Kenneth Bitange Nyachae v Eric Maina Nyachae & 2 others

2. Eric Maina Nyachae, Charles Ayako Nyachae and Angela Nyarangi Nyachae Mochache be replaced as the Executors of the will of the late Simeon Nyachae by the alternate Executors of the will of the late Simeon Nyachae by the alternate Executors named in the will with the exclusion of Leon Nyandusi Nyachae. 3. There be a declaration that Eric Maina Nyachae, Charles Ayako Nyachae and Angela Nyarangi Nyachae Mochache as the Executors of the will of the late Simeon Nyachae have failed to execute their mandate in the Estate of the late Simeon Nyachae and contributed to the wastage of the assets yet to be vested in the beneficiaries where the applicant has a stake. 4. This Honourable Court do direct the executors of the WILL of the late Simeon Nyachae account and/or give an account of all transactions undertaken, payments made, funds received and expenditures incurred on behalf of the Estate of the late Simeon Nyachae since they were granted probate to administer the estate. 5. Upon compliance with Order (4) above, this Honourable Court to assess the losses and damage incurred by the estate of the late Simeon Nyachae. 6. This Honourable court do find that Eric Maina Nyachae, Charles Ayako Nyachae and Angela Nyarangi Nyachae Mochache are each personally liable to indemnify the estate of the late Simeon Nyachae for losses and damages suffered and/or incurred arising from their actions and omissions as Executors and further direct them to indemnify the Estate of the late Simeon Nyachae for all such losses and damages. 7. This Honourable court do grant such further directions and orders as it may deem necessary under the circumstances of this case. 8. The defendant do pay the cost of this cause. Notice Of Motion Dated 17Th May 2024. 3. The Notice of motion dated 17th May 2024 seeks the following prayers: 1. Spent 2. An order does issue that a joint interest earning account be opened by counsel for the parties herein where All Dues/monies from rental income and wherever in relation to the estate of the late Simeon Nyachae Will be deposited pending the hearing and determination of this matter and anything touching on the estate of the late Simeon Nyachae. 3. The Honourable court does issue an order directing the Executors of the will of the late Simeon Nyachae and any other person /entity involved in money matters of the estate of the late Simeon Nyachae to account and/or give an account of all transactions undertaken, payments made funds received and expenditure incurred on behalf of the estate of the late Simeon Nyachae and ALL the monies involved be deposited in the account to be opened as prayed in Prayer 2 above. 4. All or any payment or disbursement to be made in relation to the estate of the late Simeon Nyachae be made through the account to be opened as prayed in Prayer 2 above whose mandate will be the joint lawyers involved. 5. The costs of this application be provided for. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16604/eng@2025-09-16 2

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4. The applications seek orders that affect the crux of the WILL of the deceased therefore it will be prudent for this court to look at them simultaneously. 5. The defendants have filed their respective Replying affidavits in opposition to the applications. 6. The two applications were canvassed by way of written submissions. Determination 7. This court takes judicial notice that this suit emanates from the estate of the late Simeon Nyachae who died testate on the 1st February 2021, which is the subject matter in Succession Cause Number E1780 Of 2021. The same is still active before this court pending the hearing and determination thereof. 8. The two applications before this court seek to determine the impugned Will, a matter which raises substantial issues that affect the grant of probate and in essence determine the succession case. 9. This being a probate court, its main duty is to ensure that the deceased estate devolves to its rightful beneficiaries. Section 73(1) of the Probate and Administration Rules empowers the probate courts in the following language: “ Nothing in these rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” In the matter of the Estate of Edward Talam Limo (2025) eKLR Nyakundi J opined that “ From the onset, let me point out that court directions/orders are procedural in nature and are issued to guide the orderly disposition of matters before the Court. Such directions do not determine substantive rights of parties but rather set out the manner in which the Court will proceed to hear and determine the substantive issues. The directions in question relate specifically to the Court's decision to render a single comprehensive determination rather than bifurcating the issues as proposed by the Petitioners. This is squarely within the Court's case management powers and discretion to regulate its own proceedings.” 10. 11. The Laws of Succession Act borrows heavily from the Civil Procedure Act which encapsulates the overriding objective to enable the courts to deal with the cases fairly, efficiently, effectively, justly and proportionately which includes so far as it is practicable on a case to case basis: 1. Ensuring that the parties are on an equal footing 2. Saving expense and incidental judicial resources for both the judiciary and the parties in the litigation alike. 3. Dealing with the cases in ways which are proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of parties. 4. Ensuring that the case is dealt with expeditiously and fairly and allocating an appropriate share of the court’s resources to each party without discrimination. Being guided by the above oxygen rules and in the interest of expediting the succession case principles I make the following orders: 1. That the Originating summons dated 19th May 2023 is not allowed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16604/eng@2025-09-16 3

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2. That the Notice of motion dated 17th May 2025 be and is hereby denied. 3. That this matter be and is hereby consolidated with Succession Cause Number E1780 OF 2021. 4. Costs be in the cause. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF SEPTEMBER 2025 E.K. OGOLA JUDGE In the presence of: Dr Kinyariri ………………………………………………………….……for the Applicant Mr Gitonga ……………………………………………….……for the 1st & 3rd Defendant M/s Ndirangu ……………………………………………………. for the Interested Party Gisiele ……………………………..………….…………………………..….. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16604/eng@2025-09-16 4

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