In re Estate of Simon Mugweru Waithirwa (Deceased) [2025] KEHC 3764 (KLR)
Full Case Text
In re Estate of Simon Mugweru Waithirwa (Deceased) (Succession Cause 525 of 1997 & 250 (NYR) of 2007 (Consolidated)) [2025] KEHC 3764 (KLR) (Family) (27 March 2025) (Ruling)
Neutral citation: [2025] KEHC 3764 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Succession Cause 525 of 1997 & 250 (NYR) of 2007 (Consolidated)
HK Chemitei, J
March 27, 2025
IN THE MATTER OF THE ESTATE OF SIMON MUGWERU WAITHIRWA (DECEASED)
Between
Martin Mugweru
Applicant
and
Loise Wairimu Mugweru
1st Respondent
Ruth Wanjiru Mugweru
2nd Respondent
Ruling
1. This ruling relates to the application dated 21st March. 2023 filed by the Applicant, Martin Mugweru, seeking for orders that:-1. Spent.2. Spent.3. The Honourable Court be pleased to grant Orders rejecting the adoption and/or setting aside the written consent order dated 14th March, 2023, entered into by Loise Wairimu Mugweru and Ruth Wanjiru Mugweru that seeks for the activation and operationalization of the Bank Account 0128XXXXXXXX00. 4.The Honourable Court be pleased to issue an Order of temporary injunction restraining the Respondents either by themselves and through their agents, servants, employees, assigns or whomever from interfering with all such properties that form part of the estate of Simon Mugweru Waithirwa, pending the hearing and final determination of these proceedings/mediation processes.5. This Honourable Court be pleased to issue any further orders/ directions as may meet the interests of justice.6. Costs of this application be provided for.**
2. The application is supported by affidavit sworn on 21st March, 2023, further affidavit sworn on 16th January, 2025, further replying affidavit sworn on 27th September, 2024, supplementary affidavit sworn on 18th January, 2024, further replying affidavit sworn on 15th August, 2023 by Martin Mugweru; and supplementary affidavit sworn on 15th August, 2023 by Bernice Njeri Karita.
3. He avers inter alia that he is a co-administrator of the Estate of Simon Mugweru Waithirwa, which was consolidated with the Estate of Maaka Mukuhi Mugweru, alongside the Respondents, Loise Wairimu Mugweru and Ruth Wanjiru Mugweru. He was appointed as an administrator by the Honourable Court, replacing his late mother, Winnie Wangu Mugweru, who previously held the role, vide consent signed by the Respondents in the presence of the beneficiaries of the estate and court order dated 22nd February, 2022.
4. On 27th July, 2022, through Messrs. Pauline Mwaniki & Company Advocates, acting on his instructions, he issued a letter to the National Bank of Kenya Limited, placing a restriction on withdrawals from Account Number 0128XXXXXXXX00, which was registered under the names Loise, Winnie, and Ruth – as the Estate’s official bank account. This precaution was taken as the Respondents intended to withdraw funds derived from the disputed sale of L.R. No. 13041/2 in Kasarani. This property was part of the Estate of the late Simon Mugweru Waithirwa, and if the court approves the adoption of the consent, the funds will be distributed among the administrators only rather than all the rightful beneficiaries.
5. On 14th March, 2023, prior to the mediation session, Mr. Kihara from Messrs. C. N. Kihara & Company Advocates, who represents him, contacted Dr. Lydia Wambui, the appointed mediator, through her official phone number. She confirmed that she would send a virtual meeting link to their office email so that he could participate in the mediation scheduled for 11:00 am. However, on 15th March, 2023, his co-administrators, Loise Wairimu Mugweru and Ruth Wanjiru Mugweru, fraudulently consented, in his absence, during the mediation proceedings led by Dr. Lydia Wambui. They approved the activation and operation of the aforementioned bank account whose details are: National Bank of Kenya Limited, Karatina Branch, Account Name: Loise, Winnie & Ruth, Account Number: 0128XXXXXXXX00.
6. Further that the consent was allegedly agreed upon during the mediation on 14th March, 2023. However, he was deliberately excluded from the session despite waiting at his advocate’s office to participate. Had he been present, he would have opposed the consent order.
7. After the session, he deponed the mediator emailed his advocates, claiming that technical issues prevented her from providing the virtual link. However, this explanation is questionable, as his aunt, Grace Njogu, a beneficiary residing in the United States, had received the link and was able to participate. The email also included the agreed-upon deliberations, which surprisingly listed Advocate Mr. C. N. Kihara as a participant, even though he had not attended the session.
8. Subsequently, on 15th March, 2023, they received a notification from the Judiciary e-filing system indicating that the Respondents, through Messrs. Gatheru Gathemia & Company Advocates, had filed a consent dated 14th March, 2023. This consent sought to activate the bank account under the pretext of needing funds for urgent medical bills and funeral expenses of a close beneficiary. However, these claims were false, as his late Aunt, Grace Wanja Njogu, whom the Respondents claimed required urgent medical payments and burial arrangements, was already laid to rest on 16th March, 2023, with no outstanding hospital bills.
