[1] The Summons dated 9 th December 2025 was brought by the two applicants, Nahashon Rono and Wesley Kipkosgei Rono , under Article 159 of the Constitution of Kenya, Sections 45, 46, and 47 of the Law of Succession Act and Rules 44, 49, 59(1), 61(1) and 73 of the Probate and Administration Rules. It seeks the following orders:
[a] spent.
[b] That Nahashon Rono and Wesley Kipkosgei Rono , the be appointed as a co-administrators of the estate of the deceased alongside the petitioner, Japhet Kipkemei Misoi .
[c] That the court be pleased to grant an order of temporary injunction restraining the petitioner either by himself or through his servants, agents, employees or otherwise any person acting under the petitioner's direction or authority from cultivating, planting or dealing in any way or preventing or stopping the applicants from accessing/entering into, cultivating or otherwise using the 13 acres portion they has been utilizing and planting sugarcane from parcel reference No. Nandi/Kabiemit/97 pending the hearing and determination of this application inter partes . (spent)
[d] That the Court do issue a conservatory order restraining the petitioner either by himself, his servants, agents, or any other person, from intermeddling with the estate of the deceased by either annexing, leasing, selling, transferring, charging or parting with interest in the estate property.
[e] That the petitioner be directed to render a true account of all the proceeds derived from the sale of 23 acres from estate of the deceased and how the same has been utilized.
[f] That the Court be pleased to make a finding that Japhet Kipkemei Misoi has committed an offence under Section 45 of the Law of Succession Act and that he be made liable and punished accordingly.
[g] That the Court be pleased to make any other or further orders as the ends of justice may demand.
[h] That the costs of the application be provided for.
[2] The Summons is premised on the grounds set out on the face of it as well as the affidavit of Nahashon Rono, the 1 st applicant. In summary the applicants averred that the deceased, Joseph Arap Misoi , died intestate on 5 th April 1996; and that Grant of Letters of Administration Intestate in respect of his estate was issued to the respondent, Japhet Kipkemei Misoi on 23 rd May 2025. The 1 st applicant further averred that they are grandchildren of the deceased and, together with other siblings, have been in possession of 13 acres of the estate property known as Nandi/Kabiemit/97.
[3] The respondents complained that the petitioner has been intermeddling with the estate of the deceased and has so far sold over 23 acres thereof to third parties before confirmation of grant. They enumerated the beneficiaries of the deceased at Paragraph 4 of their Supporting Affidavit with a view of demonstrated that they are all deceased save for the petitioner. They conceded that the petitioner is their uncle and averred that they seek to be appointed as co-administrators of the subject estate to prevent further intermeddling. They explained that, having sold the 23 acres he was utilizing, the petitioner has set his his sights on the 13 acres under their occupation and use with a view of disinheriting them and their siblings.
[4] Hence, the applicants prayed that, during the pendency of the cause, the orders sought by them be granted to preserve the estate and the interest of all the beneficiaries, including the grandchildren whose parents are now deceased. They also prayed that the petitioner be required to give an account of the proceeds realized from the estate during the period of his administration.
[5] The application was opposed by the petitioner. He relied on his Replying Affidavit sworn on 16 th February 2026 in which he averred that he is the only surviving son of the deceased, Joseph Arap Misoi . He further averred that he has administered the estate as required by law and filed the Summons for Confirmation of Grant dated 8 th day of December 2025.
[6] The petitioner also asserted that he ranks higher in priority to the applicants who are grandchildren of the deceased, being the sons of his deceased brother, Jacob Biama . He added that the applicants are settled elsewhere and do not have any claim on the land parcel Nandi/Kabiemit/97.
[7] In response to the petitioner’s averments, the applicants filed a Supplementary Affidavit sworn by the 1 st applicant on 18 th March 2026. They pointed out that the respondent evaded their assertion that he has already disposed of 23 acres of the estate property before confirmation of grant. They annexed to their Supplementary Affidavit a copy of the Mutation Form as Annexure NR-1 to buttress their assertions that the respondent has been intermeddling with the estate. In response to the respondent’s contention that they have settled elsewhere and have no claim to the estate, the applicants reiterated their assertion that, as grandchildren of the deceased, they have a right to represent the interests of their late father, Jacob Biama , who was a son of the deceased.
