'1. The grant of letters of administration intestate was issued to the Administratix/Applicant on 31st March 2021. I shall hereafter refer to the Administratix/Applicant as “Lydia”. On 5th April 2022, Lydia filed the summons for confirmation of the grant dated 31st March 2022.
2. The Protestor, Fridah Inzera Ketoyo, filed a summons for revocation of grant dated 23rd May 2025, seeking to have the grant issued to Lydia on 31st March 2021 revoked and or annulled on the grounds that it was obtained fraudulently and by concealment from the Court of material information relating to the estate. I shall hereafter refer to the Protestor as “Fridah.”
3. The summons for revocation and or annulment of the grant was opposed by Lydia. Due to the nature of the matter of these succession proceedings arising from a polygamous home, the summons was heard by way of viva voce evidence. Upon hearing the parties and having taken into consideration the submissions of the parties, this Court dismissed the said Summons in a ruling delivered on 21st November 2023.
4. This Court found at paragraph 41 that:-
“The grounds raised in the summons for revocation of the grant are not backed by the evidence presented. It would appear to this Court that the respondent did her best to bring the applicant on board, but that the applicant demurred. Notwithstanding, the respondent appears to have done a good job listing all the dependants of the deceased and particulars of his assets and liabilities. Given the extent of the estate of the deceased, leaving it unadministered for an extended period of time was risky.”
5. With a view to bringing this matter to a close, I ordered at paragraph 44 that:-
“to bring this matter to a close, I refer this matter to Court annexed mediation so that the family members may agree on the mode of distribution of the estate of the deceased. It is only after the mediator’s report is filed that the summons for confirmation of the grant, of the protest, if any, may be considered.”
6. The reference to mediation failed as the parties could not agree. On 16th September 2024, this Court directed Lydia to file her proposal for distribution of the estate of the deceased. She did so by way of a further affidavit sworn and filed on 30th September 2024. In the said affidavit, she explained why it would not be possible to divide the estate on a 50:50 basis and proposed instead that the distribution be done in accordance with Annexure ‘LAK5''. Her reason for proposing the said mode of distribution was that the protestor transferred to herself Title Nos MN/I/14818 and MN/I/14819 after the death of the deceased. In support of the said contention, she produced searches on the said titles marked as Annexures “LAK1” and “LAK2.”
7. The Administratix/Applicant deposed that Bandari SACCO and Cooperative Bank of Kenya Ltd had not given statements of account of the deceased’s bank account and that it was necessary that they be compelled do so. The reason for this was that she needed to establish what the estate had so that each beneficiary’s portion could be determined.
8. Fridah, on the other hand, proposed in her Further Affidavit sworn on 22nd October 2024 that the deceased had during his lifetime settled his two families in their separate properties. She deposed that each house should retain what it had got, save for the Nyali property, which she indicated solely belonged to the deceased and should therefore be shared equally among the beneficiaries.
9. Since Fridah did not file a Protest properly so called, this Court will consider her Further Affidavit as the Affidavit of the Protest, as it looks, walks and quacks like a protest. In doing so I will promote substance over form.
10. The protest was canvassed by way of written submissions. I shall set out below the submissions of the parties. The submissions as reproduced below are necessarily summaries of what each party has contended.
11. The submissions of the Protestor are dated 25th January 2025. Through the firm of Lawrence Obonyo Legal Advocates, the Protestor urged that in reckoning this matter, the Court should be bound by pleadings and pronounce judgment on issues arising from the pleadings or such issues as the parties have framed for the Court’s determination. It was urged that the Court was called upon to decide the following questions:-
1. What constitutes the property of the deceased; and
2. How the property of the deceased should be distributed in a polygamous set-up.
12. Counsel for the protestor submitted that the properties which could constitute the free estate of the deceased are only those he was competent to dispose of during his lifetime and in respect of which his death has not terminated his interest. That is to say, his “free property”. In support of the said contention, reliance was placed on the case of re Estate of Ephapharas Njagi Jason Karanja (Deceased) [2021] KEHC 5233 (KLR).