9. Furthermore, the Respondents’ advocates wrote to the Deputy Registrar on 15th March, 2023, requesting that the file be presented before the Honourable Judge or duty Judge on a priority basis to adopt the fraudulent consent order. If this consent dated 14th March, 2023, is adopted by the court, it will legitimize the Respondents' fraudulent and unethical actions driven by greed. He seeks to bring to the court’s attention fraudulent activities that he recently discovered, which were previously carried out and continue to be committed by his co-administrators and other estate beneficiaries.
10. He deponed that he has been actively working to expose and rectify these wrongdoings to ensure that the estate’s properties are preserved and not misappropriated. One such fraudulent transaction involves Ellen Nyatetu Mugweru, his biological aunt, who unlawfully sold and transferred L.R. No. Ruiru Kiu Block 2 (Githunguri Ballot No. 2373), a 1¼-acre parcel forming part of the late Simon Mugweru Waithirwa’s estate, to James Thendu Gitau for an undervalued price of Kshs. 1,300,000/=. This sale was conducted without a confirmed grant and without the consent of the administrators or beneficiaries. The buyer has since subdivided and developed the land, recently erecting a perimeter wall and taking possession. This unauthorized transaction is detrimental to the estate, as the land is now generating economic benefits for unknown parties instead of its rightful heirs.
11. Additionally, another of his biological aunts, Grace Wanjugu Mwai, who is also a daughter of the late Simon Mugweru, illegally and fraudulently transferred L.R. No. Euso Nyiro Suguroi Block III/452 in Nanyuki, a 12-acre parcel, to herself. She colluded with officials from the Nanyuki land office to unlawfully acquire the property and even produced a forged title deed in her name. This land is legally part of Simon Mugweru’s estate and should be shared among all beneficiaries, but Grace Wanjugu Mwai has unlawfully claimed it for herself alone.
12. In response, he has filed a caution application to prevent her from selling, transferring, or disposing of the land to third parties. Furthermore, his co-administrators have rented out commercial premises located on L.R. No. Karatina/Town Block 1/206, a property within the estate, to Mr. Njoroge, who operates Baraka Butchery. Without informing the beneficiaries, they have been collecting rent from the property for personal gain instead of depositing the proceeds into the estate’s official bank account. They leased out the premises without a formal tenancy agreement, allowing them to benefit financially while failing to provide proper financial accountability to the estate.
13. These ongoing illegal activities clearly show that if those responsible are not restrained by an order from this Honourable Court, they will continue their acts of greed and exploitation to the detriment of the estate and its rightful beneficiaries.
14. The partial agreement referenced by the 1st Respondent was strictly limited to property-related matters discussed during mediation and did not extend to administrative concerns. However, the Respondents, particularly the 1st Respondent and Ms. Yunniah, have intentionally omitted his handwritten objections recorded during mediation. Despite his objections, they proceeded to approve dubious debts from fictitious creditors, seemingly to benefit the 1st Respondent and her associates.
15. The mediator entered the matter with bias, influenced by Mr. Gatheru Gathemia, the counsel for the 1st Respondent, who was also representing him at the time, resulting in a conflict of interest. Mr. Gatheru Gathemia acted against his instructions, colluding with the Respondents to undermine his role as an administrator. The mediation process was solely intended to resolve specific property issues, yet the Respondents and Mr. Gatheru Gathemia attempted to use it as a means to remove him as an administrator through deceit.
16. The firm of M/S Gatheru Gathemia Advocates, representing the 1st Respondent, filed a preliminary objection on 24th October, 2024, followed by further affidavits on 6th December, 2024. This demonstrates a deliberate attempt to manipulate proceedings. Filing a preliminary objection while simultaneously submitting affidavits on substantive matters contradicts legal principles, as such objections should strictly address points of law, such as jurisdiction. Their approach indicates bad faith, undermining legal procedures and delaying the case’s resolution.
17. Additionally, the letter provided by the 1st Respondent, supposedly showing family members’ opposition to his administration, is flawed and misleading. Some signatories, such as Joanne Nyawira, Maureen Muita, and Kevin Mugweru Muita, are the biological children of the 1st Respondent and included to serve her personal interests. Others, like the children of his aunt Olive Mugweru, were legally represented by their father, who had already consented to the administration. Similarly, other beneficiaries, including Edwin Mugweru and Jacqueline Mukuhi Kisilu, were represented by legal guardians who had also given their consent.
18. His aunt, Miriam Wanjiku, is now contradicting herself by signing misleading letters after having previously signed a valid consent adopted by this court. His appointment as an administrator, following the passing of his mother, Winnie Wangu Mugweru, was conducted legally and approved in open court by Justice Muchelule without contest. The claims made by Loise Wairimu Mugweru, alleging that Mohammed Isaack of Freestyle Investment is both a farm manager and a creditor, are contradictory and serve to benefit her personally.
19. The family estate has suffered from manipulation, including a forged Will, which was nullified in a ruling in Succession Cause No. 250 of 2007 by Justice Jairus Ngaah. The same individuals behind this forgery later attempted to halt the issuance of letters of administration, despite the 2nd Respondent already being an administrator. The prolonged litigation over the estate is primarily due to disputes over administration rather than equitable distribution, with the 1st and 2nd Respondents, along with certain family members, determined to exploit the estate for personal gain.