[8] The applicants further restated that, together with their siblings they have continuously occupied and cultivated about 13 acres of the estate asset even during the lifetime of the deceased; and it is only fair and just that they be appointed as co-administrators. They added that they stand to suffer irreparable loss if the estate continues to be mismanaged by the respondent.
[9] The application was canvassed by way of written submissions. Accordingly, the applicants filed written submissions dated 18 th February 2026 as well as Supplementary submissions dated 18 th March 2026, while the respondent relied on his written submissions dated 17 th March 2026. In their written submissions, the applicants proposed the following issues for determination:
[a] Whether the Court has jurisdiction to appoint the applicants as co-administrators as prayed; and if so,
[b] Whether sufficient grounds exist for the appointment of the applicants as co-administrators;
[c] Whether the Court should issue conservatory orders to safeguard the estate.
[10] The applicants relied on Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administrations Rules to support their submission that the Court has inherent powers to make such orders as are necessary for the ends of justice. In addition, the applicants cited Sections 29 and 66 of the Law of Succession Act to support their argument that, as the grandchildren of the deceased whose father is deceased, they qualify as dependants with full rights to directly petition the Court for appointment as administrators.
[11] On whether sufficient cause has been shown for such appointment, the applicants argued that the Court is not restricted to appointing only to one administrator, but may appoint additional administrators where the circumstances warrant such appointment. They submitted that there is a real danger that the estate will be exposed to wastage and mismanagement; and that their appointment as co-administrators will safeguard the interests of all the beneficiaries.
[12] In support of their prayer for conservatory orders, the applicants quoted Section 45 of the Law of Succession Act and submitted that the purpose of that provision is to ensue preservation of the estate of a deceased person. They made reference to the cases of Gladys Nkirote M’Itunga v Julius Majau M’Itunga [2016] eKLR, Machakos High Court Civil Case No. 95 of 2001: John Kasyoki Kieti v Tabitha Nzivulu Kieti & others and urged the Court to find that they have demonstrated legitimate apprehension in their affidavits to warrant the issuance of the orders sought.
[13] On his part, the respondent reiterated the averments set out in the affidavits filed by the parties and proposed the following issues for determination:
[a] Whether the application dated 9 th December 2025 is competent to warrant the issuance of the orders sought therein.
[b] Who should pay the costs of the application.
[14] He reiterated his averment that he is the only surviving son of the deceased and therefore ranks highest in priority for purposes of Section 66 of the Law of Succession Act. He therefore submitted that he is the one entitled to administer the estate of his later father. As for the applicants, the respondent submitted that they are settled elsewhere and therefore do not have any claim on the suit property No. NANDI/KABIEMIT/97. He added that, in any event, the application for appointment as co-administrators has been overtaken by events as he has already been issued with Grant of Letters of Administration in this matter.
[15] Regarding the prayer for temporary injunction, the respondent relied on Giella v Cassman Brown [1973] EA 358 and Nguruman Limited v Jan Bonde Nielsen & others [201] eKLR for the applicable principles and submitted that the applicant failed to meet the criteria for grant of orders sought. He prayed for dismissal of the application dated 9 th December 2025 with costs.
[16] I have given careful consideration to the application, affidavits in support and annexures thereto together with the response filed by the respondent. I have similarly considered the written submissions filed herein by the parties. The record shows that the deceased, Joseph Arap Misoi , died intestate on 5 th April 1996. In his lifetime, he was married and was blessed with several sons and daughters. By the time this succession cause was filed by the respondent, he was the only surviving son. Accordingly, in the Affidavit filed in support of the Petition for Grant of Letters of Administration Intestate, the respondent set out the beneficiaries who survived the deceased but who died thereafter. He annexed a letter from the area chief to support his Petition.
[17] The Petition was processed and ultimately Grant of Letters of Administration was issued on 23 rd May 2025. The respondent has already filed an application for confirmation of grant dated 8 th December 2025. Therefore, the issues emerging for determination are as follows:
[a] Whether the applicants have given sufficient cause for their appointment as co-administrators.
