Brahmadutt Vyas & 1 other v Ajay Somchand Shah & 2 others

accounts, including transferring the funds and stopping any withdrawal of funds therefrom. 3. 3. The foundation of the suit is the allegations by the Plaintiffs that the deceased is said to have changed his Will on 4/05/2023, a day before he died on 5/05/2023, and which alleged change the Plaintiffs suspect to have been procured by impropriety and/or fraud. The Plaintiffs point fingers at the 1st and 2nd Defendants as being behind the “suspicious” change of the Will and such “suspicion” seems to stem from the fact that the new Will is in favour of the 1st and 2nd Defendants in terms of appointment of trustees, executors and beneficiaries, contrary to the initial version of the Will which apparently favoured the Plaintiffs. A Will executed by the late spouse to the deceased, and who predeceased him, has also been mentioned in the suit. 4. In light of the matters recounted and the prayers sought in the Plaint, the first issue that would inevitably attract the attention of any discerning jurist is whether this suit is before the correct forum for determination. In other words, do the matters in issue properly belong to this civil Court or should the same have been filed before the Succession or Probate Court? I note that the 1st and 2nd Defendants have, through Messrs R.M. Mutiso & Co. Advocates already filed their joint Statement of Defence and in it, they have indeed raised this challenge on jurisdiction. Since however that issue is yet to be canvassed before me, I say no more about it. I however put the parties on notice that this issue of jurisdiction will have to be determined at the earliest opportunity as a Preliminary matter before I allow this suit to progress in any substantive manner. Having set out the above background, the instant Application is the Plaintiffs’ Notice of Motion dated 9/10/2023 filed through Messrs C.F. Otieno & Co. Advocates. The Application was filed at the same time as the Plaint but was held in abeyance pending determination of the subsequently filed Application seeking removal or striking out of the 3rd Defendant’s name from this suit as aforesaid. The Application seeks a lengthy list of orders as follows: i. [……..] spent ii. [……..] spent iii. [……..] spent iv. That pending, the hearing and final determination of this suit, this Honourable court be pleased to issue an order of temporary injunction restraining the 1st & 2nd defendants themselves, their agents, servants and/or any other persons through whom they may act jointly and/or severally from alienating, selling, dealing with accounts of the late Ashwani Kumar Jayantilal Vyas held with Standard Chartered Bank Kenya Limited Eldoret Branch being; and/ or any interference with the said accounts being a. A/c. No. XXXXXXXXXXXXX b. Deal Confirmation No. XXXXXXXXXXXXX of 14.05.2019 c. Bond Standard Chartered FXDI/2010/15 - KE400003550 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13875/eng@2025-08-01 2

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d. v. Safari Personal Savings Account and/or dealing with the said accounts in any other way detrimental to the interests of the Plaintiffs and the Estate of the late Ashwani Kumar Jayantilal Vyas. That pending the hearing and final determination of this suit, this Honourable court be pleased to issue an Order freezing the Accounts listed herein and further an order of temporary injunction restraining the 3rd defendant themselves, their agents, servants, assigns and/or any other persons and/or institutions through whom they may act jointly and/or severally from alienating, transferring funds, dealing with accounts of the late Ashwani Kumar Jayantilal Vyas held with Standard Chartered Bank Kenya Limited Eldoret Branch being; and/or any interference with the said accounts being a. A/c. No. XXXXXXXXXXXXX b. Deal Confirmation No. XXXXXXXXXXXXX of 14.05.2019 c. Bond Standard Chartered FXDI/2010/15 - KE400003550 d. Safari Personal Savings Account and/or dealing with the said accounts and/ or any other accounts in the name of the late Ashwani Kumar Jayantilal Vyas in any other way detrimental to the interests of the Plaintiffs and the estate of the late Ashwani Kumar Jayantilal Vyas. vi. [……..] spent vii. [……..] spent viii. [……..] spent ix. A Penal Notice be inserted in the extracted Order. x. That costs of this application be borne by the 1st & 2nd Defendants. xi. Any other and further relief that this Honourable Court shall deem just and expedient to grant. 