Florence Ntue Nkonge & 3 others v Daniel Kobia Nkonge

d. Daniel Kobia Nkonge e. Charles Mwenda Nkonge f. Elizabeth Kananu Nkonge 3. The applicant moved the court for a grant of letters of Administration Ad Colligenda Bona and the same was issued on 27/8/2021. The letters were limited to the collection and preservation of the Estate. Thereafter she moved the court with a summons dated 27/10/2021 seeking to have Daniel Kobia Nkonge committed to Civil Jail for a period not exceeding six months for being in contempt of court orders and an order for him to surrender Kshs. 2,100,000/= being the amount of rent collected from the Estate of the deceased between April 2021 to October 2021. 4. The application was dismissed as the issue as to whether the rent belongs to the Estate of the deceased had to be determined, see ruling dated 20/12/2021. That the dispute could only be resolved in the main succession to determine whether the rent forms part o the Estate of the deceased. The respondent then filed a summons dated 31/1/2022 to have the grant issued to the applicant to be revoked. However, before the application could be argued, the parties indicated to the court that they were negotiating. The matter was referred to court annexed mediation. However, the parties failed to agree and were back to this court. 5. The parties then agreed to be joint administrators of the estate of the deceased. The court appointed the two, that is Florence Ntue Nkonge and Daniel Kobia Nkonge as the joint administrators of the estate of the deceased on 13/10/2022. The cause was gazette on 19/1/2023. The court directed the administrator and the administratix to file summons for confirmation of grant. Before this was done, the applicants filed the summons dated 29/06/2023. The court directed that the application be heard and determined before the summons for confirmation of grant. 6. The Summons The summons was filed by the applicants against the respondents. However, one of the applicants Elizabeth Nkonge vide a letter dated 22/8/2023, applied to withdraw from the proceedings. This left the 1st, 2nd & 3rd applicants. The summons was seeking an order that a temporary Injunction be issued against the respondents, his agents, servants, employees, assignees, proxies and any other person acting on his behalf, from interfering, selling, offering for sale, transferring, misusing, building, constructing, alienating, and/or intermeddling with all that properties namely:a. LR No. Karingani/Ndagani/1746 b. House No. 170 BuruBuru Phase 1 Casualina Court. c. Plot No. Chuka/Township/M34 d. Plot No. Chuka/Township/M34 e. Plot No. Ntima/Igoki/1900 f. Meru Town Plot No. Mwimbi/Chogoria/18A g. Mwimbi/Chogoria/6 h. Mwimbi/Chogoria/1A i. Plot No. Nturiri Market j. Plot No. Magutuni Township https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 2

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7. k. Motor Vehicle Reg. No. KBQ XXXX Nissan Xtrail l. Motor Vehicle Reg. No. KUG XXXX Range rover m. Motor Vehicle Reg. No. KJU XXXX Datsun Pick-Up n. Bank Account at Southern Star Chogoria Branch A/C No. 850XXXX and A/C No. 929XXXX Bank Account Equity Branch Chuka. o. Bank Account Transnation Sacco Chogoria Branch That the 1st respondent, Daniel Kobia be ordered to account for all the rental incomes from 27/3/2021 to date from the following: i. LR No. Karingani/Ndagani/1746 where there are twelve (12) rental units with a monthly income of Kshs. 8,000/= making a total of Kshs. 2,496,000/=. Hotel Business on Plot No. Chuka Township/M34 which has a restaurant and 22 rooms and four (4) shops with rental income of Kshs. 400,000/= making a total sum of Kshs. 2,600,000/= as at the time of filing the application. ii. Plot No. Ntima/Igoki/1900 in Meru eight (8) rental houses with an income of Kshs. 8,000/ = each making a total of Kshs. 64,000/= and a total of Kshs. 1,664,000/= as at the time of filing the summons. That the 1st respondent be ordered to surrender Kshs. 14,872,000/= to the joint account held by the administrators. That the 2nd respondent Charles Mwenda Nkonge to account for all rental and business income received with effect from 27/3/2021 from Mwimbi/ Chogoria/1A which has three (3) rental units with rent income of Kshs. 4,000/= totaling Kshs. 312,000/= as at the time of filing the application. iii. Mwimbi/Chogoria/6 a hotel business with nine (9) rooms and a restaurant making Kshs. 4,914,000/= and Kshs. 2,340,000/= respectively as at the time of filing the application. That he be ordered to surrender a total sum of Kshs. 7,254,000/= to the joint account held by the administrators. That the court be pleased to order that, the 1st administrator Florence Ntue Nkonge be supplied with Kshs. 40,000/= per month as her monthly subsistence. 8. The application is based on the grounds that the 1st & 2nd respondent have been in control of LR No. Karingani/Ndagani/1746, Plot No. Chuka Township/M34 Plot No Itima/Igoki/1900 Meru Town. Mwimbi/Chogoria 1A and Mwimbi/Chogoria/6 and all income generating properties of the deceased and in essence they have been collecting all rental income and the same time running the business of restaurants and bar which were owned by the deceased before his death on 27/3/2021. That it is important for the respondents to account all rental incomes they have been receiving since 27/3/2021 and declare the profits of the bar business which they have been in control since the deceased died. That the rental incomes received by the respondent and the profits from the bar business belongs to the estate of the deceased and all the beneficiaries. That application is brought in the interest of justice. 9. The summons is supported by the affidavit sworn by Florence Ntue Nkonge sworn on 29/6/2023. She avers that she is the widow of the deceased as well as the co-administrator of his estate. Her contention is that the properties listed above as well as the bank accounts form the estate of the deceased which he left behind at the time of his death and that Elias Nkonge Mwiandi together with the second respondent have been in control of the estate since the time of his death. That the first & second respondent have been collecting rental income as well as operating the businesses which belonged to the deceased as at the time of his death. These are the properties and the rental income which I have enumerated above. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 3