13. The protestor’s counsel contended that at the time of his demise, the deceased owned Plot No MN/I/1302-CR 12035-Nyali measuring 0.4043 hectares. I shall hereafter refer to the said property as the Nyali property. It was urged that the said property wasn’t a matrimonial property but was wholly owned by the deceased and hence was available for distribution under section 40 of the Law of Succession Act. It was urged by her counsel that there was no evidence to support the allegation that it was a matrimonial property belonging to the deceased and Lydia.
14. Fridah’s counsel submitted that since the deceased was polygamous, his estate should be divided pursuant to the provisions of section 40 of the Law of Succession Act. Under the said Section, the property of the estate would be distributed in accordance with the houses. Reliance was placed in the decisions of the Court in, among other cases, the case of re Estate of John Musambayi Katumanga – (Deceased) [2014] KEHC 7506 (KLR).
15. The Protestor urged that it would be in the interest of justice and fair play that all the beneficiaries be given an equal share of the deceased’s estate whose sole asset was given as the Nyali plot, that is to say, Plot No MN/I/1362 –CR 12035, Nyali.
16. The submissions of the Administrator/Applicant, on the other hand, are dated 14th November 2023. Vide the said submissions which were filed by her counsel, SW Muhuni & Co. Advocates, Lydia urged that the Court had a duty under section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules to distribute the estate of the deceased.
17. She denied that the deceased had before his death transferred properties to his 2 wives and as such the properties in question did not form part of his estate. The said allegation was, in his view not factual, as Fridah had not adduced evidence showing that any of the properties were registered in her name. She contended that those the protestor claims were transferred to her during the lifetime of the deceased were registered in her name on 1st October 2015, long after the deceased died on 1st February 2014. It was urged that the protestor could not make a claim based on her fraudulent conduct.
18. It was denied that the deceased made a written or oral will. It was also denied that the alleged transfers to the wives of the deceased could amount to gift inter vivos or gifts mortis causa under section 31 of the Law of Succession Act because there was no memorandum in support of such contention, and that the transfers had not been effected/perfected. Counsel relied on the decision of P. Nyamweya, J in re Estate of The Late Gedion Manthi Nzioka (Deceased) [2015] KEHC 944 (KLR).
19. Lydia contended that even if such gifts were made, which was denied, the same, must under section 42 of the Law of Succession Act be taken into account in reckoning each party''s share of the estate.
20. The Administrator/Applicant contended that before distribution could be done, full disclosure needed to be made by the protestor in respect of
1. Properties left to the protestor during the deceased''s lifetime;
2. List of properties sold by the protestor since the death of the deceased;
3. Tabulation of financial benefits she has received. If this could not be obtained, the Bandari SACCO, the CDSC, and Cooperative Bank of Kenya Ltd be compelled to produce such records; and
4. Valuation of the properties of the deceased by a valuer appointed jointly by the Administrator/Applicant and the Protestor.
21. It was submitted that the disclosures and valuation would be useful as there could be no distribution under Section 40 of the Law of Succession Act unless there was full disclosure and ascertainment of the true extent of the estate.
22. Mr Muhuni submitted that it wasn’t possible to liquidate the estate, as such an exercise would be too costly and take too long. Further, some of the properties are residential and occupied by some of the beneficiaries. Lastly, other properties were situated on lands upon which there were graves of family members.
23. Regarding the Nyali property, counsel urged that it was the matrimonial home of the Administration/Applicant where her children were born and raised. The same was acquired in 1972 through a mortgage, and the Administrator/Applicant had substantially improved it. From 2017 to date, the property has been leased out so that the rent accruals could pay off the costs of maintenance.
