REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. E049 OF 2024
IN THE MATTER OF THE ESTATE OF MULI JOSEPH MBALUKA (DECEASED)
BETWEEN
BRIDGET MUNYIVA MULI …………………………......… 1ST PETITIONER
MULI ERIC MBITHI ……………………………………..… 2ND PETITIONER
AND
STEPHEN KYALO KIPRUTO MBALUKA …….. OBJECTOR/APPLICANT
RULING
1. This ruling relates to two applications. The first application is by the Petitioners dated 31/05/2024 by way of Petition for Letters of Administration Intestate on the Estate of the deceased JOSEPH MBALUKA MULI.
2. The second application, is by the Objector dated 28/10/2024 objecting to the making of the Grant to the Petitioners on their above stated application and who has also Cross-petitioned.
3. The applications were canvassed through written submissions. The Objector’s submissions are dated 5th June 2025 while the Petitioners’ submissions are dated 1st July 2025.
Objector’s Submissions
4. The Objector’s counsel submitted that the Objector objects to the issuance of the Grant of Letters of Administration to any person without his inclusion as a Co-administrator and believes that his inclusion is necessary to safeguard the interests of all the beneficiaries.
Petitioners’ Submissions
5. The Petitioners’ counsel submitted that the Objector's application is brought in bad faith as it is intended solely to delay the administration of the estate of the deceased and hinder the distribution of the estate. The objection is grounded on allegations of mismanagement of the estate, even though no administration of the estate has yet commenced.
6. That the Objector's actions suggest he is anticipating a mismanagement that has not occurred, thereby showing a lack of legitimate concern but rather an intention to create unnecessary delays. The Petitioners assert that the objection is based on unfounded fears of events that are yet to materialize.
7. The Petitioners further submit that the Objector does not reside in Kenya and currently resides in the United Kingdom. His absence from the country will significantly hinder the timely collection, preservation and administration of the estate of the deceased. The Objector's location abroad makes it impractical, if not impossible, for him to fulfill administrator's duties as outlined in the Law of Succession Act. The administration of the estate of the deceased would be best served by appointing administrators who are actively resident in Kenya and who can effectively carry out their duties without impediment.
Determination
8. I have carefully considered both applications, the affidavits as well as the parties’ counsel submissions. The pertinent issue for consideration in both applications is who should be the Administrators to the estate of the deceased.
9. Section 68 of the Law of Succession Act provides as follows:-
i. “Notice of any objection to an application for a grant of representation shall be lodged with the court, in such form as may be prescribed, within the period specified by such notice as aforesaid, or such longer period as the court may allow
ii. Where notice of objection has been lodged under sub-section (1), the court shall give notice to the objector to file an answer to the application and a cross-application within a specified period”
10. Rule 17(1) of the Probate and Administration Rules governs the timing of objections:
“Any person who has not applied for a grant to the estate of a deceased and wishes to object to the making of a grant which has been already applied for by another person may do so by lodging within the period specified in the notice of the application published under rule 7(4), or such longer period as the court may allow, either in the registry in which the pending application has been made or in the principal registry, an objection in Form 76 or in triplicate stating his full name and address for service, his relationship (if any) to the deceased and the grounds of his objection.”
11. What this provisions of law mean is that an objection to issuance of a grant has to be filed within a prescribed time after Petition has been filed and not more than 30 days after the notice has been published in the Kenya Gazette. The provisions also are to the effect that if one wishes to file an Objection out of time, it has to be with the permission of the court meaning that one has to seek leave to file an objection out of time.
12. The procedural sequence is clear and immutable: petition filing, then gazette publication, then 30-day objection period. Any deviation from this statutory framework renders an objection procedurally defective.
13. In this case, the Kenya Gazette Notice is yet to be published in regard to the deceased JOSEPH MBALUKA MULI.
14. This Court has consistently and unequivocally condemned objections filed before gazettement as premature and procedurally incompetent. In re Estate of Hanningtone Mwasaru Mlughu (Deceased) (Succession Cause 4 of 2023) [2024] KEHC 2698 (KLR), Justice Gregory Mutai provided the definitive judicial pronouncement on premature objections. The court held in no uncertain terms that:
“Rule 17(1) of the Probate & Administration Rule provides as follows... Rule 7 (4) of the said Rules provides as follows... From the foregoing it is quite clear that the Rules provide that objections may only be made after a notice of the filing of the petition has been published in the Kenya Gazette."
15. Crucially, the court emphasised the public policy underlying gazettement:
"Publication in the Gazette serves a very important public purpose; it notifies all those who have a claim against the estate of the filing of the petition and invites them to lodge their claims. Since succession is a Court process, and with a view to the best use of the Court's limited time, Objectors, if any, are given 30 days to state their case.
Filing objections before the publication in the Gazette would not result in the best use of the Court's time, and it is for that reason that Courts have frowned on such actions."
16. The court specifically found:
"In this case, the objection was filed about 2 weeks before the notice in the Kenya Gazette was published... It is clear that the Objector acted with undue haste in filing her objection before its publication in the Kenya Gazette."
17. The Objector herein has committed the exact same procedural breach condemned by the courts. The objection was filed before any publication was made in the Kenya Gazette, rendering it pre-emptory and procedurally defective.
18. This premature filing violates the mandatory sequence established by law and directly contravenes the judicial precedents outlined above.
19. The law of Succession is made in such a manner that the obtaining of the grant is not an end to an aggrieved party’s rights. One can challenge the grant by seeking its revocation or annulment or even file a protest to the mode of distribution.
