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

and which alleged change the Plaintiffs suspect to have been procured by impropriety and/or fraud. The Plaintiffs point fingers at the 1st and 2nd Defendants as being behind the “suspicious” change of the Will and such “suspicion” seems to stem from the fact that the new Will is in favour of the 1st and 2nd Defendants in terms of appointment of trustees, executors and beneficiaries, contrary to the initial version of the Will which seemingly “favoured” the Plaintiffs. A Will executed by the late spouse to the deceased, and who predeceased him, has also been mentioned in the suit. 4. The transfer of the case to the Family Division was as a consequence of the preliminary issue raised by the Defendants in respect to jurisdiction, namely, that the orders sought cannot issue as the case was not instituted as a Succession Cause, and that if granted, will amount to management of the estate of the deceased through civil proceedings contrary to the Law of Succession Act, and yet there is a very clear and elaborate procedure of securing the very reliefs via a Succession Cause. The orders I made, in lieu of striking out the suit at that stage, were in the following terms: “ 32. Having seriously agonized on what orders to now give, I direct and order as follows: i. Since the Plaintiffs’ Counsel has disclosed that they have now filed the proper action before the Probate & Administration Division of this Court, namely, Eldoret P&A Miscellaneous Cause No. E010 of 2025, I invoke this Court’s inherent powers and now transfer this matter to the Probate & Administration Division of this Court where it shall be given a Miscellaneous Cause number and the same shall be mentioned in that Division on the same date when the said Eldoret P&A Miscellaneous Cause No. E010 of 2025 shall come up in Court and before the same Judge. ii. Once before the Probate & Administration Division, the Judge before whom the file will be placed will be at liberty to determine whether the Cause can be sustained or whether it is liable for striking out, there now being in existence the said Eldoret P&A Miscellaneous Cause No. E010 of 2025, which seems to raise similar matters and in which the parties seem to be common. iii. Should the Judge decide to sustain the action, he shall be at liberty to give any further directions or make orders which he/ she deems proper, including directing whether the file should be consolidated with the said Eldoret P&A Miscellaneous Cause No. E010 of 2025, or whether the two should proceed as two separate actions, or whether it should be stayed in favour of the said Eldoret P&A Miscellaneous Cause No. E010 of 2025. The Judge will also be at liberty to give directions on the manner in which the Plaint filed herein will be treated noting that the Law of Succession Act does not contemplate commencement of an action by way of a Plaint. iv. Until then, the interim orders that were issued herein on 11/10/2023 and extended on several occasions will remain in force and the Judge in the Probate & Administration Division before whom the file will be placed will be at liberty to hear and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5529/eng@2026-04-24 2

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finally determine the Application dated 9/10/2023 or to give any other appropriate orders thereon. v. For avoidance of doubt therefore, it is confirmed that the Application dated 9/10/2023 is yet to be determined on merits and is therefore still pending for determination. 5. The case has now, again, found itself before me although this time under the Probate & Administration Division of this Court. 6. Be that as it may, it is therefore clear that although this matter has now been transferred to this Division, I first need to determine whether the Plaintiffs’ Application dated 9/10/2023, and by extension, the entire Cause can be sustained, or whether it is liable for striking out. Also to be considered is the fate of this Cause, there now being in existence separate Succession proceedings filed by the same Plaintiffs which seemingly raise similar matters, and in which the parties are also no doubt common. In respect to that issue, I granted the parties leave to file brief Further Afidavits and Submissions but only the Defendant took up that offer. 7. It is important to however note that while recently presiding over a separate related matter between the same parties, and involving the same Advocates, Mr. C.F. Otieno, Counsel for the Plaintiffs reminded me that the said Eldoret P&A Miscellaneous Cause No. E010 of 2025 referred to in my above Ruling had since been withdrawn. Indeed, upon perusing the Judiciary Case Tracking System (CTS) online portal, I note that the Cause was marked as withdrawn when it came up before me on 30/07/2025. 8. However, Mr. Otieno has also since also informed this Court that his clients have, instead, now filed Eldoret Citation Cause No. E184 of 2025 whereof his clients have applied to be allowed to file the substantive Succession Cause should the Defendants, as executors, continue failing to do so. 9. There is still more in that the Defendants, in their respective Further Afidavits filed herein, have also now revealed that they have since filed the substantive Succession Cause, namely, Eldoret P&A Cause No. E212 of 2025 whereof the Defendants, as executors, are seeking Probate of the Will of the deceased. 10. Having set out the above background, I will now reproduce the prayers remaining in the instant Application the subject of this Ruling, namely, the Plaintiffs’ Notice of Motion dated 9/10/2023 filed through Messrs C.F. Otieno & Co. Advocates, as follows: “ ………………………………………….. iv) That pending, the hearing and final determination of this suit, this Honourable court be pleased to issue an order of temporary injunction restraining the 1st & 2nd defendants themselves, their agents, servants and/or any other persons through whom they may act jointly and/or severally from alienating, selling, dealing with accounts of the late Ashwani Kumar Jayantilal Vyas held with Standard Chartered Bank Kenya Limited Eldoret Branch being; and/ or any interference with the said accounts being a. A/c. No. 01100302940500 b. Deal Confirmation No. 41602940500 of 14.05.2019 c. Bond Standard Chartered FXDI/2010/15 - KE400003550 d. Safari Personal Savings Account and/or dealing with the said accounts in any other way detrimental to the interests of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5529/eng@2026-04-24 3

