REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
PROBATE & ADMINISTRATION CASE NO. E008 OF 2025
IN THE MATTER OF THE ESTATE OF MWABAVU MABAVU (DECEASED)
GEORGE ADAMBA MUSIEGA and JUDITH LIVEHA
( Suing as the Personal Representatives of the Estate of Joash Adamba )....... CITORS
VERSUS
SAID MWABAVU MABAVU
ATHUMANI ALI MABAVU
MWANAEDA ALI MWABAVU.................................................................................CITEES
JUDGMENT
1. The Citors herein George Adamba Musiega and Judith Liveha are Personal Representatives of the Estate of Joash Adamba. They have filed the citation herein against the Citees Said Mwabavu Mabavu, Athumani Ali Mabavu and Mwanaeda Ali Mwabavu as the lawful children of Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased). The citation is on the administration of the estate of Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased) who at the time of his death was registered as owner property known as Kwale/Galu Kinondo/532 thus the same being alleged to be part of his estate. It is stated in the citation that the Citees are entitled to the share of the deceased’s estate as beneficiaries pursuant to the judgment and decree of the Kadhi’s court at Kwale in Succession Cause No. 157 of 2019.
2. The citation was served upon the Citees to enter appearance and accept or refuse letters of administration intestate to the estate of the said Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased) being property No. Kwale/Galu Kinondo/532 and failure to which the said letters of administration be issued to one of the Citors herein George Adamba Musiega.
3. The citation is supported by the affidavit of George Musiega Adamba sworn on 2 nd September 2025 and supplementary affidavit sworn on 5 th February 2026. He deposes that he together with Judith Liveha, his co-Citor are personal representatives of the estate of Joash Adamba (Deceased). That the said Joash Adamba (Deceased) was the registered owner of the property known as Kwale/Galu Kinondo/532 through Objection No. 94 of 28 th August 1974 which he purchased from Ali Hemedi Mwakidhiwa to whom the land had been adjudicated and became the first entry on Green Card 1 dated 15 th November 1974. He has annexed to the supporting affidavit a copy of the title deed and green card.
4. According to the deponent the property has since been fraudulently transferred to Mwabavu Mabavu (Deceased) the father of the Citees herein in 1989 when in fact his death certificate shows that he died in 1983.
5. Succession to the estate of the late Mwabavu Mabavu was done in 2019 and one of his sons Adinani Ali Mwabavu also since deceased was registered as the owner of the subject property to hold it in trust for himself and his brothers, the Citees herein, pursuant to the Kadhi’s Court at Kwale Succession Cause no. 157 of 2019.
6. Since Adnani Ali Mwabavu is deceased, the Citors’ depose that the estate of the late Mwabavu Mabavu has reverted to its previous state in the name of Mwabavu Mabavu (Deceased). In that case the remaining beneficiaries of the estate, the Citees herein, have to take up the letters of administration to administer the estate intestate. However, the Citees have failed to proceed to take out the said letters of administration and thus the present Citation.
7. The Citors herein filed a suit before the Kwale ELC Suit No. E030 of 2023 initially against Adinani Ali Mwabavu and later amended the plaint to sue Said Ali Mwabavu seeking a declaration that the Citors are exclusively entitled to ownership of the subject property known as Kwale/Galu Kinondo/532.
8. The deponent deposed that the death of Adnani Ali Mwababu had been confirmed in the pleadings through the defence filed by Said Ali Mwabavu in Kwale ELC Case No. E030 of 2023 and further that the said Adnani Ali Mwabavu (Deceased) was the one handling the estate of their late father Mwabavu Mabavu (Deceased). As a result of his death, the deponent deposed, that the grant issued to Adnani Ali Mwabavu (Deceased) had since become useless and inoperative. The estate therefore remained unadministered yet the Citees herein as beneficiaries of the estate had not taken any steps to have the grant revoked or annulled or to apply for fresh letters of administration intestate and the subject property was at risk of wastage and loss. Further, that due to the lack of an administrator of the estate of Mwabavu Mabavu alias Ali Mwabavu Mabavu the case before the Kwale ELC Suit No. E030 of 2023 has no personal representative to defend the suit.
9. The deponent George Adamba Musiega deposes that as a result of his beneficial interest and legal claim over the property No. Kwale/Galu Kinondo/532 he is entitled to be given the grant of representation in the event the Citees herein fail to respond to the citation or to renounce their right to apply for grant of representation over the subject property.