4. This Court had granted interim preservatory orders which have been in force since then. 5. The Application is supported by the Affidavit sworn by the 1st Plaintiff in which he deponed that he is a brother to the deceased and the 2nd Plaintiff is his sister-in-law. He then deponed that the late Ashwani Kumar Jayantilal Vyas (hereinafter referred to as “the deceased”) and his wife, the late Paula Karina AliceBraitstein, both made Wills during their lifetime bequeathing their property to whoever survived the other and also to other persons named within the said documents, and which Wills were simultaneously made and executed on 10/08/2021. He stated that Paula Karina Alice Braitstein passed away on 16/10/2022 due to illness, and her husband, Ashwani Kumar Jayantilal Vyas (deceased), therefore became an instant beneficiary to her estate and, and that the Will had 2 Executors/Trustees, namely, the 2nd Plaintiff and the 1st Defendant. He deponed that subsequently however, the deceased himself died away on 05/05/2023, that in his Will executed on 10/08/2021, he had appointed his late wife both as Executor and Trustee of his Will, and in the event that his late wife predeceased him, he appointed the 1st Defendant, Ajay Somchand Shah. 6. He pointed out that a key feature of the Will of the deceased dated 10/08/2021 was that the 1st Defendant was required to do certain duties as an appointed Trustee, and not to keep the estate to himself, which duties included, amongst others, catering for the resultant funeral expenses, and to pay or remit some monies to persons and/or entities listed therein. He urged that before the issue of Grant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13875/eng@2025-08-01 3

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of Probate to the Will of late Paula Karina Alice Braitstein could be dealt with, the deceased died leaving the estate also un-administered, and that events surrounding the death is what has triggered this suit. He listed the events that according to him renders the making of the new Will suspicious, and pointed out the fact that the change was made a day before the deceased died, was made in the Defendant’s business premises, that when the deceased died, his body was transported to the morgue by use of a private motor vehicle, that no post-mortem was conducted on the body but the Certificate somehow indicates a cause of death, that after the death, and that without the knowledge of the family of the deceased, the Defendants immediately took away property and documents (including for the banks and land and also a log-book) from the home of the deceased. 7. He also alleged that the Will was changed shortly before insurance money deposited by the deceased matured and also contended that the new Will had the effect of making the 1st & 2nd Defendants the sole Executors and Trustees of the Will bequeathing the whole estate to the 1st & 2nd Defendants exclusively and absolutely and seemingly nullifying the Will of Paula Karina Alice Braitstein under unclear circumstances, and that it disinherited all the beneficiaries to both the Wills of Paula Karina Alice Braitstein and the earlier Will of the deceased. According to him therefore, the person who was supposed to guide and supervise the execution of the Will (the 1st Defendant) ran away with the entire estate. He deponed further that there appears to be a clear conflict of interest on the part of the 1st Defendant as his interests are adverse to the estates, and that the Defendant’s actions are detrimental to the interests of the Plaintiffs, their families and the estate of the deceased. 8. He urged that this suit is therefore filed to preserve the funds in the bank accounts, and also to seek Court orders to the effect that the funds held by the 3rd Defendant are not remitted to the Unclaimed Financial Assets Authority (UFAA) but held in situ by the 3rd Defendant bank. He then deponed that Succession related issues will be ventilated before the Succession Court by the Plaintiffs, including challenging the suitability of the 1st & 2nd Defendants as Trustees and Executors to the Will. In conclusion, he urged that the Plaintiffs and their families stand to lose irreparably should the orders not be granted as they intend to create a Trust that will manage the estate for the benefit of the Kaptagat community where the deceased hailed, and which Trust will continue to implement the projects started and were being supported by the deceased. Defendant’s Replying Afidavit 9. In opposition to the Application, the 1st and 2nd Defendants swore separate Replying Affidavits on 24/11/2023, both filed through their Advocates on record, R. M. Mutiso & Co. The main Affidavit is however the one sworn by the 1st Defendant, Ajay Somchand Shah, as the one sworn by the 2nd Defendant simply supports and adopts the matters deponed therein. 10. In his Affidavit, the 1st Defendant deponed that the orders sought cannot issue as these are not Succession proceedings, that the orders, if granted, will amount to management of the estate of the deceased through civil proceedings contrary to the Law of Succession Act, and yet there is a very clear and elaborate procedure of securing the very reliefs via a Succession Cause, and that the prayers are not founded on any tangible facts. He stated that the estate of the deceased comprised not just what he inherited from the late Paula Karina Braitstein but also assets which the deceased had acquired during his lifetime, that prior to the Will made by the deceased in 2021, he had another Will made in 2018 which was revoked by the one of 2021 and in such 2018 Will, he (1st Defendant) was also named as the Trustee and Executor. He urged that the subsequent Will dated 4/05/2023 had the effect of revoking all his earlier Wills and confirmed that the Will named him and his wife (2nd Defendant) as the Trustees and Executors, and also as the sole beneficiaries of the estate. He also confirmed that the deceased passed on the following day. He urged that the deceased lived in Kaptagat until his death, which is a distance https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13875/eng@2025-08-01 4

