'
1.The applicants filed Chamber summons dated 21.5.22 under Section 47,53 ,76(d)(iii),83(e),94 and 95 of the Law of Succession Act and Rule 25(5),49 and 73 of the Probate and Administration Rules and other enabling provisions of the law seeking the following orders:
a)SPENT
b)SPENT
c)That the court makes an order compelling the administrator to produce accurate bank statements for the above-mentioned accounts from 15th July 2021 to date pending the hearing and determination of this case inter-partes.
d)an order compelling the administrator to produce to court a full and accurate inventory and account of the administration of the firm
e)the court be pleased to make an order compelling the administrator to refund the applicant’s money together with interests at court rates
f)Costs to be borne by the administrator
3.The application is based on the following grounds;
a)That the applicants jointly drew two bank cheques of 550,000 each in favour of the said firm which was to be utilized in purchase of a land parcel on behalf of the applicants.
b)That they entered into a land sale agreement where one of the terms was that the firm was to transmit the amounts to the vendor and at the time of the deceased’s death this had not yet been done.
c)That the respondent has been appointed as the administrator of the estate and that personal representatives are under a duty to produce to court a full and accurate inventory and account of the administration of the estate by application of any person interested in the estate and that the application has been made in a timely manner without unreasonable delay.
4. Peter J Omwenga applicant filed a supporting affidavit in which he deponed that ;
a)On 15.7.2021 he and Francisca Nyakerario his co applicant herein , drew two bank cheques in the sum of kshs 550,000/= each in favour of the law firm of Koina Onyancha & Co. Advocates. (FN -2a and 2 b ). Also that the said kshs 1,100,000/= was the full price of land parcel no. West Kitutu /Bonyamondo /11/817 which they were buying from Mjochewa Bondeni Women group. He annexed the sale agreement (FN -3 )The law firm Koina Onyancha & Co. Advocates was supposed to transmit the said funds to the seller but by the time of the demise of Mr Koina Onyancha advocate the said firm had not remitted the same. A supporting affidavit marked "FN-4" is cited in support of this assertion.
c)That On 18th November 2021, Kennedy Bosire Gichana was appointed as administrator ad colligenda bona of the estate, limited to accessing bank accounts and that the said administrator has refused or neglected to meet the applicants’ demands, prompting the instant application He annexed demand letters dated letters dated 10th and 11th May 2022 are marked "FN-6(a)" and "(b).". Further that they entered into another agreement dated 28.4.22 with the vendor
d) The applicants are concerned that funds held in Koina Onyancha & Co. Advocates'' bank accounts may be misused or misappropriated.
e)Also that he is advise by his counsel on record that personal representatives must provide a full and accurate inventory and account of estate administration when required by court..He cited the case of David Murage Muchina (HCSC No. 2077 of 2002), where the court emphasized that personal representatives are under a statutory duty to account to all the beneficiaries and interested parties.
f)That the application was made without unreasonable delay and that the administrator/respondent will suffer no prejudice if orders sought herein are granted
APPLICANTS WRITTEN SUBMISSIONS ON THE APPLICATION DATED 31ST MAY 2022
5.The above application was filed on 14th July 2023 and mainly seeks to have the administrator compelled to pay and refund to the applicants 1,100,000 together with interest at court rates.
The applicants submitted that two issues arise for determination before the court;
a)whether the administrators failure to respond to the instant application is fatal.
b) whether the instant application is merited /
6. On whether the administrators failure to file a response herein is fatal ,it was the administrator has not filed his response to the instant application despite being given 14 days by the court to do the same on 8th June 2022 and thus the administrator’s failure to challenge the applicant’s applications means that all the allegations are true as they are uncontroverted and unchallenged.
7. They further relied on the case of Faustina Njeru Njoka v Kimunye Tea Factory ltd [2022] where it was held that where a replying affidavits not filed then in essence the averments in an application are deemed as uncontroverted and unchallenged”
b) whether the instant application is merited.