[b] Whether the court should issue conservatory orders pending the hearing and determination of the
A. Whether the applicants should be admitted as co-administrators of the estate:
[18] In respect of intestacy, Section 66 provides that:
When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—
a) surviving spouse or spouses, with or without association of other beneficiaries;
b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
c) the Public Trustee; and
d) creditors:
[19] Although the respondent did not include the names of the deceased’s grandchildren whose parents have since died as beneficiaries, there is no question as to whether grandchildren can inherit from their grandparents was well articulated in Christine Wangari Gachenge v Elizabeth Wanjiru Evans & 11 Others [2014] KECA 840 (KLR) The Court of Appeal held that:
“Although Section 35 and 38 of the Law of Succession Act is silent on the fate of surviving grandchildren whose parents predeceased the deceased, the rate of substitution of a grandchild for his/her parent in all cases of intestate known as the principle of representation is applicable. The law is on section 41. If a child of the intestate has predeceased the intestate then that child’s issue alive or en ventre sa mere on that date of the intestate’s death will take in equal share per stirpes contingent on attaining the age of majority. Per stirpes means that the issue of a deceased child of the intestate take between them the share their parents would have taken had the parent been alive at the intestate’s death.”
[20] Similarly, in Re Estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR, it was held that:
“Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1 st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.”
[21] Whereas grandchildren whose parents have died are entitled to directly inherit from their grandparents by stepping into the shoes of their parents, this is not necessarily the case when it comes to appointment of administrators. As has been pointed out herein above, appointment of administrators is premised on the ranking set out in Section 66 of the Law of Succession Act. Of course, the Court has the discretion to appoint more than one administrator. Section 56(1)(b) of the Law of Succession Act provides that no grant of representation shall be made to more than four persons in respect of the same property.
[22] In the premises, for the Court to appoint additional administrators who rank lower in the order of priority provided for in Section 66 of the Act, sufficient cause must be shown for such appointment. In this instance, the applicants accused the respondent of intermeddling; and therefore the question to pose is whether intermeddling has been proved to the requisite standard.
[23] There is no express definition of intermeddling in the Law of Succession Act. However, Section 45 of the Act provides as follows:
(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.
(2) Any person who contravenes the provisions of this section shall-
a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and
b) be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.
[24] In the case of Benson Mutuma Muriungi v C.E.O. Kenya Police Sacco & Another [2016] eKLR the court observed that:
“Whereas there is no specific definition provided by the Act for the term intermeddling, it refers to any act or acts which are done by a person in relation to the free property of the deceased without the authority of any law or grant of representation to do so. The category of the offensive acts is not heretically closed but would certainly include taking possession, or occupation of, disposing of, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act. I should add that any act or acts which will dissipate or diminish or put at risk the free property of the deceased are also acts of intermeddling in law. I reckon that intermeddling with the free property of the deceased is a very serious criminal charge for which the person intermeddling may be convicted and sentenced to imprisonment or fine or both under section 45 of the Law of Succession Act. That is why the law has taken a very firm stance on intermeddling and has clothed the court with wide powers to deal with cases of intermeddling and may issue any appropriate order(s) of protection of the estate against any person.”
[25] The same position was taken in In Re Morris Mwiti Mburugu v Denis Kimanthi M’Mburugu [2016] eKLR, In J ane Kagige Geoffrey & another v Wallace Ireri Njeru & 2 others [2016] eKLR and In re Estate of the Late Stephen Muthuri Karuri - Deceased (Succession Cause 253"B" of 2012) [2025] KEHC 1439 (KLR) (6 February 2025) (Ruling ) among others.
[26] The applicants alleged that the respondent has been selling the estate property to third parties without the knowledge or consent of the other beneficiaries. Indeed, Section 82 of the Act provides that:
Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers—
(a)to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;
(b)to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:
Provided that—
(i)any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and
(ii)no immovable property shall be sold before confirmation of the grant.
[27] No material has been placed before the Court to demonstrate the alleged dispositions by way of agreements for sale or photographs of developments by third parties or otherwise. Consequently, it is my finding that no justification has been made by the applicants for their appointment as co-administrators with the respondent. Moreover, while they conceded that there are other grandchildren of the deceased whose parents have since died and are therefore in the same predicament as they are, the applicants did not make any disclosure as to their names or demonstrate that they gave consent to the applicants’ proposed appointment.