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of about 24 kilometres from Eldoret town, that the deceased always drove to Eldoret to carry out his activities, including banking and to meet his friends, that on the 4/05/2023 the 1st and 2nd Defendants were not at their business premises but he learnt that the deceased had executed a new Will at the same premises but in the office of another colleague. 11. He deponed that he learnt that after executing the new Will, the deceased drove back to his home in Kaptagat and on the following day, 5/05/2023, the deceased again drove to Eldoret town where he made bank ATM withdrawals and purchased medicine, and later he returned to his home in Kaptagat where he however died on the same day. He deponed that the 1st and the 2nd Defendant were in Mombasa from 5/05/2023 to 7/05/2023 when they returned to Eldoret, and that therefore neither of them was involved in transferring the body of the deceased to the mortuary, nor were they present. He deponed further that upon hearing of the death, he tried to contact a cousin of the deceased but could not reach him. He therefore denied that the signing of the Will was preceded by a meeting between the deceased and the 1st and 2nd Defendant’s family. Regarding the post mortem, he stated that to his knowledge, none was conducted but also pointed out that in any event, all the Wills of 2018, 2021 and 2023, contained the wish of the deceased that no post mortem should be done on his body. He deponed further that he only went to the home of the deceased on 8/05/2023 as a close friend and took valuables for safekeeping since there were no family members in the home and the Plaintiffs reside outside the country. He however denied taking the log-book alleged by the Plaintiffs or any bank documents, and contended that his taking of valuables from the home was supported by an inventory which he communicated to the Plaintiffs, and he later handed over the items to the 2nd Plaintiff when she travelled to Kenya, including the motor vehicle whose log-book was referred to hereinabove, which the 2nd Plaintiff however handed back to him for safe-keeping when she travelled back to Canada, and which he still does to date. 12. Regarding the insurance money, he insisted that the same matured on 14/04/2023, long before the deceased died. He averred that both he and the 2nd Defendant have no idea why the deceased decided to revoke his previous Will and make a fresh one but averred that the deceased was in his right frame of mind as demonstrated by the bank transactions he made on the very day of his death as evidenced by the bank statements, and that the deceased was within his right to change his Will at anytime during his lifetime and bequeath his estate to anyone he desired. He also denied that the Will of 2023 nullified the Will made by Paula Karina Alice Braitstein and maintained the two Wills were made by different persons, were independent of each other, and in any event, the Will of the Paula Karina Alice Braitstein was already pending for administration and therefore there is no way a Will by another could nullify it. He denied that he influenced the execution or signing of the Will dated 4/05/2023 and pointed out that nothing in law prevents a testator from making a Trustee and/or Executor a beneficiary and there is also no conflict or legal impediment in the dual roles. He stated that he has taken personal initiative and paid employees of the deceased from his own personal funds. 13. Regarding the bank accounts listed by the Plaintiffs, he stated that he is only aware of the Standard Chartered Bond and the Safari Personal Savings Account save that the latter did not belong to the deceased but to one Isaac Otte for whom the deceased was the guardian. In conclusion, he urged that the Application has not established a prima facie case, that no prejudice will be suffered by the Plaintiffs if the orders are refused, the balance of convenience does not tilt in favour of the Plaintiffs as none of them live in the country, and since neither of them has been named as a Trustee or Executor to the estate or a beneficiary. 14. I note that among the documents exhibited to the 1st Defendant’s said Replying Affidavit is an Affidavit sworn on 27/11/2023 by Mr. Alfred Kin’goina Nyairo, who is the Advocate said to have prepared all the 3 successive Wills referred to herein, and also witnessed all, together with his one and the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13875/eng@2025-08-01 5