20. The Respondents, together with Ellen Nyatetu and Grace Wanjugu Mwai, have been unlawfully selling, leasing, and transferring estate properties without the consent of rightful beneficiaries. For instance, they are attempting to lease out Karatina Block B1/186 (Mugweru House) without proper authorization, violating Section 45 of the Law of Succession Act. Their intent to open a new bank account to divert estate funds, after failing to access the family estate account at National Bank of Kenya due to a placed caution, further illustrates their disregard for legal safeguards.
21. The 1st Respondent and her associates are particularly focused on L.R. No. 13041/2 and Karatina Block 1/186, scheming to sell these properties unlawfully. They have even recruited third parties under assumed identities to pose as legitimate buyers. Any transaction involving these properties should be conducted under court supervision per Sections 45 and 82 of the Law of Succession Act. A court-supervised valuation should be carried out to establish the fair market value, and any verified debts should be settled under court direction to ensure transparency.
22. He deponed that the 1st Respondent has been actively attempting to enforce an illegal sale of L.R. No. Kasarani 13041/2 to Hydrobrightshine Developers, despite the transaction being invalid due to the absence of a valid grant. Even after the Milimani High Court Commercial Division ruled on the matter in HCCOMMISC/E097/2022, she is attempting to revive the sale through a questionable arbitration process. Similarly, she has sought to transfer the same property to Francis Muchiri without proof of payment, prompting legal intervention through Milimani Environment and Land Court Case No. 351 of 2017.
23. The 1st Respondent’s history of intermeddling with the estate is well-documented, including previous allegations brought by the late Winnie Wangu Mugweru. L.R. No. Karatina Block 1/186 is of particular concern in this context. Additionally, there are serious concerns regarding his younger sister, Yunniah Wamaitha Kariithi’s, ability to handle estate matters. She has struggled with drug addiction since 2018 thereabouts, resulting in erratic and irresponsible behavior that renders her unfit to make sound decisions in the estate’s best interests. Her addiction has caused distress within the family, and past incidents include theft and selling of household items to fund her habit.
24. A letter from the Chief dated 17th May, 2023, explicitly highlights her unstable behavior, which coincided with her arrest following complaints from neighbors. She has stolen important court documents and share certificates under the 1st Respondent’s influence, leading to a police report at Ngong Police Station under OB number 34/17/07/2024. Investigations are ongoing, with charges of burglary among other offenses being considered. Due to her vulnerable state, the 1st Respondent has manipulated her into signing documents concerning fraudulent debts that jeopardize their late mother’s share of the estate.
25. That any future sale or transaction concerning estate properties must be conducted transparently under the court’s supervision to protect the rightful beneficiaries and preserve the estate from further harm.
26. His decision to approach this court via notice of motion rather than summons does not render his application invalid nor does it strip this honorable court of its jurisdiction. According to Article 159 (2) of the Constitution of Kenya, 2010, the court is required to ensure justice is administered without undue regard to procedural technicalities. Furthermore, Section 47 of the Law of Succession Act grants the High Court the authority to entertain applications, resolve disputes under this Act, and issue necessary orders. Additionally, Rule 73 of the Probate and Administration Rules preserves the court’s inherent power to make any orders necessary to ensure justice and prevent the abuse of court processes.
27. In light of these legal provisions, it is evident that procedural technicalities, such as those raised by the 1st Respondent in her affidavit, are inconsequential. The Applicant, therefore, respectfully requests this honorable court to dismiss the 1st Respondent’s preliminary objection dated 10th May 2023, with costs.
28. There has never been an application before this court seeking a review of orders against the grant of letters of administration issued by Honorable Justice Muchelule on 22nd February, 2022. Alternatively, if the mediator indeed had the authority to make orders appointing or varying estate administrators, then the Applicant should have been granted a fair hearing before any adverse order for his removal was made.
29. The Applicant has since discovered that on 30th March 2022, Honorable Justice Thande issued ex parte orders, including a stay on the grant of letters of administration and directives for filing of affidavits. These orders arose from the 2nd Respondent’s misleading application for revocation of the grant, despite her also being an estate administrator.
30. He went on to accuse the 2nd Respondent of having a history of falsifying information and misleading the court in this succession matter. If the court’s order appointing current administrators was stayed, then the 1st and 2nd administrators lack the legal standing to present themselves as administrators of the Estate of Simon Mugweru Waithirwa, which was consolidated with the Estate of Maaka Mukuhi Mugweru.
31. Conversely, the 1st Respondent has engaged in estate mismanagement, particularly through the unauthorized sale of Kasarani L.R. No. 13041/2 to Hydro Brightshine Developers, despite prior cancellation of the agreement by co-administrators Winnie Wangu Mugweru and Ruth Wanjiru Mugweru.
32. He stated that given the aforementioned legal provisions, procedural technicalities raised by the 1st Respondent hold no merit and the 1st Respondent’s preliminary objection dated 10th May 2023, be dismissed with costs.