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10. It is her contention that the 1st and 2nd respondents ought to be accountable and render true accounts and submit all the monies received since 27/3/2021 upto the time of filing the summons todate in a joint account of the administrators pending the hearing and determination of the succession cause. That she is the widow of the deceased who contributed to the acquisition of the properties now belonging to the estate of the deceased, is now of advanced age and there is need for her to get subsistence of Kshs. 40,000/-. She further avers that the 1st & 2nd respondent have sidelined her to the extent that she is unable to meet her financial needs. She further contends that the properties now registered in the name of the deceased were so registered in trust for himself and herself and as she contributed indirectly in the acquisition of the said properties. 11. The respondents have opposed the application and filed replying affidavits. The 1st respondent Daniel Kobia Nkonge filed a replying sworn on 20/9/2023 and contends that the summons and the affidavit in support is fictitious, full of falsehoods, frivolous and should be dismissed with costs from the onset. This he states is based on the facts that at the time of his death on 27/3/2021 he had left certain properties to him which he was managing on his behalf. These he avers are the following: * LR Ntima/Igoki/1900 where there are rental units and will properly account. * LR No. Karingani/Ndagani 1746 Plot No. Chuka Township/M34 which were gifted to him before the death of their late father. 12. This was not known to his mother and his sibling with exception of his brother. That himself and his brother are the ones who used to take care of the deceased. * Plot No. LR Mwimbi/Chogoria/1A and Mwimbi/Chogoria/6 – the two were gifted to his brother Charles Mwenda Nkonge. * That LR No. Karingani/Ndagani/1746 was gifted to him in 2012 after he got married. 13. He settled on the property and took over everything which included taking up the rent and managing the property for himself. That he took over the property and had major utilities like electricity transferred and registered in his name. that in 2016 due to the introduction of rental income tax, the father authorized it to be registered in his name and it was his i.e 1st respondent and his family. That LR No. Chuka Township M34 his father engaged him in the construction of the ground floor which took about two years to complete and was let out to commercial tenants. On the first floor it was let out as offices. 14. The 1st respondent avers that in 2007 he joined Kenya Power & Lighting Company as an electrical technician and he was posted in Chuka and thereafter posted to Nanyuki in 2013.That during that period he had become an alcoholic and as such he was summoned time without number by his father and lectured him on alcoholism and settling down. That in 2011 when he stopped drinking alcohol when he decided to settle down his father became very excited and even led other clan elders in taking him to his wife’s home for dowry ceremony in 2012. 15. The 1st respondent states that his employer Kenya power became a tenant on that parcel in 2006 and stayed there for seven years. That when leaving in 2013 his father had already started pleading with him to leave his employer Kenya Power and take over plot No. M34 where he had established a small restaurant. That in 2015 his father registered the power utility in his name over plot No. M34 and kept on telling him to go and take charge over his place and he would even send emissaries such as his uncles Ndubi and Riungu to plead with him to leave employment and further develop plot No. M34. 16. The 1st respondent avers that finally in 2017 he left Kenya Power and his father became very elated and told him to go and do whatever he wanted with plot no. M34 to generate income and raise his kids. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 4

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That it was then when he decided to change the 1st floor and converted the offices into lodging and further took out a loan facility with Co-operative Bank and developed the second floor where he put up other lodging facilities and also put up a bar and a restaurant and a conference hall now known as Chuka County Hotel. 17. The 1st respondent avers that in 2007 his brother Charles Mwenda went to Nairobi having eloped after having some misunderstanding with his father since he was a strict disciplinarian. That this was due to drunkenness by his brother but his father really loved him and even sent for him to come back and run the business he had set up on LR Mwimbi/Chogoria/1A and L.R Mwimbi/Chogoria/6. 18. The 1st respondent further avers that in 2012 during his wife's dowry ceremony, he invited his brother and that is when his father got hold of him and they talked and Mwenda decided to leave NAIROBI and go back to CHOGORIA in 2013 after his father threatened to transfer everything to him in front of him and his uncles. That, that is when his brother came back in 2013 took over Plot No. 1A & 6 and further reiterated that the properties would be jointly registered in the name of his brother and him. 19. The 1st respondent states that is why he has been collecting rent on his behalf and he remit the same to him since then up to date. That as regards the rental income earned on L.R Ntima/Igoki/1900, since his father died, in the advent of the infamous Covid-19, the houses remained vacant for twenty months with the exception of three houses. 20. The 1st respondent further states that besides the harsh economic period therein, right after his father died, his mother in the company of her eldest sister went to the property and demanded rental income from the tenants who refused to pay them since they were unknown to them. That on being denied the rental income, they went and looked for goons who destroyed the property by breaking window panes and destroyed the door locks and as such the destruction contributed to most of the tenants vacating most of the houses. 21. The 1st respondent avers that in December the year 2022 he began renovations over the said property to at least ensure that the same would receive tenants from the beginning of 2023 so as to maximize the returns over the property for the benefit of the estate. That further, during the twenty months the property was majorly vacant, that he indeed would send some rental monies from the houses to her mother which total amount is Kshs 190,000/= through Mpesa and 520,000/= via cash. The 1st respondent attached Mpesa statement marked DKN-1). 22. The 1st respondent further avers that he did so because she was the administrator/petitioner then and further she would call him and ask me for money on her behalf and those of her sisters where he also sent money to her sister SUSAN NKONGE to the tune of 310,000/= via Mpesa and cash 400,000/=. 23. The 1st respondent states that therefore she prepared an account on the said property putting into consideration that he spent his own money to renovate the entire premises for the benefit of the estate. That be that as it may, the applicant has approached the court with soiled hands since she has intermeddled times without numbers instructing her elder sister SUSAN and also in cohorts with Jenniffer Muthoni in several instances. 24. The 1st respondent avers that firstly when his father died he left a medical bill of Kshs.3,280,000/= where through the family having consented, they instructed the firm of Waklaw to make an application to access his father's accounts in order to settle the said hospital bill owed to Kenyatta National Hospital. The 1st respondent attached copies of the application and the order). marked as DKN-2. 25. The 1st respondent avers that it was during that period while accessing the accounts he failed to understand how Kenya shillings three Hundred Thousand was wired from his father’s account to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 5

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Jeniffer Muthoni's account and yet she was a staff member of the Sacco where his father held the accounts. The 1st respondent attached copies of the account statements marked DKN-3. That despite that her mother immediately sold his father's dairy cows, transferred the coffee registration from his father’s name to hers without consulting them, that she further withdrew monies from capital Sacco without their knowledge. The 1st respondent attached copies of statements from capital Sacco). 26. The 1st respondent states that to make matters worse their mother illegally went felling all the trees on his father's ancestral parcels without their knowledge and consent. The 1st respondent attached copies of photos felling trees marked DKN-5. That as regards to his father's house in buruburu, she instructed her eldest sister to break the locks of the house and took over possession of the same while clearly knowing the directions that had been issued concerning that very house. The 1st respondent attached a copy of the letter by the OCS marked DKN-6. 27. The 1st respondent avers that indeed the house is now rented without their knowledge or consent and they have not disclosed to the court that they are collecting rent over the same property. That to add salt to injury they have been working round the clock sending goons to his business premises harassing his employees with quite a big significance on one goon named Erick who is said to be the husband to his sister Jeniffer Muthoni. 28. The 1st respondent states that this application should be dismissed as his mother is well provided for as proved since she collects rental income over L.R Mwimbi/Chogoria/18A and house No. 170 Buruburu to the tune of Kshs.120,000/=. That amount does not include the proceeds from coffee on his father's coffee farm and proceeds from the sale of bananas and nappier grass. The 1st respondent attached copies of photos from the farm marked DKN-7. 29. The 1st respondent avers that if injunctive orders are granted it will deny them access to where they live with their families even before his father died and further will be misusing the court to snatch from them what they had been gifted by their father before he died and will be robbed off their dear livelihoods which they use to raise their families.That it is unjust, illegal, and as such unfair and will be clearly go against the wishes of his deceased father. 30. The 2nd respondent filed his replying affidavit dated 20th September 2023 in response to the summons. The 2nd respondent avers that they were born by the same mother one Florence Ntue Nkonge as five siblings and he was the 4th born in the family. That his father’s estate is vast but before his father’s death he had gifted him two parcels namely L.R No. Chuka plot No. M34 where he has been running the said premises since 2010 and also he gifted him L.R No. Ndagani/Karingani/1746 where he lives together with his family since then. 31. The 2nd respondent avers that it is quite unfortunate that their own mother has brought the issue clearly knowing that they were gifted those 4 properties while she was separated from their father. That he has been taking care of his father until the day of hospitalization at Pole Pole where he lived with him. That his parents have been separated since 1999 and to his knowledge that is why they filed the instant dispute since his sister and her mother were not directly involved in the life of his father. 32. The 2nd respondent states that the history between his father and him has been long since he was an errant son and as such he only gifted him the two parcels on condition that they would be jointly registered in the names of herself and his brother which she gladly accepted. 33. The 2nd respondent further states that utilities are registered in the name of his brother for both parcels and in fact the Kenya Revenue Authority queries his brother over his property which he accounts to him. That it is therefore not necessary for his brother and him to account for property that they were https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 6