10. The Citees entered appearance to the Citation on 21 st October 2025 through a notice of appointment of advocates of the firm of Mbwiza & Company Advocates. Two other advocates, Mkan and Owade also appeared during a date for directions on 22 nd October 2025 and each indicated that he had been instructed to appear for the Citees. However, neither of these two advocates filed a notice of appointment of advocate.
11. The Citees did not file a statement in response to the Citation despite being given time on several occasions by this court to do so. They also failed to file submissions.
12. Instead, on 11 th February 2026 the Citees filed a notice of preliminary objection to the Citation. The preliminary objection is based on the following grounds:
a. This court sitting as a Probate Court lacks jurisdiction to determine contested questions of ownership, trust and beneficial interest in land, which issues fall within the exclusive jurisdiction of the Environment and Land Court pursuant to Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act.
b. The Citation herein is improperly used to litigate a land ownership dispute under the guise of succession proceedings contrary to the Law of Succession Act.
c. The Citors, though suing as personal representatives of the Estate of Joash Adamba, have no locus standi in the estate subject of this Citation and strangers thereto.
d. The estate in question has no liabilities owing to the Citors and no enforceable claim has been demonstrated to justify invocation of citation proceedings.
e. The Citation is frivolous, vexatious and amounts to an abuse of the process.
13. This court subsequently fixed a date for ruling to be on 10 th April 2026. However, a day before the scheduled date for ruling, the Citees filed an application by way of notice of motion premised on Rules 49, 59 and 73 of the Probate and Administration Rules, Order 51 Rule 1 of the Civil Procedure Rules and sections 1A,1B and 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya seeking an order that the preliminary objection the Citees had filed dated 11 th February be disposed of first before the Citation, on priority basis.
14. The preliminary objection was disposed of on 28 th May 2026 whereby the court dismissed it as lacking in merit and fixed the judgment for the Citation on 29 th May 2026.
15. This court having earlier granted the Citees time to file their response to the Citation together with submissions and finding that they had failed to do so proceeds to deliver judgment on the Citation. Perhaps the Citees are satisfied to respond to the citation by way of the preliminary objection which this court has since disposed of.
16. Learned counsel for the Citors submits citation various provisions of the Law of Succession Act and decided cases the legal regime governing Citations.
17. Learned counsel has cited section 82(a) of the Law of Succession Act provides that personal representatives shall, subject only to any limitation imposed by their grant, have the power 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.
18. Learned counsel submits that in line with section 54 of the Law of Succession Act (Cap. 160) Laws of Kenya, 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 the Act.
19. Learned counsel has cited paragraphs 13, 14 and 16 of the Fifth Schedule that are relevant to the present Citation which *provide that:
13. Administration limited to property in which person has beneficial interest.
Where a person dies leaving property of which he was the sole or surviving trustee, or in which he had no beneficial interest on his own account, and leaves no general representative, or one who is unable or unwilling to act as such, letters of administration, limited to that property, may be granted to the person beneficially interested in the property, or to some other person on his behalf.
14. Administration limited to suit
When it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in such suit, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties, touching the matters at issue in the cause or suit, and until a final decree shall be made therein, and carried into complete execution.
15. ...
16. Appointment of person not normally entitled to a grant
Where it appears to the court to be necessary or convenient to appoint some person to administer an estate or any part thereof other than the person who would in ordinary circumstances be entitled to a grant of representation, the court may, in its discretion and having regard to all the circumstances of the case, appoint such other person to be administrator and grant letters of administration, whether limited or otherwise, as it shall think fit.
20. I have considered the Citation herein which is essentially not opposed, the submissions by learned counsel and the authorities cited. The issue for determination by this court is who is entitled to take out the Letters of Administration intestate to the estate of the deceased, that is, the Citor or the Citees.
21. The first issue to dispose of is whether the Citors have shown that they have a bona fide interest in the estate of the deceased Mwabavu Mabavu alias Ali Mwabavu Mabavu (See the case of In re Estate of Kiprono Arap Misoi (Deceased) [2021] KEHC 4198 (KLR) .
22. According to the Citors, their late father Joash Adamba was the registered owner of land parcel No. Kwale/Galu Kinondo/532 which has since been fraudulently transferred to Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased) the father of the Citees herein in 1989 when in fact his death certificate shows that he died in 1983. The Citors are the personal representatives of the estate of the late Joash Adamba and for that reason they would have a bona fide interest in that property. This evidence by the Citors was not challenged by the Citees. I am therefore satisfied that the Citors have a bona fide interest in the subject parcel of land which forms the estate of Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased).