33. Furthermore, he deponed, if the mediator had the authority to issue orders altering estate administration, the Applicant should have been given a fair hearing before any adverse decision was made. The purpose of mediation was to facilitate discussions on property distribution and prevent intermeddling, not to determine administrator appointments or removals. However, despite knowing the mediation’s intended scope, the mediator wrongfully proceeded to remove the Applicant as an administrator. After his removal, the Applicant repeatedly raised concerns with the Mediation Court Registry, expressing that the mediator was biased and failed to focus on the key issues at hand. He complied with the court’s mediation directive, actively participated, and ensured representation by legal counsel when necessary. However, the mediator failed to provide him with records of physical mediation sessions held at Milimani Law Courts, despite multiple requests. These were only issued after the Applicant filed a formal complaint. The mediation report has since been filed but contains inaccurate and misleading information that the Applicant never consented to. If adopted as a court order, it would result in a miscarriage of justice. The Applicant only agreed to the proposed mode of distribution filed on 18th May 2023, not to his removal as an administrator.
34. The mediator further manipulated documents to exclude the Applicant as an estate administrator and included fictitious debts against the estate without reasonable verification. Additionally, the 1st Respondent’s advocate is conflicted, having initially represented both the Applicant and the 1st Respondent before mediation. However, during mediation, the advocate exclusively submitted arguments adverse to the Applicant’s interests.
35. In the interest of justice, the Applicant requests that this advocate ceases representing any party in this succession matter.
36. Furthermore, the 1st and 2nd Respondents and their legal representatives have held unauthorized meetings with potential buyers of Kasarani L.R. No. 13041/2, including Hydro Brightshine Developers Limited and Veeland Housing Limited. The Applicant and his advocates were deliberately excluded from these meetings, where the Respondents unilaterally decided on the sale terms without consulting other beneficiaries.
37. These court proceedings have been unnecessarily prolonged due to the Respondents’ continued intermeddling in estate matters. The Applicant, therefore, prays for an order directing that L.R. No. 13041/2 be properly valued and sold to the highest bidder, with approval from all estate beneficiaries.
38. He stated that Yunniah Wamaitha was not actively present during the mediation process until 18th May, 2023 which date coincided with her arrest on 17th May, 2023 due to their constant complaints due to her drug abuse. Her sudden interest and participation in the mediation proceedings is evidently a reaction to her arrest thus indicating retaliatory behaviors as opposed to genuine involvement in the mediation process.
39. The facility that Yunniah Wamaitha mentions I took was acquired under Stallion Gulf Limited, an entity owned by himself and his late mother, Winnie Wangu Mugweru. The loan acquired at the time, on or about January, 2014, was acquired for purposes of expanding the business in the Petroleum sector which led to a protracted court battle with ABC Bank where ABC Bank was granted orders to take possession and lease out the property.
40. However, he went back to court seeking injunctive orders against the bank to halt as well any attempt by the bank to sell the property and which orders were granted in HCCOM No. E004 of 2024 by the Kajiado High Court, later on. The proceedings relating to this property have been in court for a period of time and ultimately, they have reached a consent with the bank in relation to settling the due loan amounts to the lower final sum of Kshs. 5,700,000/= from the erroneous amount of Kshs. 31,000,000/= that was being demanded. He has conducted a search at Ngong Lands registry and the property is still intact under the names of the late Winnie Wangu Mugweru.
41. In reference to the above quoted substantive laws, it is crystal clear that procedural technicalities, such as want of form, that the 1st Respondent relies on her affidavit is neither here nor there, as the honourable court is mandated to administer justice without undue regard to technicalities and in the premises, he humbly beseeches this honourable court to dismiss the 1st Respondent’s preliminary objection dated 10th May, 2023 with costs.
42. There has never been any application before this court seeking review of orders against the grant of letters of administration that had been issued by Honourable Justice Muchelule on 22nd February, 2022.
43. In the alternative, if it is true that the mediator had authority to make ultra vires orders appointing the administrators of the estate or vary the existing administrators, then she should have first given him the right to fair hearing in the motion for his removal as an administrator of the Estate before making the adverse orders of his removal.
44. He has since learned that on 30th March, 2022, Honourable Justice Thande issued ex – parte orders which include an order staying the said grant of letters of administration issued and confirmed by Honourable Justice Muchelule to wit the Respondent to file replying affidavit by 13th April, 2022; Applicant to file further affidavit if need be by 27th April, 2022; mention on 24th May, 2022; grant herein stayed until 24th May, 2022; and notice to issue.
45. The application is opposed vide notices of preliminary objection dated 24th October, 2024, 10th May, 2023 and grounds of oppositions dated 3rd July, 2023 and 16th May, 2023.
46. The notice of preliminary objection dated 24th October, 2024 is premised on the grounds that:-1. The notice of motion application dated 21st March, 2023 along with the attendant supporting affidavit and the subsequent affidavits dated 18th January, 2024 and 27th September, 2024 respectively are fatally defective being in gross contravention of the mandatory provisions:-i.Rule 39 (1) of the Court Annexed Mediation Rules, 2022. ii.Rule 59 (1) of the Probate and Administration Rules Cap. 160 Laws of Kenya.iii.Rule 63 (1) of the Probate and Administration Rules Cap. 160 Laws of Kenya with Reference to Order 51 Rule 13 (2) of the Civil Procedure 2010. 2.Consequently, the said notice of motion application along with the attendant supporting affidavit and the subsequent affidavits dated 18th January, 2024 and 27th September, 2024 respectively are in direct contravention of the express and mandatory statutory provisions set out hereinabove and thus sought to be struck out with costs.3. The affidavits have been filed without leave of the court and ought to be struck out summarily and expunged from the record with costs.