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duly gifted ‘nec vic nec clam nec precario’ and in the eyes of the public where everyone knows that they are the beneficial owners of the same. 34. The 2nd respondent avers that the properties were not registered in trust in the names of the deceased and their mother as trustee for the four properties namely Karingani/1746 & Chuka plot M34,Mwimbi/Chogoria/6 and Mwimbi/Chogoria/1A. 35. The 2nd respondent further avers that the said application should therefore be dismissed with costs and they should concentrate in developing the property so left by their father the rightful owners therein. 36. Crispus Riungu filed a replying affidavit dated 20th September 2023 wherein he avers that he was born in 1938 four years before his brother was born. That they grew up at Kiraro at their ancestral home and upon the deceased attaining the age of majority his brother joined the Police Service where he worked for a few years after which he went down to Mombasa and joined the construction industry. That after working in Mombasa he came back to Kiraro where he constructed his house in 1975 on his ancestral land and thereafter married one Florence Ntue Nkonge in 1976.That they were blessed with five children namely Susan Gatune Nkonge,Jennifer Muthoni,Daniel Kobia,Charles Mwenda and Elizabeth Kananu. He further states that he brought up his family well and really supported his children by educating them and providing for them. 37. Crispus Riungu avers that Elias Nkonge Mwiandi continued amassing wealth from his construction business after which he also joined the hospitality industry where he built some lodging and rentals at Pole Pole. That he was a good man and very strict disciplinarian and no-nonsense in nature. That sometime in 1999 he moved out of his matrimonial home at Kiraro and went to one of his establishments “Pole Pole.” That upon learning the same he informed his late mother and brothers and an elder one Charles Maingi where they thereafter planned to have a discussion with the deceased to know what the problem was. That in deed they had a discussion with him and he adamantly refused to go back to his home citing that he was afraid for his life. 38. Chrispus Riungu further avers that her went on with his life at Pole Pole while separated with Florence Ntue Nkonge. That during that time they would spend time together during discussions of which he also spent at Pole Pole in several instances. That it was during these sessions that the deceased spoke out his wishes and his intentions especially with regard to his two sons where he referred to them as his two mountains. 39. Chrispus Riungu avers that in 2009 the deceased brother suffered a mild stroke/affecting his left hand. That upon getting sick he received treatment but his siblings they got worried and pleaded with him to back to his matrimonial home in Kiraro so that he would be taken care of by his wife. That he blatantly refused citing that he had capable sons and he further said that sending him back to Kiraro would be sending him to his grave yard. That his siblings and him were not satisfied but had no choice but to accept his wish. 40. Chrispus Ringu states that sometime in 2011 his brother called him to his residence at pole pole and he complained about his son Daniel Kobia who at the time was working with Kenya Power about his drinking and also that he had attained the age of marriage but he did not show any signs setting down. That it was there after that he summoned his son Kobia and in his presence reprimanded him citing that he had intentions of giving him the mantle to lead the family. That in 2012, to his surprise, Kobia stopped drinking and even got married and his father was proud of him and thus gifted him his property at Kahawa namely L.R. No. Karingani/Ndagani/1746 where he told him to go and settle there with his wife. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 7

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41. Chrispus Riungu avers that around 2004 his brother together with his son Kobia began construction on plot No. Chuka M34 where they constructed the ground floor. That it was during that period that his deceased brother gifted Kobia plot No. M34 saying that his mountain in Chuka is settled. That his other son Mwenda became errant to the point of leaving Chogoria and went to live in Nairobi leaving his business in the hands of his father which really troubled his brother. That it was at that point in 2016 that his brother sent several emissaries to look for his son pleading with him to come back to Chogoria. 42. Chrispus Riungu states that he even threatened to transfer all his property to Kobia but he retaliated and expressed his displeasure to which Charles returned and took over Pole Pole and continued running the business. That at the end year 2020 his brother informed him that he was preparing a meeting scheduled for 2nd January, 2021 and that he insisted that none of his brothers who were alive should miss the same. That on 2nd January 2021, he prepared himself and left for his brother's residence at pole pole where they were welcomed and they began the meeting. 43. Chrispus Riungu further states that in the meeting were his brothers Ndubi,Njeru,Kirauni and the clan chairman Mr. Marangu. That his brother categorically stated that he intended to become a ‘Murugi’ and further wished to enroll his son Kobia as an elder within two weeks when the occasion would be held. That he also repeated that his sons were settled at their various properties to which he had already gifted them. 44. Chrispus Riungu avers that Elias Nkionge Mwiandi stated that he however stated that his wife remain at their matrimonial home Kiraro and that she would be jointly be in custody of the house at Buruburu with his sons for reasons that he felt sickly and needed to settle every one besides complying with cultural requirements of Atune clan. That for his daughters he further stated that LR No. Mwimbi/ Magutuni/1276 at Iruma to be shared equally among them. That on the issue of the house at Buru Buru the deceased categorically told him that the house should not be sold but should be used by his sons and all his grandchildren as an educational avenue in that if anyone needed accommodation while studying within Nairobi the house would be used for that purpose but it would only be possible if in the custody of his sons and his wife. 45. Chrispus Riungu avers that the undistributed land parcels and plots would be under the charge of Kobia upon becoming an elder who would distribute to his other siblings as necessary. That after the meeting they were informed by "muhiriga" chairman that dates the deceased had requested to have the ceremony were available subject to confirmation by his deceased brother where after they shared a meal together and left. That his late brother got admitted on 6th January, 2021 but unfortunately succumbed on 27th March, 2021. 46. Chrispus Riungu further avers that he swore the affidavit because he had seen the applicants did not conform to his deceased brother’s directions despite them being aware of his wishes. 47. Daniel Ndubi Mwiandi filed his replying affidavit dated 20th September 2023 wherein he avers that he was born in 1953 and is the sixth born in their family and such he knew the deceased since his childhood. That the deceased actually paid for his school fees since primary school, secondary and finally he joined the National Youth Service where he pursued electrical technician course. That thereafter he was employed by the deceased as a manager in Mombasa where he ran a construction company and after his relocation to Chogoria they managed to construct many coffee factories within the Mount Kenya region and many other serious projects. 48. Daniel Ndubi Mwiandi avers that during this period they lived together and would share a lot and as such he got to know much about his dealing and how he acquired his properties. That it was during https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 8

