High Court 12893 of 2026

PATRICK NZUNA KITELE AKA PATRICK NZUVA KITELE (PERSONAL CAPACITY & AS TRUSTEE) ...................................................... 3RD RESPONDENT JOSEPHAT MULLI KITELE (PERSONAL CAPACITY & AS TRUSTEE/ 1ST ADMINISTRATOR) ..................................................................... 4TH RESPONDENT JEREMIAH MUTHOKA KITELE (PERSONAL CAPACITY & AS TRUSTEE/ FORMER ADMINISTRATOR) ................................................... 5TH RESPONDENT MCPIECE KYALO KITELE (PERSONAL CAPACITY & AS TRUSTEE/2ND ADMINISTRATOR) ..................................................................... 6TH RESPONDENT HELLEN MUTHEU MUSAU AKA NDUNGE KITELE (PERSONAL CAPACITY & AS TRUSTEE/2ND ADMINISTRATOR) .............................. 7TH RESPONDENT MAGDALINE MBITHE KITELE (PERSONAL CAPACITY & TRUSTEE/3RD ADMINISTRATOR) ..................................................................... 8TH RESPONDENT THERESA NDUKU KITELE (PERSONAL CAPACITY & AS TRUSTEE/ ADMINISTRATOR) ..................................................................... 9TH RESPONDENT SUSAN MBULA KIMATU AKA SUSAN MBULA MWEU (PERSONAL CAPACITY & AS TRUSTEE/ADMINISTRATOR) ................ 10TH RESPONDENT JAMES KITAKA MUTUA (PERSONAL CAPACITY & AS TRUSTEE) .................................................................................... 11TH RESPONDENT JUDITH NZULA MBINDYO KALINGA AKA JUDY KALINGA (PERSONAL CAPACITY & AS TRUSTEE) .................................................... 12TH RESPONDENT ANDREW KITAVU KILUVA (PERSONAL CAPACITY & AS TRUSTEE) .................................................................................... 13TH RESPONDENT KALINGA AND COMPANY ADVOCATES ............................ 14TH RESPONDENT KIVUVA AND OMUGA COMPANY ADVOCATES ............... 15TH RESPONDENT DECEASED ESTATE/TRUSTS OF KITELE KITINGU AKA ALEXANDER KITELE KILUNGU A.K.A MUKENGESYA ............................ 16TH RESPONDENT DECEASED ESTATE/ TRUSTS OF FRANCIS JOHN KINGETHESYO KITELE ......................................................................................... 17TH RESPONDENT RULING Introduction 1. The present miscellaneous Petition arises from allegations by the Petitioners that the Respondents, being family members, trustees, administrators, and advocates connected to the estate and inter vivos Education Trust of the late Kitele Kitingu (the Settlor), engaged in a sustained course of concealment, non-disclosure, misrepresentation, and mismanagement of trust and estate assets. 2. It is the Petitioners’ contention that, notwithstanding the Settlor’s establishment of an Education Trust for the benefit of his descendants, the existence, terms, and administration of the said trust were deliberately obscured from the beneficiaries for an extended period, and that no meaningful https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12893/eng@2026-07-27 2

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accounting, disclosure, or explanation has been rendered to date, including in respect of minor beneficiaries represented through the 6th Applicant, even after the eventual production and acknowledgment of the trust deed by the Respondents. 3. The Petitioners further aver that the Respondents have consistently failed to furnish complete and transparent disclosure of material information relating to the trust and estate assets, instead providing incomplete, redacted, or illegible documentation, thereby frustrating accountability and undermining the constitutional right of access to information guaranteed under Article 35 of the Constitution. It is further alleged that such conduct has occasioned deprivation of educational and welfare benefits to minor beneficiaries in contravention of Article 53(2), and has also resulted in economic hardship and emotional distress affecting vulnerable members of the family, thereby implicating the protections afforded to older persons under Article 57 of the Constitution. 4. Arising from the foregoing, the Petitioners seek a spectrum of constitutional reliefs, including declarations of violation of rights, orders compelling disclosure of information and documentation relating to the trust and estate assets, and awards of constitutional damages. The Respondents, on their part, oppose the Petition on a raft of grounds including want of jurisdiction, lack of locus standi, procedural non-compliance, failure to exhaust statutory mechanisms, evidentiary deficiencies, and abuse of the court process, contending in particular that the dispute properly falls within the ambit of ongoing succession proceedings concerning the estate of the deceased. The Petitioners’ Case 5. The Petitioners’ case is founded on grave allegations of systemic concealment, non-disclosure, misrepresentation, and misadministration of trust and estate assets by the Respondents, who are family members, trustees, administrators, and advocates associated with the estate and inter vivos Education Trust of the late Kitele Kitingu (the Settlor). It is their case that the Settlor established an Education Trust intended to secure the educational welfare and general support of his descendants, yet the existence, structure, and administration of the said trust were deliberately obscured from the beneficiaries for a prolonged period. Although the Respondents subsequently annexed the trust deed in their Replying Affidavit, thereby acknowledging its existence, the Petitioners maintain that no meaningful account, disclosure, or justification has ever been rendered in respect of its administration, management, or distribution, including to minors represented through the 6th Applicant. 