Teresa Waithira Githiri v Bernard Hinga Gichure & 1 other

2. The application was premised upon Rules 49, 59 and 73 of the Probate and Administration Rules of the Law of Succession Act, Cap 160, Laws of Kenya and was supported by the affidavit of even date sworn by the Applicant. 3. The Respondents Benard Hinga Gichure and Samuel Nderitu Gichure opposed the application through the Replying Affidavit dated 1st July 2025 sworn by the 2nd Respondent. 4. The application was canvassed by way of written submissions. The Applicant filed the written submissions dated 20th September 2025, whilst the Respondents relied upon their written submissions dated 15th October 2025. Background 5. This Succession Cause relates to the estate of Francis Gichure Hinga (hereinafter the Deceased) who died intestate on 13th July 2001. A copy of the Death Certificate Serial No. 631835 is annexed to the Petition for Grant of Letters of Administration Intestate dated 1st February 2010. 6. The Deceased was survived by a widow Regina Wangari Gichure as well as several children. The two Respondents are both sons of the Deceased while the Applicant is the widow of one Joseph Githiri Gichure who was also a son to the Deceased. 7. Amongst the assets comprising the estate of the Deceased was the property known as Title Number Othaya/Kihuguru/1311 (hereinafter ‘the suit property’). 8. Following the demise of the Deceased letters of Administration Intestate were on 12th April 2010 issued in the name of the widow of the Deceased. That initial Grant was duly confirmed on 15th November 2013 by which the parcel of land known as Othaya/Kihuguru/1311 was to be distributed as follows:1. Bernard Hinga Gichure Othaya/Kihugiru/1311 2. Joseph Githira Gichure 2/3 Equally 1/3 Absolutely 3. Jane Muthoni Mai 4. Samuel Nderitu Gichure 5. Paul Ngera Gichure 6. Catherine Wothaya Gichure 7. Edward Wachira Gichure Regina Wangari Gichure 9. The widow in whose name the initial grant had been issued and confirmed unfortunately passed away on 19th August 2024. Likewise one of the sons of the Deceased Joseph Githira Gichure (husband to the Applicant) also passed away on 16th March 2021. 10. The initial grant was therefore revoked and fresh letters of administration intestate were issued jointly to the two respondents on 27th March 2025. That new grant was duly confirmed on the same date 27th March 2025. Under the rectified grant the suit land was to be distributed as follows;- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1871/eng@2026-02-20 2

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a. Bernard Hinga Gichure LR No. Othaya/Kihugiru/88 b. Teresa Waithira Githiri To share 2/3 of The land equally Francis Gichure Githire c. Jane Muthoni Mwai d. Samuel Nderitu Gichure e. Paul Ngera Gichure f. Catherine Wothaya Kairu Francis Gichure Maina g. Edward Wachira Gichure h. Bernard Hinga Gichure i. Samuel Nderitu Gichure To share 1/3 of the land equally j. Paul Ngera Gichure k. Edward Wachira Gichure 11. The applicant who is the widow and legal representative of the estate of the late Joseph Githiri Gichure avers that she has been running a timber business on the portion of the suit land which had been allocated to her late husband. That there is pending before the court a summons dated 3rd March 2025 seeking a review of the mode of distribution of the estate. 12. The applicant alleges that the Respondents as administrators of the estate of the Deceased have denied the applicant access to the portion of land allocated to her late husband and have issued eviction notice. That any interruption of the timber business will occasion irreversible loss to the Applicant. The applicant therefore prays that a temporary injunction issue pending the hearing and determination of the Summons dated 3rd March 2025. 13. In their replying affidavit the respondents conceded that the applicant was the widow of their late brother Joseph Githiri Gichure. They state that the suit land measures 0.12 Hectares or quarter of an acre. 14. The respondents state that following the issuance of the confirmed grant on 15th November 2013, the Suit Property was sub-divided and distributed to all eight (8) beneficiaries. 15. That owing to the small size of the suit land the beneficiaries all agreed that the land be placed in the hands of Joseph Gichure (Deceased) with the understanding that he would pay a sum of Kshs. 10,000/ = to the remaining beneficiaries but the Applicant has declined to continue making the said amount as per their agreement. 16. The respondents submit that the property has been distributed to all eight (8) beneficiaries as per the confirmed grant. They urge that the applicant be directed to vacate the Suit land in order to facilitate https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1871/eng@2026-02-20 3