8.The applicants submitted that they have established that the said firm owes the applicants Ksh1,100,000/= which was price for land purchase which was not disbursed to the seller . Also that the respondent is the administrator having been appointed by the court on 18th November 2021.
9. They further submitted that the administrator in the inspection and audit report dated 18th May 2023 and filed in court on the 23rd listed that the group they were to buy from as one of the liabilities and went ahead to admit the sum as a figure owed to the above group. They told this court that said report reveals that there is a surplus of 1,238,950 after satisfying all the liabilities relying on section 86 of the Law of Succession Act which provides that debts of every description enforceable at law and ordered by or out of the estate shall be paid before any legacy thus the instant application is merited.
ANALYSIS AND DETERMINATION
11. The issues for determination in this court are 3.The first being whether the administrator’s failure to respond to the application is fatal and whether the application is merited and whether the applicants are entitled to the money they had given the respondents
a)WHETHER THE RESPONDENT’S FAILURE TO RESPOND TO THE APPLICATION IS FATAL
12.The applicants submit that the court ordered the respondent to submit his submissions with in 14 days on 8th June 2022 .He however has failed to file his submissions and reply thus the applicants contend that it is an admission that what they have stated in their application is unchallenged and thus true
13. Order 51, rule 14 of the Civil Procedure Rules provides for grounds of opposition to application in High Court; (1) Any respondent who wishes to oppose any application may file any one or a combination of the following documents — (a) a notice preliminary objection: and/or; (b) replying affidavit; and/or (c) a statement of grounds of opposition; (2) the said documents in subrule (1) and a list of authorities, if any shall be filed and served on the applicant not less than three clear days before the date of hearing. (3) Any applicant upon whom a replying affidavit or statement of grounds of opposition has been served under sub-rule (1) may, with the leave of the court, file a supplementary affidavit. (4) If a respondent fails to file to comply with sub-rule (1) and (2), the application may be heard ex parte.
14.The respondent in this case is a temporary adminstrator of the estate of the deceased herein and so he has a duty to respond to the application but he failed to file his response within time . I have seen the portal and noted that the respondent filed a replying affidavit on 22.9.25 which is out of time and no leave of this court was sought to file the same. I proceed to strike it out as it amounts to trial by ambush . The failure by the administrator to file a response is not fatal to the application as the court must consider the entire application and decide it on merit .
b)WHETHER THE APPLICATION IS MERITED
15.The applicants submitted that their application is merited as they have showed that the said law firm owed them the sum of Kshs. 1,100,000/- arising from the two cheques in the sum of Kshs 550,000/= each drawn in favour of the firm on 15th July 2021 for onward transmission to Bondeni Women Group which was the vendor but this was not done .
16 . From the foregoing the applicants have showed that they are creditors of the estate of the deceased herein in the sum of Kshs. 1,100,000/=
18.From the facts above the applicants have indeed proved that they deposited the money to the firm for the land purchase deal which failed on account of the demise of the deceased. They are thus a liability of the estate of deceased.
C)WHETHER THE RESPONDENT HAS A DUTY TO ACCOUNT FOR THE ESTATE SATISFY THE DEBT OF THE APPLICANTS AND OR OTHER CREDITOR
17. The respondent in this case is Kennedy Bosire who was given limited grant of letters of administration ad colligenda bona on 18th November 2021 for the purpose only of carrying out an inspection and audit of the firm to ascertain how many files and or matters are pending in the firm’s books ,contacting clients and informing them that he had been appointed to wind up the firm,use the headnote paper of the firm with an endorsement that he is doing so as an administrator ad colligenda bona defunctis and access the bank accounts of the firm limited to client account no. 0051006000121 and office account number 005100600043 at Credit Bank Kisii only to establish the amounts held in each account to establish the clients who are owed money and who owe money and file the said report in court for further directions.
