Beatrice Kanini Njagi (Suing as the legal representative of the estate of Michael Njagi Kathianyu) v Alice Warue Munyi & Rosaline Wambugi Nyaga

3. THAT pending the hearing and determination of the succession suil serialized as EMBU SUCCESSION CASUE NO E.213 OF 2025 this honorable court be pleased to stay proceedings in the matter as it relates to the properties identified as follows GATURI/NEMBURE/7201 GATURI/NEMBURE/18041.GATURI/NEMBURE/8522,GATURI/N EMBURE/8741, GATURI/NEMBURE/8742 GATURUNEMBURE/8743 GATURI/NEMBURE/8744, GATURI/NEMBURE/8745 /NEMBURE/8746 forming GATURI/NEMBURE/8746, the estate of the GATURI deceased Plaintiff. 4. THAT this honourable court does grant order as to costs, The Application is supported by the affidavit of Beatrice Kanini Njagih sworn on even date and the following grounds apparent on the face thereof; 1. THAT the suit herein is set to begin hearing with the Plaintiff's case on 17 March, 2026. 2. THAT the Plaintiff and the 1 Defendant herein are parties to EMBU SUCCESSION CASUE NO E.213 OF 2025 where the Plaintiff has filed intestate proceedings and the 1 Defendant herein is objecting to the same. 3. THAT the deceased Plaintiff was my husband and the properties identified as GATURI/NEMBURE/7201, GATURI/NEMBURE/18041, GATURI/NEMBURE/8622 GATURI/NEMBURE/8741, GATURI/NEMBURE/8742 2

page 2 of 16

GATURI/NEMBURE/8743 GATUR/NEMBURE/8744, GATURI/NEMBURE/8745, GATURI/NEMBURE/8746 GATURI/NEMBURE/8746 were duly procured and registered in the name of the deceased Plaintiff during his lifetime. 4. THAT the instant suit as filed by the Plaintiff herein is filed in the Embu Environment and Land Court which is of a higher status than the succession suit and if any order are issued arbitrary to the succession proceedings, the same shall be binding and result in irreparable harm and perforation of the estate of the deceased. 5. THAT it is imperative that the properties enumerated in 3 above are determined within the succession suit as properties of the estate of the deceased Plaintiff prior to getting into the authenticity and lack thereof of the properties acquired by the 1s and 2 Defendants emanating from the estate of the deceased. 6. THAT if hearing is allowed to proceed in the suit herein prior to Succession suit hearing and determination, any arbitrary orders issued as to ownership shall be binding upon the estate of the deceased, much to its detriment and that of the beneficiaries. 7. THAT undisputedly, such a situation would not only prejudice the Plaintiffs/Applicant's rights but would also undermine the integrity and 3 coherence of judicial

page 3 of 16

determinations in respect of the same subject matter across different courts as clothed with different jurisdictions. 8. THAT the risk of duplicity of judgments and parallel pronouncements would Inevitably occasion grave confusion, uncertainty, and prejudice to the parties, while at the same time consuming scarce judicial time and resources unnecessarily. 9. THAT it is the very function of stay of proceedings as a discretionary measure and as provided as under of the Civil Procedure Rules 2010 to forestall such eventualities by empowering this Honourable Court to intervene and preserve the status quo until the appeal is conclusively determined. 10. THAT conversely, the Respondents stand to suffer no discernible prejudice should a stay of proceedings be granted, as their rights will remain fully safeguarded pending the conclusion of the appellate process. 11. THAT in the circumstances, the grant of stay of proceedings is not merely desirable but is necessary to uphold the orderly administration of justice and to ensure that the appeal is not rendered nugatory. 12. THAT it is therefore in the interest of justice that the application herain is heard on priority basis and heard exparte in the first instance. APPLICANT’S SUMMARY OF FACTS The Plaintiff/Applicant in her supporting affidavit sworn on 16 th March, 2026 deposed as follows; 4