24. It was urged on the basis of the decision of Mumbi Ngugi, J in re the Estate of the Late George Cheriro Chepkosiom (Deceased) [2017] KEHC 7270 (KLR) that the Succession Court could determine the question of matrimonial property and distribute the same. In her said decision, Mumbi Ngugi J relied on the decision of Kimondo, J in Esther Wanjiru Kiarie v Mary Wanjiru Githatu [2016] KEHC 6524 (KLR). Reliance was also placed in the decision of the Court of Appeal in Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] KECA 1053 (KLR) where the said Court stated that section 40 of the Law of Succession Act provides a general rule and the trial Court had the discretion to take into account factual circumstances of the particular case that may be relevant so as to ensure equitable and fair distribution of the estate of the deceased.
25. It was urged that in respect of the Nyali Property, the same should be wholly distributed to the Administrator/Applicant and her house.
26. I have considered the protest as stated in the Further Affidavit of the Protestor Summons for Confirmation of Grant and the submissions of the parties.
27. In my view, the issues that this Court is called upon to determine are the following:-
1. What assets constitute the estate of the deceased?
2. Whether the assets transferred by the deceased to the dependants before his death constitute the free estate of the deceased?
3. Whether questions regarding matrimonial property can be raised in succession proceedings?
4. Whether the estate of a deceased person can be distributed in contested succession proceedings without valuation?
5. Costs.
28. Section 3 of the Law of Succession Act defines the free property of the deceased person as being:-
“in relation to a deceased person, means the property of which that person was legally competent to freely dispose during his lifetime and in respect of which his interest has not been terminated by his death.”
29. The above provision was considered by Odunga J (as he then was) in re Estate of Job Ndunda Muthike (deceased) [2018]eKLR, where the learned judge stated as follows:-
“It is therefore clear that any property of which the deceased was not legally competent freely to dispose during his lifetime and respect of which his interest had been terminated by his death cannot form part of his estate and cannot be the subject of an application for confirmation of grant.”
30. The protestor has stated that during his lifetime, the deceased distributed his properties. By dint of that, the only property that could be considered as the free estate of the deceased is the Nyali property. Is that the case?
31. That does not appear to be the case. The protestor produced no evidence of any memorandum vide which the properties were gifted, nor evidence that titles to the same were subsequently transferred. I agree with the counsel for the Administrator/Applicant that gift intervolves must be completed for them to be valid. Even if they were gifts in contemplation of death under the provisions of section 31 (a) to (f) of the Law of Succession Act would have had to be complied with (see the case of Estate of Gideon Manthi Nzioka (deceased) [2015]eKLR and re Estate of Chesimbili Sindani (deceased) [2021]eKLR).
32. In the circumstances of this matter, I am persuaded that all the properties of the deceased listed in the Summons for Confirmation of grant constitute the free estate of the deceased and must therefore be considered during the distribution of his estate. This includes Plot Nos. MN/I/14818 and MN/1/14819, which were transferred to the Protestor after the deceased died. In my view the said transfers were and are null and void and void.
33. What of the Nyali property? It has been stated that the same was matrimonial property and that it should not form part of the estate of the deceased, or that it should belong wholly to the Administrator/Applicant. I have considered the judgment of Mumbi Ngugi J (as she then was in re Estate of George Cheriro Chepkosiom (deceased) (supra). Whereas I agree with the said decision that division under section 40 of the Law of Succession Act may be unfair to the spouses of deceased persons who got married long before subsequent marriages were contracted, it is my view that the said unfairness is not a warrant for the Family Court to ignore the black letter of the law. I am of the view that the High Court may exercise only such discretion as section 40 permits the Court to exercise when distributing the estate. Section 40 of the Law of Succession Act hasn’t been declared unconstitutional and remains the law of the land.
34. My view is that if the Administrator claims the Nyali property as belonging to her, she ought to have taken out proceedings under Order 31 of the Civil Procedure Rules or filed an Originating Summons under the provisions of the Matrimonial Properties Act for the ascertainment of her share of the said property. The said procedure would permit the Court to interrogate her claim and to make a reasoned determination. If indeed the property belonged to the Administrator/Applicant, it wouldn’t be a free property of the deceased. In any case a question must be asked why only the Nyali property should be excluded. Why not all the property acquired before the marriage of the protestor?
