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Court halts ICC lawyer’s land sale in legal battle
The contested Eldoret property forms part of Gicheru’s broader estate, including shares in Cedar Dairies Farm Ltd, Malik Development Ltd, and a motor vehicle.
Mr Njoroge is using his birth certificate, which names Mr Gicheru as his father, to support his claim. He argues that Gicheru gifted him the land during his lifetime. Ms Nyambura wants to sell the land to fund her two sons’ university education in the United Kingdom.
“The respondent’s position is the immediate need for cash for education. The applicant’s position is permanent loss of assets,” the court observed, summarising the conflict.
Ruling in Mr Njoroge’s favour, Justice Helene Namisi set aside earlier court orders that had allowed the sale of the property and faulted the process as unfair and procedurally flawed.
“The proceedings of July 31, 2024, were conducted in breach of the rules of natural justice,” the court said, noting the sale authorisation was “an ex-parte order disguised as an inter partes ruling”, obtained without due notice to the affected party.
Gicheru, a High Court advocate, died intestate on September 26, 2022. He gained international attention after the International Criminal Court (ICC) accused him of witness tampering in Kenya’s 2007/08 post-election violence case. Though he denied and surrendered to the Hague-based court in 2020, he passed away before his trial could be concluded.
The succession dispute escalated in July last year when Ms Nyambura secured a partial grant authorising the property’s sale—a move Mr Njoroge contested, alleging fraud and lack of notice.
He argued the grant bypassed his pending objection and disinherited him prematurely.
An April 2024 grant had excluded the disputed asset.
Justice Namisi condemning the July 31 hearing as an “ambush” against an active objector.
“There is no evidence on record—no affidavit of service, no hearing notice—demonstrating that the applicant was notified,” she said.
Court records showed the matter was listed for July 29 but adjourned without notice to Mr Njoroge before proceeding two days later.
“General awareness of a suit does not equate to specific notice of a hearing date. When the court session of July 29, 2024, failed to materialise, it was incumbent upon the Court Registry or the respondents' advocates to formally notify the applicant of the new date (July 31, 2024),” Justice Namisi said.
The contested Eldoret property forms part of Gicheru’s broader estate, including shares in Cedar Dairies Farm Ltd, Malik Development Ltd, and a motor vehicle.
The April 2024 grant distributed these undisputed assets but omitted the Eldoret land, which Mr Njoroge and Gicheru’s mother later claimed was earmarked for him.
“Confirming a grant for a disputed asset before resolving the objection is a procedural absurdity. It puts the cart before the horse,” the court ruled, voiding the July grant for substantive defects.
Ms Nyambura and her sons dismissed Mr Njoroge as a stranger, citing Gicheru’s funeral program—which listed only them as family—and insisting the estate needed liquidity to prevent the sons’ university withdrawal.
The court, however, upheld Mr Njoroge’s birth certificate naming Gicheru as his father, ruling it legally superior to the funeral records. “In law, a funeral program is a social document, not a legal one.
Until the respondents successfully challenge the birth certificate (e.g., through DNA testing or annulment of the entry), the court must treat the applicant as a putative beneficiary,” the court said.
It also questioned the administrators’ urgency to sell the disputed land while other assets existed. “A prudent administrator liquidates undisputed assets first. This fixation raises good faith concerns,” it stated.
The court papers reveal that Mr Njoroge's claim of paternity and beneficial interest in the estate was supported by Gicheru's mother. Drawing a sharp distinction between educational needs and inheritance rights, the judge added: “You cannot feed one child by illegally selling another’s food. The cited sons are adults, not children under Article 53 of the Constitution.”
"The estate is not destitute. There are multiple assets. The decision to sell the only asset claimed by the applicant, rather than the undisputed shares or the motor vehicle, supports the granting of an injunction to stop that specific sale," the court ruled.
Revoking the July grant under Section 76 of the Law of Succession Act, the court barred any sale or transfer of the Eldoret land pending Mr Njoroge’s objection.
“The subject matter is land. Land is unique. If sold, it is gone forever. If the applicant later wins his paternity case, he will have lost his specific inheritance. Damages are rarely an adequate remedy for the loss of ancestral or specific land. This constitutes irreparable injury," Judge Namisi said.
The April 2024 grant remains valid for undisputed assets, while Mr Njoroge’s objection will be fast-tracked. Parties were allowed to seek directions on DNA testing if paternity remains contested.