page 4 of 16

1. THAT I am a female adult of sound mind and disposition hence competent to sweat this Affidavit. 2. THAT I am the duly appointed legal representative over the estate of the deceased and therefore clothed with authority to bring this Application on behalf of the estate of the deceased. (attached and marked as BKN 1 is a copy of the grant ad litem) 3. THAT I am advised by my advocate on record that the suit herein is set to begin hearing and that the same is in the Environment and Land Court whereas there is equally the EMBU CMSUCCESSON CAUSE NO. E213 OF 2025 as filed by myself over the estate of the deceased with the 1 Defendant therein included as a widow to the deceased. (attached and marked as BKN 2 is a copy of the petition as filed) 4. THAT the properties in issue as captured in the Plaint herein are equally the properties forming the estate of the deceased in the succession GATURI/NEMBURE/7201 suit identified as GATURI/NEMBURE/18041 GATURI/NEMBURE/8622,GATURI/NEMBURE/6741,GATURI/NE MBURE/8742, GATURI/NEMBURE/8743.GATURI/NEMBURE/8744 GATURI/NEMBURE/8745 GATURI/NEMBURE/8746 /NEMBURE/8746 were which all acquired GATURI during the deceased's lifetime. 5. THAT I have been advised by my advocates on record that if the hearing in the instant suit is allowed to commence and arbitrary order as to ownership of either of the properties 5

page 5 of 16

enumerated above, the same shall result in irreparable harm against the estate of the deceased and its beneficiaries. 6. THAT I have been further advised by my advocates on record, that the instant court having higher jurisdiction, the judgment and/or decree emanating from this court on ownership of the enumerated parcels shall be final and binding on the lower court handling the succession suit, and the same shall result in grave confusion, uncertainty and prejudice to the parties, while at the same time consuming scarce judicial time and resources unnecessarily. 7. THAT as it stands the 1st Defendant herein, Objector in the succession suit has filed an Objection seeking enjoinment into the succession suit as an administrator of the estate of the deceased, only going to further prove our claim, that the properties herein form part of the estate of the deceased (attached and marked as BKN 3 is a copy of the objection dated 20th December, 2025) 8. THAT if the hearing of the instant suit is allowed, the same shall result irreparable harm over the estate of the deceased and the beneficiaries. As I have been advised by my advocates on record, the 1st Defendant has fraudulently obtained certificates of tile as indefeasible proof of ownership as under section 26 of the Land Registration Act, and if the ELC suit is allowed to commence, rules of practice and procedure shall result in the disinheritance of the beneficiaries of the estate of the deceased. 9. THAT I did duly indeed report the same to the DCI in Embu for further investigations into the fraudulent acquisition of 6

page 6 of 16

the properties that ought to have belonged to the deceased Plaintiff at the time of his demise on 25 th December, 2022 (attached and marked as BKN 4 and 5 is a copy of the DCI inquiry and death certificate). 10. THAT the succession suit shall be rendered moot on arrival if the suit herein is determined in favor of the 1st and 2nd Defendants. 11. THAT it is in the interest of justice that the interest of the parties in the succession suit are weighed against the alleged interest gained by the 1st and 2nd Defendants in the acquisition of the parcels of land registered in the name of the 1st and 2nd Defendants. 12. THAT it is imperative to note that there is equally a criminal case serialized as EMBU E. 217 OF 2023 where I have been charged with trespass and causing damage to property, in the properties identified as GATURI/NEMBURE 17936 & 17935, 17933 emanating from GATURI/NEMBURE 17715 a consolidation of GATURI/NEMBURE 8743 & 8744 AND judgment is slated for 31st March, 2026, as it is my averment that I was not trespassing but on my deceased's husband property (attached and marked as BKN 6 is a copy of crime and incident report). 13. THAT undisputedly, if the hearing commences it would not only prejudice the Plaintiffs/Applicant's rights but would also undermine the integrity and coherence of judicial determinations in respect of the same subject matter across different courts as clothed with different jurisdictions. 7

page 7 of 16

14. THAT I am advised by my advocates on record that there is the risk of duplicity of judgments and parallel pronouncements would inevitably occasion grave confusion, uncertainty, and prejudice to the parties, while at the same time consuming scarce judicial time and resources unnecessarily. 15. THAT conversely, the Respondents stand to suffer no discernible prejudice should a stay of proceedings be granted, as their rights will remain fully safeguarded pending the conclusion of the appellate process. 16. THAT in the circumstances, the grant of stay of proceedings is not merely desirable but is necessary to uphold the orderly administration of justice and to ensure that the appeal is not rendered nugatory. 17. THAT it is therefore in the interest of justice that the application herein is heard on priority basis and heard exparte in the first instance. 18. THAT what is deponed to herein is true to the best of my knowledge in formation and belief. 1ST & 2ND RESPONDENTS' GROUNDS OF OPPOSITION IN RESPECT OF THE APPLICATION DATED 16TH MARCH, 2026 The 1st and 2nd Respondents filed the following grounds in opposition to the said Application; 1. THAT it is trite law that a parcel whose ownership is contested ought to be subjected to an ELC suit before being entertained in a Succession Cause. Thus, the dispute 8