35. The upshot of the foregoing is that it is my view that the Nyali property is part of the estate of the deceased and must be included as such.
36. I note that even if it was taken that the same was matrimonial property, the Court would take into account the fact that the deceased acquired it with a mortgage and that the deceased therefore had a 50% share thereof. The 50% share would still be part of the estate of the deceased, which would have to be shared amongst his beneficiaries under section 40 of the Law of Succession Act.
37. Having established the estate of the deceased, can the same be distributed without valuation? In my view, the answer is negative. Since section 40 of the Law of Succession Act gives a sharing formula, there is a need to establish what each party benefited from before the conclusion of the succession proceedings, to value the same, and to ascertain what remains and value the same as well, so that each beneficiary gets his or her fair share.
38. It is only after the valuation that the Court can then consider what share each of the beneficiaries is entitled to. The distribution at that point would take into account factors such as where the beneficiaries are currently settled, so that the distribution can be as least disruptive as possible and be fair and just in all the circumstances.
39. That being the case, the confirmation of the grant will be postponed until the true size of the estate is established and valued and the benefit derived by the beneficiaries from it determined.
40. The orders that therefore commend themselves to me are that:-
1. I find and hold that the properties listed in the Summons for Confirmation of Grant, as well as Titles No MN/I/14818 and MN/I/14819, and the Nyali property constitute the estate of the deceased;
2. I order that the said properties be valued within 60 days of the date hereof, and the valuation report filed in this Court;
3. I order that the Administrator and the Protestor, individually and separately, file statements showing the properties of the deceased that they had sold, if any, from the date of the demise of the deceased, financial benefits that accrued to each of them separately, from the bank accounts or investments of the deceased and list of properties that were bequeath to them by the deceased during his lifetime; and
4. I order that the foregoing be done within 60 days of the date hereof.
41. On costs, each party will bear her own costs of the application and the protest.
42. It is so ordered.
Dated and signed at Mombasa this 8th day of September 2025. Delivered virtually through Microsoft TEAMS.
'
2. The Protestor, Fridah Inzera Ketoyo, filed a summons for revocation of grant dated 23rd May 2025, seeking to have the grant issued to Lydia on 31st March 2021 revoked and or annulled on the grounds that it was obtained fraudulently and by concealment from the Court of material information relating to the estate. I shall hereafter refer to the Protestor as “Fridah.”
3. The summons for revocation and or annulment of the grant was opposed by Lydia. Due to the nature of the matter of these succession proceedings arising from a polygamous home, the summons was heard by way of viva voce evidence. Upon hearing the parties and having taken into consideration the submissions of the parties, this Court dismissed the said Summons in a ruling delivered on 21st November 2023.
4. This Court found at paragraph 41 that:-
“The grounds raised in the summons for revocation of the grant are not backed by the evidence presented. It would appear to this Court that the respondent did her best to bring the applicant on board, but that the applicant demurred. Notwithstanding, the respondent appears to have done a good job listing all the dependants of the deceased and particulars of his assets and liabilities. Given the extent of the estate of the deceased, leaving it unadministered for an extended period of time was risky.”
5. With a view to bringing this matter to a close, I ordered at paragraph 44 that:-
“to bring this matter to a close, I refer this matter to Court annexed mediation so that the family members may agree on the mode of distribution of the estate of the deceased. It is only after the mediator’s report is filed that the summons for confirmation of the grant, of the protest, if any, may be considered.”
6. The reference to mediation failed as the parties could not agree. On 16th September 2024, this Court directed Lydia to file her proposal for distribution of the estate of the deceased. She did so by way of a further affidavit sworn and filed on 30th September 2024. In the said affidavit, she explained why it would not be possible to divide the estate on a 50:50 basis and proposed instead that the distribution be done in accordance with Annexure ‘LAK5''. Her reason for proposing the said mode of distribution was that the protestor transferred to herself Title Nos MN/I/14818 and MN/I/14819 after the death of the deceased. In support of the said contention, she produced searches on the said titles marked as Annexures “LAK1” and “LAK2.”