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his lifetime that he acquired several properties namely L.R No.Ndagani/Karingani/1746,Chuka Plot No. M34, Mwimbi/Chogoria/6,Mwimbi/chogoria/1A,Mwimbi/chogoria/18A,Meru,ntimaa/ igoki/1900 amongst others. That sometime in the year 1999 or thereabout his elder brother, the deceased left his matrimonial home and went and settled in Mwimbi/chogoria/6 and 1A where he had put up rentals, lodging and a restaurant. That the move shocked him and on inquiring from him he told him that he was afraid for his life and that he would not go back to Kiraro as going back would be sending him to his graveyard. That despite insisting on his return and re-uniting with his wife, he remained adamant and refused and further went on with his business which he ran from pole pole. 49. Daniel Ndubi Mwiandi further avers that he would often invite him for drinks and it was during those invites that he would boast to him that he had two mountains, one in Chuka and the other one in Pole Pole in reference to his sons and that he needed to settle the two mountains so that they would not meet. That on several occasions he would repeat the same and after which around 2011 or 2012 when his son Daniel Kobia stopped drinking alcohol and even got married he was offered L.R Ndagani/ karingani/1746 and was instructed to go and settle there with his new family. That it was also during that period that the deceased insisted and begged his son Daniel Kobia to leave Kenya Power where he worked as an electrical technician so that he would take over his business at Chuka Plot No. M34 where they had constructed premises and put up a restaurant and lodging therein. 50. Daniel Ndubi Mwiandi states that it was also during that period that his other son had become errant and had eloped to go live in Nairobi and as such the deceased would complain and further would send him to go look for his son Charles Mwenda. That It was not until the deceased threatened transferring everything to his son Kobia that his other son Charles Mwenda came back and took over the running of the lodging and rentals at Pole Pole where they lived together with his father. That thereafter his brother confirmed that his two mountains were now settled. 51. Daniel Ndubi further states that there was no way the wife and his daughters would know the gifting because when that happened they were not around. That in the end of 2020 his brother called him and invited him to go to his premises on 2nd January 2021 and he insisted that he should not fail to go. That when the day arrived he prepared himself and went to his premises at Pole Pole where he met his other siblings and also met their clan chairman Mr. Charles Marangu. That upon settling down his brother, the deceased called the meeting to order and clarified that he wanted to discuss issues concerning his family and further he wanted to pass on the mantle to his son Daniel Kobia by enrolling him as a clan elder 52. Daniel Ndubi avers that he insisted that he needed those two steps done in the next fortnight since he stated that he felt sickly and needed to accomplish those things before his health could fail him. That upon receiving confirmation from the chair of the Muhiriga, that the dates would be available and that elders would be informed the date to slaughter a bull and a he-goat that he had offered. They went ahead and stated talking about his children and how he has settled his two mountains and also reiterated that his wife was to remain at his matrimonial home in Kiraro and that she should start collecting rent from L.R No.mwimbi/chogoria/18A since he felt sickly and needed to settle everyone. 53. Daniel Ndubi further avers that for his daughters LR No.-mwimbi/magutuni/1276 at Iruma to be shared equally among them. That on the issue of the house at Buru Buru the deceased categorically told him that the house should not be sold but should be used by his sons and all his grandchildren as an educational avenue in that if anyone needed accommodation while studying within Nairobi, the house would be used for that purpose but it would only be possible if in the custody of his sons and his wife. That he finalized by saying that any other parcels that were undistributed would be left in the care and charge of Daniel Kobia who would distribute to his other siblings as need be upon him https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 9

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becoming an elder in the Atune clan. That upon concluding the meeting they shared a meal together and left thereafter. 54. Daniel Ndubi states that on 6th January,2021, he received a call from his nephew Daniel Kobia Nkonge who informed him that his father had fallen sick and was admitted at Kenyatta National Hospital and had instructed that he goes visit him with immediate effect. That on 7th January,2021 he got from his house in Ruiru and went to visit his brother in hospital where he asked him to be with him during his treatment until he is discharged. That he always visited him until his demise. That he swears the affidavit to confirm that Daniel Kobia was gifted his home at Kahawa being L.R No. Ndagani/karingani/1746 and Chuka Plot No.M34 and his brother Charles Mwenda was also gifted L.R No.mwimbi/chogoria/6 and 1A and that on 2nd January,2021 the deceased confirmed the same and further devolved property orally to his daughter and wife as well despite being present. That the application ought to be dismissed with costs as it is based on falsehoods. 55. Ephantus Njeru Mwiandi filed his replying affidavit dated 20th September 2023 wherein he avers that he is the 3rd born in their family where the deceased was the 2nd born. That they have grown together since childhood and he had seen his older brother develop and gain wealth and get his family up until his death on 27th March 2021. 56. Ephantus Njeru Mwiandi avers that that the deceased lived with all his children but he however, gifted his only two sons several properties namely: Daniel Kobia was gifted a parcel in Kahawa where he lives to date with his family and Chuka M34 to which he participated in construction. That his other son Charles Mwenda was gifted two properties at pole pole where he also lives but on condition that the two would be registered in the joint names of Kobia and Mwenda since Mwenda had been an errant son a while ago. That further the reason why Kobia was gifted Plot no. M34, was because his older brother actually recalled his son from active employment at Kenya Power to take control of his (Daniel Kobia) business which was being mis-managed by Kobia employees. 57. Ephantus Njeru Mwiandi further avers that learning the decision to have Daniel Kobia leave Kenya Power he actually went and met the deceased and they actually quarreled over the decision, he was only left with no option but being contented. That in fact, one Daniel Kobia was actively involved in the development of Chuka Plot No.M34 where he even invested his own money to construct Chuka County M34 which he established a small Hotel and bar. That around the eve of New year 2021, he was called by one Daniel Ndubi his younger brother who informed him that they had been called/ invited for an urgent family meeting by my elder brother Elias Nkoge Mwiandi. 58. Ephantus Njeru Mwiandi states that he agreed to the invite and they met at his plot in Polepole, where he lived with Mwenda, that on 2nd January,2021 where they met with his other siblings together with the chairman of our clan (Muhiriga) one Charles Marangu Maingi. That on arriving at their brother Elias Nkonge's place that is when he realized the intention of the invitation by the deceased. That he then made clear his intent to become a “Murugi” within the clan and further his intention of passing on the mantle to his son Daniel Kobia. That he requested for a date from the chairman of the muhiriga within two weeks from the date of the meeting. That he intended to complete his process by offering a bull as a requirement to in order to be enrolled as clan elder in their Muhiriga. 59. Ephantus Njeru Mwiandi avers that the deceased reiterated in their presence that he had settled his two sons in the various properties whom he referred to as his two mountains where he stated that his two mountains one being Chuka and the other one in Pole Pole. That the chair of the Muhiriga one Charles Marangu Maingi gave his brother the assuarance that the dates were available and he was ready to inform the other clan elders of his intentions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 10