18. The applicants submitted that the administrator in the inspection and audit report dated 18th May 2023 and filed in court on 23rd May 2023 indicating that the estate has funds in excess of the claims by creditors in the sum of Kshs. 1,238,950 after satisfying all the liabilities and thus the administrator has no reason whatsoever of not paying the amounts being claimed by the applicants. This is not true as the administrator clearly stated the firm as at the date of the report ie 18.5.22 was owed the monies in the sum of Kshs. 3,720,000/= , Kshs . 890,596/ = is in the clients account and he had collected kshs 80,000/= owed to the firm. The stated that liabilities stood at Kshs. 1,2,38,069/= including the claim applicants herein.
19. . Further that the inspection and audit report provides for the remaining bank account balances to be;
ACCOUNT NO:0051006000433 Customer:1000001961 The balance at period end is 1.71
ACCOUNT NO:0051006000121 Customer:1000001961 The balance at period end 890,595.
20. In addition to this they submitted that in the affidavit of support for letters of administration intestate in Kisii Chief magistrate’s Court Succession cause no. E040 of 2024 (Re: Estate of Koina Onyancha deceased )Jane Magoma Onchiri and Jackline Kerubo Momanyi the petitioners outlined the assets of the deceased are follows :
a)Motor vehicle registration no.KBW 265P
b)Motor vehicle registration no.KAH 014C
c)Credit bank account numbers;0051006000433 and 005100600121
Applicants submitted that the total that is a total estimate of the value of the estate is Kshs. 3,000,000 and the liabilities being Kshs . 1,238,069 and thus the balance is Kshs. 1,761,931.
21. The deceased was a sole proprietor of Kingoina Onyancha and company advocates and the respondent was appointed by Law Society of Kenya to wind up the said law firm . It is clear that the grant issued to the respondent herein is ad colligenda bona limited to collection and preservation of the estate of estate of deceased and identification of creditors.Section 54 of the law of Succession Act provides that ;
‘’A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act. ‘’ A grant ad colligenda bona is a temporary grant is issued for purposes of collection and preservation of the estate of the deceased . The ad colligenda grant issued herein was limited to ‘’ carrying out an inspection and audit of the firm to ascertain how many files and or matters are pending in the firm’s books ,contacting clients and informing them that he had been appointed to wind up the firm,use the headnote paper of the firm with an endorsement that he is doing so as an administrator ad colligenda bona defunctis and access the bank accounts of the firm limited to client account no. 0051006000121 and office account number 005100600043 at Credit Bank Kisii only to establish the amounts held in each account to establish the clients who are owed money and who owe money and file the said report to court for further directions. ‘’
22. It thus follows that the powers of the temporary administrator herein was limited to collection of debts Identification of creditors and preservation of the estate . The respondent took accounts of the law firm of the deceased , identified the monies in the account monies owed to creditors , debtors of the estate and sums owed and filed a report dated 23.5.23 of the deceased . This satisfies prayers c and d of the application. He thus duly performed is duties as per the grant .
23. The duty to distribute the estate of a deceased and payment of creditors is vested on the administrator in a full succession cause .in their submissions the applicants indicated that they are aware of the succession cause in the lower court relating to the estate of a deceased Section 83(d) of the Law of Succession Act requires administrators to ascertain and pay, out of the estate, all the debts of the deceased. . A grant of letters of administration of the estate of the deceased herein was issued in Kisii Chief magistrate’s Court Succession cause no. E040 of 2024 to Jane Magoma Onchiri and Jackline Kerubo Momanyi on 17.9.24 . Liability in the sum of Kshs. 1,238,069/= has been acknowledged in the said succession cause . The responded has no duty to pay the debt herein as he cannot exceed his powers under the limited grant.
24. The prayer for refund is misconceived as it ought to be directed at the administrators in the said full succession cause and not in this file. In the upshot the application dated 21.5.22 partially succeeds .1/2 costs is awarded to the applicant . Lower court file be returned to the registry. .