page 8 of 16

touching on the suit lands herein ought to resolved by this Honourable court. 2. THAT the instant Application is an attempt to deviate from the trite legal position and thus ought to be dismissed. To this end, the Probate court alluded to by the Applicant is bereft of jurisdiction to handle dispute herein. 3. THAT the instant summons is a non-starter from the onset as it does not disclose reasonable grounds for staying the proceedings herein. 4. THAT the instant application herein ought to be dismissed with costs. Despite directions to file and exchange written submission within specified timelines, the parties failed to comply as at the time of writing this Ruling. LEGAL ANALYSIS AND DECISION The Court has carefully considered the Notice of Motion dated 16th March 2026, the supporting affidavit, the Grounds of Opposition filed by the Respondents and the entire record. Although parties were granted an opportunity to file written submissions, none complied with the directions of the Court. The application shall therefore be determined on the basis of the pleadings, affidavits and the applicable law. The principal issue falling for determination is whether this Court should stay these proceedings pending the hearing and determination of Embu Succession Cause No. E213 of 2025. 9

page 9 of 16

The Applicant's case is that the suit properties form part of the estate of the late Michael Njagi Kathianyu and that ownership thereof ought first to be determined in the succession proceedings before this Court proceeds with the hearing of the main suit. The Applicant further contends that failure to stay these proceedings may result in conflicting decisions, prejudice to the beneficiaries of the estate and unnecessary multiplicity of proceedings. The Respondents take the contrary position. They contend that the dispute before this Court concerns ownership and title to land and therefore falls exclusively within the jurisdiction of the Environment and Land Court. They argue that the probate court lacks jurisdiction to determine contested ownership of land between an estate and persons claiming independent proprietary interests. In the Court's view, the application raises, in the first instance, a question of jurisdiction before consideration can be given to the discretionary principles governing stay of proceedings. It is now settled law that jurisdiction is everything. In the celebrated decision of Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court of Appeal emphatically stated that where a court finds that it lacks jurisdiction, it must immediately down its tools. The Supreme Court reaffirmed that principle in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, holding that a court's jurisdiction flows 10

page 10 of 16

from the Constitution or statute and that no court may arrogate to itself jurisdiction beyond that conferred by law. The jurisdiction of this Court is expressly donated by Article 162(2)(b) of the Constitution Environment and Land Court and section Act. That 13 of the jurisdiction encompasses disputes relating to title to land, ownership, occupation, use, interests in land, cancellation of titles and allegations of fraud in the acquisition or transfer of land. On the other hand, the jurisdiction of the probate court under the Law of Succession Act is to supervise the administration and distribution of the free property of a deceased person. While the probate court identifies the assets available for distribution and the persons entitled thereto, it does not determine contested questions of ownership between the estate and third parties asserting independent proprietary rights. Kenyan courts have consistently maintained this jurisdictional distinction. Indeed, the Environment and Land Court at Embu recently reiterated that where the real dispute concerns the legality of transfers, fraud or ownership of land, such questions fall within the jurisdiction of the Environment and Land Court and not the probate court. The pleadings before this Court leave no doubt as to the nature of the dispute. The Plaintiff alleges that the Defendants fraudulently procured registration of the suit properties in their names after the death of the deceased. The Defendants 11

page 11 of 16

maintain that they lawfully acquired and presently hold valid certificates of title. The Court is therefore not being invited merely to identify property belonging to a deceased person's estate. Rather, it is called upon to determine whether the impugned transfers were lawful, whether fraud has been established, whether the titles held by the Defendants enjoy statutory protection under the Land Registration Act and, if not, whether they ought to be cancelled. Those are quintessential questions of title to land. Before the succession court can distribute any of the disputed parcels as part of the deceased's estate, the anterior question whether those parcels indeed belong to the estate must first be determined by the court constitutionally mandated to determine proprietary rights in land. Ironically, the Applicant asks this Court to suspend the very proceedings that are intended to answer that foundational question. The Court respectfully declines that invitation. The Applicant further argues that because the Environment and Land Court is of a higher status, its eventual judgment may bind the probate court and thereby prejudice the estate. That argument, with respect, proceeds from an erroneous premise. 12