23. The purpose of a citation, as the case herein, was explained in the case of In Re the Estate of Josiah Muli Wambua - Deceased [2014] KEHC 8172 (KLR) by Musyoka, J. as follows:
“In intestacy, a person entitled to administration may be cited by the court to accept or refuse a grant of letters of administration intestate. The person cited should respond to the citation by either renouncing his entitlement to apply for the grant or by applying for the grant. If he fails to appear upon being cited or to apply for grant, the citor may proceed to petition for the grant.
In intestacy, citations issue only in cases where no petition has been lodged in court. Citations are intended to trigger the process of applying for letters of administration intestate in circumstances where the persons entitled to apply are not willing or are slow in moving the court in that behalf. The citor should not be a person who has himself already applied for the grant, for the citor should only apply for grant after the citee fails to so apply.”
24. It is not disputed that the Citees herein, as the sons of the deceased, are the ones entitled to take out letters of administration intestate to the estate of Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased) and to defend the suit in the Environment and Land Court at Kwale in ELC Case No. E030 of 2023. The citation proceedings herein are to compel the Citees who are entitled to a grant of representation to the estate of Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased) to take out letter of administration intestate to the deceased’s estate. I agree with the submission by learned counsel that the failure to proceed as such is an indirect renunciation of their right to apply for the said letters of administration intestate and in that case George Adamba Musiega, one of the Citors herein should be granted the right to proceed as such as provided for under paragraph 14 of the Fifth Schedule to the Law of Succession Act as cited above.
25. I am satisfied that the Citation herein has merit and the same is allowed. It is hereby ordered that the Citees herein Said Mabavu Mwabavu and Athumani Ali Mabavu shall proceed to petition for a grant of letters of administration Ad litem to the estate of Mwabavu Mabavu alias Ali Mwabavu Mabavu limited to their appearance in Kwale ELC Suit No. E030 of 2023 within the next sixty (60) days failure to which George Adamba Musiega shall be at liberty to take out the said limited grant of letters of administration Ad litem either in his name or in the name of his nominee.
26. Orders accordingly.
27. Dated, signed and delivered on the virtual platform, Microsoft Teams this 29 th day of May 2026.
ANDAYI W.F
JUDGE
HC P&A E008/2025 Page 9/Citation
IN THE HIGH COURT OF KENYA AT KWALE
PROBATE & ADMINISTRATION CASE NO. E008 OF 2025
IN THE MATTER OF THE ESTATE OF MWABAVU MABAVU (DECEASED)
GEORGE ADAMBA MUSIEGA and JUDITH LIVEHA
( Suing as the Personal Representatives of the Estate of Joash Adamba )....... CITORS
VERSUS
SAID MWABAVU MABAVU
ATHUMANI ALI MABAVU
MWANAEDA ALI MWABAVU.................................................................................CITEES
JUDGMENT
1. The Citors herein George Adamba Musiega and Judith Liveha are Personal Representatives of the Estate of Joash Adamba. They have filed the citation herein against the Citees Said Mwabavu Mabavu, Athumani Ali Mabavu and Mwanaeda Ali Mwabavu as the lawful children of Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased). The citation is on the administration of the estate of Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased) who at the time of his death was registered as owner property known as Kwale/Galu Kinondo/532 thus the same being alleged to be part of his estate. It is stated in the citation that the Citees are entitled to the share of the deceased’s estate as beneficiaries pursuant to the judgment and decree of the Kadhi’s court at Kwale in Succession Cause No. 157 of 2019.
2. The citation was served upon the Citees to enter appearance and accept or refuse letters of administration intestate to the estate of the said Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased) being property No. Kwale/Galu Kinondo/532 and failure to which the said letters of administration be issued to one of the Citors herein George Adamba Musiega.
3. The citation is supported by the affidavit of George Musiega Adamba sworn on 2 nd September 2025 and supplementary affidavit sworn on 5 th February 2026. He deposes that he together with Judith Liveha, his co-Citor are personal representatives of the estate of Joash Adamba (Deceased). That the said Joash Adamba (Deceased) was the registered owner of the property known as Kwale/Galu Kinondo/532 through Objection No. 94 of 28 th August 1974 which he purchased from Ali Hemedi Mwakidhiwa to whom the land had been adjudicated and became the first entry on Green Card 1 dated 15 th November 1974. He has annexed to the supporting affidavit a copy of the title deed and green card.
4. According to the deponent the property has since been fraudulently transferred to Mwabavu Mabavu (Deceased) the father of the Citees herein in 1989 when in fact his death certificate shows that he died in 1983.