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its transmission to other beneficiaries. Finally the Respondents contend that this court is now ‘functus officio’. Analysis and Determination 17. I have carefully considered the application before this court, the reply filed thereto as well as the written submissions filed by both parties. 18. The first question that arises is whether the Applicant has locus standi in this matter. The applicant is not one of the biological children of the Deceased. She is however the widow of one Joseph Githira Gichure who was a biological son of the Deceased. This fact is not disputed by the Respondents. The Applicant has annexed a copy of the Death Certificate of her late husband Serial No. 1107713 to her supporting affidavit dated 3rd March 2025 (Annexture ‘BHG 3’). 19. The Applicant has filed this application in order to protect the share of the estate due to her late husband who was a direct beneficiary of the estate. In order to legally represent the estate of her late husband the Applicant must be in possession of a Grant of representation to her estate. 20. On 21st March 2025 the Court allowed an application for substitution of beneficiaries whereby the Applicant herein substituted her late husband as a beneficiary. As such I am satisfied that the Applicant has requisite locus in this matter. 21. I will now proceed to determine the question of whether the applicant has made out a sufficient case to warrant grant of the orders being sought. The Applicant herein seeks injunctive orders to prevent any dealings with the suit and pending the hearing and determination of the summons dated 3rd March 2025. 22. The principles guiding the issuance of injunctive orders were set out in the celebrated case of Giella vs- Casman Brown & Co. Ltd [1973] EA as follows:- 23. (i) The Applicant must first establish a prima facie case with a probability of success. (ii) The Applicant must demonstrate that he stands to suffer irreparable harm that cannot be adequately compensated by way of damages. (iii) Where there is any doubt on the above then the Applicant must show that the balance of convenience tilts in his favour. The ruling in the Giella case was reinforced in the case of Nguruman Limited -vs- Jan Bonde Nielson & 2 others [2004] eKLR in which the Court of Appeal held as follows;“ In an interlocutory injunction application, the applicant has to satisfy the triple requirements to; a. establish his case only at a prima facie level, b. demonstrate 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 of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct, and logical hurdles that the applicant is expected to surmount sequentially.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1871/eng@2026-02-20 4

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24. The definition of what constitutes a prima facie case was given in the case of Mrao Ltd -vs- First American Bank of Kenya Limited & 2 Others [2003] eKLR as:“ a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter” 25. The Applicant states that the respondents are in the process of evicting her from the portion of the suit property which belonged to her late husband. That by dint of the certificate of confirmed grant dated 15th November 2013 her late husband was entitled to a portion of the parcel of land known as Othaya/Kihuguru/1311. 26. I have perused the confirmed grant which clearly shows that the suit land was to be distributed as follows:(i) 1/3 to Regina Wangari Gichure (widow of Deceased) (ii) 2/3 to be shared equally betweenBernard Hinga GichureJoseph Githira GichureJane Muthoni MwaiSamuel Nderitu GichurePaul Ngera GichureCatherine Wothaya GichureEdward Wachira Gichure 27. Therefore in effect the late Joseph Githira Gichure was entitled to a 1/7th share of the 2/3 portion of the suit land. 28. In Re Estate of Stephen Kiplagat Mutai (Deceased) 2025 eKLR, the Court held that the daughter-inlaw of the Deceased had locus in the matter and a recognizable stake as she was filling the position of her late husband who was a son of the Deceased and a beneficiary to the estate of the Deceased. 29. Although the Applicant claims to be in occupation of a portion of the suit land she has not stated with specifity how much of the suit land she is occupying. The Applicant cannot seek injunctive orders over the entire suit property as her late husband was not allocated the entire property. 30. For the above reasons I find that the Applicant has failed to establish a prima facie case. As such her application for injunctive orders has no merit. The same is dismissed in its entirety. 31. This being a family matter each side will bear its own costs. DATED IN NYERI THIS 20TH DAY OF FEBRUARY 2026. ………………………… MAUREEN A. ODERO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1871/eng@2026-02-20 5

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