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60. Ephantus Njeru Mwiadi avers that the deceased further stated that his wife Florence Ntue Nkonge would remain at their matrimonial home at Kiraro that she would also continue with the farming at the matrimonial and ancestral home. He further stated that the chairman of our Muhiriga had stated that at several instances in his presence the clan elders had tried to reconcile his elder brother and his wife to which them as his siblings had also attempted on several occasions to no avail. That even at that instance, he still responded harshly refusing to go back to his ancestral and matrimonial home where time without numbers he insisted that the same would be like going to his own graveyard as he feared for his life. 61. Ephantus Njeru Mwiandi avers that the deceased gave her daughters a shamba at Iruma to be distributed equally among them. That the house at Buru Buru should not be sold but should be used by his sons and all his grandchildren as an educational avenue in that if anyone needed accommodation while studying within Nairobi the house would be used for that purpose but it would only be possible if in the custody of his sons and his wife. 62. Ephantus Njeru Mwiandi further avers that he finally finished off and stated that his household was now settled and in order even leaving out several other parcels of land and plots undistributed where his son Daniel Kobia upon becoming an elder would distribute to his other siblings as necessary. 63. Charles Maingi Marangu filed his replying affidavit dated 20th September 2023 wherein he avers that he has been the Chairman of the Atune Clan where he led and conducted several meetings under the Ameru Culture and Customs. That he had known the deceased since his childhood as they belong to the same clan Atune clan. That before his Chairmanship he has been a member and an elder of the clan for over thirty-five years and hence he has known the deceased and his family quite well. That sometime in 199 or thereabout in the usual course of clan meetings some members of the clan namely Riungu and Ndubi approached him and informed him that the deceased had left his matrimonial and ancestral home at Kiraro thereby separating with his wife which was quite unusual. That he decided to pay the deceased a visit on his property at Pole Pole L.R Mwimbi/Chogoria/6 where he lived and had a candid discussion over the matter. 64. Charles Maingi Marangu further avers that the deceased informed him that he feared for his life which led him to leaving his home and when he tried convincing him to return he remained adamant and even responded arrogantly claiming that he was getting too much involved in his private life.That later on around 2009 the deceased had a mild stroke he paid him a further visit wherein he advised him to go back to his matrimonial home at Kiraro so that his wife would take care of him. 65. Kirimi Muturi filed his affidavit dated 18th September 2023 wherein he avers that he is an advocate of the high court of Kenya practicing as such in the name & style of Waklaw & Co. Advocates in Chuka and in Meru. That he is a tenant in L.R No. Chuka plot No.M34 where he runs his business as a legal practitioner since 2017.That he is engaged the deceased one Elias Mwiandi Nkonge who directed him to approach one Daniel Kobia Nkonge who is the proprietor of the said property. 66. Kirimi Muturi further avers that they entered into a tenancy agreement with the 1st respondent in 2017 and he attached copies of the tenancy agreement marked KM-1a and b.That he has known him as the proprietor of the same and has been paying his rental fee since then. That further he had engaged the deceased in his engagements and he actually had promised to sell him one motor vehicle Reg. No KUG XXXX Range Rover but unfortunately he passed away on 27th March 2021 before he could actualize the same. 67. Kirimi Muturi states that further the deceased had approached him with regard to transferring L.R No. Chuka Plot No. M34 to one Daniel Kobia together with L.R No. Ndagani/Karingani/1746 to him as https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 11

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he indicated that he had gifted him the two parcels of land.That he also gifted his other son one Charles Mwenda Nkonge two properties namely L.R Mwimbi/Chogoria/6 and LR Mwimbi/Chogoria/1A that have to be registered jointly in the names of Daniel Kobia Nkonge and Charles Mwenda Nkonge but with an order that all the income would devolve to his son Charles Mwenda. 68. Kirimi Muturi further aver that the reasons that Charles was an errant son and he would go missing from time to time and since he loved his son he knew that the properties were safe when registered jointly in the names of his sons. 69. The Applicant filed a Supplementary affidavit dated 1st November 2023 wherein she averred that the affidavits filed by Daniel Kobia Nkonge,Charles Mwenda Nkonge, Chrispus Riungu,Daniel Ndubi Mwiandi,Ephantus Njeru Mwiandi,Charles Maingi Marangu,Kirimi Muturi are falsehoods and untruths and ought to be struck out at the opportune time by the court. 70. The Applicant avers that her application vide summons dated 29th June 2023 is calling for a temporary injunction and accountability of the estate since the demise of Elias Nkonge Mwandi and as well as providing subsistence amount of Kshs 40,000 per month to her pending the hearing and determination of the confirmation of grant. That the 1st and 2nd respondents have not denied being in control of the estate of the deceased since his demise to date since the assertion has been confirmed by the 1st respondent in his replying Affidavit under paragraph 4,5,6,7,8 and 9. 71. The Applicant further avers that the issue of being gifted to the 1st respondent under paragraph 4,5,6,7,8 and 9 of the replying Affidavit are issues to be addressed during the hearing of the matter and/or confirmation and not before this application. That power utility bills are not per ser proof of ownership as alleged by the 1st respondent. That there is no evidence of the 1st respondent being given plot No. M34-Chuka whereas the 1st defendant is put into strict proof. That the 1st respondent has admitted collecting rent and that is what they demand accountability of the rent collected. That further there is no evidence from the 1st respondent that the houses under L.R Ntima/Igoki/1900 were vacant as alleged but it is her evidence that those houses were fully occupied despite Covid-19 pandemic. 72. The applicant states that she has not demanded rents or destroyed tenants properties with goons as alleged in the replying affidavit and further there is no evidence of renovation as alleged by the 1st respondent. That she has never received rental incomes from any properties of the deceased especially Kshs 190,000 through Mpesa and Kshs 520,000/= and the 1st respondent ought to demonstrate the payment of the money to her by way of evidence. That the 1st respondent has never sent any money for renovation on any premises from the time her husband died. 73. The Applicant avers that she denied contents of paragraphs 30,31,32,33,34,35 and 36 and 37 of the replying affidavit as they are well thought out concoctions which are unsubstantiated and the 1st respondent is using to evade accountability. 74. The Applicant further avers that she does not collect any rents from Mwimbi Chogoria/18A and House No.170 Buruburu. That on the photograph marked exhibit No DKN7 the 1st respondent is not the one who took the photos and there is every reason to believe that the photos were not taken from the estate of the deceased. 75. The Applicant states that the issues of separation with his deceased husband are lies perpetuated to the court. That the 1st respondent ought to have demonstrated to the court the incomes he received from the estate of the deceased so that the same can be shared equitably by all beneficiaries. 76. The Applicant stated that the replying affidavit of the 2nd respondent is untrue that the 2nd respondent was gifted L.R Mwimbi/Chogoria/6,Mwimbi/Chogoria/1A and Ndagani/Karingani/1746 however https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 12