5. Succession to the estate of the late Mwabavu Mabavu was done in 2019 and one of his sons Adinani Ali Mwabavu also since deceased was registered as the owner of the subject property to hold it in trust for himself and his brothers, the Citees herein, pursuant to the Kadhi’s Court at Kwale Succession Cause no. 157 of 2019.
6. Since Adnani Ali Mwabavu is deceased, the Citors’ depose that the estate of the late Mwabavu Mabavu has reverted to its previous state in the name of Mwabavu Mabavu (Deceased). In that case the remaining beneficiaries of the estate, the Citees herein, have to take up the letters of administration to administer the estate intestate. However, the Citees have failed to proceed to take out the said letters of administration and thus the present Citation.
7. The Citors herein filed a suit before the Kwale ELC Suit No. E030 of 2023 initially against Adinani Ali Mwabavu and later amended the plaint to sue Said Ali Mwabavu seeking a declaration that the Citors are exclusively entitled to ownership of the subject property known as Kwale/Galu Kinondo/532.
8. The deponent deposed that the death of Adnani Ali Mwababu had been confirmed in the pleadings through the defence filed by Said Ali Mwabavu in Kwale ELC Case No. E030 of 2023 and further that the said Adnani Ali Mwabavu (Deceased) was the one handling the estate of their late father Mwabavu Mabavu (Deceased). As a result of his death, the deponent deposed, that the grant issued to Adnani Ali Mwabavu (Deceased) had since become useless and inoperative. The estate therefore remained unadministered yet the Citees herein as beneficiaries of the estate had not taken any steps to have the grant revoked or annulled or to apply for fresh letters of administration intestate and the subject property was at risk of wastage and loss. Further, that due to the lack of an administrator of the estate of Mwabavu Mabavu alias Ali Mwabavu Mabavu the case before the Kwale ELC Suit No. E030 of 2023 has no personal representative to defend the suit.
9. The deponent George Adamba Musiega deposes that as a result of his beneficial interest and legal claim over the property No. Kwale/Galu Kinondo/532 he is entitled to be given the grant of representation in the event the Citees herein fail to respond to the citation or to renounce their right to apply for grant of representation over the subject property.
10. The Citees entered appearance to the Citation on 21 st October 2025 through a notice of appointment of advocates of the firm of Mbwiza & Company Advocates. Two other advocates, Mkan and Owade also appeared during a date for directions on 22 nd October 2025 and each indicated that he had been instructed to appear for the Citees. However, neither of these two advocates filed a notice of appointment of advocate.
11. The Citees did not file a statement in response to the Citation despite being given time on several occasions by this court to do so. They also failed to file submissions.
12. Instead, on 11 th February 2026 the Citees filed a notice of preliminary objection to the Citation. The preliminary objection is based on the following grounds:
a. This court sitting as a Probate Court lacks jurisdiction to determine contested questions of ownership, trust and beneficial interest in land, which issues fall within the exclusive jurisdiction of the Environment and Land Court pursuant to Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act.
b. The Citation herein is improperly used to litigate a land ownership dispute under the guise of succession proceedings contrary to the Law of Succession Act.
c. The Citors, though suing as personal representatives of the Estate of Joash Adamba, have no locus standi in the estate subject of this Citation and strangers thereto.
d. The estate in question has no liabilities owing to the Citors and no enforceable claim has been demonstrated to justify invocation of citation proceedings.
e. The Citation is frivolous, vexatious and amounts to an abuse of the process.
13. This court subsequently fixed a date for ruling to be on 10 th April 2026. However, a day before the scheduled date for ruling, the Citees filed an application by way of notice of motion premised on Rules 49, 59 and 73 of the Probate and Administration Rules, Order 51 Rule 1 of the Civil Procedure Rules and sections 1A,1B and 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya seeking an order that the preliminary objection the Citees had filed dated 11 th February be disposed of first before the Citation, on priority basis.
14. The preliminary objection was disposed of on 28 th May 2026 whereby the court dismissed it as lacking in merit and fixed the judgment for the Citation on 29 th May 2026.
15. This court having earlier granted the Citees time to file their response to the Citation together with submissions and finding that they had failed to do so proceeds to deliver judgment on the Citation. Perhaps the Citees are satisfied to respond to the citation by way of the preliminary objection which this court has since disposed of.
16. Learned counsel for the Citors submits citation various provisions of the Law of Succession Act and decided cases the legal regime governing Citations.