6. The Petitioners further aver that despite persistent demands and the institution of court processes, the Respondents have failed, neglected, and/or refused to disclose material information relating to both trust and estate assets, instead furnishing incomplete, redacted, blurred, and illegible documentation. It is contended that such conduct amounts to a continuing scheme of concealment designed to defeat transparency obligations and shield unlawful dealings, thereby infringing the constitutional right of access to information under Article 35 of the Constitution. Reliance is placed on Mercy Nyawade v Banking Fraud Investigations Department & 2 Others [2017] eKLR for the proposition that disclosure is the default constitutional position under Article 35, and any limitation thereto must be strictly justified within the confines of recognised statutory exemptions. 7. It is further the Petitioners’ case that the Respondents’ conduct constitutes a direct violation of Article 53(2) of the Constitution, which enshrines the principle that a child’s best interests are of paramount importance in every matter concerning the child. Anchoring their argument on CMM v Standard Group & Others [2023] KESC 68, the Petitioners submit that Article 53(2) is a substantive and self-executing right applicable across all legal contexts affecting children. They contend that the deprivation of educational support from the Education Trust occasioned disruption of schooling, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12893/eng@2026-07-27 3

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financial hardship, and psychological harm to minor beneficiaries, thereby undermining their welfare, dignity, and development. 8. The Petitioners also invoke Article 57 of the Constitution, contending that the Respondents’ actions occasioned violations of the rights of older persons to dignity and protection from abuse. They aver that the late Sabina Kitele was allegedly left to live and die in destitution notwithstanding the existence of substantial trust assets, while the 4th Applicant was compelled to shoulder educational and welfare responsibilities that ought to have been met from the Trust. Such circumstances, it is argued, amount to economic neglect and emotional abuse inconsistent with the constitutional protections accorded to older persons. 9. On jurisdiction, the Petitioners maintain that this Court is properly seized of the matter pursuant to Articles 22, 23, and 165(3)(b) of the Constitution. Reliance is placed on CMM v Standard Group & Others (supra), where the Supreme Court reaffirmed the High Court’s central mandate in the enforcement of the Bill of Rights and the grant of appropriate constitutional remedies. It is their submission that the dispute, properly construed, does not fall within the exclusive domain of succession proceedings, as its gravamen lies in alleged constitutional violations arising from concealment and denial of access to trust-related information, rather than a mere contest over succession or distribution of estate assets. 10. The Petitioners further contend that the objections raised on locus standi, misjoinder, and nonjoinder are legally unsustainable. They rely on Article 22 of the Constitution and John Wekesa Khaoya v Attorney General [2013] KEHC 6082 (KLR) for the principle that constitutional standing is deliberately broad and facilitative, particularly in matters involving minors and vulnerable persons. They also invoke Rule 5(b) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, as well as Order 1 Rule 9 of the Civil Procedure Rules, to submit that proceedings cannot be defeated solely on account of misjoinder or non-joinder. The inclusion of the 13th and 15th Respondents is defended on the basis that they are custodians of relevant information and documentation sought under Article 35(1)(b) of the Constitution, and whose participation is necessary to facilitate full and effective disclosure. 11. It is further the Petitioners’ case that the Respondents’ Replying Affidavit is fatally defective and of no probative value, having been sworn in response to a different and non-existent application for revocation of grant, rather than the present constitutional Petition. Reliance is placed on Republic v Chief Magistrate’s Court at Milimani Ex Parte Tusker Mattresses Ltd & 2 Others [2013] eKLR, for the proposition that an affidavit sworn for an unrelated purpose is misconceived and liable to be disregarded. 