1. Before this Honourable Court is a Notice of Motion dated 14th January 2026 filed by Rudiah Kemunto Ochwangi and Makori Ochwangi Moronge who are the 3rd and 4th administrators.
2. The application is stated to be brought pursuant to sections 47 and 83 of the Law of Succession Act (Cap. 160, Laws of Kenya) and Rules 49 and 73 of the Probate and Administration Rules. The Applicants seeks the following substantive orders:
1) THAT the Petitioners/Applicants be and are hereby granted leave to amend the Petition for Letters of Administration Intestate and the supporting affidavit to include newly discovered liabilities of the estate.
2) THAT the amended Petition and supporting affidavit be deemed as duly filed upon payment of the requisite court fees.
3) THAT costs of this application be in the cause.
3. The application is supported by an affidavit sworn on 14th January 2026 by Makori Ochwangi Moronge, the 4th Administrator. He avers, inter alia, that the estate is burdened by an alleged debt arising from a loan transaction predating the year 2010 and that recovery action was purportedly undertaken by the alleged lender through the instrumentality of appointed auctioneers. Annexed to the supporting affidavit is a Notification of Sale relating to Land Reference No. NYAMIRA/NYANSIONGO SETTLEMENT SCHEME/412, indicating that the said parcel of land was scheduled for sale by public auction on 30th April 2010.
4. The 4th Administrator/Applicant subsequently filed a Further Affidavit sworn on 20th January 2026, to which documents marked MOM-1, MOM-2, MOM-3, MOM-4 and MOM-6 are annexed. MOM-1 comprises a copy of the aforementioned Notification of Sale; MOM-2 is a Public Auction Notice published on 06th April 2010; MOM-3 is a newspaper extract evidencing that publication; MOM-4 is a letter dated 06thAugust 2009 from Kenya Commercial Bank Limited addressed to auctioneers; and MOM-6 comprises pleadings filed in Kisii High Court Civil Suit No. 95 of 2010 seeking injunctive relief to restrain the intended auction sale.
5. The application is opposed by the 1st and 2nd Administrators, who dispute the existence of any estate liability cognisable in law and contend that the documents relied upon do not establish any liquidated or ascertainable indebtedness nor any secured interest binding upon the estate assets.
6. The 3rd and 4th Administrators/Applicants filed written submissions dated 03rd February 2026 in support of the application. Counsel for the 3rd and 4th Administrators/Applicants submitted that administrators bear a statutory duty to disclose all assets and liabilities of the estate, including those discovered after filing of the petition. Relance was placed on section 83(d) of the Law of Succession Act and Rule 7 of the Probate and Administration Rules.
7. It is further submitted that the auction notices, correspondence, and pleadings collectively demonstrate the existence of a subsisting estate liability warranting amendment of the succession record.
8. The 3rd and 4th Administrators/Applicants contend that estate liabilities take priority over distribution and that failure to disclose them renders any distribution unlawful. Reliance is placed on In re Estate of the Late Kipchumba Misoy (Deceased) [2025] KEHC 1472 (KLR) for the proposition that the Court retains supervisory jurisdiction to intervene where material defects arise in succession proceedings.
Issues for Determination
9. From the pleadings, the issues that arise for determination are:
1) Whether the 3rd and 4th Administrators/Applicants have established, on the material placed before the Court, the existence of an estate liability capable of recognition in law
2) Whether leave to amend the Petition for Letters of Administration Intestate and the supporting affidavit to include newly discovered liabilities of the estate is merited.
Analysis and Determination
10. Under section 107(1) of the Evidence Act (Cap. 80, Laws of Kenya), the burden of proof in civil proceedings lies upon the party who seeks the Court’s intervention.
11. In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2005] 1 EA 334, the Court of Appeal stated:
“As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party, the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act.”
12. The Applicant relies on auction notices, correspondence and pleadings arising from an intended enforcement process between 2009 and 2010 relating to Land Reference No. NYAMIRA/NYANSIONGO SETTLEMENT SCHEME/412.
13. The documents relied upon do not establish the existence of any underlying loan facility. They fail to identify the alleged debtor with the requisite degree of certainty and do not demonstrate the existence of a subsisting or enforceable liability against the estate. In particular, no loan agreement has been produced. No letter of offer has been placed before the Court. No statement of account or demand notice has been exhibited. Further, there is no evidence of any disbursement in support of the alleged debt.