B. On whether the court should issue conservatory orders pending the hearing and determination of the succession cause:
[28] Since the applicants’ prayer for temporary injunction is spent, to the extent that the orders sought were intended to preserve the estate pending hearing and determination of the application, the respondent’s submissions around the principles laid down in Giella and Mrao Ltd are somewhat irrelevant. The applicants’ substantive prayer was for conservatory orders pending the hearing and determination of this succession cause.
[29] Under Section 47 of the Law of Succession Act; the Court has powers to make such orders as are necessary for the ends of justice herein. It provides that:
“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient…”
[6] Similarly, Rule 73 of the Probate and Administration Rules, which is one of the enabling provisions cited by the applicant, provides that:
“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”
[30] The applicants expressed their apprehension that the respondent has been intermeddling with the estate, and although they did not avail proof to the requisite standard, it is not lost on the Court that the allegations were not specifically answered by the respondent. He simply stated that the applicants have settled elsewhere and therefore have no claim over the subject asset. That, in my view cannot be a valid response in view of the express provisions of Section 38 of the Law of Succession Act. That provision states:
“Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”
[31] In this case, the respondent is not the only child of the deceased. The deceased several other sons and daughters, all of whom have since passed away. They have nevertheless left their children who, as has been pointed out herein above, are entitled to step into their parents’ shoes and inherit directly from the estate of the deceased. There is need therefore to preserve the estate pending the final conclusion of this succession cause.
[32] In the premises, the application dated 9 th December 2025 is allowed in part and orders granted as follows:
[a] The prayer that Nahashon Rono and Wesley Kipkosgei Rono, the applicants herein, be appointed as a co-administrators of the estate of the deceased, Joseph Arap Misoi , alongside Japhet Kipkemei Misoi be and is hereby declined.
[b] An order be and is hereby issued restraining the petitioner either by himself, his servants, agents, or any other person acting from his authorization or control, from intermeddling with the estate of the deceased by either annexing, leasing, selling, transferring, charging or parting with interest in the estate property pending the hearing and determination of this succession cause.
[c] That the petitioner be and is hereby directed to render a true account of all the activities undertaken in respect of the estate from the 23 rd May 2025 when the Grant was issued to him to date.
[d] Each party to bear own costs of the application.
It is so ordered.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAPSABET THIS 28 TH DAY OF JULY 2026.
[a] spent.
[b] That Nahashon Rono and Wesley Kipkosgei Rono , the be appointed as a co-administrators of the estate of the deceased alongside the petitioner, Japhet Kipkemei Misoi .
[c] That the court be pleased to grant an order of temporary injunction restraining the petitioner either by himself or through his servants, agents, employees or otherwise any person acting under the petitioner's direction or authority from cultivating, planting or dealing in any way or preventing or stopping the applicants from accessing/entering into, cultivating or otherwise using the 13 acres portion they has been utilizing and planting sugarcane from parcel reference No. Nandi/Kabiemit/97 pending the hearing and determination of this application inter partes . (spent)
[d] That the Court do issue a conservatory order restraining the petitioner either by himself, his servants, agents, or any other person, from intermeddling with the estate of the deceased by either annexing, leasing, selling, transferring, charging or parting with interest in the estate property.
[e] That the petitioner be directed to render a true account of all the proceeds derived from the sale of 23 acres from estate of the deceased and how the same has been utilized.
[f] That the Court be pleased to make a finding that Japhet Kipkemei Misoi has committed an offence under Section 45 of the Law of Succession Act and that he be made liable and punished accordingly.
[g] That the Court be pleased to make any other or further orders as the ends of justice may demand.
[h] That the costs of the application be provided for.
[2] The Summons is premised on the grounds set out on the face of it as well as the affidavit of Nahashon Rono, the 1 st applicant. In summary the applicants averred that the deceased, Joseph Arap Misoi , died intestate on 5 th April 1996; and that Grant of Letters of Administration Intestate in respect of his estate was issued to the respondent, Japhet Kipkemei Misoi on 23 rd May 2025. The 1 st applicant further averred that they are grandchildren of the deceased and, together with other siblings, have been in possession of 13 acres of the estate property known as Nandi/Kabiemit/97.
