Albert Oyunge Monayo Jackline Rabera Monayo George Ogoti Monayo v Kepha Iteba Monayo

thereto including a beneficiaries’ letter of authority, photographs marked A1–A2 and an OB extract from Matutu Police Station dated 16thApril 2026. 3. The Applicants contend that they are beneficiaries and proposed administrators of the estate of the deceased and that the Respondent who is their brother has embarked on acts of intermeddling by harvesting and cutting trees on estate property without the consent of co-beneficiaries or sanction of the court. They argue that such unilateral acts amount to unlawful intermeddling contrary to Section 45 of the Law of Succession Act and threaten dissipation of the estate to the detriment of all beneficiaries. The Applicants further submit that there exists imminent danger of alienation and depletion of the estate which may irreversibly defeat equitable distribution among beneficiaries unless preservatory orders are granted. 4. The application is opposed through the replying affidavit sworn by the Respondent, Kepha Iteba Monayo, on 24th April 2026 together with photographs KIM 1 A–K which he saws show the 1st Applicant making away with some of the timber. He denies alienating, transferring, charging or disposing of any estate property and avers that he merely harvested trees personally planted by him on the portion of land he occupies and utilizes for livelihood and sustenance. He contends that such limited use does not amount to intermeddling within the meaning of Section 45 of the Law of Succession Act. He additionally submits that the Applicants have not produced any evidence of sale agreements, transfers, subdivision activities or dealings at the Lands Registry capable of justifying issuance of inhibition orders. He further

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contends that the application is founded on speculation and apprehension rather than demonstrable evidence of waste or alienation. 5. I have considered the application, the rival affidavits, annexures thereto and the written submissions by Applicants dated 07th May 2026 and by the Respondent dated 18th May 2026 and the issue falling for determination is whether the Applicants have satisfied the threshold for grant of interlocutory preservatory and injunctive orders pending hearing and determination of the succession cause. 6. The principles governing grant of interlocutory injunctions are well settled in Giella v Cassman Brown & Co. Ltd [1973] EA 358. An applicant must establish a prima facie case with a probability of success, demonstrate likelihood of suffering irreparable harm incapable of compensation by damages and, where the court is in doubt, the matter is determined on a balance of convenience. 7. The Applicants anchored their application on Section 45 of the Law of Succession Act and argued that the Respondent’s actions amounted to unlawful intermeddling with estate property prior to confirmation of grant. The Respondent, on the other hand, relied on Section 68 of the Land Registration Act in opposing the prayer for inhibition orders and further cited In re Estate of M’Ngarithi M’Miriti [2017] eKLR for the proposition that intermeddling entails acts such as taking possession, disposing of, exchanging, charging, mortgaging or otherwise dealing with estate property in a manner that dissipates or places the estate at risk.

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8. It is common ground that the suit properties herein form part of the estate of the deceased and that both the Applicants and the Respondent are beneficiaries thereof. It is equally not disputed that the Respondent harvested trees from part of the estate land, though he contends that the same were planted by him personally and harvested for reasonable domestic and economic use. 9. The photographic evidence annexed by both parties demonstrates that extensive tree harvesting activities have taken place on portions of the estate land pending confirmation of grant. The Applicants annexed photographs depicting felled trees and harvested timber while the Respondent annexed photographs allegedly showing removal of harvested timber by the 1 st Applicant. Whereas the Respondent maintains that no prejudice has been occasioned to the estate, the Applicants contend that continued depletion of estate resources prior to distribution undermines preservation of the estate. 10. Although the Respondent contends that the harvested trees were planted by him personally, the estate has not yet been distributed and no beneficiary can at this stage claim exclusive rights over any particular portion of estate property absent confirmation of grant or consent of all beneficiaries. The court agrees with the Applicants’ submission that unilateral dealings with estate property before confirmation of grant may amount to intermeddling where such conduct threatens preservation of the estate or prejudices other beneficiaries. 11. The court is alive to the Respondent’s argument that there is no evidence of sale agreements, transfers, charges or dealings at the Lands Registry.

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However, preservatory and inhibitory orders in succession proceedings are preventive in nature and need not await completed acts of alienation before intervention by the court. The purpose of such orders is to preserve the substratum of the estate pending determination and distribution. 12. The Court of Appeal in Saoina & 7 Others v Kajiado & 2 Others (Civil Appeal 461 of 2019) [2026] KECA 556 (KLR) emphasized the duty of courts to protect estate property from unlawful dealings and stated that: “Section 45 of the Law of Succession Act for the proposition that no one should handle a deceased's free property or take possession of the same without a grant of representation...” 12. In the circumstances of this case, I am satisfied that the Applicants have established a prima facie case warranting intervention by the court for purposes of preserving the estate pending hearing and determination of the succession proceedings. I am further satisfied that continued harvesting and depletion of estate resources may occasion irreparable prejudice to the estate and potentially compromise equitable distribution among beneficiaries. While the Respondent argues that the balance of convenience favours continued occupation and use by beneficiaries, I find that the balance of convenience in the present circumstances tilts in favour of preservation of the estate pending determination of the succession cause. 13. Consequently, I find merit in the application dated 20 thApril 2026 and I make the following orders: 1) A temporary injunction be and is hereby issued restraining the Respondent either by himself, his servants, agents or any person

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acting under him from cutting, harvesting, wasting, alienating, transferring, charging or in any other manner interfering with the estate properties known CHACHE/BIRONGO/155, as NYARIBARI NYARIBARI CHACHE/BIRONGO/149 and NYANSIONGO SETTLEMENT SCHEME/26 pending hearing and determination of this succession cause. 2) An order of inhibition be and is hereby issued against dealings in respect of NYARIBARI CHACHE/BIRONGO/155, NYARIBARI CHACHE/BIRONGO/149 and NYANSIONGO SETTLEMENT SCHEME/26 pending hearing and determination of the succession cause. 3) All beneficiaries shall maintain peace and preserve the prevailing status quo on the suit properties pending further orders of the court. 4) Costs of the application shall abide the outcome of the succession cause. 5) Mention before the DR on 13th July 2026 to confirm gazettement DELIVERED AT NYAMIRA THIS 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda 28th DAY OF May

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For Applicants - Mr. Ndichu for Samuel N.Mainga & Co. Advocates For Respondent - Mr. Omondi for M.K.Angasa & Co. Advocates

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