159(2)(b) of the Constitution, it is submitted that justice demands the expeditious administration of estates and granting the orders sought would only entrench the delay that has characterized these proceedings. He relies on the case of Mobil Kitale Service Station v Mobil Oil Kenya Ltd, HCCC No. 205 of 1990 (unreported) to urge the Court to decline to grant the equitable relief sought. 23. The two applications came before the Court on 24th February, 2026 for plenary hearing. The applicant appeared in person in both applications and reiterated her submissions as led. Mr. Ngatia SC was present for the three respondents. Counsel submitted that the applicant was represented by counsel for 15 years and she led a total of seven adavits which were considered. Further that there are four siblings who are all included in the will to share the estate equally, but the applicant is the one who https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1737/eng@2026-09-25 4

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lives within the country. That she has geographical advantage as she uses the property alone and her sister is now in desperate need of nances. 24. The jurisdiction of this Court under rule 5(2)(b) is original, discretionary and well settled. An applicant must satisfy the twin principles that the intended appeal is arguable, in the sense that it is not frivolous, and that unless the orders sought are granted, the intended appeal, if ultimately successful, would be rendered nugatory. Both limbs must be satised as they are conjunctive and not alternative. (See Trust Bank Limited & Another v Investech Bank Limited & 3 Others [2000] eKLR, Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, and Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227.) 25. On the rst limb, the threshold is admittedly low. An arguable appeal is not one that must necessarily succeed. It is sucient if it raises a single bona de point deserving consideration by the Court. As was stated in Kenya Commercial Bank Ltd v Nicholas Ombija [2009] eKLR, one arguable ground is sucient. 26. The applicant has raised numerous complaints against the ruling of the High Court, including the learned Judge's adoption of a majority decision-making mechanism among executors, the directions issued regarding valuation and sale of estate assets, the appointment of an estate agent, the execution of documents by the Deputy Registrar, the alleged failure to consider evidence of intermeddling and breach of duciary duty, the determination of the matter by way of written submissions, and the alleged mischaracterization of the dispute as one challenging the validity of the will. 27. At this interlocutory stage this Court is not concerned with determining the merits of those complaints. Our task is limited to considering whether they disclose bona de issues deserving interrogation on appeal. One issue however, in our view, stands out. The applicant has consistently maintained that Flat No. 3, does not form part of the deceased's estate. It is her property, allegedly acquired through her own resources and held by the deceased in trust for her. That contention invokes the principles governing resulting and constructive trusts as discussed in Echaria v Echaria [2007] 2 EA 139 and Isack M'Inanga Kiebia v Isaaya Theuri M'Lintari & Another [2018] eKLR. 28. Without expressing any concluded view on the merits of the foregoing contention, we are satised that it raises a bona de question deserving consideration by this Court. We therefore, nd that, to that limited extent, the intended appeal is arguable. 29. Regarding whether the appeal would be rendered nugatory if the orders sought are declined, this Court stated in Reliance Bank Ltd v Norlake Investments Ltd (supra), that the nugatory principle depends on whether the subject matter sought to be preserved is reversible or, if not, whether damages would constitute an adequate remedy. 30. The applicant urges that unless the administration and sale of the estate are stayed, the estate assets will be transferred to third parties, thereby defeating the intended appeal. The respondents, on the other hand, contend that the impugned orders merely facilitate administration under judicial supervision and the applicant's benecial entitlement remains intact and capable of being restored should the appeal ultimately succeed. 31. We note that the impugned orders do not distribute the estate nally, nor extinguish the appellant's benecial entitlement under the will. Rather, they facilitate the orderly administration of the estate under the supervision of the High Court. Should the appeal ultimately succeed, the Court retains the ability to fashion appropriate relief regarding the administration and distribution of the estate. We, therefore do not consider that the intended appeal would be rendered nugatory merely because the administration process proceeds. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1737/eng@2026-09-25 5

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32. A dierent consideration, however, arises in respect of Flat No. 3. The applicant's case is that the property does not belong to the estate but is her personal property held by the deceased in trust. If that property were sold or transferred to third parties before the appeal is heard, third-party proprietary rights may crystallize, thereby making restoration considerably more dicult. In those circumstances, we are satised that unless that particular property is preserved, the intended appeal in so far as it concerns the ownership of Flat No. 3 would be rendered nugatory. 33. We have considered the balance of convenience. While the respondents are entitled to enjoy the fruits of the orders made by the High Court and to proceed with the administration of the estate without undue delay, preserving one disputed property pending appeal would occasion minimal prejudice compared to staying the administration of the entire estate, which has already remained pending for several years. In our view, the interests of justice are best served by permitting the administration of the estate to proceed while preserving only the property whose ownership remains genuinely contested. 34. Accordingly, we nd that the applicant has satised the twin requirements under rule 5(2)(b) only in relation to Flat No. 3. Accordingly, the Notices of Motion dated 2nd December 2025 succeed ONLY to the extent that: a. There shall be a stay of execution of the ruling of the High Court in so far only as it authorizes or permits the valuation, sale, transfer, disposal or any other dealing with Flat No. 3, Ismailia Parklands Housing Co- operative Society Limited, pending the hearing and determination of the appeal. b. The administration of the remainder of the estate shall proceed in accordance with the orders of the High Court. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. W. KARANJA ............................ JUDGE OF APPEAL L. ACHODE ……………………… JUDGE OF APPEAL S. O. OKONG’O ............................ JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1737/eng@2026-09-25 6

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