[3] The respondents complained that the petitioner has been intermeddling with the estate of the deceased and has so far sold over 23 acres thereof to third parties before confirmation of grant. They enumerated the beneficiaries of the deceased at Paragraph 4 of their Supporting Affidavit with a view of demonstrated that they are all deceased save for the petitioner. They conceded that the petitioner is their uncle and averred that they seek to be appointed as co-administrators of the subject estate to prevent further intermeddling. They explained that, having sold the 23 acres he was utilizing, the petitioner has set his his sights on the 13 acres under their occupation and use with a view of disinheriting them and their siblings.
[4] Hence, the applicants prayed that, during the pendency of the cause, the orders sought by them be granted to preserve the estate and the interest of all the beneficiaries, including the grandchildren whose parents are now deceased. They also prayed that the petitioner be required to give an account of the proceeds realized from the estate during the period of his administration.
[5] The application was opposed by the petitioner. He relied on his Replying Affidavit sworn on 16 th February 2026 in which he averred that he is the only surviving son of the deceased, Joseph Arap Misoi . He further averred that he has administered the estate as required by law and filed the Summons for Confirmation of Grant dated 8 th day of December 2025.
[6] The petitioner also asserted that he ranks higher in priority to the applicants who are grandchildren of the deceased, being the sons of his deceased brother, Jacob Biama . He added that the applicants are settled elsewhere and do not have any claim on the land parcel Nandi/Kabiemit/97.
[7] In response to the petitioner’s averments, the applicants filed a Supplementary Affidavit sworn by the 1 st applicant on 18 th March 2026. They pointed out that the respondent evaded their assertion that he has already disposed of 23 acres of the estate property before confirmation of grant. They annexed to their Supplementary Affidavit a copy of the Mutation Form as Annexure NR-1 to buttress their assertions that the respondent has been intermeddling with the estate. In response to the respondent’s contention that they have settled elsewhere and have no claim to the estate, the applicants reiterated their assertion that, as grandchildren of the deceased, they have a right to represent the interests of their late father, Jacob Biama , who was a son of the deceased.
[8] The applicants further restated that, together with their siblings they have continuously occupied and cultivated about 13 acres of the estate asset even during the lifetime of the deceased; and it is only fair and just that they be appointed as co-administrators. They added that they stand to suffer irreparable loss if the estate continues to be mismanaged by the respondent.
[9] The application was canvassed by way of written submissions. Accordingly, the applicants filed written submissions dated 18 th February 2026 as well as Supplementary submissions dated 18 th March 2026, while the respondent relied on his written submissions dated 17 th March 2026. In their written submissions, the applicants proposed the following issues for determination:
[a] Whether the Court has jurisdiction to appoint the applicants as co-administrators as prayed; and if so,
[b] Whether sufficient grounds exist for the appointment of the applicants as co-administrators;
[c] Whether the Court should issue conservatory orders to safeguard the estate.
[10] The applicants relied on Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administrations Rules to support their submission that the Court has inherent powers to make such orders as are necessary for the ends of justice. In addition, the applicants cited Sections 29 and 66 of the Law of Succession Act to support their argument that, as the grandchildren of the deceased whose father is deceased, they qualify as dependants with full rights to directly petition the Court for appointment as administrators.
[11] On whether sufficient cause has been shown for such appointment, the applicants argued that the Court is not restricted to appointing only to one administrator, but may appoint additional administrators where the circumstances warrant such appointment. They submitted that there is a real danger that the estate will be exposed to wastage and mismanagement; and that their appointment as co-administrators will safeguard the interests of all the beneficiaries.
[12] In support of their prayer for conservatory orders, the applicants quoted Section 45 of the Law of Succession Act and submitted that the purpose of that provision is to ensue preservation of the estate of a deceased person. They made reference to the cases of Gladys Nkirote M’Itunga v Julius Majau M’Itunga [2016] eKLR, Machakos High Court Civil Case No. 95 of 2001: John Kasyoki Kieti v Tabitha Nzivulu Kieti & others and urged the Court to find that they have demonstrated legitimate apprehension in their affidavits to warrant the issuance of the orders sought.
[13] On his part, the respondent reiterated the averments set out in the affidavits filed by the parties and proposed the following issues for determination:
[a] Whether the application dated 9 th December 2025 is competent to warrant the issuance of the orders sought therein.