17. Learned counsel has cited section 82(a) of the Law of Succession Act provides that personal representatives shall, subject only to any limitation imposed by their grant, have the power 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.
18. Learned counsel submits that in line with section 54 of the Law of Succession Act (Cap. 160) Laws of Kenya, 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 the Act.
19. Learned counsel has cited paragraphs 13, 14 and 16 of the Fifth Schedule that are relevant to the present Citation which *provide that:
13. Administration limited to property in which person has beneficial interest.
Where a person dies leaving property of which he was the sole or surviving trustee, or in which he had no beneficial interest on his own account, and leaves no general representative, or one who is unable or unwilling to act as such, letters of administration, limited to that property, may be granted to the person beneficially interested in the property, or to some other person on his behalf.
14. Administration limited to suit
When it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in such suit, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties, touching the matters at issue in the cause or suit, and until a final decree shall be made therein, and carried into complete execution.
15. ...
16. Appointment of person not normally entitled to a grant
Where it appears to the court to be necessary or convenient to appoint some person to administer an estate or any part thereof other than the person who would in ordinary circumstances be entitled to a grant of representation, the court may, in its discretion and having regard to all the circumstances of the case, appoint such other person to be administrator and grant letters of administration, whether limited or otherwise, as it shall think fit.
20. I have considered the Citation herein which is essentially not opposed, the submissions by learned counsel and the authorities cited. The issue for determination by this court is who is entitled to take out the Letters of Administration intestate to the estate of the deceased, that is, the Citor or the Citees.
21. The first issue to dispose of is whether the Citors have shown that they have a bona fide interest in the estate of the deceased Mwabavu Mabavu alias Ali Mwabavu Mabavu (See the case of In re Estate of Kiprono Arap Misoi (Deceased) [2021] KEHC 4198 (KLR) .
22. According to the Citors, their late father Joash Adamba was the registered owner of land parcel No. Kwale/Galu Kinondo/532 which has since been fraudulently transferred to Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased) the father of the Citees herein in 1989 when in fact his death certificate shows that he died in 1983. The Citors are the personal representatives of the estate of the late Joash Adamba and for that reason they would have a bona fide interest in that property. This evidence by the Citors was not challenged by the Citees. I am therefore satisfied that the Citors have a bona fide interest in the subject parcel of land which forms the estate of Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased).
23. The purpose of a citation, as the case herein, was explained in the case of In Re the Estate of Josiah Muli Wambua - Deceased [2014] KEHC 8172 (KLR) by Musyoka, J. as follows:
“In intestacy, a person entitled to administration may be cited by the court to accept or refuse a grant of letters of administration intestate. The person cited should respond to the citation by either renouncing his entitlement to apply for the grant or by applying for the grant. If he fails to appear upon being cited or to apply for grant, the citor may proceed to petition for the grant.
In intestacy, citations issue only in cases where no petition has been lodged in court. Citations are intended to trigger the process of applying for letters of administration intestate in circumstances where the persons entitled to apply are not willing or are slow in moving the court in that behalf. The citor should not be a person who has himself already applied for the grant, for the citor should only apply for grant after the citee fails to so apply.”
24. It is not disputed that the Citees herein, as the sons of the deceased, are the ones entitled to take out letters of administration intestate to the estate of Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased) and to defend the suit in the Environment and Land Court at Kwale in ELC Case No. E030 of 2023. The citation proceedings herein are to compel the Citees who are entitled to a grant of representation to the estate of Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased) to take out letter of administration intestate to the deceased’s estate. I agree with the submission by learned counsel that the failure to proceed as such is an indirect renunciation of their right to apply for the said letters of administration intestate and in that case George Adamba Musiega, one of the Citors herein should be granted the right to proceed as such as provided for under paragraph 14 of the Fifth Schedule to the Law of Succession Act as cited above.
25. I am satisfied that the Citation herein has merit and the same is allowed. It is hereby ordered that the Citees herein Said Mabavu Mwabavu and Athumani Ali Mabavu shall proceed to petition for a grant of letters of administration Ad litem to the estate of Mwabavu Mabavu alias Ali Mwabavu Mabavu limited to their appearance in Kwale ELC Suit No. E030 of 2023 within the next sixty (60) days failure to which George Adamba Musiega shall be at liberty to take out the said limited grant of letters of administration Ad litem either in his name or in the name of his nominee.
26. Orders accordingly.
27. Dated, signed and delivered on the virtual platform, Microsoft Teams this 29 th day of May 2026.
ANDAYI W.F
JUDGE
HC P&A E008/2025 Page 9/Citation