High Court 13186 of 2026

iv. That costs of the application be in the cause. 2. The application is brought under section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. It is supported by the joint affidavit of Carolyne Namwangi Sakwa (Carolyne). She also filed an affidavit dated 14.8.2025. Martin Sakwa (Martin), the 3rd Administrator, filed affidavits dated 3.12.2024 and 9.4.2025. Ignatious Mutimbia (Ignatious), the interested party, filed an affidavit dated 20.2.2025. 3. Carolyne deposed as follows: her father, Raymond Kefa Sakwa (Raymond), was one of the deceased’s sons. He died in 1991, having established a home on a portion of land measuring 2.5 acres on LR Kimilili/ Kimilili/112. Her father had three children, herself, the late Rael Kepha Sakwa, and Ignatious Wekesa. As children of Raymond, they were entitled to his share of the deceased’s property. She learnt that the administrators allocated 1.25 acres to Ignatius, 0.75 acres to Fred Simiyu Wanjala (Fred), and 0.5 acres to John Masika Wekesa (John), to their detriment. When she filed the application, Rael Sakwa, her sister, was still alive. Fred and John are not members of the deceased’s family; they are strangers to the estate and are not entitled to a share of the estate. She denies having sold land to John Masika Wekesa. Rael also did not sell land to John M. Wekesa. The sale agreements shown to her were not signed by her. The signatures appearing in the agreements are a forgery. She never authorised Ignatius or any other person to sell her father’s portion of the land, nor did they relinquish any portion of her entitlement in her father’s estate. She seeks that the children of Raymond share his estate equally, with the portion due to Rael to be allocated to her two daughters, Naomi Nyongesa and Faith Nyongesa. 4. Martin Sakwa deponed as follows. Carolyne, Rael and Ignatious are children of Raymond Kefa Sakwa, deceased. Raymond’s designated portion amounts to 2.5 acres. The said portion was allocated to Ignatious, the interested party, who insisted that Fred Simiyu Wanjala and John Masika Wekesa be included in the mode of distribution as beneficiaries of the deceased’s estate, as he had sold them his interests in the land designated for Raymond Kefa Sakwa. On 3.2.2021, the grant was confirmed, and the mode of distribution included Fred Simiyu Wanjala and John Masika Wekesa, as directed by Ignatious. Upon being served with the application, they realised that Ignatious had duped them into filing a confirmation of grant, which is detrimental to the applicants. 5. He further deposed that the deceased died in 2009, and therefore, under the agreement signed by Fred Simiyu, it was illegal for anyone to purchase land belonging to his estate in 2013. He also challenged the agreement signed by David, his late brother, as the property belonged to Raymond and was restricted by Standard Chartered Bank Nyeri. Ignatius has demolished the house that belonged to Rael’s mother, where Carolyne lived. The administrators never held a meeting with the beneficiaries, and no minutes were taken. None of the administrators were aware of the sale agreements entered into with Fred Simiyu Wanjala and John Masika Wekesa. 6. Ignatius deponed as follows. It is true that they are the children of Raymond Kefa Sakwa, and that their father was entitled to 2.5 acres as the son of the deceased. 0.75 acres was sold by the clan elders to Fred Simiyu Wanjala in 2013 to address an emergency in their family. 0.25 acres was given to Carolyne Namwangi Sakwa, who later sold it to John Sakwa Masika Wegesa on 5.12.2015, leaving no other share behind. 0.25 acres was given to the late Rael Kepha Sakwa, who sold it to John Masika Wegesa on 13.8.2015, leaving no share behind. The balance of 1.25 acres was allocated to him. These are the shares indicated in the mode of distribution in the certificate of confirmation of the grant. The applicants sold their portions, and therefore there was nothing to allocate to them. It is not true that the applicants were unaware of the succession case. He was in constant communication with them, and they were agreeable to the happenings. The applicants have come with unclean hands and have withheld material information in a bid to unjustly enrich themselves. As beneficiaries, they were all agreeable to having https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13186/eng@2026-08-20 2

