The High Court has dismissed an application by Victoria Nyambura Karugu seeking to join a constitutional petition filed by her family members challenging their prosecution over allegations surrounding their late father’s disputed will.
In a ruling delivered on September 30, 2026, Justice Gregory Mutai found that Karugu had failed to demonstrate that her participation was necessary or that her proposed submissions would add value to the issues before the court.
The judge ruled that being the complainant whose allegations triggered investigations into the disputed will did not automatically qualify her to participate in proceedings challenging the State’s decision to prosecute the petitioners.
“Being the complainant does not, without more, make a person an interested party in a petition that challenges the exercise of investigative or prosecutorial power,” Justice Mutai stated.
The court held that an applicant seeking to join proceedings as an interested party must demonstrate a direct stake in the issues before the court, explain the prejudice they would suffer if excluded and show how their participation would contribute distinct arguments without duplicating those already presented.
Karugu, the deceased’s eldest child, had sought permission to participate in the constitutional petition, file affidavits and make written and oral submissions.
She argued that she had a direct interest in the matter as a beneficiary of the estate, an objector in the succession proceedings and the complainant whose report led to investigations into the alleged forgery of the will and a settlement trust deed.
She also maintained that the petitioners had repeatedly mentioned her in their court documents and accused her of using the criminal justice system to gain an advantage in the family dispute.
Karugu argued that she deserved an opportunity to respond to the allegations rather than have the court consider them without hearing her side.
However, the petitioners, including Erick Mwaura Karugu and Benjamin Githara Karugu, opposed her application, maintaining that the constitutional case concerned the legality of the decision to prosecute them, rather than the authenticity of their late father’s will.
The family dispute has triggered parallel proceedings, including a succession case pending before the High Court’s Family Division in Milimani, where the will’s executors have applied for a grant of probate.
Karugu has challenged the authenticity of the will, alleging that it was forged. She also lodged a complaint over the alleged forgery of the will and a settlement trust deed dated the same day.
Following investigations, the Director of Public Prosecutions approved charges against the first and third to seventh petitioners.
The alleged offences include forgery of a will, uttering a false document and conspiracy to defraud. The allegations remain unproven and are subject to determination through the relevant legal proceedings.
In their constitutional petition, the family members argue that prosecuting them before the succession court determines the will’s authenticity would violate their constitutional rights.
They contend that the criminal proceedings could be used to pressure witnesses and influence the inheritance dispute before the court reaches a decision on the contested document.
The petitioners are seeking declarations that the decision to prosecute them is unconstitutional and an abuse of the legal process. They have also asked the court to halt criminal proceedings over matters directly linked to the will’s validity until the succession dispute is determined.
They have further challenged the application of Section 193A of the Criminal Procedure Code, which permits civil and criminal proceedings arising from the same facts to run concurrently.
In dismissing Karugu’s application, Justice Mutai noted that the constitutional petition primarily concerned the exercise of public power by the Director of Public Prosecutions and the legality of the decision to charge the petitioners.
The judge said the responsibility to justify the prosecution rested with the State, which was already represented in the proceedings, rather than with the complainant.
He further found that Karugu’s interests as a beneficiary and objector were being addressed in the separate succession case, while a complaint concerning the alleged transfer of her shares in Mathara Holdings Limited was the subject of another criminal case.
Justice Mutai was also unconvinced that excluding Karugu from the constitutional petition would prejudice her interests, noting that the petitioners were seeking orders against State agencies and not against her personally.
The judge added that if the criminal case proceeded to trial, Karugu could exercise her rights as a victim under the Victim Protection Act, with the trial court determining the extent of her participation.
The court also raised concerns about the volume and scope of documents Karugu intended to introduce into the constitutional proceedings.
Her supporting affidavit contained 217 paragraphs, accompanied by annexures running to 1,503 pages. The material covered the authenticity of the will and trust deed, competing forensic reports, family business dealings and complaints against judicial officers involved in the succession proceedings.
Justice Mutai observed that much of the material went beyond the constitutional questions raised by the petitioners and risked drawing the court into matters that belonged before the succession court.
Allowing the additional material, he said, could also create the possibility of conflicting decisions in the separate proceedings.
“The Applicant has not demonstrated that her intended submissions are relevant to the issues in the Petition and are not merely a repetition of the existing parties’ case,” the judge ruled.
The court consequently dismissed Karugu’s application dated February 17, 2026.
Justice Mutai clarified that the ruling did not determine the merits of the constitutional petition, the validity of the disputed will or the conduct of any party in the succession or criminal proceedings.
The underlying constitutional petition and the dispute over the will therefore remain separate matters for determination through the relevant court processes.