47. The notice of preliminary objection dated 10th May, 2023 is based on the grounds that:-1. The application dated 21st March, 2023 is fatally defective being in contravention of the following mandatory statutory provisions:i.Rule 59 (1) of the Probate and Administration Rules Cap 160 Laws of Kenya.ii.Rule 63 (1) of the Probate and Administration Rules Cap 160 Laws of Kenya.2. Consequently, the said application is in express contravention of express statutory provisions set out hereinabove and ought to be struck out with costs.
48. The grounds of opposition dated 3rd July, 2023 are based on the grounds that:-1. The application is incompetent, a non – starter and otherwise an abuse of the honourable process of the court.2. The application has been overtaken by events, the mediation having concluded and the requisite mediator’s report filed without any accompanying certificate of non – compliance by any party before this honourable court.3. The legitimate beneficiaries having successfully finally mediated the succession dispute and having reached a unanimous settlement; it follows that all the beneficiaries, advocate’s and by extension the courts are bound by the mediation agreement.4. The Applicant having assented his signature to the mediation agreement; then the mediation agreements are clothed with a contractual effect and cannot be set aside or varied unless the Applicant proves that his signature was obtained by fraud or that his consent was given without sufficient material facts or in misapprehension or ignorance of such facts.5. The Applicant has not demonstrated the existence of any aforegoing vitiating factors such as misrepresentation, mistake, coercion, undue influence and/or duress that would warrant setting aside of the duly signed mediation agreement.6. The Applicant thus lacks the locus standi to challenge, set aside and/or vary the contents of the mediation agreements, or any consent resulting negotiated and resulting from the mediation process and agreed upon on a consensus basis by all beneficiaries to the estate.7. The Applicant has not demonstrated dependency under Section 29 (b) of the Law of succession Act that would then entitle him to a direct benefit from the estate, the Applicant thus lacks legal standing to prosecute a lawful objection against the mediation agreement.8. Litigation has to come to an end.
49. The 2nd Respondent’s grounds of opposition dated 16th May, 2023 are based on the grounds that:-1. The Applicant’s notice of motions application seeking the trial court to reject adoption of the consent order dated 14th March, 2023 arising from the mediation process is an abuse of the process of this honourable court and should be dismissed with costs since it offends Rule 39 (1) of the Court Annexed mediation Rules, 2022. 2.The subject consent order seeking operationalization of the account number 0128XXXXXXXX00 was recorded by parties in the presence of all beneficiaries but in the absence of the Applicant after his consistent absence and indolent lack of participation in the mediation proceedings.3. The application by the Applicant ought not to be entertained by this honourable court as it has been brought by a party who offends the provisions of Rule 28 (1) of the Court Annexed Mediation Rules, 2022 for non – compliance with mediation proceedings.4. There is no provision known or allowed by the law in which a litigant can hold parties at ransom ad – infinitum especially where that litigant has failed to participate without lawful cause in mediation proceedings that led to the mediation consent order that he now wants rejected.
50. The application is also opposed vide replying affidavit sworn by Loise Wairimu Mugweru on 11th May, 2023, supplementary affidavit sworn by Bernice Njeri Karita on 15th August, 2023, supplementary affidavit sworn by Loise Wairimu Mugweru on 11th June, 2024, affidavit sworn by Yunniah Wamaitha Kariithi on 1st June, 2024 and further affidavit sworn by Loise Wairimu Mugweru on 6th December, 2024.
51. They aver inter alia that Loise Wairimu Mugweru serves as a co-administrator of the estate of the late Simon Mugweru Wathirwa. She is one of his biological daughters, born to Simon Mugweru Wathirwa and Maaka Mukuhi Mugweru, who passed away on 3rd March, 1997, and 24th January, 2007, respectively. She is also the biological sister of the late Winnie Wangu Mugweru, who passed away on 6th February, 2022, leaving behind two children: Martin Mugweru (the Applicant) and Yunniah Wamaitha Kariithi.
52. The Applicant, Martin Mugweru, is not a co-administrator of the consolidated estates. His appointment was made unilaterally, without the necessary consents from any beneficiaries, and was later suspended by Justice Mugure on 30th March, 2022. According to Section 81 of the Law of Succession Act, his substitution in place of the late Winnie Wangu Mugweru is legally invalid and procedurally flawed.
53. On 26th January, 2023, Lady Justice Maureen Odero, in the presence of all parties, referred the matter to court-annexed mediation, to which the Applicant did not object. The first virtual mediation meeting took place on 23rd February, 2023, with Martin Mugweru attending online. During this session, all parties agreed that the next mediation meeting, scheduled for 3rd March, 2023, would be held physically at Milimani Mediation Courts instead of virtually. The mediator confirmed this arrangement through an email sent to all parties on 24th February, 2023.