7. The Administratix/Applicant deposed that Bandari SACCO and Cooperative Bank of Kenya Ltd had not given statements of account of the deceased’s bank account and that it was necessary that they be compelled do so. The reason for this was that she needed to establish what the estate had so that each beneficiary’s portion could be determined.
8. Fridah, on the other hand, proposed in her Further Affidavit sworn on 22nd October 2024 that the deceased had during his lifetime settled his two families in their separate properties. She deposed that each house should retain what it had got, save for the Nyali property, which she indicated solely belonged to the deceased and should therefore be shared equally among the beneficiaries.
9. Since Fridah did not file a Protest properly so called, this Court will consider her Further Affidavit as the Affidavit of the Protest, as it looks, walks and quacks like a protest. In doing so I will promote substance over form.
10. The protest was canvassed by way of written submissions. I shall set out below the submissions of the parties. The submissions as reproduced below are necessarily summaries of what each party has contended.
11. The submissions of the Protestor are dated 25th January 2025. Through the firm of Lawrence Obonyo Legal Advocates, the Protestor urged that in reckoning this matter, the Court should be bound by pleadings and pronounce judgment on issues arising from the pleadings or such issues as the parties have framed for the Court’s determination. It was urged that the Court was called upon to decide the following questions:-
1. What constitutes the property of the deceased; and
2. How the property of the deceased should be distributed in a polygamous set-up.
12. Counsel for the protestor submitted that the properties which could constitute the free estate of the deceased are only those he was competent to dispose of during his lifetime and in respect of which his death has not terminated his interest. That is to say, his “free property”. In support of the said contention, reliance was placed on the case of re Estate of Ephapharas Njagi Jason Karanja (Deceased) [2021] KEHC 5233 (KLR).
13. The protestor’s counsel contended that at the time of his demise, the deceased owned Plot No MN/I/1302-CR 12035-Nyali measuring 0.4043 hectares. I shall hereafter refer to the said property as the Nyali property. It was urged that the said property wasn’t a matrimonial property but was wholly owned by the deceased and hence was available for distribution under section 40 of the Law of Succession Act. It was urged by her counsel that there was no evidence to support the allegation that it was a matrimonial property belonging to the deceased and Lydia.
14. Fridah’s counsel submitted that since the deceased was polygamous, his estate should be divided pursuant to the provisions of section 40 of the Law of Succession Act. Under the said Section, the property of the estate would be distributed in accordance with the houses. Reliance was placed in the decisions of the Court in, among other cases, the case of re Estate of John Musambayi Katumanga – (Deceased) [2014] KEHC 7506 (KLR).
15. The Protestor urged that it would be in the interest of justice and fair play that all the beneficiaries be given an equal share of the deceased’s estate whose sole asset was given as the Nyali plot, that is to say, Plot No MN/I/1362 –CR 12035, Nyali.
16. The submissions of the Administrator/Applicant, on the other hand, are dated 14th November 2023. Vide the said submissions which were filed by her counsel, SW Muhuni & Co. Advocates, Lydia urged that the Court had a duty under section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules to distribute the estate of the deceased.
17. She denied that the deceased had before his death transferred properties to his 2 wives and as such the properties in question did not form part of his estate. The said allegation was, in his view not factual, as Fridah had not adduced evidence showing that any of the properties were registered in her name. She contended that those the protestor claims were transferred to her during the lifetime of the deceased were registered in her name on 1st October 2015, long after the deceased died on 1st February 2014. It was urged that the protestor could not make a claim based on her fraudulent conduct.
18. It was denied that the deceased made a written or oral will. It was also denied that the alleged transfers to the wives of the deceased could amount to gift inter vivos or gifts mortis causa under section 31 of the Law of Succession Act because there was no memorandum in support of such contention, and that the transfers had not been effected/perfected. Counsel relied on the decision of P. Nyamweya, J in re Estate of The Late Gedion Manthi Nzioka (Deceased) [2015] KEHC 944 (KLR).
