Zablon Osoro Chakuwa v Ruth Nyanchama Oirere & 3 others

RULING 1. This ruling concerns the Applicant's Notice of Motion dated 30th April 2026, brought under Sections 45 and 47 of the Law of Succession Act and Rule 59 of the Probate and Administration Rules. The Applicant, Zablon Osoro Chakua seeks conservatory orders restraining the Respondents and Interested Parties subdividing, from intermeddling with, wasting, transferring, constructing upon, fencing, damaging, cutting trees on or otherwise dealing with the assets of the Scheme/105, estate East comprising Matutu Kitutu/Mwamangera/2596 Kitutu/Mwamangera/2597 pending the Settlement and East hearing and determination of this succession cause. The Applicant also seeks an order directing the Officer Commanding Kitutu Police Station to enforce the Court's orders and an order requiring the Land Registrar, Nyamira, to produce the land registers relating to the disputed properties. 2. The application is supported by the Applicant’s affidavit of even date together with the annexures marked ZOC-1, ZOC-2 and ZOC-3(a)-(e). Annexure ZOC-1 is a Certificate of Official Search dated 17th April 2026 in respect of East Kitutu/Mwamangera/2596, exhibited to demonstrate that the parcel remains registered in the name of the deceased, Mariam Moraa Chakua. Annexure ZOC-2 is a copy of this

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Court's Ruling delivered on 19th February 2026, by which the Applicant's earlier application for conservatory orders was dismissed for want of sufficiently particularised evidence, while expressly reserving liberty to the Applicant to move the Court upon obtaining intermeddling. fresh and Annexures credible evidence ZOC-3(a)–(e) of comprise photographs taken on 27th April 2026 depicting alleged ongoing construction, excavation, fencing and other developments on the estate properties, while annexure ZOC3(f) consists of the accompanying metadata printouts showing the date, time, GPS coordinates and other EXIF information intended to authenticate the photographs and link them to the estate properties. 3. The application is opposed through the Notice of Preliminary Objection dated 05th May 2026 and the Replying Affidavit sworn by Calvin Onyari Osoro , the 2nd Respondent on 05th May 2026, filed on behalf of the 1st, 2nd and 3rd Respondents together with the 4th, 5th, 6th and 7th Interested Parties. The Respondents contend that the application is res judicata, that this Court is functus officio, that the photographs constitute inadmissible electronic evidence and that no fresh evidence has been presented to justify the grant of conservatory orders.

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4. Before addressing those arguments, it is necessary to place the present application in its proper procedural context. On 18th September 2025, this Court revoked the grant that had been issued in Nyamira CM Succession Cause No. 82 of 2020 after finding that the subordinate court lacked jurisdiction. Although the grant was nullified, the Court declined to determine the proprietary interests of third-party purchasers within those proceedings and instead directed that the estate be preserved pending the filing and determination of the present succession cause. 5. Thereafter, the Applicant filed a Chamber Summons dated 29th October 2025 seeking conservatory orders on the ground that several persons were continuing to deal with the estate despite the revocation of the grant. In a ruling delivered on 19th February 2026, this Court dismissed that application, not because it found that no intermeddling had occurred, but because the photographic evidence then produced lacked sufficient evidential connection to the properties in dispute and therefore did not meet the evidential threshold necessary to justify interlocutory relief. Importantly, the Court did not foreclose future applications. Rather, it expressly recognised that the Applicant was at liberty to approach the Court should fresh and available. credible evidence of intermeddling become

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6. It is against that background that the present application falls for determination. 7. The Respondents contend that the application is barred by the doctrines of res judicata and functus officio. I however do not agree with that contention for the reason that a subsequent application founded upon evidence that was not before the Court when the earlier application was determined cannot, without more, be defeated merely because similar relief had previously been sought. The present Motion is expressly founded upon evidence which the Applicant contends came into existence after the earlier ruling. Whether that evidence ultimately proves the allegations is a matter for trial. At this interlocutory stage, the Court is only concerned with whether it discloses a sufficient basis for preserving the estate. 8. Section 45 of the Law of Succession Act prohibits any person, unless authorised by law or by a grant of representation, from taking possession of, disposing of or otherwise intermeddling with the free property of a deceased person. The object of the provision is the preservation of the estate pending lawful administration and distribution. 9. The Court of Appeal has consistently held that the jurisdiction conferred by Section 45 is protective and exists to ensure