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the names of the purchasers appear in the position of vendors. Martin, the administrator, has not told the truth, as the administrators were aware that the portions were to be allocated to Fred and John. 7. Parties gave viva voce evidence. Carolyne adopted her affidavits as her evidence. During crossexamination, she maintained that she had never sold land to John Masika Wekesa and that, as Raymond’s children, they were to divide the 2.5 acres. Martin too adopted his affidavits as his evidence and, during cross-examination, admitted that Raymond’s land was 2.5 acres, that Ignatius received 1.25 acres, and that the other portions went to the persons to whom he sold to John Masika and Fred Simiyu. He stated that they were to get Carolyne and Rael, but the two beneficiaries were not near, so Ignatius chose to represent them. They knew then that the share of Carolyne and Rael was there, as Ignatius had sold his. Carolyne was to get the house belonging to Rael’s mother. He has no objection if the distribution is set aside. They obtained the certificate of confirmation in 2021 and have not given the beneficiaries their titles. Rael died in 2024. He admitted that he had no agreement between Ignatius and John Masika, nor one signed by Fred Simiyu. Neither did they see any agreements signed by Carolyne and the late. 8. Ignatius adopted his affidavits as his evidence. He admitted selling a portion of 36.5 by 100 feet to John Masika. He maintained that he did not sell land to Fred Simiyu. He has no objection if his sisters wish to inherit their father’s land. 9. After hearing the parties to enable it to make a just decision, the court issued a summons to Fred Simiyu and John Masika to come and testify about the sale agreements tendered in evidence by the interested party. Fred Simiyu testified that he knew the applicant and Ignatius. He further testified that Ignatius sold him half an acre of Kimilili/Kimilili No. 112 in 2012 for Kshs.310,000/-. According to him, when the first sale of land was made, Carolyne was present and witnessed the agreement. A year later, Carolyne and Rael approached to buy land, but he had no money then, and they sold to Mzee John. He admitted during cross-examination that when he bought the land he knew it was still in the deceased’s name and that no administration had been done on the deceased’s properties. John Masika Wekesa testified that he knows Ignatius. Ignatius sold him land from parcel No. 112. He does not know the acreage he bought. He also bought two plots from Carolyne and Rael. He paid in 2016. He stays at the plots. During cross-examination, he was adamant that he bought the land from Ignatius, Carolyne and Rael, and that the two were present when he paid the money. 10. Parties filed written submissions, which I have read and considered. I have also considered the evidence adduced by the parties. The issue for determination is whether the court can set aside the confirmation orders made on 3.3.2021. 11. Section 47 of the Law of Succession Act provides as follows: The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient. 12. Rule 73 of the Probate and Administration Rules preserves the court's inherent power. It provides that nothing in the rules limits or afiects the court's authority to make any order necessary for the ends of justice or to prevent the abuse of the court process. 13. There is no dispute that the applicant and the interested party are siblings and that they are the children of Raymond, who was a son of the deceased. Raymond died, and at the time of confirmation of the grant issued to the administrator, the portions of land due to Raymond’s family were allocated to Ignatius Wekesa Mutimbia (1.25 acres), Fred Simiyu Wanjala (0.75 acres), and John Masika Wekesa (0.5 acres). The evidence adduced shows that the portions of land were sold before the grant was confirmed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13186/eng@2026-08-20 3

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The agreements annexed by Ignatius show that the portions of land were sold in 2015 and 2016. The interested party tendered these two agreements in court, but the applicant denied their authenticity. John and Fred, the buyers, testified that they bought the land from the beneficiaries before the grant was confirmed. Martin admitted that Fred and John were included in the list of beneficiaries at the interested party’s request. The issue of whether the beneficiaries signed the agreements can only be challenged in the Environment and Land Court, which has jurisdiction to interrogate the agreements. 14. The administrators had a duty under section 82 of the Act to ensure that the deceased’s assets are administered as per law. It is evident that the portion belonging to Raymond, a son of the deceased, was disposed of before confirmation of the grant. Ignatius did this before confirmation of the grant. Any person purporting to sell the deceased’s assets needed authority to do so. This authority could only come from a grant of letters of administration intestate. None of the beneficiaries had a grant in respect of the deceased's estate. The deceased's estate did not vest in them. None of them had a capacity to sell. In the case Re Estate of Paul M’Maria (Deceased) [2017] eKLR, the Court held that: “ [10] The restriction provided by law that no immovable property shall be sold or distributed before confirmation of grant is not merely directory or an embellishment. It is a statutory command with fatal consequences on any transaction done in contravention of the said law. Accordingly, acquisition of immovable property of the estate in contravention of the Law of Succession Act is tinctured with killer poison; and is unlawful acquisition; thus, property so acquired does not enjoy the protection of property rights under article 40(6) of the Constitution. See the claw-back provision of the Constitution that: 40 (6 ) 15. The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.” By purporting to sell the property, the seller was contravening section 45 of the Law of Succession Act. Any beneficiary who sold their portions of land was intermeddling with the estate. They had no title to pass to any buyer. Section 45 of the Act provides as follows; “ 45. No intermeddling with property of deceased person (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 ofience 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13186/eng@2026-08-20 4

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he has intermeddled after deducting any payments made in the due course of administration.” 15. I have already stated that this court lacks jurisdiction to interrogate the agreement. Article 165(5) of the Constitution is clear that the High Court has no jurisdiction over matters touching title to land. The sale of land concerns title and is therefore not within the High Court's jurisdiction. Those provisions of the Constitution are supported by provisions in the Environment and Land Court Act, the Land Registration Act, and the Land Act. The Applicant contests the sale agreement bearing the names of Fred Simiyu and John Masika. Fred and John can formally prove their entitlement to that property in a suit properly instituted in the Environment and Land Court, or in any subordinate court vested with the requisite jurisdiction. 16. Carolyn and the late Rael were left out at the time of confirmation of the grant. They are children of a son of the deceased who was also deceased at that time. They were to be included as beneficiaries of Raymond Sakwa. As daughters of the deceased, they are entitled to an equal share (see Rono v Rono [2005] eKLR and Article 27 of the Constitution). Raymond's children are entitled to equal shares of his inheritance. 17. Accordingly, I make the following orders; i. I set aside the confirmation orders dated 3.3.2021 that relate to the 2.5 acres, which were due to the three children of the Late Raymond Kefa Sakwa. ii. The certificate of confirmation of grant issued on 26.07.2021 shall be amended to indicate the estate of Raymond Kefa Sakwa. iii. Igantius Wekesa or Carolyne Sakwa, the children of Raymond Kefa Sakwa (deceased), shall proceed to obtain letters of administration of the late Raymond Kefa Sakwa in the appropriate court. iv. This being a family matter, each party shall bear its own costs. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20THDAY OF AUGUST 2026. R.E.OUGO JUDGE In the presence of: Mr Maloba For the Applicant Martin Wakoli Sakwa/ 3rd Administrator Miss Wakoli For the Interested Party Fredrick / Minah C/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13186/eng@2026-08-20 5

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