54. On March 3rd March, 2023, all beneficiaries of the consolidated estates gathered at Milimani Mediation Courts, including the Applicant. During this session, the beneficiaries, except for the Applicant, unanimously selected Ruth Wanjiru Mugweru and Loise Wairimu Mugweru as administrators of the estates of Simon Mugweru Wathirwa and Maaka Mukuhi Mugweru.
55. Dissatisfied with this decision, the Applicant has since refused to attend any further mediation meetings. On 14th march, 2023, the Applicant was represented by Bernice Karita, an advocate from the law firm C. N. Kihara and Company Advocates. She challenged the appointment of the administrators and referred to the present application. However, she deliberately avoided signing the attendance section of the mediator’s report, though she recorded her name and phone number in a handwritten quorum note by her advocate, confirming her presence.
56. During the deliberations, the parties discussed the consolidation of the estate’s debts, repayment plans, and the reactivation of the estate’s bank account to settle urgent hospital bills. No objections were raised by any beneficiaries, including the Applicant’s legal representative. These discussions led to the drafting and execution of a consent agreement dated 14th March, 2023, which was approved and witnessed by the court-appointed mediator.
57. Martin Mugweru’s appointment was both improper and procedurally flawed. Furthermore, given that the deceased’s children are still present, he lacks the legal standing to claim any administrative role in the estates of his grandparents. The current application and its supporting affidavits lack legal validity because they were submitted without obtaining the court’s leave, thereby breaching Rule 39 (1) of the Court Annexed Mediation Rules.
58. In matters of probate and administration, applications must be made by summons in accordance with Rule 49 of the Probate & Administration Rules. The disputes in these two consolidated succession cases have dragged on for several decades. On 26th January, 2023, this court directed that the case be referred to court-annexed mediation to address the serious issues involved in managing and administering the various assets of the consolidated estates. All the concerns raised by Martin Mugweru were thoroughly resolved during the mediation process.
59. As an administrator, she opposes Martin Mugweru’s claimed role as co-administrator in the consolidated estates because he has persistently attempted to disrupt the mediation process and the overall management, administration and forthcoming distribution of the assets from the joint estates of Simon Mugweru Wathirwa and Maaka Mukuhi Mugweru. It is incorrect to assert that he was not given the opportunity to speak during the mediation sessions.
60. Additionally, the consent mentioned by the Applicant was not signed by all beneficiaries of the deceaseds’ estates. Matters concerning the alleged sale of L.R. No. Ruiru Kiu Block 2 (Githunguri Ballot No. 2373), L.R. No. Euso Nyiro Suguroi Block 111/452 and L.R. No. Karatina/Town Block 1/206 were comprehensively handled during mediation with the participation of all beneficiaries, including the Applicant’s legal representatives.
61. Once a mediation agreement is reached and signed by all parties, it becomes final and legally binding. The Applicant has a history of repeated legal violations and has been implicated in several criminal offenses - one of which resulted in his arrest, necessitating his attendance at the mediation sessions under strict police supervision
62. He is unfamiliar with the overall management of the estate, having rarely participated in key decisions made by the appointed administrators and he has consistently been absent from family meetings organized by other beneficiaries. As a result, the beneficiaries generally oppose his appointment as co-administrator and have refused to give their consent.
63. Furthermore, her health issues are irrelevant to this suit and the Applicant has not provided any evidence to support his claim that she misappropriated the consolidated estates’ assets to pay for her medical expenses - especially considering that she paid all her medical bills out of her own pocket.
64. Lastly, the company Freestyle Investments is owned by Mr. Mohammed Ali, the Kasarani property manager, whom she had not even met in 2018. Mr. Ali, who is one of the estate’s creditors, presented his claim during the mediation proceedings.
65. Yunniah Wamaitha Kariithi is his biological sister. The Applicant is disrespectful to his family especially his step father and herself. He should focus on the administration of their late mother’s estate. She is in the process of initiating legal proceedings to revoke the grant or representation issued to him for the administration of their later mother’s estate. She has no drug abuse problems and the Applicant has not produced evidence to this effect. She is of sound mind as is evidenced by the annexed toxicology report. The alleged chief’s letter and doctor’s report on her mental state and conduct are foreign to her.
66. The Applicant has filed written submissions dated 28th July, 2023 and skeleton submissions dated 29th September, 2023 in support of the application dated 21st March, 2023. The 2nd Respondent has filed written submissions dated 14th August, 2023 and the protestors have filed written submissions dated 2nd October, 2023 all in opposition of the application dated 21st March, 2023.