12. On evidentiary sufficiency, the Petitioners submit that the Respondents have failed to file cogent replying affidavits traversing the material allegations of fraud, concealment, and breach of trust. They further contend that submissions cannot substitute evidence, relying on Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi [2014] eKLR. Consequently, the Petitioners maintain that the averments contained in their affidavits remain uncontroverted and ought to be deemed admitted. 13. On relief, the Petitioners seek declarations that the Respondents have violated Articles 35, 53, and 57 of the Constitution and urge the Court to award constitutional damages under Article 23(3). Relying on CMM v Standard Group & Others (supra), they submit that constitutional damages are principally vindicatory in nature and do not require strict proof of pecuniary loss once a violation is established, serving the purposes of compensation, vindication, and deterrence. 14. In answer to the Respondents’ preliminary objections, the Petitioners further contend that the objections fail to meet the threshold established in Mukisa Biscuit Manufacturing Co. Ltd v West End https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12893/eng@2026-07-27 4

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Distributors Ltd [1969] EA 696, as reaffirmed in Barrack v Amimo [2025] KEHC 12, being predicated on contested facts that require evidentiary interrogation. Reliance is also placed on Regeru & Another v Chief Land Registrar & 3 Others [2024] KEELC 6442 (KLR) for the proposition that issues of sub judice and jurisdiction cannot be resolved where they turn on factual determinations. 15. The Petitioners further submit that procedural objections founded on the Civil Procedure Rules are subordinate to the constitutional imperative under Article 159(2)(d), as well as the Mutunga Rules, which prioritise substantive justice over procedural technicalities, particularly where the rights of children under Article 53(2) are implicated. It is also their position that reliance on statutory succession provisions is misplaced, as the dispute herein is anchored in constitutional violations rather than succession administration per se. 16. In conclusion, the Petitioners maintain that they have established, through uncontroverted affidavit evidence, a pattern of concealment of trust assets, denial of access to information, and deprivation of educational and welfare benefits. They therefore seek the following reliefs: i. Spent. ii. That an order for substituted service is and hereby granted with regard to the 9th and 17th Respondents for service of the Court documents, notices and processes to the 13th and 15th Respondents because their full particulars including their physical, business, e-mail addresses or mobile numbers are unknown to the Applicants. iii. That the Respondents are and hereby ordered and directed, to provide to the Applicants within 5 (five) days of this order, all the information and copies of documents as detailed in paragraphs 3 to 4.5 and paragraphs 3.1 to 3.3.10 of the Applicants’ demand and request letters dated 17/04/2025 and 28/04/2025 respectively attached to the Applicants’ supporting affidavit marked annexure “RKK3” and “RKK4”. iv. That in the event any of the Respondents is unable to provide any of the requested information and/or copies of documents referred to in paragraph 3 above or as ordered herein, because such is/are not in their possession or otherwise, the Respondent is directed to deliver a sworn affidavit, to Court and to the Applicants within 5 (five) days explaining the reasons for such inability. v. That in respect of the whole land situated at Syokimau including but not limited to a copy or copies of the title deeds of the whole land comprising of not less than 45 (forty five) acres alternatively not less than 95 (ninety five) acres owned by deceased Alexander Kitele Kilungu a.k.a Kitele Kitingu a.k.a Mukengesya. vi. That the 5th and 11th Respondents are and hereby directed to provide to the Applicants, copies of the title deed allegedly jointly registered in both their names and in the names of both the 11th Respondent and the deceased stated in paragraph 4 above and/or only in the name of the aforestated deceased in respect of the 5 (five) acres of Syokimau land allegedly sold by the aforestated Respondents. vii. That the 1st to 10th Respondents are and hereby directed to provide to the Applicants copies of the title deeds in respect of the deceased lands situated in Kayatta, Mwala, Kangundo and Makueni owned by the deceased stated in paragraph 5 above. viii. That the 9th, 13th or 15th Respondents are and hereby directed to provide to the Applicants copies of all current and previous title deeds in respect of the land situated in Katelembo allegedly purchased and owned by the late Francis John Kitele. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12893/eng@2026-07-27 5