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same Secretary. I note that in the Affidavit, Mr. Nyairo denied any impropriety in the making and execution of the Wills, including the last one dated 4/05/2023, and defended or absolved the 1st and 2nd Defendants of any accusations in regard thereto. According to him therefore, the preparation and execution of all the Wills was above board. Hearing of the Application: Cross examination of Plaintiffs and ffiling of Submissions 15. Upon application by Ms. Odwa, Counsel holding brief for the 1st and 2nd Defendants’ Advocates, I allowed her to cross-examine the Plaintiffs on their Affidavits referred to above, which exercise was conducted on 11/02/2025, and which the Plaintiffs attended virtually as they both reside out of the country, in the United Kingdom and Canada, respectively. 16. During such cross-examination, the 1st Plaintiff confirmed that he was not in the country on 4/05/2023 when the said Will is said to have been changed, and agreed that he had not disclosed the names of the people whom he alleged to have met with the deceased on the said date at the 1st Defendant’s business premises before the Will was changed. He also agreed that he was not present when the deceased died and also that he did not disclose the names of the people who were present. He also agreed that the deceased used to live alone but had workers and also agreed that the expenses of the home are presently being catered for by the 1st and 2nd Defendants. He further agreed that although he alleged in his Affidavit that the 1st and 2nd Defendants have kept the estate to themselves, he did not disclose which part of the estate the Defendants had kept to themselves as alleged. He also agreed that he had no issues with the earlier Wills of 2018 and 2021 and conceded that in both those Wills, the 1st Defendant had been appointed a Trustee and Executor. He then stated that his problem is with the 2023 Will since the deceased was, at that time, in very poor health and he was not in a position to change the Will. 17. Regarding the issue of post mortem, he agreed that in the successive Wills, the deceased and his wife had prohibited conduct thereof but he pointed out that there was also an exception made in the Wills where there was suspicion on the cause of death. In re-examination by Mr. C.F. Otieno, his Counsel, he basically reiterated his answers above and added that he had stated in his Affidavit that they (Plaintiffs) would be proceeding to file Succession proceedings to challenge, among others, suitability of the Defendants to act as Trustees and/or Executors, and reiterated that they only filed this suit to seek orders of injunction. 18. On her part, the 2nd Plaintiff basically reiterated the answers given by the 1st Plaintiff. Regarding the events that allegedly surrounded the changing of the Will and which prompted the suspicions of impropriety, she agreed that she was out of Kenya even at that time, and also that she, too, had not disclosed her sources of information for the matters she alleged. She also agreed that some items belonging to the deceased were handed over to her after his death. 19. The Plaintiffs also filed Supplementary Affidavits but which are mere repetitions of matters already deponed or introduced new matters which I will not therefore not recite. The Plaintiffs then filed the Submissions dated 26/03/2025 while the Defendants had filed theirs earlier, dated 14/03/2024. Plaintiffs’ Submissions 20. Counsel for the Plaintiffs, after reciting the background of the case, urged that the Defendants’ intention for the cross-examination conducted as above was only to fish out information from the Plaintiffs. On the prayer for injunction, he cited the case of Giella v Cassman Brown & Co Ltd [1973] 1 LA 358 (CAK). On the issue of a “prima facie” case, Counsel drew the Court’s attention to the Plaintiffs’ recently filed pending Application seeking to amend the Plaint in accordance with observations made by the Court in the said Ruling dated on 29/11/2024, and to also remove the 3rd https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13875/eng@2025-08-01 6