T.A ODERA
JUDGE
30.9.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF MBAKA FOR THE APPLICANT, MISS BOSIRE FOR THE RESPONDENT . CA KIPCHIRCHIR
'
1.The applicants filed Chamber summons dated 21.5.22 under Section 47,53 ,76(d)(iii),83(e),94 and 95 of the Law of Succession Act and Rule 25(5),49 and 73 of the Probate and Administration Rules and other enabling provisions of the law seeking the following orders:
a)SPENT
b)SPENT
c)That the court makes an order compelling the administrator to produce accurate bank statements for the above-mentioned accounts from 15th July 2021 to date pending the hearing and determination of this case inter-partes.
d)an order compelling the administrator to produce to court a full and accurate inventory and account of the administration of the firm
e)the court be pleased to make an order compelling the administrator to refund the applicant’s money together with interests at court rates
f)Costs to be borne by the administrator
3.The application is based on the following grounds;
a)That the applicants jointly drew two bank cheques of 550,000 each in favour of the said firm which was to be utilized in purchase of a land parcel on behalf of the applicants.
b)That they entered into a land sale agreement where one of the terms was that the firm was to transmit the amounts to the vendor and at the time of the deceased’s death this had not yet been done.
c)That the respondent has been appointed as the administrator of the estate and that personal representatives are under a duty to produce to court a full and accurate inventory and account of the administration of the estate by application of any person interested in the estate and that the application has been made in a timely manner without unreasonable delay.
4. Peter J Omwenga applicant filed a supporting affidavit in which he deponed that ;
a)On 15.7.2021 he and Francisca Nyakerario his co applicant herein , drew two bank cheques in the sum of kshs 550,000/= each in favour of the law firm of Koina Onyancha & Co. Advocates. (FN -2a and 2 b ). Also that the said kshs 1,100,000/= was the full price of land parcel no. West Kitutu /Bonyamondo /11/817 which they were buying from Mjochewa Bondeni Women group. He annexed the sale agreement (FN -3 )The law firm Koina Onyancha & Co. Advocates was supposed to transmit the said funds to the seller but by the time of the demise of Mr Koina Onyancha advocate the said firm had not remitted the same. A supporting affidavit marked "FN-4" is cited in support of this assertion.
c)That On 18th November 2021, Kennedy Bosire Gichana was appointed as administrator ad colligenda bona of the estate, limited to accessing bank accounts and that the said administrator has refused or neglected to meet the applicants’ demands, prompting the instant application He annexed demand letters dated letters dated 10th and 11th May 2022 are marked "FN-6(a)" and "(b).". Further that they entered into another agreement dated 28.4.22 with the vendor
d) The applicants are concerned that funds held in Koina Onyancha & Co. Advocates'' bank accounts may be misused or misappropriated.
e)Also that he is advise by his counsel on record that personal representatives must provide a full and accurate inventory and account of estate administration when required by court..He cited the case of David Murage Muchina (HCSC No. 2077 of 2002), where the court emphasized that personal representatives are under a statutory duty to account to all the beneficiaries and interested parties.
f)That the application was made without unreasonable delay and that the administrator/respondent will suffer no prejudice if orders sought herein are granted
APPLICANTS WRITTEN SUBMISSIONS ON THE APPLICATION DATED 31ST MAY 2022
5.The above application was filed on 14th July 2023 and mainly seeks to have the administrator compelled to pay and refund to the applicants 1,100,000 together with interest at court rates.
The applicants submitted that two issues arise for determination before the court;
a)whether the administrators failure to respond to the instant application is fatal.
b) whether the instant application is merited /
6. On whether the administrators failure to file a response herein is fatal ,it was the administrator has not filed his response to the instant application despite being given 14 days by the court to do the same on 8th June 2022 and thus the administrator’s failure to challenge the applicant’s applications means that all the allegations are true as they are uncontroverted and unchallenged.
7. They further relied on the case of Faustina Njeru Njoka v Kimunye Tea Factory ltd [2022] where it was held that where a replying affidavits not filed then in essence the averments in an application are deemed as uncontroverted and unchallenged”
b) whether the instant application is merited.