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ix. That the 9th, 13th and 15th Respondent is and hereby directed to provide to the Applicants, copies of the will of deceased Francis John Kitele that led to the grant of probate together with a list comprising of all the assets in his deceased estate at the time of death and currently. x. That the 1st and 2nd Respondents are and hereby directed to provide to the Applicants, information and documentation on all assets including land that were donated or purchased referred to in the letter of 1976 by the late Francis John Kitele, the late Angelo Titita Kilungu and the deceased stated in paragraph 5 above. xi. That the 1st to 10th Respondents are hereby directed to provide information and supporting documents, in respect of any education trust fund if any, that they may have formed in terms of the Kangundo donated lands. xii. That the 1st to 10th Respondents are and hereby directed to provide information and copies of documents including but not limited to share certificates and receipts pertaining to all land in farmers and ranching societies, associations, companies or co-operative societies in which the late Alexander Kitele Kilungu a.k.a Kitele Kitingu and his spouse(s) was/were owner(s), coowner(s), director(s), partner(s), shareholder(s), member(s) or had any interests or shares. xiii. That the 1st to 10th Respondents are ordered and directed to provide full particulars of any trust bank accounts currently or previously held in the names of the late Alexander Kitele Kitingu a.k.a Kitele Kitingu or his deceased estate or his spouse(s) whether for his education/ land trust purposes or otherwise. xiv. That the Registrars of companies, societies, associations and Commissioner of co-operative societies are and hereby requested, in the interests of justice, to provide to the Applicants, all information pertaining to any registered company/society or co-operative society in which: xv. a) The Respondents are/were owners, co-owners, directors, partners, shareholders or members. b. The Respondents’ current and former spouses/partners are/were owners, co-owners, directors, partners, shareholders or members. c. The children of the Respondents are/were owners, co-owners, directors, partners, shareholders or members. d. The late Alexander Kitele Kilungu a.k.a Kitele Kitingu, his spouse(s) or his deceased estate is/was an owner, co-owner, director, partners, shareholder or member. That the Lands Registries are and hereby requested, in the interests of justice, to provide all information to the Applicants, regarding any parcels of lands currently and previously owned by: a. The Respondents. b. The Respondents’ present and former spouses/partners. c. The Respondents’ children. d. Any company/society in which the Respondents, their current and former spouses/ partners and children are/were owners, co/owners, partners, directors, shareholders or members. e. The late Alexander Kitele Kilungu a.k.a Kitele kitingu or his deceased estate. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12893/eng@2026-07-27 6

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xvi. xvii. f. Any company/society in which the late Alexander Kitele Kilungu a.k.a Kitele Kitingu or his deceased estate is/was/were owner, co-owner, partner, director, shareholder or member. g. Any spouse of the late Alexander Kitele Kilungu a.k.a Kitele Kitingu. That to enable the above stated Registrars/Commissioners provide the correct information and/or for the Applicants to obtain the correct information from the Registrars/ Commissioners, the Respondents are and hereby directed to provide: a. Their full particulars including copies of their Id cards/Passports and those of their current and former spouses and children. b. Copies of certificates of registration, company registration numbers, share membership certificates/numbers and society registration certificate numbers of the companies/societies currently owned or previously owned by the above stated in paragraph xvi(a)a or that they are/were directors, partners, shareholders or members c. Copies of all current and former companies/societies certificates of registration, company registration numbers, share membership certificates/numbers and society registration certificate in which late Alexander Kitele Kilungu a.k.a Kitele Kitingu or his deceased estate currently or previously owned or that is/was a partner, shareholder or member. d. A copy of the last ID card issued to the late Alexander Kitele Kilungu a.k.a. Kitele Kitingu alternatively the identity card number. e. A copy of the late Alexander Kitele Kilungu’s death certificate. f. Copies of the last ID card issued to any spouse of the late Alexander Kitele Kilungu a.k.a Kitele Kitingu alternatively their identity card numbers. That any identified Lands, Farmers, Ranching or Savings Co-operative Society where the late Alexander Kitele Kilungu a.k.a Kitele Kitingu, his spouses and late Justus Kilungu Mumia a.k.a Kitati Mumia has/had shares in respect of land or otherwise, and whether such shares were sold, disposed, transferred or not is directed and ordered: a. To provide copies of share certificates and beacon certificates. b. Provide information regarding descriptions, locations and sizes. c. Provide copies of share certificates for other purposes. d. Provide current monetary value of shares. e. Provide details of any sale, disposal or transfer of shares, including dates, methods and parties involved. xviii. That the Registrar of persons or the National Registration Bureau is hereby requested and in the interests of justice, to provide the Applicants with the last known Identity card numbers of the late Alexander Kitele Kilungu a.k.a Kitele Kitingu and his spouses. xix. That the Department of Immigration is and hereby requested, in the interest of justice, to provide to the Applicants, information on the Respondents’ itinerary in and out of Kenya to the USA and South Africa and/or to any other destinations outside the country since the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12893/eng@2026-07-27 7