14. The assertion that the alleged debt was secured is equally unsupported. There is no evidence of any registered charge or encumbrance over the property. No official search has been produced to demonstrate any proprietary interest in favour of the bank. Further, no statutory notices grounded on a valid security have been exhibited.
15. Whereas section 83(d) of the Law of Succession Act obligates personal representatives to ascertain and pay all debts of the deceased, and Rule 7 of the Probate and Administration Rules requires full disclosure of assets and liabilities, these duties presuppose the existence of a provable debt. They do not arise from conjecture, assumption, or unsubstantiated claims.
16. A litigant cannot discharge the burden imposed by section 107(1) of the Evidence Act by merely producing documents whose probative value does not establish the facts alleged. The Court is not entitled to speculate or infer the existence of liability where none has been proved by admissible evidence.
17. In the absence of proof of both an underlying debt and a valid security interest, the alleged liability remains unproven and incapable of recognition as a debt chargeable against the estate.
18. The absence of proof of indebtedness, of a secured interest, or of any charge over estate land means that there is no basis upon which to amend the Petition for Letters of Administration Intestate or the supporting affidavit.
19. The Court therefore finds that the Applicant has failed to demonstrate the existence of the liability and the need for an amendment and the application must hence fail.
20. Finally, the court notes that this matter was filed in 2021 and has remained unresolved to date. The Administrators are hereby reminded that succession proceedings exist to facilitate the orderly, expeditious, and lawful administration of estates. This Court will therefore not permit the continued misuse of the succession process through acts or omissions that serve only to delay the due administration of the estate. Such conduct amounts to an abuse of the court process and will attract the Court’s supervisory intervention under rule 73 of the Probate and Administration Rules, including the removal of any administrator who fails to advance the best interests of the estate.
Disposition
21. From the foregoing analysis, the court makes the following orders:
1) The Notice of Motion dated 14th January 2026 has no merit and it is hereby dismissed.
2) Costs of and incidental to this application shall follow the event and are awarded to the 1st and 2nd Administrators/Respondents
2. The application is stated to be brought pursuant to sections 47 and 83 of the Law of Succession Act (Cap. 160, Laws of Kenya) and Rules 49 and 73 of the Probate and Administration Rules. The Applicants seeks the following substantive orders:
1) THAT the Petitioners/Applicants be and are hereby granted leave to amend the Petition for Letters of Administration Intestate and the supporting affidavit to include newly discovered liabilities of the estate.
2) THAT the amended Petition and supporting affidavit be deemed as duly filed upon payment of the requisite court fees.
3) THAT costs of this application be in the cause.
3. The application is supported by an affidavit sworn on 14th January 2026 by Makori Ochwangi Moronge, the 4th Administrator. He avers, inter alia, that the estate is burdened by an alleged debt arising from a loan transaction predating the year 2010 and that recovery action was purportedly undertaken by the alleged lender through the instrumentality of appointed auctioneers. Annexed to the supporting affidavit is a Notification of Sale relating to Land Reference No. NYAMIRA/NYANSIONGO SETTLEMENT SCHEME/412, indicating that the said parcel of land was scheduled for sale by public auction on 30th April 2010.
4. The 4th Administrator/Applicant subsequently filed a Further Affidavit sworn on 20th January 2026, to which documents marked MOM-1, MOM-2, MOM-3, MOM-4 and MOM-6 are annexed. MOM-1 comprises a copy of the aforementioned Notification of Sale; MOM-2 is a Public Auction Notice published on 06th April 2010; MOM-3 is a newspaper extract evidencing that publication; MOM-4 is a letter dated 06thAugust 2009 from Kenya Commercial Bank Limited addressed to auctioneers; and MOM-6 comprises pleadings filed in Kisii High Court Civil Suit No. 95 of 2010 seeking injunctive relief to restrain the intended auction sale.
5. The application is opposed by the 1st and 2nd Administrators, who dispute the existence of any estate liability cognisable in law and contend that the documents relied upon do not establish any liquidated or ascertainable indebtedness nor any secured interest binding upon the estate assets.