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that the estate is preserved from acts capable of defeating or rendering nugatory the eventual distribution of the estate. In Kagina v Kagina & 2 others [2021] KECA 242 (KLR) the Court reaffirmed that intermeddling encompasses unauthorized dealings with estate property and that the High Court possesses ample jurisdiction under Sections 45 and 47 of the Act to intervene and preserve the estate whenever such conduct is demonstrated. 10. in The same principle was reiterated by the Court of Appeal Kiragu & 2 others v Kiragu & 7 others [2024] KECA 1600 (KLR), where it upheld the grant of preservatory orders after finding that dealings with estate assets undertaken without proper authority amounted to intermeddling. The Court emphasized that preservation of the estate takes precedence over competing claims until the succession court determines the rights of the parties. Where there is credible evidence that estate assets are being depleted or altered, the Court should act promptly to safeguard the estate. 11. Equally instructive is the decision in Ngatuny & 2 others v Mosoiko & 2 others [2024] KECA 1656 (KLR) where the Court of Appeal observed that the purpose of conservatory and preservatory orders is to maintain the subject matter of litigation so that an intended appeal or

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pending proceedings are not rendered nugatory by continued dealings with the property in dispute. The guiding consideration is preservation of the substratum of the dispute pending its final determination. 12. In the present matter, the Applicant has exhibited a Certificate of Official Search dated 17 th April 2026 in respect of East Kitutu/Mwamangera/2596, confirming that the parcel remains registered in the name of the deceased, Mariam Moraa Chakua. Prima facie, therefore, the parcel remains part of the estate and attracts the protection afforded by Section 45 of the Law of Succession Act. 13. The Applicant has further relied upon the photographs annexed as ZOC-3(a)–(e) depicting ongoing construction and other developments upon the disputed properties. Although the Court is not at this interlocutory stage making definitive findings on the legality of those activities, the photographs, considered together with the official search, the earlier revocation of the grant and the absence of any subsisting grant authorising dealings with the estate, disclose a credible apprehension that the estate is exposed to continuing acts of intermeddling. 14. This Court is not presently concerned with determining the competing proprietary claims to the disputed parcels.

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Those issues will be resolved upon hearing the succession cause. At this interlocutory stage, the Court's duty is limited to preserving the estate pending that determination. The material placed before the Court establishes a prima facie case that the estate is exposed to continuing acts of intermeddling. Unless restrained, the alleged construction, subdivision and other dealings are likely to alter the character of the estate and prejudice its orderly administration and eventual distribution. Conservatory orders are therefore warranted. 15. All persons claiming any right, title or interest in the estate are reminded that Section 45 of the Law of Succession Act prohibits any unauthorised dealing with the free property of a deceased person. Such dealings include construction, subdivision, transfer, sale, alienation, fencing, excavation, cultivation, tree felling, occupation or any other act that interferes with estate property without lawful authority. Intermeddling constitutes a criminal offence under Section 45(2) of the Act and also exposes the offender to personal liability to account to the estate. Any person who, with knowledge of these proceedings or these orders, interferes with the estate does so at his or her own peril and risks appropriate proceedings before this Court, in addition to any criminal sanctions provided by law.

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16. Accordingly, I make the following orders— 1) Pending the hearing and determination of this succession cause, the Respondents, the Interested Parties, their agents, servants, employees, assigns, nominees, purchasers, contractors, and any other person claiming through them or otherwise asserting any right, title or interest in the estate of the deceased, are hereby restrained from intermeddling with, wasting, alienating, transferring, selling, leasing, charging, subdividing, constructing upon, excavating, fencing, cultivating, cutting trees on, or in any other manner whatsoever dealing with Matutu Settlement Scheme/105, Kitutu/Mwamangera/2596 East and East Kitutu/Mwamangera/2597 pending the hearing and determination of this succession cause. 2) The Officer Commanding Station, Kitutu Police Station, shall ensure compliance with and enforcement of these orders and provide such lawful assistance as may be necessary to preserve the estate. 3) Any person who knowingly acts in breach of these orders or otherwise intermeddles with the estate shall be liable to appropriate proceedings under

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Section 45 of the Law of Succession Act, without prejudice to any criminal or civil liability provided by law. 4) The costs of the Notice of Motion dated 30 th April 2026 shall be in the cause. DELIVERED AT NYAMIRA THIS July 2026 16th DAY OF WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant For Applicant - Hilda - Ms. Mwongeli for BT Atancha Advocates For 3rd Respondents - Mr. Mogaka for Nicholas Mogaka & Associates Advocates For 1st to 4th Interested Parties - Ms. Mwongeli for BT Atancha Advocates For 5th to 7th Interested Parties - Mr. Mogaka for Nicholas Mogaka & Associates Advocates 8th Interested Party - N/A

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