page 12 of 16

The constitutional architecture does not place the two courts in competition. Each exercises a distinct and complementary jurisdiction. The Environment and Land Court determines disputes concerning ownership and title to land. The probate court thereafter administers and distributes only such property as has been established to constitute the free estate of the deceased. One court does not usurp the constitutional mandate of the other. Rather, each performs a separate function within its jurisdictional sphere. The Applicant has also expressed apprehension that allowing these proceedings to continue alongside the succession cause may result in conflicting decisions. The Court does not share that apprehension. Since the succession court lacks jurisdiction to determine contested ownership of land claimed adversely by third parties, there exists no real danger of contradictory determinations provided each court confines itself to the jurisdiction conferred upon it by the Constitution and statute. The Environment and Land Court will determine ownership and validity of title. The probate court will thereafter distribute whatever property is judicially found to belong to the deceased's estate. The Court has equally considered the Applicant's reliance upon the pending criminal proceedings and investigations by the Directorate of Criminal Investigations. Those proceedings neither determine civil proprietary rights nor operate as a bar 13

page 13 of 16

to civil proceedings. Criminal responsibility and civil ownership are governed by different legal principles, standards of proof and objectives. The existence of one does not ordinarily require the stay of the other. The Applicant further invokes the possibility of prejudice to the beneficiaries of the estate. In the Court's view, the converse is true. Determining ownership at the earliest opportunity promotes certainty and facilitates the orderly administration of the estate. Should the Plaintiff ultimately establish fraud and succeed in recovering the disputed properties, the probate court will thereafter distribute them as assets of the estate. Conversely, should the Defendants successfully defend their titles, the probate court will know with certainty that those parcels do not constitute free property outcome advances, rather available for impedes, the distribution. Either than administration of justice. The Court has also considered the principles governing stay of proceedings. It is well settled that stay of proceedings is a serious judicial intervention because it interrupts a litigant's right to have his dispute heard and determined expeditiously. In Global Tours & Travels Ltd, Winding Up Cause No. 43 of 2000, Ringera J observed that the Court must balance the interests of justice, judicial economy and the need for expeditious disposal of cases before granting such relief. 14

page 14 of 16

Likewise, the Court of Appeal in Kenya Wildlife Service v James Mutembei [2019] eKLR reiterated that stay of proceedings should only be granted in exceptional circumstances where the interests of justice plainly demand it. The Applicant has not demonstrated the existence of such exceptional circumstances. The Court has also considered the decision of the Court of Appeal in Willy Kimutai Kitilit v Michael Kibet [2018] eKLR, where the Court reaffirmed the broad constitutional and statutory mandate of the Environment and Land Court to determine disputes relating to proprietary interests in land. Although that decision principally concerned constructive trust and overriding interests, it underscores the central role of the Environment and Land Court in resolving disputes concerning rights and interests in land before consequential questions arising in other legal regimes can properly be addressed. Ultimately, what the Applicant seeks is to postpone the hearing of the only proceedings capable of conclusively determining the ownership of the suit properties. Such an order would neither promote judicial economy nor advance the interests of justice. On the contrary, it would unnecessarily delay the determination of the very issue upon which the succession proceedings substantially depend. 15

page 15 of 16

The Court therefore finds that the Applicant has failed to establish sufficient cause for the exercise of this Court's discretion in favour of staying these proceedings. Accordingly, the Notice of Motion dated 16th March 2026 is devoid of merit and is hereby dismissed. The prayer for stay of proceedings pending the determination of Embu Succession Cause No. E213 of 2025 is declined. The parties shall proceed to the hearing of the main suit on a priority basis. The costs of the application shall abide the outcome of the main suit. READ, DELIVERED and SIGNED AT EMBU this 24th Day of September, 2026. ………………… HON. E.C CHERONO ELC JUDGE, EMBU In the presence of; 1. Mr. Kariuki for the Defendants 2. M/s Karungu for the plaintiff 3. Ruth C/A 16

page 16 of 16