In re Estate of Esther Nyakerario aias Esther Nyakerari (Deceased) (Succession Cause 463 of 2014) [2025] KEHC 15212 (KLR) (25 September 2025) (Ruling) Neutral citation: [2025] KEHC 15212 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MIGORI SUCCESSION CAUSE 463 OF 2014 ACA ONG’INJO, J SEPTEMBER 25, 2025 BETWEEN WAIRUNGU RIOBA TURUKA ...................................................... 1ST PROTESTOR MAROA RIOBA TURUKA ............................................................ 2ND PROTESTOR AND MASERO RIOBA TURUKA .............................................................. RESPONDENT RULING 1. The Protestors in the application dated 19th June 2023 sought that the court sets aside, vary and/or vacate orders of stay of execution dated 9th December 2021 and all consequential orders thereto and enable the enforcement and realization order No 3 in the judgement dated 11th December 2019 with respect to the distribution of the deceased estate by way of sale. 2. The Protestors/Applicants also sought to be awarded costs of the application. 3. The application was supported by the grounds on the face of the application and by the affidavit sworn on 19th December 2023 by Wairungu Rioba Turuka the 1st Applicant. 4. The Respondent Masero Rioba Turuka in Replying Affidavit sworn on 18th July 2023 on her behalf and on behalf of 9 sons of the deceased averred that the Applicants are estopped from making any other demands 5. other than Kshs 500,000/= as agreed at the 2 meetings as ordered by the court in its judgement dated 11th December 2019. 6. It was further averred that if the stay orders are vacated the suit in Migori ELC No. 3 of 2021 the suit land will be sold and the suit rendered nugatory. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15212/eng@2025-09-25 1
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7. It was averred further that the conduct of the 1st Applicant insinuating that he has not been given Kshs. 500,000/= and on the other hand declining to accept the said amount as full and final settlement of the same is double speak and implies that the 1st Applicant is bent on having the suit property sold at whatever cost. 8. The Respondent averred that her and her brothers have toiled to develop the property and which is their sole investment and that the 1st Applicant is only interested in selling it. 9. The Application was canvassed by way of written submissions. The Applicants submissions are dated 28th October 2024 whereas the Respondent filed submissions dated 26th September 2024. 10. This court has considered the rival submissions and find that vide ruling delivered on 9th December 2021 and judgement delivered on 11th December 2019 the issue that was subject of the meetings was distribution of the Plot No. 51 Isebania Town which the court determined was to devolve to the 10 remaining children of the deceased. The implication is that each of the beneficiaries as determined by the court is to get 1/10th of the value of the plot. 11. The court further ordered the Respondent and her brothers to refund Kshs 259200/= each and that upon such refund the 4 remaining brothers were to each get Kshs. 388,800/=. There is a distinction between this amount and the valuation and subsequent sale of the plot in event an agreement is not reached. The later amounts were rents collected from the subject plot by the Respondent and her brothers without accounting to the Applicants and the court ordered them to refund the same and transmit to the Applicants and 2 other brothers. I think that the Applicants are entitled to execute for the sums of Kshs.388,800/= against the Respondent and her brothers personally as they have not shown that they have paid or are willing to liquidate the same. 12. As for the valuation of the suit plot Hon. Justice Wendoh found that indeed meetings were held where the 1st Applicant consented to settling the matter fully and finally with payment of Kshs. 500,000/= and that pursuant to the judgement delivered on 11th December 2019 the agreement was to automatically form part of the judgement of the court. In the circumstances the Respondent and her brothers have the responsibility to pay to the Applicants the amount of Kshs. 500,000/= as agreed at the 2 meetings or else they will also be entitled to execute to realize the decretal sums thereof. 13. In the circumstances the application dated 19th June 2023 is allowed to the extent that the Applicants are at liberty to execute for the sums of Kshs.388,800/=each being refund of unaccounted for rent collected by the Respondent and her brothers. The Applicants are also at liberty to execute for the sum of Kshs. 500,000/=each being amounts in lieu of their share from the subject plot against the Respondent and her brothers in person. The costs of the application to be paid by the Respondent. DATED, SIGNED AND DELIVERED AT MIGORI THIS 25th DAY OF September, 2025 HON. LADY JUSTICE ANNE ONG’INJO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15212/eng@2025-09-25 2
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