19. Lydia contended that even if such gifts were made, which was denied, the same, must under section 42 of the Law of Succession Act be taken into account in reckoning each party''s share of the estate.
20. The Administrator/Applicant contended that before distribution could be done, full disclosure needed to be made by the protestor in respect of
1. Properties left to the protestor during the deceased''s lifetime;
2. List of properties sold by the protestor since the death of the deceased;
3. Tabulation of financial benefits she has received. If this could not be obtained, the Bandari SACCO, the CDSC, and Cooperative Bank of Kenya Ltd be compelled to produce such records; and
4. Valuation of the properties of the deceased by a valuer appointed jointly by the Administrator/Applicant and the Protestor.
21. It was submitted that the disclosures and valuation would be useful as there could be no distribution under Section 40 of the Law of Succession Act unless there was full disclosure and ascertainment of the true extent of the estate.
22. Mr Muhuni submitted that it wasn’t possible to liquidate the estate, as such an exercise would be too costly and take too long. Further, some of the properties are residential and occupied by some of the beneficiaries. Lastly, other properties were situated on lands upon which there were graves of family members.
23. Regarding the Nyali property, counsel urged that it was the matrimonial home of the Administration/Applicant where her children were born and raised. The same was acquired in 1972 through a mortgage, and the Administrator/Applicant had substantially improved it. From 2017 to date, the property has been leased out so that the rent accruals could pay off the costs of maintenance.
24. It was urged on the basis of the decision of Mumbi Ngugi, J in re the Estate of the Late George Cheriro Chepkosiom (Deceased) [2017] KEHC 7270 (KLR) that the Succession Court could determine the question of matrimonial property and distribute the same. In her said decision, Mumbi Ngugi J relied on the decision of Kimondo, J in Esther Wanjiru Kiarie v Mary Wanjiru Githatu [2016] KEHC 6524 (KLR). Reliance was also placed in the decision of the Court of Appeal in Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] KECA 1053 (KLR) where the said Court stated that section 40 of the Law of Succession Act provides a general rule and the trial Court had the discretion to take into account factual circumstances of the particular case that may be relevant so as to ensure equitable and fair distribution of the estate of the deceased.
25. It was urged that in respect of the Nyali Property, the same should be wholly distributed to the Administrator/Applicant and her house.
26. I have considered the protest as stated in the Further Affidavit of the Protestor Summons for Confirmation of Grant and the submissions of the parties.
27. In my view, the issues that this Court is called upon to determine are the following:-
1. What assets constitute the estate of the deceased?
2. Whether the assets transferred by the deceased to the dependants before his death constitute the free estate of the deceased?
3. Whether questions regarding matrimonial property can be raised in succession proceedings?
4. Whether the estate of a deceased person can be distributed in contested succession proceedings without valuation?
5. Costs.
28. Section 3 of the Law of Succession Act defines the free property of the deceased person as being:-
“in relation to a deceased person, means the property of which that person was legally competent to freely dispose during his lifetime and in respect of which his interest has not been terminated by his death.”
29. The above provision was considered by Odunga J (as he then was) in re Estate of Job Ndunda Muthike (deceased) [2018]eKLR, where the learned judge stated as follows:-
“It is therefore clear that any property of which the deceased was not legally competent freely to dispose during his lifetime and respect of which his interest had been terminated by his death cannot form part of his estate and cannot be the subject of an application for confirmation of grant.”
30. The protestor has stated that during his lifetime, the deceased distributed his properties. By dint of that, the only property that could be considered as the free estate of the deceased is the Nyali property. Is that the case?