[b] Who should pay the costs of the application.
[14] He reiterated his averment that he is the only surviving son of the deceased and therefore ranks highest in priority for purposes of Section 66 of the Law of Succession Act. He therefore submitted that he is the one entitled to administer the estate of his later father. As for the applicants, the respondent submitted that they are settled elsewhere and therefore do not have any claim on the suit property No. NANDI/KABIEMIT/97. He added that, in any event, the application for appointment as co-administrators has been overtaken by events as he has already been issued with Grant of Letters of Administration in this matter.
[15] Regarding the prayer for temporary injunction, the respondent relied on Giella v Cassman Brown [1973] EA 358 and Nguruman Limited v Jan Bonde Nielsen & others [201] eKLR for the applicable principles and submitted that the applicant failed to meet the criteria for grant of orders sought. He prayed for dismissal of the application dated 9 th December 2025 with costs.
[16] I have given careful consideration to the application, affidavits in support and annexures thereto together with the response filed by the respondent. I have similarly considered the written submissions filed herein by the parties. The record shows that the deceased, Joseph Arap Misoi , died intestate on 5 th April 1996. In his lifetime, he was married and was blessed with several sons and daughters. By the time this succession cause was filed by the respondent, he was the only surviving son. Accordingly, in the Affidavit filed in support of the Petition for Grant of Letters of Administration Intestate, the respondent set out the beneficiaries who survived the deceased but who died thereafter. He annexed a letter from the area chief to support his Petition.
[17] The Petition was processed and ultimately Grant of Letters of Administration was issued on 23 rd May 2025. The respondent has already filed an application for confirmation of grant dated 8 th December 2025. Therefore, the issues emerging for determination are as follows:
[a] Whether the applicants have given sufficient cause for their appointment as co-administrators.
[b] Whether the court should issue conservatory orders pending the hearing and determination of the
A. Whether the applicants should be admitted as co-administrators of the estate:
[18] In respect of intestacy, Section 66 provides that:
When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—
a) surviving spouse or spouses, with or without association of other beneficiaries;
b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
c) the Public Trustee; and
d) creditors:
[19] Although the respondent did not include the names of the deceased’s grandchildren whose parents have since died as beneficiaries, there is no question as to whether grandchildren can inherit from their grandparents was well articulated in Christine Wangari Gachenge v Elizabeth Wanjiru Evans & 11 Others [2014] KECA 840 (KLR) The Court of Appeal held that:
“Although Section 35 and 38 of the Law of Succession Act is silent on the fate of surviving grandchildren whose parents predeceased the deceased, the rate of substitution of a grandchild for his/her parent in all cases of intestate known as the principle of representation is applicable. The law is on section 41. If a child of the intestate has predeceased the intestate then that child’s issue alive or en ventre sa mere on that date of the intestate’s death will take in equal share per stirpes contingent on attaining the age of majority. Per stirpes means that the issue of a deceased child of the intestate take between them the share their parents would have taken had the parent been alive at the intestate’s death.”
[20] Similarly, in Re Estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR, it was held that:
“Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1 st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.”
[21] Whereas grandchildren whose parents have died are entitled to directly inherit from their grandparents by stepping into the shoes of their parents, this is not necessarily the case when it comes to appointment of administrators. As has been pointed out herein above, appointment of administrators is premised on the ranking set out in Section 66 of the Law of Succession Act. Of course, the Court has the discretion to appoint more than one administrator. Section 56(1)(b) of the Law of Succession Act provides that no grant of representation shall be made to more than four persons in respect of the same property.
[22] In the premises, for the Court to appoint additional administrators who rank lower in the order of priority provided for in Section 66 of the Act, sufficient cause must be shown for such appointment. In this instance, the applicants accused the respondent of intermeddling; and therefore the question to pose is whether intermeddling has been proved to the requisite standard.
[23] There is no express definition of intermeddling in the Law of Succession Act. However, Section 45 of the Act provides as follows:
(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.
(2) Any person who contravenes the provisions of this section shall-
a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and
b) be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.