6. The 3rd and 4th Administrators/Applicants filed written submissions dated 03rd February 2026 in support of the application. Counsel for the 3rd and 4th Administrators/Applicants submitted that administrators bear a statutory duty to disclose all assets and liabilities of the estate, including those discovered after filing of the petition. Relance was placed on section 83(d) of the Law of Succession Act and Rule 7 of the Probate and Administration Rules.
7. It is further submitted that the auction notices, correspondence, and pleadings collectively demonstrate the existence of a subsisting estate liability warranting amendment of the succession record.
8. The 3rd and 4th Administrators/Applicants contend that estate liabilities take priority over distribution and that failure to disclose them renders any distribution unlawful. Reliance is placed on In re Estate of the Late Kipchumba Misoy (Deceased) [2025] KEHC 1472 (KLR) for the proposition that the Court retains supervisory jurisdiction to intervene where material defects arise in succession proceedings.
Issues for Determination
9. From the pleadings, the issues that arise for determination are:
1) Whether the 3rd and 4th Administrators/Applicants have established, on the material placed before the Court, the existence of an estate liability capable of recognition in law
2) Whether leave to amend the Petition for Letters of Administration Intestate and the supporting affidavit to include newly discovered liabilities of the estate is merited.
Analysis and Determination
10. Under section 107(1) of the Evidence Act (Cap. 80, Laws of Kenya), the burden of proof in civil proceedings lies upon the party who seeks the Court’s intervention.
11. In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2005] 1 EA 334, the Court of Appeal stated:
“As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party, the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act.”
12. The Applicant relies on auction notices, correspondence and pleadings arising from an intended enforcement process between 2009 and 2010 relating to Land Reference No. NYAMIRA/NYANSIONGO SETTLEMENT SCHEME/412.
13. The documents relied upon do not establish the existence of any underlying loan facility. They fail to identify the alleged debtor with the requisite degree of certainty and do not demonstrate the existence of a subsisting or enforceable liability against the estate. In particular, no loan agreement has been produced. No letter of offer has been placed before the Court. No statement of account or demand notice has been exhibited. Further, there is no evidence of any disbursement in support of the alleged debt.
14. The assertion that the alleged debt was secured is equally unsupported. There is no evidence of any registered charge or encumbrance over the property. No official search has been produced to demonstrate any proprietary interest in favour of the bank. Further, no statutory notices grounded on a valid security have been exhibited.
15. Whereas section 83(d) of the Law of Succession Act obligates personal representatives to ascertain and pay all debts of the deceased, and Rule 7 of the Probate and Administration Rules requires full disclosure of assets and liabilities, these duties presuppose the existence of a provable debt. They do not arise from conjecture, assumption, or unsubstantiated claims.
16. A litigant cannot discharge the burden imposed by section 107(1) of the Evidence Act by merely producing documents whose probative value does not establish the facts alleged. The Court is not entitled to speculate or infer the existence of liability where none has been proved by admissible evidence.
17. In the absence of proof of both an underlying debt and a valid security interest, the alleged liability remains unproven and incapable of recognition as a debt chargeable against the estate.
18. The absence of proof of indebtedness, of a secured interest, or of any charge over estate land means that there is no basis upon which to amend the Petition for Letters of Administration Intestate or the supporting affidavit.
19. The Court therefore finds that the Applicant has failed to demonstrate the existence of the liability and the need for an amendment and the application must hence fail.
20. Finally, the court notes that this matter was filed in 2021 and has remained unresolved to date. The Administrators are hereby reminded that succession proceedings exist to facilitate the orderly, expeditious, and lawful administration of estates. This Court will therefore not permit the continued misuse of the succession process through acts or omissions that serve only to delay the due administration of the estate. Such conduct amounts to an abuse of the court process and will attract the Court’s supervisory intervention under rule 73 of the Probate and Administration Rules, including the removal of any administrator who fails to advance the best interests of the estate.
Disposition
21. From the foregoing analysis, the court makes the following orders:
1) The Notice of Motion dated 14th January 2026 has no merit and it is hereby dismissed.
2) Costs of and incidental to this application shall follow the event and are awarded to the 1st and 2nd Administrators/Respondents