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Defendant as ordered by the Court. He submitted that as stated in the draft Amended Plaint, the prayers made herein are sought pending the hearing and conclusion of Eldoret P&A Miscellaneous Cause No. E010 of 2025, which the Plaintiffs have since filed to challenge the Will. He conceded that the Application to amend the Plaint has not heard but averred that as it has already been filed, it forms part of the record. He urged further that Rule 63 of the Probate and Administration Rules incorporates Order 40 of the Civil Procedure Rules which deals with grant of injunctions, into proceedings under the Law of Succession Act. He also appreciated that Order 40 presupposes the existence of a suit, and agreed that a question may arise herein as to whether a Succession Cause is a “suit”. He urged that, be that as it may, this Court has the jurisdiction to grant injunctions and prayed that, in line with the “oxygen” provisions under Section 1A & IB of the Civil Procedure Act, this Court do grant the orders so as to reduce expenses that may be incurred by the parties. 21. Counsel stated that the Plaintiffs had been waiting for the Defendants to formally present the contentious Will to Court first before they could move in to challenge it but have now done so after the realisation that the Will could be presented to any other High Court, and not necessarily the Eldoret High Court. On “irreparable injury”, he submitted that a key feature of the Will dated 10/08/2021 was that the 2nd Plaintiff and the 1st Defendant were required to do certain things as a Trustees and Executors, that likewise, in the Will dated 10/08/2021, the 1st Defendant was required to do certain things as an appointed Trustee and not to keep the estate to himself, and which things included other duties listed in the Will by Paula Karina Alice Braitstein. He wondered at what point this arrangement vanished, resulting in the Will being changed at the 11th hour and the Testator passing away the very next day. He further submitted that not all the assets of the deceased have been identified in the new Will and it is not clear why the Will was crafted in that fashion leaving loose ends. In response to the matters raised by the Defendants, he reiterated that the Plaintiffs have not asked this Court to allow them to manage the deceased’s estate as alleged but only to put a stop to the use of the estate properties until some unclear issues are looked into. Regarding the Plaintiffs not disclosing sources of their information, he urged that the proviso to Order 19 Rule (3)(1) of the Civil Procedure Rules allows for an Affidavit to contain statements of information in interlocutory proceedings, and/or with leave of the Court. He then urged that the balance of convenience tilts in favour of the Plaintiffs as the circumstances surrounding the change of the Will still have to be addressed before the Succession Court. 1 st and 2 nd Defendants’ Submissions 22. On his part, Counsel for the 1st and 2nd Defendants submitted that some paragraphs of the Plaintiffs’ Affidavit should be struck out for contravening the provisions of Order 19 Rule 3 of the Civil Procedure Rules as the source of the facts deponed was not disclosed, not even during the crossexamination. He cited the case of Mbugua & Mbugua Advocates v. Kenindia Assurance Co. Ltd [2014] KEHC 1543 (KLR). On the prayer for injunction, he submitted that the Plaintiffs have not established a prima facie case as this Court lacks the jurisdiction to entertain the suit given that the issue in contention is the distribution of the estate of the deceased which is outside this Court’s mandate as what is before this Court is an ordinary suit, and not a Succession Cause as contemplated under the Law of Succession Act. He submitted that this can be seen from the fact that whereas on one hand the Defendants maintain that the deceased left behind a valid Will dated 4/5/2023 in which they were appointed Trustees and Executors but on the other hand, the Plaintiffs are challenging the validity of the Will on the basis that it was fraudulently procured so as to disadvantage the rightful beneficiaries and want this Court to stop the Defendants from administering or benefiting from the estate. 23. According to him, if the Court were to take the path proposed by the Plaintiffs, it would amount to this Court usurping the powers donated to the Probate and Administration Court under the Law https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13875/eng@2025-08-01 7

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of Succession Act by determining issues relating to the management and distribution of the deceased's estate yet this Court is not sitting as a Probate and Administration Court but as an ordinary High Court. He urged that there is no evidence that any proceedings have been instituted before the Probate and Administration Court, or at least no documentary evidence in that regard has been tendered before this Court in support thereof, and that in any event, there is no determination made invalidating the Will dated 4/5/2023 or removing the Defendants as Trustees and Executors thereof, and that it follows therefore, that the Defendants have every right to deal with the estate as per the Will, which right cannot be stifled through these proceedings yet there is a statute (the Law of Succession Act) in place to deal with succession issues which the Plaintiffs have to date not exploited. He urged further that no explanation has been tabled by the Plaintiffs as to why they have not moved the Court in a Succession matter to challenge the Will if at all they are serious. On the issue of jurisdiction, he urged the Court to down its tools and he cited the case of Kenya Ports Authority versus Modern Holding [EA] Limited [2017] eKLR. According to him, the Plaintiffs are unlikely to suffer any irreparable damage that cannot be compensated by way of damages as they have not demonstrated what loss they will suffer if the orders are not granted, given that the value of the deceased's estate is known and the Plaintiffs can easily be compensated for any loss incurred. 