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the respondents have admitted that they have been collecting rents from the said properties of which they urged the court to order the respondents to account for. That there is no evidence of gifts as alleged by the 2nd respondent and further there is no evidence of separation as alleged. 77. The Applicant avers that the affidavits sworn by Chrispus Riungu,Daniel Ndubi Mwiandi,Ephantus Njeru Mwiandi,Charles Maingi Marangu and Kirimi Muturi adds no value to the instant application before court. That they raise issues which may be of concern in the main suit but not in this instant application and the same ought to be struck out. 78. The 1st respondent filed a further replying affidavit dated 19th January 2024.The 1st respondent avers that in further response to the summons dated 29th June 2023.The same is utterly frivolous, vexatious and utter abuse of the court process for reasons that his father had gifted his brother and him some few parcels way before his demise and that the application is only meant to snatch them away from them and the applicants are up to no good because they did not complain to his father before his death why they were gifted and are in possession of the said properties being L.R No. Karingani/ Ndagani/1746,LR Chuka Township M34.L.R Mwimbi/Chogoria/1A & Mwimbi/Chogoria/1A. 79. The 1st respondent states that he is advised by his counsel that he who comes to equity must do so with clean hands and the applicant’s hand are soiled with all manner of evil as it is clear that her mother sometime after his father’s death approached Capital Sacco and withdrew Kshs 30,500/ on 21st April 2021.The 1st respondent attached copies of statement of accounts marked DKN-1.That further they endeavored their evil deeds whereby the 1st Applicant and the 2nd Administrator in several instances approached Southern Star Sacco and withdrew various amounts on different dates being 10th September 2021 Kshs. 55,000,on 4tgh October 2021 Kshs 30,000 and on 23rd October 2021 being Kshs 25,000.The 1st respondent attached copy of the statement marked DKN-2. 80. The 1st respondent further states that in the same vein they endeavored to withdraw various amounts on different dates being 31st August 2021 Kshs 30,000 with regards to A/C No. 502XXXX belonging to the deceased. The 1st respondent attached a copy of the statement marked DKN-3. That further the 3rd applicant on 190th September 2021 managed to transfer Kshs 300,000to her account being A/C No.502XXXX and she did so since she is an employee of the same Sacco. The 1st respondent attached an entry marked DKN-3. 81. The 1st respondent states that the 1st and 3rd applicants in cohorts with the Sacco implied that he was also part of the intermeddling of both accounts yet he never accompanied them and neither did he interfere with the said accounts as during the same year right after the death of his father they went ahead and reported at Chuka police station that he had stolen his father’s Motor Vehicle Reg No. KBQ XXXX and further made another report of threatening to kill and also made an application for contempt of court and wanted to have him put in civil jail for six months and as such they were not in talking terms with any of his siblings and mother other than his only brother Charles Mwenda Nkonge who is his co-respondent in the Summons dated 29th June 2023. 82. The 1st respondent contends that the applicants edited the said accounts in an attempt to implicate her wrongly as they very well knew and were aware that they were interfering with his father’s accounts even after his death illegally. That the only instance where he interfered with any account was through a legal court process where they sought special grant vide CM's Chuka Succession Cause No.E009 of 2021 where they sought to get money from his father's account held with co-operative Bank Kenya Ltd in order to off-set the hospital bill owed to Kenyatta National Hospital which amounted to Kshs. 3,380,000/= which amount was transferred directly to KNH's account. The 1st respondent attached a copy of the ad-litem marked DKN-4. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 13

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83. The 1st respondent states that applicants are not entitled to any of the prayers sought as they have been made in bad taste and the 4th applicant wrote to the court distancing herself from those summons dated 29th June, 2023 as they are glossed with ill-motives, misrepresentations and falsehoods. The 1st respondent attached a copy of the said letter dated 22nd August, 2023 marked DKN-5. 84. The 1st respondent further states that to make matters worse he had earlier deponed in his previous affidavit filed on 22nd September,2023 that the 1st Applicant is not entitled to any provision whatsoever since she went ahead and changed the coffee details at Mutunga Coffee Factory into her name and gets the proceeds therefrom as it is clear that coffee proceeds would be dealt with in A/c No. 502XXXX as reflected in transaction dated 06/12/2021. The 1st respondent relied on DKN-2 on entry dated 06/12/2021). 85. The 1st respondent contends that even despite making a police report at Buru buru police station where the 1st and 2nd applicants went and damaged locks to Buru buru House NO. 170, they went ahead and changed all locks to deny them access and the 1st Applicant went ahead and rented out the said premises without their knowledge and is currently collecting Kshs. 30,000/= per month from the said premises from one George Njoroge who is the current tenant. The 1st respondent attached copies of Mpesa messages from the tenant dated, 26/08/2023,28/08/2023 and7/01/2024). 86. The 1st respondent avers that she also collects rent from 3 houses each being rented out at an amount of Kshs. 5000/- and one other house that was to be gifted to Elizabeth Kananu rented out at Kshs.8000/per month and therefore making a total rent collection of Kshs 53,000/= Per month. That it is therefore evident that the applicants are also seeking injunctive orders which will deprive them their various homes and business through the back door yet the deceased left us in those various premises. That if the same orders are granted, they will not only be rendered jobless but also homeless with their families. 87. The 1st respondent states that it is clear that the applicants want them to account on premises that were gifted to them way before the deceased died which is not tenable with the exception of the rentals in Meru on L.R No. Ntima/igoki/1900 which he has dutifully and truthfully accounted for and he has given the true statement of accounts of the current situation over the said property. That further, he has demonstrated to the Court beyond any reasonable doubt of the misdeeds by the applicants of intermeddling not only with the accounts but also with other property they are currently collecting rent from and as such the 1st Applicant is not entitled to any provision whatsoever as she is already provided for and she is only seeking a second bite to the cherry with the sole intention of disinheriting the Respondents. 88. The 1st respondent further states that he has been advised by his Advocates which advice that the summons are clearly standing on stilts that are based on falsehoods, misrepresentation and misdeeds whose only consequences is to fall .That ultimately the summons should be dismissed with costs to the respondents. 89. The 1st Applicant further filed a further supplementary affidavit dated 5th March 2024 wherein she reiterated that she denies that the respondents were gifted any of the properties of the deceased. That in reply to paragraph 5 and 6 of the replying affidavits of the 1st respondent dated 19th January 2024 she stated that she was a joint signatory with the 1st respondent and it was not possible for her to withdraw the money alone. 90. The 1st applicant stated that in response to paragraph 8 of the replying affidavit the sum of Kshs 300,000 was given to the 3rd Applicant as a salary advance which was utilized as a deposit for the payment of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 14

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the hospital bill so as to get the body released for burial. That the Kshs 300,000 was used towards the deceased decent burial. 91. The 1st Applicant further stated that none of the Applicants interfered with the deceased’s bank account save that the deceased’s bank account had the 1st respondent’s signature with hers. 92. The 1st Applicant states that in response to paragraph 16 of the replying affidavit the 1st respondent has several businesses and hence he is not jobless. That above all he is enjoying the properties and incomes from the estate of the deceased in full blatant violation of the law and he ought to account for the same. That the respondents ought to account for the money received from the estate with effect from March 2020. 93. The parties filed their written submissions which were duly filed by both parties and which I have read and considered and I need not reproduce herein. Analysis and Determination 94. I have considered the application, the supporting affidavits and the further affidavit and supplementary affidavits. I have also considered the replying affidavits. The applicant is seeking an interim order of injunction to restrain the respondents from collecting rent income from the properties forming the estate of the deceased and an account of all the monies collected thereto pending the hearing and determination of the summons for confirmation of grant. The issue that arises for determination is whether the application meets the threshold for the grant of an injunction. 95. Secondly whether the respondents should be ordered to render an account of the monies collected from the estate. The grounds upon which an interlocutory injunction may be granted were laid down in the case of Giella -vs- Cassman Brown (1973) E.A where the court held as follows: “ The conditions for the grant of an interlocutory injunction are well settled in Ease Africa. First an applicant must show a prima facie case with probability of success. Secondly an interlocutory injection will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt it will decide the application on the balance of convenience.” 96. In determining whether the party is entitled to an injunction, he/she must establish a prima facie which has overwhelming chances of success. Prima facie case has been defined by the court of appeal in the case of Mrao Ltd -vs- First American Bank of Kenya Ltd and 2 Others (2003) eKLR where the court stated that: “ Prima facie is a case in which on material presented to the court or Tribunal property directing itself will concluded that there is a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show the infringement of a right and the probability of success of the applicant’s case upon trial. This is clearly a standard which is higher than an arguable case.” 97. For a party to be granted an injunction, it must show that it is likely to suffer irreparable loss which cannot be compensated by an award of damages. The party must also prove that the properties have been subjected to waste or that the party has engaged in activities which are illegal and unlawful. An https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 15