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formation of the trusts and/or the death of the deceased Alexander Kitele Kilungu a.k.a Kitele Kitingu. xx. That the United States of America embassy in Kenya and/or United States government are and hereby requested, in the interests of justice, to assist the Applicants by providing any information that may be requested by them regarding any of the Respondents, or any other descendant of late Alexander Kitele Kilungu a.k.a Kitele Kitingu and their properties/ assets, assistance in tracing their whereabouts or assets and including ascertaining what exactly happened to such asset or descendant in the event of death or their assets. xxi. That any international airline, the Western Union and any other international money transfer, in the interest of justice, are and hereby requested to provide information as may be requested by Applicants concerning any travel or funds transfer into the country or receipts by any of the Respondent or descendant of the late Alexander Kitele Kilungu a.k.a Kitele Kitingu xxii. That the Applicants are and hereby granted leave to amend and supplement their claims and suits with regard to the deceased’s trust, assets, damages, compensation, reimbursements, disbursements and the like, if such are already instituted, and should the need arise after obtaining the information and documentation sought herein. xxiii. That a declaration hereby do issue that the Respondents infringed and violated the minor Applicants’ rights to have their best interests considered of paramount importance as guaranteed under Article 53(2) of the Constitution. xxiv. A declaration hereby do issue that the Respondents infringed and violated the Applicants’ rights to access information as guaranteed under Article 35(1)(b) of the Constitutio. xxv. That the Applicants are awarded general, exemplary, punitive and aggravated damages as follows: xxvi. a. An amount of Kshs. 500, 000.00 (five hundred thousand) shillings is and hereby awarded to each of the 6th minor Applicants, to be paid jointly or severally by the Respondents the one paying the other to be absolved, as a result of the Respondents’ violation of the minor Applicants’ rights guaranteed under Article 53(2) of the Constitution. b. An amount of Kshs. 500, 000.00 (five hundred thousand) shillings is and hereby awarded to each of the Applicants, to be paid jointly or severally by the Respondents the one paying the other to be absolved, as a result of the Respondents’ violation of the Applicants’ rights guaranteed under Article 35(1)(b) of the Constitution. c. In the alternative to prayers xxv (a) & xxv (b( above, an award for damages in amounts to be determined by the Honourable Court. That the costs of this application be paid by any person opposing this application The 1St, 2Nd, 3Rd, 5Th, 7Th, 10Th, 12Th And 14Th Respondents Case 17. The 1st, 2nd, 3rd, 5th, 7th, 10th, 12th and 14th Respondents oppose the Amended Originating Notice of Motion dated 30th May 2025 and rely on their Grounds of Opposition dated 30th June 2025, the Replying Affidavit sworn on 30th June 2025 by Hellen Musau (the 7th Respondent), and their written submissions dated 20th November 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12893/eng@2026-07-27 8

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18. It is their case that the dispute arises directly from the estate of the late Kitele Kiting’u and falls within the exclusive province of the pending Succession Cause No. 574 of 2005 pending before the High Court at Machakos, which is a court of competent jurisdiction seized of the administration and distribution of the estate. It is contended that by dint of the express statutory framework under the Law of Succession Act, Cap 160, all matters touching on the estate, including access to information, beneficial interests and administration issues, are incidental to succession and cannot be ventilated through constitutional proceedings outside the succession cause. The Respondents further rely on section 79 of the Law of Succession Act to the effect that only duly appointed administrators are clothed with legal authority to represent the estate, and in that regard it is averred that administrators appointed in the succession cause are the only proper parties against whom claims relating to the estate may be directed. Consequently, the 1st, 2nd, 3rd, 5th, 7th, 10th, 12th and 14th Respondents, being beneficiaries or peripheral parties, are said to be misjoined and non-suited. 