8.The applicants submitted that they have established that the said firm owes the applicants Ksh1,100,000/= which was price for land purchase which was not disbursed to the seller . Also that the respondent is the administrator having been appointed by the court on 18th November 2021.
9. They further submitted that the administrator in the inspection and audit report dated 18th May 2023 and filed in court on the 23rd listed that the group they were to buy from as one of the liabilities and went ahead to admit the sum as a figure owed to the above group. They told this court that said report reveals that there is a surplus of 1,238,950 after satisfying all the liabilities relying on section 86 of the Law of Succession Act which provides that debts of every description enforceable at law and ordered by or out of the estate shall be paid before any legacy thus the instant application is merited.
ANALYSIS AND DETERMINATION
11. The issues for determination in this court are 3.The first being whether the administrator’s failure to respond to the application is fatal and whether the application is merited and whether the applicants are entitled to the money they had given the respondents
a)WHETHER THE RESPONDENT’S FAILURE TO RESPOND TO THE APPLICATION IS FATAL
12.The applicants submit that the court ordered the respondent to submit his submissions with in 14 days on 8th June 2022 .He however has failed to file his submissions and reply thus the applicants contend that it is an admission that what they have stated in their application is unchallenged and thus true
13. Order 51, rule 14 of the Civil Procedure Rules provides for grounds of opposition to application in High Court; (1) Any respondent who wishes to oppose any application may file any one or a combination of the following documents — (a) a notice preliminary objection: and/or; (b) replying affidavit; and/or (c) a statement of grounds of opposition; (2) the said documents in subrule (1) and a list of authorities, if any shall be filed and served on the applicant not less than three clear days before the date of hearing. (3) Any applicant upon whom a replying affidavit or statement of grounds of opposition has been served under sub-rule (1) may, with the leave of the court, file a supplementary affidavit. (4) If a respondent fails to file to comply with sub-rule (1) and (2), the application may be heard ex parte.
14.The respondent in this case is a temporary adminstrator of the estate of the deceased herein and so he has a duty to respond to the application but he failed to file his response within time . I have seen the portal and noted that the respondent filed a replying affidavit on 22.9.25 which is out of time and no leave of this court was sought to file the same. I proceed to strike it out as it amounts to trial by ambush . The failure by the administrator to file a response is not fatal to the application as the court must consider the entire application and decide it on merit .
b)WHETHER THE APPLICATION IS MERITED
15.The applicants submitted that their application is merited as they have showed that the said law firm owed them the sum of Kshs. 1,100,000/- arising from the two cheques in the sum of Kshs 550,000/= each drawn in favour of the firm on 15th July 2021 for onward transmission to Bondeni Women Group which was the vendor but this was not done .
16 . From the foregoing the applicants have showed that they are creditors of the estate of the deceased herein in the sum of Kshs. 1,100,000/=
18.From the facts above the applicants have indeed proved that they deposited the money to the firm for the land purchase deal which failed on account of the demise of the deceased. They are thus a liability of the estate of deceased.
C)WHETHER THE RESPONDENT HAS A DUTY TO ACCOUNT FOR THE ESTATE SATISFY THE DEBT OF THE APPLICANTS AND OR OTHER CREDITOR
17. The respondent in this case is Kennedy Bosire who was given limited grant of letters of administration ad colligenda bona on 18th November 2021 for the purpose only of carrying out an inspection and audit of the firm to ascertain how many files and or matters are pending in the firm’s books ,contacting clients and informing them that he had been appointed to wind up the firm,use the headnote paper of the firm with an endorsement that he is doing so as an administrator ad colligenda bona defunctis and access the bank accounts of the firm limited to client account no. 0051006000121 and office account number 005100600043 at Credit Bank Kisii only to establish the amounts held in each account to establish the clients who are owed money and who owe money and file the said report in court for further directions.