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injunction will normally not be granted if the party fails to prove that any illegal activities were being conducted by the respondent. 98. In Floris Piezzo & Another -vs- Gian Carlos Falascom (2014) eKLR. The court of Appeal stated: “ …We have no doubt that all that the law of Succession Act gives the court wide jurisdiction in testamentary and administration issues of an estate. Indeed Section 47 of the said Act gives the court jurisdiction to entertain any application and determine any dispute under the Act and pronounce such decree and orders as may be expedient. It cannot be said that such decrees and orders would exclude injunction orders. In other words, were are of the same view that Section 47 of the Act gives court all embracing power to make necessary orders including injunctions where appropriate to safeguards the deceased’s estate. This section must be read together with Rule 73 of the Probate and Administration Rules which further emboldens courts jurisdiction to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. We would also imagine such orders would include injunctive orders.” 99. This court is guided that an injunctive order can be issued in a succession matter provided that a party has on a balance of probabilities demonstrated the three key principles for granting of an injunction laid down in Giella vs Cassman Brown (Supra). This was restated with approval by the Court of Appeal in Ngurumani Limited vs Jan Bonde Nielsen & 2 Others CA No. 77 of 2012 (2014) eKLR where the Court of Appeal held: “ In an interlocutory injunction application, the applicant has to satisfy the triple requirements to (a) establishes only at a prima facie level demonstrates irreparable injury if a temporary injunction is not granted and (c) ally any doubts as to (b) by showing that the balance of convenience is in his favour. These are the three pillars on which rests the foundation of any order or injunction, interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate austinct and logical handles which the applicant is expected to surmount sequentially.” 100. The High Court in Robert Mugo Wa Karanja vs Eco Bank Kenya Limited & Another (2019) eKLR where it was stated: “ ……The applicant/ plaintiff referred this court to the case of R.J.R Macdonald vs Canada (Attorney General) which was cited wit approval in Paul Gitonga Wanjau vs Gathithi Tea Factory Company Ltd & 2 Others (2016) eKLR which captured the Principles in Giella vs Cassman Brown as follows: “Is here a serious issue to be tried?” 101. ii) Will the applicant suffer irreparable harm if the injunction is not granted? iii) Which party will suffer the greater harm from granting or refusing the remedy pending a decision on the merits? (often called balance of convenience…” This is a succession matter. In this case the parties at least, the applicant and 1st respondent are the administrators who are also legal beneficiaries as defined under Section 29 of the Law of Succession Act. The applicant seeks injunctive orders over properties which she claims forms part of the Estate of the deceased. It has come to light that part of the properties or assets which are being subjected to the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 16

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application for injunctive orders involves properties and land parcels where the respondents use as their residential homes and conduct business from those premises to earn their living for themselves and their families. These are matters that are not in dispute. The main issue for determination is whether an injunction would be issued to distort such status quo before the grant is confirmed. 102. An injunction will normally be granted where it is shown that the properties are subjected to waste which is likely to lead to irreparable loss or damage. Irreparable loss or damage means such loss as would not be compensated by an award of damages. The Act addressed this under Section 45 of the Law of Succession Act which provides: “ (1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person. (2) Any person who contravenes the provisions of this section shall(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and (b) be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.” 103. When granting an injunction, the court should also consider the balance of convenience. It is a balancing act by the court to determine what in the circumstances of the case would serve the best interests of justice. That is the consideration of the pros and cons in favour of granting the injunctive orders. 104. I take the view that an injunctive order in succession matters is sued to preserve the estate and protect it from wastage pending the distribution to the lawful beneficiaries. What amounts to wastage is what is provided under Section 45 of the Law of Succession Act which makes it an offence to intermeddle with the estate of the deceased. 105. Injunction is issued when a party has demonstrated that the estate is being subjected to waste and the harm that will result is irreparable. That is to say that the applicant is not likely to be compensated by an award of damages or that damages would not be an adequate remedy. Order 40 rule 1 & 2 of the Civil Procedure Rules which deals with injuctions provides that: “ 1. Where in any suit it is proved by affidavit or otherwise— (a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or(b)that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 17

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wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders. 2. (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right. (2) The court may by order grant such injunction on such terms as to an inquiry as to damages, the duration of the injunction, keeping an account, giving security or otherwise, as the court deems fit.” 106. In Mansuklal S. Patel -vs- Brian Hume Naylor & 3 Others Civil Appeal No. 10/2000 stated that the purpose of an interim or interlocutory injunction is to preserve a destructed property and if courts are powerless to prevent their alienation or disposal during the pendency of a litigation, would be contrary to common sense. The court must be satisfied that the applicant has a prima facie case. However a temporary injunction will not normally issue if the applicant has not demonstrated that she has a prima facie case. 107. In Kenya Shell Limited -vs- Benjamin Karuga Kabiru & another (1986) KECA 94 KLR the court stated that the courts seeks to preserve the status quo by granting an injunction. In this case the applicants seek injunction pending the hearing and determination of the succession cause. They have stated at ground No. (4)(a) on the summons have stated that the respondents have been running the businesses of restaurant and bar before the death of the deceased and remained in control since the deceased died. There is no allegation that the applicants have been intermeddling with estate or subjecting it to waste. That is why I find that the applicants have not made a prima facie case with chances of success. This court in a ruling dated 20/12/2021 held that the dispute as to whether the rent forms part of the estate of deceased has to be resolved in the main succession cause. 108. There was no appeal against t hat ruling and the succession cause has not been determined. The respondents have maintained that they were bequeathed the properties where they are collecting rent by the deceased in his life time. The respondents did not start collecting rent after the death of the deceased, they had been doing that in the during the lifetime of the deceased. The respondents have averred that they live on the properties which the applicants want to injunct them. 109. That they are operating businesses on the premises. This is the status quo that was there during the lifetime of the deceased. An injunction would upset that status quo. an injunction which applicants are seeking would see the businesses being shut down and the respondents being prevented to access their homes and their livelihood. In successions matters courts should be careful when granting injunctions as they may upset the status quo that was there when the deceased was alive before the estate is distributed to the beneficiaries and adversely affect such beneficiaries. 110. Indeed, the Act does not envisage the application of Order 40 in the Law of Succession disputes because Rule 63 of the Probate and Arbitration Rules does not include Order 39 of the Civil Procedure Rules (Now Order 40). The jurisprudence on injunctions in succession matters is guided by the established principles for granting injunctions in Kenya but with emphasis on the unique content of the probate and administration proceedings. The primary purpose of such injunctions is to protect and preserve https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 18