19. The Respondents further contend that the Applicants lack locus standi to institute or sustain the proceedings as they do not fall within the category of dependants recognised under section 29 of the Law of Succession Act. It is submitted that mere description as descendants or relatives does not confer legal standing absent proof of dependency or beneficial entitlement under the estate. Reliance is placed on In re Estate of Harry Louis Nangurai (Deceased) [2024] KEHC 6062 (KLR), where the Court emphasised that locus standi is a threshold issue that must be determined at the outset as it goes to the competence of a party to be heard. 20. It is further the Respondents’ position that the proceedings are fatally defective for misjoinder and joinder of improper parties, particularly the inclusion of advocates and individuals with no control over or custodial responsibility for estate assets. The 12th and 14th Respondents, being advocates, are said to have been improperly enjoined as they act solely as legal representatives in the succession cause and possess no independent interest in the estate beyond instructions from their clients. 21. The Respondents also contend that the orders sought improperly target non-parties to the proceedings, including various registries and institutions such as land registrars, company registrars and foreign entities, contrary to the principle of fair hearing. Reliance is placed on Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR), where the Court of Appeal held that it would be unconstitutional to make adverse orders affecting entities not joined in proceedings and not afforded an opportunity to be heard. 22. On the issue of damages, the Respondents submit that the claim is speculative and unsupported by any evidentiary foundation. It is contended that constitutional or general damages cannot issue in the absence of proof of injury, loss or infringement attributable to the Respondents. They rely on the reasoning in Imanyara & 2 others v Attorney General (supra) that declaratory relief may suffice where no demonstrable loss is established. 23. It is the Respondents submission that the entire application is an abuse of the court process, being an attempt to circumvent the statutory succession framework by repackaging succession grievances as constitutional violations. They therefore urge that the Amended Originating Notice of Motion dated 30th May 2025 be struck out and/or dismissed in limine with costs. The 4Th, 6Th, 8Th, 9Th, 13Th And 15Th Respondents’ Case 24. The 4th, 6th, 8th, 9th, 13th and 15th Respondents opposed the Amended Originating Notice of Motion dated 30th May 2025 through Grounds of Opposition dated 25th September 2025 and Written Submissions dated 25th September 2025. They submit that the Application is fatally defective, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12893/eng@2026-07-27 9

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premature, incompetent and an abuse of the process of the Court, and ought to be struck out or dismissed with costs. 25. It is their case that the dispute as framed relates to the estate of the late Kitele Kiting’u, which is already the subject of Machakos High Court Succession Cause No. 574 of 2005, a court of competent jurisdiction seized of the administration and distribution of the estate. They contend that by dint of the Law of Succession Act, Cap 160, all questions touching on the estate, including alleged trust assets, can only properly be ventilated within the succession proceedings before the High Court at Machakos, and not through collateral constitutional litigation in another station of concurrent jurisdiction. They further submit that the filing of the present proceedings in Nairobi amounts to forum shopping and offends the doctrine of sub judice, as recognised in the statutory and constitutional framework governing avoidance of parallel proceedings. 26. The Respondents further contend that the Applicants lack locus standi to institute the proceedings, as they have not demonstrated that they are dependants or beneficiaries within the meaning of Section 29 of the Law of Succession Act. Relying on the principles of standing, they submit that the Applicants’ description as “descendants or guardians of descendants” does not meet the statutory threshold of dependency or beneficial entitlement. They also rely on the decision in In re Estate of Harry Louis Nangurai (Deceased) where the Court emphasized that locus standi is a fundamental threshold issue that must be determined at the outset. 27. It is further their submission that the 13th and 15th Respondents are improperly joined in the proceedings, being an advocate and law firm respectively who only act for parties in Machakos High Court Succession Cause No. 574 of 2005 and related proceedings in MCELC E048/2021 and MCELC E049/2021. They argue that no cause of action is disclosed against them and that their joinder is intended to intimidate counsel and interfere with the right to legal representation. 