24. He also submitted that the Plaintiffs have not demonstrated what action the Defendants have taken that is detrimental to them, considering that the Plaintiffs are not beneficiaries of the estate. He urged that it should not be forgotten that the 1st Plaintiff conceded during cross-examination that it is the Defendants who have been catering for the running expenses of the deceased's estate since his demise so as to ensure that the estate is not wasted, and that this is despite the Plaintiffs’ act of rushing to Court to stop the Defendants from dealing with the bank accounts, which shows that the Defendants have always had the best interest of the deceased. He cited the case of Wamamu United Company Limited v Joseph Githira Muchiri & 3 others (2021) eKLR. Counsel also urged that the balance of convenience does not tilt in favour of the Plaintiffs who have woven up a story and cast unsubstantiated aspersions against the Defendants in a bid to tarnish the Defendants’ image so as to somehow convince the Court to grant injunctive orders knowing too well that they cannot sustain their argument before any Succession Court and are only trying their luck before this Court so as to meet their selfish desire to grab/meddle with the deceased's estate. 25. He contended that on the other hand, the Defendants stand to be greatly prejudiced if the orders are granted as they are empowered by law to execute the Will, and that granting the orders would mean that the Defendants will be curtailed from performing their roles as Trustees and Executors or distributing the estate. He submitted that in the absence of any order revoking the Will, the injunctive orders cannot issue. He contended further that the prayers for injunction cannot be granted unless all parties are fully heard as it would amount to the Court granting final orders in an interlocutory Application. He cited the case of Olive Mwihaki Mugenda & another v Okiya Omtata Okoiti & 4 others [2016] eKLR. In conclusion, he urged that even assuming that the Court had jurisdiction, the Plaintiffs have not made out a case for grant of the orders sought and urged that the Court should strike out the Application and the suit as a whole so as to pave way for the administration of the estate by the Defendants. Determination 26. The issues that arise for determination herein can be summarized as the following: i. Whether this Court, sitting as an ordinary civil proceedings Court, possesses the jurisdiction to entertain this suit which seeks orders intended to bar the executors/trustees of a Will from taking possession of the estate of the deceased on the ground that the validity of the Will is in question. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13875/eng@2025-08-01 8

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ii. 27. Whether a temporary injunction should be issued freezing the bank accounts and other facilities in the bank held in the name of the deceased”. In respect to the issue of jurisdiction, the Supreme Court in the case of Samuel Kamau Macharia vs. KCB and Others [2012] eKLR guided as follows: “ A Court’s jurisdiction flows from either the Constitution or Legislation or both. Thus, a Court can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law … the Court must operate within the constitutional limits. It cannot expand jurisdiction through judicial craft or innovation.” 28. Earlier, in the celebrated case of The Owners of the Motor Vessel “Lillian’s” -V- Caltex Oil Kenya Ltd [1989] KLR 1, Nyarangi J.A. held as follows: “ I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything, without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds that it is without jurisdiction.” 29. 30. On the issue of jurisdiction, as appreciated by the parties in their respective Submissions, in my said Ruling delivered in this matter on 29/11/2024, I suo motu raised the issue and commented as follows: “ 29. Stretched wider, the genesis of the “fight” over access to the funds is the larger “fight” touching on the question whether the deceased lawfully and truly changed his initial Will before his death as claimed by the Plaintiffs, a view vehemently challenged by the 1st and 2nd Defendants. Stretched even wider, the dispute on whether the Will was changed is because, while the initial Will is said to have been in favour of the Plaintiffs, the changed version is said to have varied the beneficiaries of the estate and now favours the 1st and 2nd Defendants. It is therefore beyond peradventure that the main battle herein is about control of the estate of the deceased and more specifically, inheritance of the properties left behind by the deceased, including the funds held in the said bank accounts. 