31. That does not appear to be the case. The protestor produced no evidence of any memorandum vide which the properties were gifted, nor evidence that titles to the same were subsequently transferred. I agree with the counsel for the Administrator/Applicant that gift intervolves must be completed for them to be valid. Even if they were gifts in contemplation of death under the provisions of section 31 (a) to (f) of the Law of Succession Act would have had to be complied with (see the case of Estate of Gideon Manthi Nzioka (deceased) [2015]eKLR and re Estate of Chesimbili Sindani (deceased) [2021]eKLR).
32. In the circumstances of this matter, I am persuaded that all the properties of the deceased listed in the Summons for Confirmation of grant constitute the free estate of the deceased and must therefore be considered during the distribution of his estate. This includes Plot Nos. MN/I/14818 and MN/1/14819, which were transferred to the Protestor after the deceased died. In my view the said transfers were and are null and void and void.
33. What of the Nyali property? It has been stated that the same was matrimonial property and that it should not form part of the estate of the deceased, or that it should belong wholly to the Administrator/Applicant. I have considered the judgment of Mumbi Ngugi J (as she then was in re Estate of George Cheriro Chepkosiom (deceased) (supra). Whereas I agree with the said decision that division under section 40 of the Law of Succession Act may be unfair to the spouses of deceased persons who got married long before subsequent marriages were contracted, it is my view that the said unfairness is not a warrant for the Family Court to ignore the black letter of the law. I am of the view that the High Court may exercise only such discretion as section 40 permits the Court to exercise when distributing the estate. Section 40 of the Law of Succession Act hasn’t been declared unconstitutional and remains the law of the land.
34. My view is that if the Administrator claims the Nyali property as belonging to her, she ought to have taken out proceedings under Order 31 of the Civil Procedure Rules or filed an Originating Summons under the provisions of the Matrimonial Properties Act for the ascertainment of her share of the said property. The said procedure would permit the Court to interrogate her claim and to make a reasoned determination. If indeed the property belonged to the Administrator/Applicant, it wouldn’t be a free property of the deceased. In any case a question must be asked why only the Nyali property should be excluded. Why not all the property acquired before the marriage of the protestor?
35. The upshot of the foregoing is that it is my view that the Nyali property is part of the estate of the deceased and must be included as such.
36. I note that even if it was taken that the same was matrimonial property, the Court would take into account the fact that the deceased acquired it with a mortgage and that the deceased therefore had a 50% share thereof. The 50% share would still be part of the estate of the deceased, which would have to be shared amongst his beneficiaries under section 40 of the Law of Succession Act.
37. Having established the estate of the deceased, can the same be distributed without valuation? In my view, the answer is negative. Since section 40 of the Law of Succession Act gives a sharing formula, there is a need to establish what each party benefited from before the conclusion of the succession proceedings, to value the same, and to ascertain what remains and value the same as well, so that each beneficiary gets his or her fair share.
38. It is only after the valuation that the Court can then consider what share each of the beneficiaries is entitled to. The distribution at that point would take into account factors such as where the beneficiaries are currently settled, so that the distribution can be as least disruptive as possible and be fair and just in all the circumstances.
39. That being the case, the confirmation of the grant will be postponed until the true size of the estate is established and valued and the benefit derived by the beneficiaries from it determined.
40. The orders that therefore commend themselves to me are that:-
1. I find and hold that the properties listed in the Summons for Confirmation of Grant, as well as Titles No MN/I/14818 and MN/I/14819, and the Nyali property constitute the estate of the deceased;
2. I order that the said properties be valued within 60 days of the date hereof, and the valuation report filed in this Court;
3. I order that the Administrator and the Protestor, individually and separately, file statements showing the properties of the deceased that they had sold, if any, from the date of the demise of the deceased, financial benefits that accrued to each of them separately, from the bank accounts or investments of the deceased and list of properties that were bequeath to them by the deceased during his lifetime; and
4. I order that the foregoing be done within 60 days of the date hereof.
41. On costs, each party will bear her own costs of the application and the protest.
42. It is so ordered.
Dated and signed at Mombasa this 8th day of September 2025. Delivered virtually through Microsoft TEAMS.
'