Margaret Naliaka Wasike v Grace Makonjo Wasike & 1 other

submitted that the 1st Respondent, Kevin Wasike, is a bona fide purchaser for value of a portion of the suit property forming part of the estate, and that he had subsequently been evicted from the said property by one of the widows of the deceased. 3. Counsel further submitted that his clients' names and interests had not been reflected in, nor provided for in, the proposed mode of distribution filed by the Petitioner and the Applicants. On that basis, counsel contended that his clients are creditors of the estate to the tune of Kshs. 15,000,000/= or, in the alternative, are entitled to the suit property itself, and that this claim ought to be heard and determined before the estate is distributed and the grant confirmed, failing which his clients stand to suffer irreparable prejudice. 4. In response, learned counsel for the Petitioner and the Applicants submitted that this Court had, on a previous occasion, directed that the Respondents were at liberty to pursue their claim by way of a separate and independent suit after confirmation of the grant, and that in the circumstances the confirmation ought to proceed as scheduled, more so given that the remaining beneficiaries and parties to the cause are ready and willing to have the estate confirmed and distributed without further delay. 5. I have carefully perused the record of the court, and particularly the proceedings of 27th October 2025. I am unable to find, on the face of the record, any order or direction to the effect asserted by counsel for the Petitioner that the Respondents pursue their claim by way of a separate suit after confirmation. No such order was extracted, and none appears in the proceedings of that date. 6. It is trite that confirmation of grant is the process by which the Court satisfies itself, under Section 71 of the Law of Succession Act, that the persons entitled to a share of the estate have been correctly identified and that the proposed distribution accords with the law and, where applicable, with the wishes of the deceased or the agreement of the beneficiaries. 7. Where, as in this instance, a third party asserts an unresolved proprietary or pecuniary claim against a specific asset of the estate, this Court must exercise caution prior to confirming the distribution of that asset. Proceeding without regard to the pending claim risks undermining a probable legitimate interest and may render any subsequent suit academic, especially when the property in question might, in the interim, be alienated to innocent third parties. 8. At the same time, the Court is alive to the fact that confirmation proceedings are not the proper forum for the full trial and determination of a disputed claim of sale, eviction and indebtedness such as that raised by the Respondents, which will require the calling of evidence and is more properly canvassed either by way of a formal application within this cause or by way of a separate suit. The remaining parties to this cause should equally not be made to suffer indefinite delay on account of a claim that has, thus far, not been formally placed before the Court by way of pleadings or a substantive application. 9. Having considered the rival positions, I now give the following directions: a. The 1st and 2nd Respondents shall, within thirty (30) days from the date of this ruling, file and serve a formal claim setting out with particularity the basis of the alleged sale, eviction and indebtedness of Kshs. 15,000,000/= or the specific property claimed, whether by way of a formal application for determination of the claim within this cause, or by way of a separate suit, and shall furnish proof of such filing to this Court and to the other parties. b. If the court be satisfied that such claim has been appropriately anchored in the suit premises the subject of this succession cause, pending the filing and determination of the said claim, in the right forum, the specific portion of the suit property alleged to have been purchased by the 1st Respondent, Kevin Wasike, and from which he claims to have been evicted, shall be alienated, excluded and reserved from the certificate of confirmed grant, and shall not be https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10143/eng@2026-07-09 2

page 2 of 3

transferred, charged, sold or otherwise alienated by any party pending the hearing and final determination of the said claim in the right forum. c. Subject to the reservation in (b) above, the confirmation of grant shall proceed in respect of the remainder of the estate, subject to there being no objection from the other beneficiaries and parties, who so far have indicated their readiness to proceed. d. Should the 1st and 2nd Respondents fail to file and serve the claim referred to in (a) above within the stipulated thirty (30) days, the reservation ordered in (b) above shall lapse, and the Petitioner and Applicants shall be at liberty to apply, ex parte, if need be, for confirmation of the grant in respect of the whole estate. e. This matter shall be mentioned on a date to be fixed by the Deputy Registrar, being not less than forty-five (45) days from the date hereof, for purposes of confirming compliance with these directions and for further orders as may be necessary. f. Costs shall be in the cause. READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 9TH JULY 2026 E. OMINDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10143/eng@2026-07-09 3

page 3 of 3