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Plaintiffs and the Estate of the late Ashwani Kumar Jayantilal Vyas. v) That pending the hearing and final determination of this suit, this Honourable court be pleased to issue an Order freezing the Accounts listed herein and further an order of temporary injunction restraining the 3rd defendant themselves, their agents, servants, assigns and/or any other persons and/ or institutions through whom they may act jointly and/or severally from alienating, transferring funds, dealing with accounts of the late Ashwani Kumar Jayantilal Vyas held with Standard Chartered Bank Kenya Limited Eldoret Branch being; and/or any interference with the said accounts being a. A/c. No. 01100302940500 b. Deal Confirmation No. 41602940500 of 14.05.2019 c. Bond Standard Chartered FXDI/2010/15 - KE400003550 d. Safari Personal Savings Account and/or dealing with the said accounts and/ or any other accounts in the name of the late Ashwani Kumar Jayantilal Vyas in any other way detrimental to the interests of the Plaintiffs and the estate of the late Ashwani Kumar Jayantilal Vyas. ……………………………………………… x) That costs of this application be borne by the 1st & 2nd Defendants. ……………………………………………… xi) Any other and further relief that this Honourable Court shall deem just and expedient to grant. 11. The prayers made in the Plaint are basically a replica of the above. 12. Since there are preliminary issues that may as well dispose of the matter at this interlocutory stage, I will not yet recount the contents of the respective Afidavits filed and/or the substantive factual arguments presented on the matters under dispute, but will first determine the preliminary matters. I may however state that I had, in my said Ruling delivered on 1/08/2025, already reproduced the contents of the Afidavits, and the factual arguments. 13. For purposes of the preliminary issues, the Defendants, have, in their respective Further Afidavits, deponed that the pleadings before Court are defective and do not conform to the laid-out procedure under the Law of Succession Act and the Probate and Administration Rules considering that the claim was instituted by way of a Plaint. They urged that, as such, there is no substantive Probate & Administrative Cause in existence to anchor the claim being sought for revocation of the Will and therefore the prayers cannot be issued through a Miscellaneous Application as the instant one. They also pointed out that in any event, this Cause has now been overtaken by events as the Plaintiffs having filed the said Eldoret Citation Cause No. E184 of 2025 whereof they are seeking to compel the 2nd Defendant to take out Letters of Administration, the Defendants have now, as a consequence, filed the said Eldoret P&A Cause No. E212 of 2025 seeking Probate of the written Will of the deceased. According to the Defendants therefore, if the Plaintiffs have any claim to or against the estate of the deceased, then they should pursue such claims through the now filed substantive Cuse, Eldoret P&A https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5529/eng@2026-04-24 4

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Cause No. E212 of 2025. The Defendants have then exhibited copies of the Citation and the Petition, respectively, filed in the said two respective matters. 14. The Defendants have also filed the Submissions dated 9/12/2025, which, apart from citing authorities, recounts the same legal arguments made in the Further Afidavits. Determination 15. The issues that call for determination can be summarized as the following: i. Whether the suit herein can still survive despite a substantive Succession Cause having now been filed seeking Probate of the written Will of the deceased. ii. Whether, in any event, the suit, commenced or instituted by way of a Plaint, can be sustained in that manner insofar as it basically questions the validity of the written Will alleged to have been made by the deceased. 16. I have no hesitation in agreeing with the Defendants’ Counsel, Ms. Odwa, that this Cause has now been overtaken by events. This is because the Plaintiffs having filed the said Eldoret Citation Cause No. E184 of 2025 whereof they have been seeking to compel the Defendants, as executors of the Defendant’s Will, to take out Letters of Administration over the estate of the deceased, the Defendants have now, as a consequence, filed the said substantive Succession Cause, namely, Eldoret P&A Cause No. E212 of 2025 seeking Probate of the written Will of the deceased. Procedure requires that the Plaintiffs now pursue any challenges to the validity of the Will or any claims against or for the estate through the now filed Eldoret P&A Cause No. E212 of 2025. 17. I also agree with Ms. Odwa that the pleadings filed in this matter do not conform to the requirements under the Law of Succession Act and the Probate and Administration Rules considering that the claim was instituted by way of a Plaint. As there is no substantive Succession Cause to serve as a foundation for the challenges raised against validity of the Will, or the claims made against or for the estate, the instant Cause cannot be sustained. Final Orders 18. In the circumstances, I make orders as follows: i. This Cause is struck out with costs to the Defendants. ii. Any interim orders earlier issued in the matter now therefore stand discharged. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 24TH DAY OF APRIL 2026 ……………..…….. WANANDA JOHN R. ANURO JUDGE Delivered in the presence of: C.F. Otieno for the Plaintiffs Ms. Odwa h/b for Mutiso for the Defendants Court Assistant: Brian Kimathi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5529/eng@2026-04-24 5

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