28. On procedural competence, the Respondents submit that the Amended Originating Notice of Motion is incurably defective for failure to comply with mandatory procedural requirements under Order 32 Rule 1 and Order 4 Rule 3 of the Civil Procedure Rules, 2010, including want of written authority by co-Applicants and failure to properly institute proceedings on behalf of minors. They contend that the alleged minors are not properly identified and no authority has been exhibited to clothe the deponent with capacity to sue on their behalf, rendering the entire proceedings incompetent. 29. They further challenge the Application on the basis that it fails the constitutional threshold for precision as articulated in Anarita Karimi Njeru v Republic, and as restated in Edwin Harold Dayan Dande & 3 Others v Inspector General, National Police Service & 5 Others, arguing that the Applicants have not specifically identified the rights allegedly infringed, nor demonstrated how such rights have been violated. It is their position that the pleadings are general, speculative and academic, and therefore incapable of sustaining constitutional relief. 30. The Respondents also invoke the doctrine of exhaustion under the Access to Information Act, 2016, submitting that the Applicants ought first to have approached the Commission on Administrative Justice under Sections 14 and 23 thereof before invoking the jurisdiction of this Court. They contend that failure to exhaust the statutory dispute resolution mechanism renders the Application premature and incompetent. 31. They further submit that the Application is supported by inadmissible and unauthenticated material, including unsigned annexures and electronically generated documents lacking proper certification under Section 106B of the Evidence Act, Cap 80, rendering the evidentiary basis of the claim defective. They argue that there is no cogent or admissible evidence to support allegations of constitutional violations or entitlement to the orders sought. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12893/eng@2026-07-27 10

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32. On jurisdictional propriety, they reiterate that all issues relating to the estate are properly within the Machakos High Court Succession Cause No. 574 of 2005, and that the present proceedings amount to an impermissible parallel challenge to ongoing succession litigation. They further argue that certain prayers in the Motion are directed at non-parties to the suit, thereby offending the audi alteram partem principle and rendering such prayers untenable. 33. On costs, the Respondents submit that the Application is frivolous, vexatious and an abuse of the Court process, having been instituted despite the existence of pending and competent proceedings in Machakos. They therefore urge that costs be awarded to them against the Applicants. 34. In conclusion, the 4th , 6th, 8th, 9th, 13th and 15th Respondents pray that the Amended Originating Notice of Motion dated 30th May 2025 be dismissed in its entirety with costs, for being incompetent, premature, unmeritorious and an abuse of the process of the Court. Analysis And Determination 35. Having carefully considered the pleadings, affidavits, submissions and authorities, the Court is of the view that the dispositive issue for determination is whether the Petition/Amended Originating Motion is properly before this Court, or whether it is an abuse of process in light of the pending Succession Cause No. 574 of 2005 at Machakos High Court. 36. Jurisdiction is the lifeblood of any adjudication, and without it a court must down its tools at the earliest opportunity, as was firmly stated in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1. The Court is therefore enjoined to first interrogate whether the dispute, though framed as a constitutional petition alleging violations of Articles 35, 53(2) and 57 of the Constitution, properly falls within its constitutional jurisdiction or whether it is in truth an attempt to repackage succession and land disputes as constitutional grievances so as to circumvent the statutory and specialised fora established by law. 37. A careful reading of the pleadings reveals that the substance of the dispute is not merely the enforcement of constitutional rights in the abstract. Rather, it concerns allegations of concealment, mismanagement and failure to account for estate and alleged trust assets, disputes over ownership, transfer and title to multiple parcels of land, identification and entitlement of beneficiaries and demands for disclosure of estate accounts, company records, trust documents and land registries’ records. The reliefs sought are equally expansive, extending to compulsory production of title deeds, share certificates, bank and trust information, and orders directed at a wide range of third parties including registries, financial institutions and foreign entities. In effect, the Court is being invited to undertake a comprehensive inquiry into the administration, composition and distribution of the estate of the late Kitele Kiting’u, including tracing of assets and determination of proprietary rights. 38. The Court notes that the issues raised in the pleadings relate substantially to the identification, administration, and distribution of estate assets of a deceased person in respect of whom Succession Cause No. 574 of 2005 is pending before the High Court at Machakos, which is the court seized of jurisdiction over the estate. 39. In the circumstances of this case, the Court is not persuaded that it is properly called upon to exercise its constitutional jurisdiction in parallel with the ongoing succession proceedings, as the issues raised are substantially intertwined with the administration of the estate and can be addressed within the pending probate cause. 40. The Court further notes that the High Court in exercise of its probate jurisdiction is already seized of the dispute in Machakos Succession Cause No. 574 of 2005. Allowing parallel proceedings in this https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12893/eng@2026-07-27 11