67. The Applicant in his submissions dated 28th July, 2023 and 29th September, 2023, has placed reliance among others on the following:a.In Re Estate of George Ragui Karanja (Deceased) [2016] eKLR where the court stated as follows:“The Law of Succession Act did not expressly provide for substitution of personal representatives who died in office, particularly in cases where the Estate was left without one. Section 81 of the Act, provided for vesting of the powers and duties of personal representatives in the survivors of a dead personal representative. upon the death of one or more of several executors or administrators to whom a grant of representation had been made, all the powers and duties of the executor or administrators would become vested in the survivors or survivor of them.”b.In Re Estate of Chemwok Chemitei (Deceased) eKLR the where the court opined as follows:“What is envisaged by Section 81 of the Act is that, in the event of the death of one or more of joint administrators, where there are several administrators, the surviving administrator or administrators would then have the mandate to continue with their duties to completion without the need to replace the deceased ones.”In the same ruling the Learned lady Justice proceeded to cite the case of Florence Okutu Nandwa & Another vs John Atemba Kojwa, Kisumu Civil Appeal No. 306 of 1998, where the Court of Appeal made it clear that:“A grant of representation is made in personam. It is specific to the person appointed. It is not transferable to another person. It cannot therefore be transferred from one person to another. The issue of substitution of an administrator with another person should not arise. Where the holder of a grant dies, the grant made to him becomes useless and inoperative, and the grant exists for the purpose only of being revoked. Such grant is revocable under section 76 of the Law of Succession Act. Upon its revocation, a fresh application for grant should be made in the usual way, following procedures laid down in the Law of Succession Act and the Probate and Administration Rules…”To further fortify this position, the court quoted the case of Re Estate of Mwangi Mugwe alias Elieza Ngware (Deceased) eKLR, where Justice Hon. Khamoni, J stated as follows:“… the operative word is “substitution.” The Law of Succession has no provisions talking about substitution of a deceased single administrator… In the circumstances therefore, it is my considered view that the proper provisions of the law to apply is section 76 (e) of the Law of Succession Act and Rule 44 of the Probate and Administration Rules whereby the Applicant would apply for revocation or annulment of a grant on the ground “that the grant has become useless and inoperative through subsequent circumstances.” The Applicant would proceed to put a prayer in the same application that a new grant be made to him and could as well add a further prayer, if need be, for confirmation of the new grant. The application, should of course, be supported by consent from adult beneficiaries in the estate of the first deceased person, the second deceased person being the deceased administrator.”
68. The 2nd Respondent has filed written submissions dated 14th August, 2023 placing reliance on the following:-1)Alios Finance Kenya Limited v Country Farms Limited 9Civil Appeal E005 of 2020) [2022] KEHC] 11012 (KLR) (27 July 2022) where the court held as follows:-“Mediation agreements were in the nature of consents. It is for that reasons that this court considered the consequences and implications of entering a consent."2)Board of Trustees national Social Security Fund v Michael Mwalo [2015] eKLR where the court held that:“The judgment arose from a consent of the parties to the suit. The law pertaining to setting aside of consent judgments or consent orders has been clearly stated. A court of law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between the parties. To impeach a consent order or a consent judgment, it must be shown that it was obtained by fraud, or collusion or by an agreement contrary to the policy of the court.”3)In re Estate of Anastansia Muriungi Ndung’u (Deceased) [2021] eKLR the court stated as follows:“According to that provision (Section 66 of the Law of Succession Act), the court should be guided by Part V of the Act, which sets out the order of priority in entitlement to a share in the estate of the deceased. Priority is given to the surviving spouse, followed by the children of the deceased, followed by parents of the deceased in the event that the deceased was not survived by a spouse or child, other relatives follow thereafter.The same applies with regard to entitlement to administration by dint of Section 66. The surviving spouse has priority to administration, followed by the children, parents of the deceased, siblings, other relatives to the sixth degree, the Public Trustee and creditors in that order. When I apply those provisions to the instant case, it would follow that all the children of the deceased…”
69. The protestors have filed written submissions dated 2nd October, 2023 placing reliance among others on;1. In Re Estate of Oyosi Oyuoya (Deceased) [2021] eKLR where the court stated as follows:-“Mediation is an informal and non – adversarial process where an impartial mediator encourages and facilitates resolution of a dispute between two or more parties. The mediator does not determine the dispute and/ or come up with a decision. The parties propose how a dispute should be settled and once they agree, the mediator leads them to signing a mediation agreement.Once the mediation agreement is signed, it becomes final and binding as to the disputes that have been amicably resolved. Under the Court Annexed mediation, the Mediation report is filed in court and is subsequently adopted as an order of the court. However, if the parties are unable to agree on the issues that had been referred to mediation, the Mediator files a Non-Compliance Report and the matter is then referred back to court for determination. It is procedural that once parties had signed a Mediation Settlement Agreement which was then lodged into the court, it became incumbent upon the courts to adopt it to enable enforcement to set into motion. Paragraph 12 of the Judiciary of Kenya Directions of Court Annexed Mediation (as amended in 2018) provides as follows: “12. (a) Where there is an agreement resolving some of all the issues in dispute, such agreement shall be in the prescribed Form 8, duly signed by the parties and shall be filed by any of the parties, with the Deputy Registrar or Magistrate of Kadhi as the case may be within ten (10) days of conclusion of the mediation. (b) Any agreement filed with the Deputy Registrar or Marriage of Kadhi as the case may be shall be adopted by the Court and shall be enforceable as a Judgement or order of Court.”2. Flora N. Wasike v Destimo Wamboko [1988] eKLR where it was stated as follows:-“It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract or certain conditions remained to be fulfilled which are not carried out.”