[24] In the case of Benson Mutuma Muriungi v C.E.O. Kenya Police Sacco & Another [2016] eKLR the court observed that:
“Whereas there is no specific definition provided by the Act for the term intermeddling, it refers to any act or acts which are done by a person in relation to the free property of the deceased without the authority of any law or grant of representation to do so. The category of the offensive acts is not heretically closed but would certainly include taking possession, or occupation of, disposing of, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act. I should add that any act or acts which will dissipate or diminish or put at risk the free property of the deceased are also acts of intermeddling in law. I reckon that intermeddling with the free property of the deceased is a very serious criminal charge for which the person intermeddling may be convicted and sentenced to imprisonment or fine or both under section 45 of the Law of Succession Act. That is why the law has taken a very firm stance on intermeddling and has clothed the court with wide powers to deal with cases of intermeddling and may issue any appropriate order(s) of protection of the estate against any person.”
[25] The same position was taken in In Re Morris Mwiti Mburugu v Denis Kimanthi M’Mburugu [2016] eKLR, In J ane Kagige Geoffrey & another v Wallace Ireri Njeru & 2 others [2016] eKLR and In re Estate of the Late Stephen Muthuri Karuri - Deceased (Succession Cause 253"B" of 2012) [2025] KEHC 1439 (KLR) (6 February 2025) (Ruling ) among others.
[26] The applicants alleged that the respondent has been selling the estate property to third parties without the knowledge or consent of the other beneficiaries. Indeed, Section 82 of the Act provides that:
Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers—
(a)to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;
(b)to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:
Provided that—
(i)any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and
(ii)no immovable property shall be sold before confirmation of the grant.
[27] No material has been placed before the Court to demonstrate the alleged dispositions by way of agreements for sale or photographs of developments by third parties or otherwise. Consequently, it is my finding that no justification has been made by the applicants for their appointment as co-administrators with the respondent. Moreover, while they conceded that there are other grandchildren of the deceased whose parents have since died and are therefore in the same predicament as they are, the applicants did not make any disclosure as to their names or demonstrate that they gave consent to the applicants’ proposed appointment.
B. On whether the court should issue conservatory orders pending the hearing and determination of the succession cause:
[28] Since the applicants’ prayer for temporary injunction is spent, to the extent that the orders sought were intended to preserve the estate pending hearing and determination of the application, the respondent’s submissions around the principles laid down in Giella and Mrao Ltd are somewhat irrelevant. The applicants’ substantive prayer was for conservatory orders pending the hearing and determination of this succession cause.
[29] Under Section 47 of the Law of Succession Act; the Court has powers to make such orders as are necessary for the ends of justice herein. It provides that:
“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient…”
[6] Similarly, Rule 73 of the Probate and Administration Rules, which is one of the enabling provisions cited by the applicant, provides that:
“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”
[30] The applicants expressed their apprehension that the respondent has been intermeddling with the estate, and although they did not avail proof to the requisite standard, it is not lost on the Court that the allegations were not specifically answered by the respondent. He simply stated that the applicants have settled elsewhere and therefore have no claim over the subject asset. That, in my view cannot be a valid response in view of the express provisions of Section 38 of the Law of Succession Act. That provision states:
“Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”
[31] In this case, the respondent is not the only child of the deceased. The deceased several other sons and daughters, all of whom have since passed away. They have nevertheless left their children who, as has been pointed out herein above, are entitled to step into their parents’ shoes and inherit directly from the estate of the deceased. There is need therefore to preserve the estate pending the final conclusion of this succession cause.
[32] In the premises, the application dated 9 th December 2025 is allowed in part and orders granted as follows:
[a] The prayer that Nahashon Rono and Wesley Kipkosgei Rono, the applicants herein, be appointed as a co-administrators of the estate of the deceased, Joseph Arap Misoi , alongside Japhet Kipkemei Misoi be and is hereby declined.
[b] An order be and is hereby issued restraining the petitioner either by himself, his servants, agents, or any other person acting from his authorization or control, from intermeddling with the estate of the deceased by either annexing, leasing, selling, transferring, charging or parting with interest in the estate property pending the hearing and determination of this succession cause.
[c] That the petitioner be and is hereby directed to render a true account of all the activities undertaken in respect of the estate from the 23 rd May 2025 when the Grant was issued to him to date.
[d] Each party to bear own costs of the application.
It is so ordered.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAPSABET THIS 28 TH DAY OF JULY 2026.