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Court would risk duplication of proceedings and the possibility of conflicting findings on the same subject matter. 41. It is a well-established principle that where a dispute is properly regulated by a statutory procedure and forum, that process ought to be followed. The Court is persuaded that the issues raised herein fall within the ambit of the ongoing succession proceedings and ought to be ventilated therein. 42. Jurisdiction is conferred by the Constitution or statute and cannot be assumed by the Court or conferred by parties through pleadings, however framed: Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others. The court stated: “ A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law” 43. The cumulative effect of the foregoing authorities is that jurisdiction cannot be implied, expanded, or inferred where none exists, nor can it be conferred by the manner in which a party frames its pleadings. The Court must interrogate the substance of the dispute and not its form. 44. The Court finds that the matters raised in the Petition are substantially intertwined with the administration and distribution of a deceased person’s estate in respect of which a succession cause is pending before a court of competent jurisdiction. 45. It is trite that jurisdiction is a creature of the Constitution or statute and cannot be assumed or conferred by the parties. Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR. Further, in determining jurisdiction, the Court must look at the substance of the dispute and not its form, and parties cannot confer jurisdiction upon the Court through artful drafting. 46. Succession matters fall within the jurisdiction of the High Court exercising its probate and administration jurisdiction, while disputes relating to ownership, use, and title to land fall within the jurisdiction of the Environment and Land Court pursuant to Article 162(2) of the Constitution and the Environment and Land Court Act. 47. The Court is also mindful of the constitutional and statutory architecture establishing superior courts of equal status under Article 162(2). Matters relating to land fall within the jurisdiction of the Environment and Land Court, while matters relating to succession fall within the probate jurisdiction of the High Court as constituted under the Law of Succession Act. These are courts of coordinate status, each exercising constitutionally defined subject-matter jurisdiction. It would therefore be an improper exercise of authority for this Court, sitting as a constitutional court, to assume a parallel or supervisory role over issues already competently seized by those specialised courts. To do so would offend the doctrine of institutional comity, create the risk of conflicting decisions, and encourage forum shopping and multiplicity of proceedings. 48. In the circumstances, this Court finds that the Petition, though framed in constitutional terms, is improperly before it as it seeks to litigate matters that are already the subject of ongoing succession proceedings. Entertaining the matter would amount to parallel proceedings and an abuse of the court process. 49. Accordingly, the Court finds that the Petition/Amended Originating Motion dated 30th May, 2025 is not properly before this Court and amounts to an abuse of the court process in light of the pending Succession Cause No. 574 of 2005 before the High Court at Machakos. The Miscellaneous Petition herein is consequently dismissed in its entirety. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12893/eng@2026-07-27 12

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50. While costs ordinarily follow the event, in the present case, and in light of the circumstances, it is just that each party bears their own costs. Orders accordingly. File closed accordingly. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 27TH DAY OF JULY 2026 BAHATI MWAMUYE MBS JUDGE In the presence of: Rose Katunge Kitele – 1st Applicant Theresia Saumu Kitele – 3rd Applicant Counsel for the 1st, 2nd, 3rd, 5th, 7th, 10th, 12th and 14th Respondents – Ms. Kalinga Counsel for the 4th, 6th, 8th, 9th, 13th and 15th Respondents – Mr. Kiluva Court Assistant – Mr. Martin HCCHRPETMISC NO. E020 OF 2025 MISC RG Page 12 | 12 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12893/eng@2026-07-27 13

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