Analysis And Determination 70. I have gone through the application, the responses thereto and the rival submissions. I address it as follows:-
71. The law on notices of preliminary objection was well discussed in the East African Court of Justice at Arusha first instance division: Reference No. 8 of 2017: Pontrilas Investments Limited versus Central Bank Of Kenya & the Attorney General of the Republic of Kenya where it was stated as follows:-23. Having carefully considered the parties’ submissions, it is the considered view of the court that prior to a substantive consideration of the said submissions at this stage, it is imperative that the court confirms that what is before it, is indeed a preliminary objection point of law that would be properly determined as a preliminary objection.24. whereas the matter under consideration was raised and argued by all the parties as a preliminary objection, the court is alive to the importance of proper procedure in the judicial process.25. In Attorney General of the Republic of Kenya vs Independent Medical Legal Unit (supra), the Appellate Division of this Court held:“The improper raising of points by way of preliminary objections does nothing on occasion confuse the issues. The court must therefore, insist on the adoption of the proper procedure for entertaining applications for Preliminary Objections. In that way, it will avoid treating, as preliminary objections, those points that are only disguised as such; and will instead, treat as preliminary objections, only those points that are pure law; which are unstained by facts or evidence, especially disputed points of facts or evidence or such like.”26. This point was underscored in The Secretary General of the East African Community vs. Rt. Hon. Margaret Zziwa, Appeal No. 7 of 2015 where the court cited with approval the following exposition in Mukisa Biscuit Manufacturing Company Limited vs. West End Distributors Limited (1969) EA 696 (per Newbold), P):“A Preliminary Objection is in the nature of what used to be demurer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion.”27. The question of what would constitute a proper preliminary objection was further addressed in Attorney General of Tanzania vs African Network for Animal Welfare (ANAW) EACJ Appeal No. 3 of 2011, where the Appellate Division of this court held that a Preliminary Objection could only be properly taken where what was involved was a pure point of law, but that where there was any issue involving the clash of facts, the production of evidence and facts, the production of evidence and assessment of testimony it ‘should not be treated as a Preliminary Point. Rather, it becomes a matter of substantive adjudication of the litigation on merits with evidence adduced, facts shifted, testimony weighed, witnesses called, examined and cross – examined, and a finding of fact then made by the Court.”
72. The Court of Appeal in Intercountries Importers and Exporters Limited v Teleposta Pension Scheme Registered Trustees & 5 others [2019] eKLR observed that, “… The principles that appertain to setting aside of a consent order are well established in a line of cases including Brooke Bond Liebig vs Mallya (1975) EA where Mustafa Ag. VP stated thus;“The compromise agreement was made an order of the court and was thus a consent judgment. It is well settled that a consent judgment can be set aside only in certain circumstances e.g. on grounds of fraud or collusion, that there was no consensus between the parties, public policy or for such reasons as would enable a court to set aside or rescind a contract. In this case the parties and their advocates consented to the compromise in very clear terms; they were certainly aware of all the material facts and there could not have been any mistake or misunderstanding. None of the factors which could give rise to the setting aside of a consent agreement existed.” And in the case of Flora N. Wasike vs Destino Wamboko [1988] eKLR Hancox JA cited Setton on Judgments and orders (7th Edition) vol 1 page 124, and reiterated that;“Any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and those claiming under them… and cannot be carried or discharged unless obtained by fraud or collusion or by an agreement contrary to the policy of the court…; or if the consent was given without sufficient material facts, or in general for a reason which would enable a court set aside an agreement.”[Emphasis mine]The Judge A. K. Murgor thus concluded that, “… Essentially, the above cited authorities are clear that a consent order will only be set aside if it can be demonstrated that it was procured through fraud, non – disclosure of material facts or mistake or disclosure of material facts or mistake or for a reason which would enable a court set it aside.”[Emphasis mine]
73. In light of the foregoing authorities cited above the provisions of Article 159 (2) of the Constitution cannot aid the Applicant for the simple reason that the Act clearly provides that one should approach the court by way of chamber summons and notice of motion. The habit of waving Article 159 of the Constitution is not a panacea of failing to comply with the apparent provisions of the procedural laws.
74. In this application however even if the court was to overlook the procedural technicality there are other issues which outweigh the same and goes to the veracity of the application and it cannot therefore stand.
75. More importantly is the consent entered by the parties in the presence of the mediator. I note that the Applicants counsel has not denied the fact that he was present during the mediation exercise. The said advocate ought to have buttressed the Applicant’s assertion that he was denied audience by the mediator.
76. It has not been demonstrated that the consent was illegally entered or was fraudulently obtained by the mediator. There was sufficient evidence including his participation in the present of police officers which fact he has not denied.
77. At the same time the issue before the mediator was clear and straight forward, namely the question of who were to be administrators of the estate and the creditors. The twin issues were clearly addressed.
78. I doubt whether the Applicants’ rights in regard to the entitlement of his mother’s estate were overlooked. It must be remembered that the grant which he was holding having been granted by Muchelule J (as he was) was stayed by Thande J. The stay has never been set aside or reviewed. Legally therefore he is not a co administrator of the estate as he claims.
79. In essence his rights will only feature or crystalize when the wholesome distribution is undertaken and the rights of her mother’s estate discussed.
80. For the above reasons I find that both the preliminary point of law raised by the Respondents and the responses in their various affidavits hold water.
81. The application is therefore dismissed with no order as to costs.
DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 27TH DAY OF MARCH, 2025. H K CHEMITEIJUDGE