18. The applicants submitted that the administrator in the inspection and audit report dated 18th May 2023 and filed in court on 23rd May 2023 indicating that the estate has funds in excess of the claims by creditors in the sum of Kshs. 1,238,950 after satisfying all the liabilities and thus the administrator has no reason whatsoever of not paying the amounts being claimed by the applicants. This is not true as the administrator clearly stated the firm as at the date of the report ie 18.5.22 was owed the monies in the sum of Kshs. 3,720,000/= , Kshs . 890,596/ = is in the clients account and he had collected kshs 80,000/= owed to the firm. The stated that liabilities stood at Kshs. 1,2,38,069/= including the claim applicants herein.
19. . Further that the inspection and audit report provides for the remaining bank account balances to be;
ACCOUNT NO:0051006000433 Customer:1000001961 The balance at period end is 1.71
ACCOUNT NO:0051006000121 Customer:1000001961 The balance at period end 890,595.
20. In addition to this they submitted that in the affidavit of support for letters of administration intestate in Kisii Chief magistrate’s Court Succession cause no. E040 of 2024 (Re: Estate of Koina Onyancha deceased )Jane Magoma Onchiri and Jackline Kerubo Momanyi the petitioners outlined the assets of the deceased are follows :
a)Motor vehicle registration no.KBW 265P
b)Motor vehicle registration no.KAH 014C
c)Credit bank account numbers;0051006000433 and 005100600121
Applicants submitted that the total that is a total estimate of the value of the estate is Kshs. 3,000,000 and the liabilities being Kshs . 1,238,069 and thus the balance is Kshs. 1,761,931.
21. The deceased was a sole proprietor of Kingoina Onyancha and company advocates and the respondent was appointed by Law Society of Kenya to wind up the said law firm . It is clear that the grant issued to the respondent herein is ad colligenda bona limited to collection and preservation of the estate of estate of deceased and identification of creditors.Section 54 of the law of Succession Act provides that ;
‘’A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act. ‘’ A grant ad colligenda bona is a temporary grant is issued for purposes of collection and preservation of the estate of the deceased . The ad colligenda grant issued herein was limited to ‘’ carrying out an inspection and audit of the firm to ascertain how many files and or matters are pending in the firm’s books ,contacting clients and informing them that he had been appointed to wind up the firm,use the headnote paper of the firm with an endorsement that he is doing so as an administrator ad colligenda bona defunctis and access the bank accounts of the firm limited to client account no. 0051006000121 and office account number 005100600043 at Credit Bank Kisii only to establish the amounts held in each account to establish the clients who are owed money and who owe money and file the said report to court for further directions. ‘’
22. It thus follows that the powers of the temporary administrator herein was limited to collection of debts Identification of creditors and preservation of the estate . The respondent took accounts of the law firm of the deceased , identified the monies in the account monies owed to creditors , debtors of the estate and sums owed and filed a report dated 23.5.23 of the deceased . This satisfies prayers c and d of the application. He thus duly performed is duties as per the grant .
23. The duty to distribute the estate of a deceased and payment of creditors is vested on the administrator in a full succession cause .in their submissions the applicants indicated that they are aware of the succession cause in the lower court relating to the estate of a deceased Section 83(d) of the Law of Succession Act requires administrators to ascertain and pay, out of the estate, all the debts of the deceased. . A grant of letters of administration of the estate of the deceased herein was issued in Kisii Chief magistrate’s Court Succession cause no. E040 of 2024 to Jane Magoma Onchiri and Jackline Kerubo Momanyi on 17.9.24 . Liability in the sum of Kshs. 1,238,069/= has been acknowledged in the said succession cause . The responded has no duty to pay the debt herein as he cannot exceed his powers under the limited grant.
24. The prayer for refund is misconceived as it ought to be directed at the administrators in the said full succession cause and not in this file. In the upshot the application dated 21.5.22 partially succeeds .1/2 costs is awarded to the applicant . Lower court file be returned to the registry. .
T.A ODERA
JUDGE
30.9.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF MBAKA FOR THE APPLICANT, MISS BOSIRE FOR THE RESPONDENT . CA KIPCHIRCHIR
'