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the deceased’s estate from intermeddling or wastage for the benefit of all beneficiaries pending the final distribution. 111. Further that mandatory injunctions at an interlocutory stage should only preserve and where necessary restore the status quo, not to create a new situation all together. Injunctions may be denied if damages are an adequate remedy and respondent can pay or compensate. The conduct of the parties is also relevant, with equitable relief potentially denied to applicants who lack clean hands. See Justice Musyoka in Re Estate of Raphael Charles Makokha (Deceased) (2024) KEHC 12277. See also in Re Estate of Francis Maluga Ndori (Deceased) Succession Cause 164 of 1996 (2025) KEHC. 112. In this matte considering the circumstances of the case, the balance of convenience does not tilt in favour of the applicants who have not proved that the injunction would serve meaningful purpose but in favour of the respondents who may suffer irreparably if they are injuncted from accessing their father’s properties where they reside and are operating businesses. They balance of convenience and interests of justice tilts in favour of the respondents. 113. Equity provides that he who comes to equity must do equity and equity follows the law. The respondents have deponed that the 1st applicant has subjected the estate to waste and disposed off some properties. That they have illegally withdrawn funds from deceased accounts and have broken into the house at BuruBuru and rented it out. She has not come to court with clean hands, he who seeks equity must do equity. The properties have not been distributed, there is no allegation that the respondents have attempted or have sold the properties forming the estate. There are no goods grounds proved to warrant the court to order and injunction. It would be acting in vain to issue an injunction when the respondents are not in possession or in control of some of the assets listed. Taking of Accounts 114. The issue is whether the respondents have a duty to render an account. I note that the 2nd respondent is a beneficiary. In my ruling cited above, I stated that there is a dispute as to whether some of the properties were gifted to the respondents during the deceased’s lifetime. 2nd respondent is not an administrator. He is a beneficiary. He cannot be called account. I will therefore address the issue as it relates to the 1st respondent who is the co-administrator of the Estate of the deceased. 115. Section 83 of the Law of Succession Act provides: “ Personal representatives shall have the following duties— (a) to provide and pay out of the estate of the deceased, the expenses of a reasonable funeral for him; (b) to get in all free property of the deceased, including debts owing to him and moneys payable to his personal representatives by reason of his death; (c) to pay, out of the estate of the deceased, all expenses of obtaining their grant of representation, and all other reasonable expenses of administration (including estate duty, if any); (d) to ascertain and pay, out of the estate of the deceased, all his debts; (e) within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account; (f) subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be; (g) within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration; (h) to produce to the court, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 19

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if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account; (i) to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.” 116. The Act imposes a duty on personal representatives of the Estate of the deceased to render accounts. The Act requires that the personal representatives to give to court a full and accurate account inventory of all the assets and liabilities of the deceased and a full and accurate account of all dealings there with upto date of the account. Thereafter, six months from date of confirmation of the grant to produce full and accurate account of the completed administration. This was well expounded by my brother Justice William Musyoka In re Estate of Julius M’mano (Deceased) (2019) eKLR “ The first instance is in the first six months of the administration. It is at this state that they ought to account as to whether the spent any funds from the estate for the purpose of disposing the remains of the deceased and, if so how much. State whether they got in or gather or a collected or brought to gather all the assets that make up the estate. The getting in of the estate is critical, it should precede settlement of debts and liabilities and distribution of the assets. Indeed, these duties can only be discharged if there are assets sufficient to settle debts leaving a surplus for distribution. It would also be from the assets collected that the estate would have a pool of resources for administration expenses. Section 83(e) commands the personal representatives to produce in court a full and accurate inventory of the assets and liabilities, no doubt generated from the exercise of getting in the assets and ascertaining the debts of the estate. There is also an obligation to render an account of all their dealings with the assets and liabilities up to the points of the account. The second occasion for rendering accounts is at the completion of administration. The duty is stated in Section 83(g) of the Act the object of the second and final account is to give opportunity to the personal representative to demonstrate that they have complied with the duty in Section 83(f) of distribution of the estate to the beneficiaries.” 117. The duty is imposed on the singe personal representative and where there are more that one personal representative. They all owe a duty to the beneficiaries to render an account, firstly at the time of filing the cause and should therefore file an inventory of all the assets and liabilities and ascertaining the debts. There is also an obligation of rendering an account of all the dealings with the assets and liabilities. Finally, they have to demonstrate that they have complied with Section 83(7) of distributing the estate to all the lawful beneficiaries and render an account of the distribution and the settlement, that is an accurate account of the completed administration. 118. To render an account means to present a formal, detailed report of financial and transactional activities to another party, such as a debtor to a creditor or an agent to the principle. The duty to account is a statutory obligation. In re Estate of Kyuli Kainai (deceased) (2019) eKLR the court stated that: “ The obligation to render accounts would require the personal representatives to approach the matter with three broad duties in mind. The nature of account to be rendered should depend on whether the account is sought to be rendered. Where it is sought before the confirmation of grant, the account should cover collection and preservation of the estate and payment of debts and settlement of liabilities of the estate. The personal representative must give an account of the assets and liabilities that he has paid or settled before moving https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 20

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the court for confirmation of the grant and if he has not yet settled the debts, state how he proposes to settle them. The account should also state the assets that have generated income stating how much was collected and how it has been utilized…” 119. The duty to account flows from the fact that a personal representative holds the estate property in trust for the beneficiaries, that is to say that he is in a fiduciary relationship in the property and must account to those who are entitled to the same for the assets or incomes thereof. The Act imposes a statutory duty on the personal representatives. The 1st applicant is a personal representative. I note that the respondents have alleged that the applicant Florence Ntue Nkonge is receiving rents from the estate and has also been benefiting from the estate. It would be unfair to order one personal representative to comply and leave out the other. 120. It is only fair and in the interest of all the beneficiaries that the administrators be ordered to render an account. I note that the timelines under the Act were not adhered to as the succession of the estate though involving very close members of the family, that is a widow and her children, attempt by this court for expeditious disposal by referring them to Alternative Disputes Resolution bore no fruits. 121. The dispute became acrimonious. The 1st respondent was supposed to produce an inventory of the assets within six months form the date of the grant. This was not done. Section 83(h) gives court power to require the personal representatives(s) to render a full and accurate inventory of the assets and liabilities and all dealings thereof from the date of account. I find that the personal representative have a solemn duty to render an account of the estate. The prayer has merit. 122. Whether the applicant should be provided with the subsistence of Kshs. 40,000/= pending he hearing and determination. There is no dispute that the applicant is the only widow of the deceased. She has deponed that she has contributed in the acquisition of the properties. She avers that she resigned from her job at P.C.E.A Chogoria Hospital where she worked as a Secretary before she resigned and joined her husband in farming activities from which they acquired the properties. She claims that she has been sidelined by the respondents and is unable to meet her expenses for food, medical and personal bills. 123. Section 35 of the Law of Succession Act provides that where an intestate is survived by a widow and children, the widow has a life interest in the whole residue of the net intestate estate which can only terminate if she re-marries. It would be contrary to the law to deny her that much needed subsistence from her deceased husband’s estate. 124. The applicant is entitled to that life interest until the worst happens and she passes away or she remarries. I find that she is entitled to the subsistence of Kshs. 40,000/- per month which she is claiming. Dispositions i. The prayer for a temporary injunction against the respondents is declined and is dismissed. ii. I Order that the 1st respondent should render an account of the estate of the deceased apart from the following properties which he proved that himself & 2nd respondent were in occupation and control during the lifetime of the deceased that is to say: * Karingani/Ndangani/1746 * Plot No. M 34 * Plot No LR Mwimbi/Chogoria/1A * LR Mwimbi/Chogoria/6 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 21

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iii. The administrators that is 1st applicant & 1st respondent shall render an account of all the other assets and properties within 45 day. iv. The 1st respondent to give the 1st applicant Kshs. 40,000/= per month with effect from the month of December 2025 from rental income from LR Ntima/Igoki/1900. v. The parties upon filing the accounts shall fix the matter for directions on the hearing of the summons for confirmation of grant before the Presiding Judge Chuka High Court. DATED, SIGNED AND DELIVERED AT CHUKA THIS 20TH DAY OF NOVEMBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19577/eng@2025-11-20 22

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