30. It is therefore evident that this suit is a stop-gap measure meant to preserve the estate before the main “war” to be waged elsewhere. I say so because, while a suit commenced by way of a Plaint should ordinarily lead to a Judgment that finally and conclusively determines the rights of the parties, in this case, the prayers sought in the Plaint, if granted, would be technically still in the nature of “interim” orders pending further directions of the Court, either in this suit or in another or separate litigation yet to be commenced. To this extent, I have my reservations on the competency of the suit but would not say more about it lest I be accused of prejudging the case. …………………………… ………….”. Having held as above, I have no hesitation in finding that this matter, although properly filed before this High Court, ought to have been filed as a Succession Cause before the Probate & Administration Division of this High Court. No convincing explanation has been offered why the Plaintiffs chose to file the matter as an ordinary civil suit. Even if I were to accept Counsel’s invitation to consider the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13875/eng@2025-08-01 9

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amendments intended to be made to the Plaint through the yet to be heard Application on record, still the amendments, even if allowed, would not change the fact that this suit is a stop-gap measure pending determination of another suit elsewhere. Such Application may be proper in a Miscellaneous Application, but cannot be a valid prayer in a suit commenced by way of a Plaint, which presupposes that the Court at the end of the trial renders final orders. 31. Having found as above, I will not treat the matter as having been filed in a Court “without jurisdiction”, within the technical meaning of that phrase. It is simply the act of filing a suit in the proper Court but in the wrong division of that Court. The filing of the action in terms of a Plaint may also be excused as an act of wrong choice of the procedure. Being procedural defects, I do not therefore think that these amount to “blunders” that should lead to striking out of the action. 32. Having seriously agonized on what orders to now give, I direct and order as follows: i. Since the Plaintiffs’ Counsel has disclosed that they have now filed the proper action before the Probate & Administration Division of this Court, namely, Eldoret P&A Miscellaneous Cause No. E010 of 2025 , I invoke this Court’s inherent powers and now transfer this matter to the Probate & Administration Division of this Court where it shall be given a Miscellaneous Cause number and the same shall be mentioned in that Division on the same date when the said Eldoret P&A Miscellaneous Cause No. E010 of 2025 shall come up in Court and before the same Judge. ii. Once before the Probate & Administration Division, the Judge before whom the file will be placed will be at liberty to determine whether the Cause can be sustained or whether it is liable for striking out, there now being in existence the said Eldoret P&A Miscellaneous Cause No. E010 of 2025 , which seems to raise similar matters and in which the parties seem to be common. iii. Should the Judge decide to sustain the action, he shall be at liberty to give any further directions or make orders which he/she deems proper, including directing whether the file should be consolidated with the said Eldoret P&A Miscellaneous Cause No. E010 of 2025 , or whether the two should proceed as two separate actions, or whether it should be stayed in favour of the said Eldoret P&A Miscellaneous Cause No. E010 of 2025 . The Judge will also be at liberty to give directions on the manner in which the Plaint filed herein will be treated noting that the Law of Succession Act does not contemplate commencement of an action by way of a Plaint. iv. Until then, the interim orders that were issued herein on 11/10/2023 and extended on several occasions will remain in force and the Judge in the Probate & Administration Division before whom the file will be placed will be at liberty to hear and finally determine the Application dated 9/10/2023 or to give any other appropriate orders thereon. v. For avoidance of doubt therefore, it is confirmed that the Application dated 9/10/2023 is yet to be determined on merits and is therefore still pending for determination. DELIVERED, DATED AND SIGNED AT ELDORET THIS 1 ST DAY OF AUGUST 2025 …………… ..…….. WANANDA J. R. ANURO JUDGE Delivered in the presence of: Mr. C.F. Otieno for the Plaintiffs https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13875/eng@2025-08-01 10

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Ms. Odwa h/b for Mutiso for 1st and 2nd Defendants Court Assistant: Brian Kimathi https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13875/eng@2025-08-01 11

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