20. The upshot is that I find that the objection is devoid of any contestable status under the Law of Succession Act. The Objection as taken out is misconceived, bad in law and incompetent. The same is struck out.
21. Parties shall bear their own costs.
It is so ordered.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 4TH MARCH 2026
NOEL ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 4TH MARCH 2026
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. E049 OF 2024
IN THE MATTER OF THE ESTATE OF MULI JOSEPH MBALUKA (DECEASED)
BETWEEN
BRIDGET MUNYIVA MULI …………………………......… 1ST PETITIONER
MULI ERIC MBITHI ……………………………………..… 2ND PETITIONER
AND
STEPHEN KYALO KIPRUTO MBALUKA …….. OBJECTOR/APPLICANT
RULING
1. This ruling relates to two applications. The first application is by the Petitioners dated 31/05/2024 by way of Petition for Letters of Administration Intestate on the Estate of the deceased JOSEPH MBALUKA MULI.
2. The second application, is by the Objector dated 28/10/2024 objecting to the making of the Grant to the Petitioners on their above stated application and who has also Cross-petitioned.
3. The applications were canvassed through written submissions. The Objector’s submissions are dated 5th June 2025 while the Petitioners’ submissions are dated 1st July 2025.
Objector’s Submissions
4. The Objector’s counsel submitted that the Objector objects to the issuance of the Grant of Letters of Administration to any person without his inclusion as a Co-administrator and believes that his inclusion is necessary to safeguard the interests of all the beneficiaries.
Petitioners’ Submissions
5. The Petitioners’ counsel submitted that the Objector's application is brought in bad faith as it is intended solely to delay the administration of the estate of the deceased and hinder the distribution of the estate. The objection is grounded on allegations of mismanagement of the estate, even though no administration of the estate has yet commenced.
6. That the Objector's actions suggest he is anticipating a mismanagement that has not occurred, thereby showing a lack of legitimate concern but rather an intention to create unnecessary delays. The Petitioners assert that the objection is based on unfounded fears of events that are yet to materialize.
7. The Petitioners further submit that the Objector does not reside in Kenya and currently resides in the United Kingdom. His absence from the country will significantly hinder the timely collection, preservation and administration of the estate of the deceased. The Objector's location abroad makes it impractical, if not impossible, for him to fulfill administrator's duties as outlined in the Law of Succession Act. The administration of the estate of the deceased would be best served by appointing administrators who are actively resident in Kenya and who can effectively carry out their duties without impediment.
Determination
8. I have carefully considered both applications, the affidavits as well as the parties’ counsel submissions. The pertinent issue for consideration in both applications is who should be the Administrators to the estate of the deceased.
9. Section 68 of the Law of Succession Act provides as follows:-
i. “Notice of any objection to an application for a grant of representation shall be lodged with the court, in such form as may be prescribed, within the period specified by such notice as aforesaid, or such longer period as the court may allow
ii. Where notice of objection has been lodged under sub-section (1), the court shall give notice to the objector to file an answer to the application and a cross-application within a specified period”
10. Rule 17(1) of the Probate and Administration Rules governs the timing of objections:
“Any person who has not applied for a grant to the estate of a deceased and wishes to object to the making of a grant which has been already applied for by another person may do so by lodging within the period specified in the notice of the application published under rule 7(4), or such longer period as the court may allow, either in the registry in which the pending application has been made or in the principal registry, an objection in Form 76 or in triplicate stating his full name and address for service, his relationship (if any) to the deceased and the grounds of his objection.”
11. What this provisions of law mean is that an objection to issuance of a grant has to be filed within a prescribed time after Petition has been filed and not more than 30 days after the notice has been published in the Kenya Gazette. The provisions also are to the effect that if one wishes to file an Objection out of time, it has to be with the permission of the court meaning that one has to seek leave to file an objection out of time.
12. The procedural sequence is clear and immutable: petition filing, then gazette publication, then 30-day objection period. Any deviation from this statutory framework renders an objection procedurally defective.
13. In this case, the Kenya Gazette Notice is yet to be published in regard to the deceased JOSEPH MBALUKA MULI.
14. This Court has consistently and unequivocally condemned objections filed before gazettement as premature and procedurally incompetent. In re Estate of Hanningtone Mwasaru Mlughu (Deceased) (Succession Cause 4 of 2023) [2024] KEHC 2698 (KLR), Justice Gregory Mutai provided the definitive judicial pronouncement on premature objections. The court held in no uncertain terms that:
“Rule 17(1) of the Probate & Administration Rule provides as follows... Rule 7 (4) of the said Rules provides as follows... From the foregoing it is quite clear that the Rules provide that objections may only be made after a notice of the filing of the petition has been published in the Kenya Gazette."
15. Crucially, the court emphasised the public policy underlying gazettement:
"Publication in the Gazette serves a very important public purpose; it notifies all those who have a claim against the estate of the filing of the petition and invites them to lodge their claims. Since succession is a Court process, and with a view to the best use of the Court's limited time, Objectors, if any, are given 30 days to state their case.
Filing objections before the publication in the Gazette would not result in the best use of the Court's time, and it is for that reason that Courts have frowned on such actions."
16. The court specifically found:
"In this case, the objection was filed about 2 weeks before the notice in the Kenya Gazette was published... It is clear that the Objector acted with undue haste in filing her objection before its publication in the Kenya Gazette."
17. The Objector herein has committed the exact same procedural breach condemned by the courts. The objection was filed before any publication was made in the Kenya Gazette, rendering it pre-emptory and procedurally defective.
18. This premature filing violates the mandatory sequence established by law and directly contravenes the judicial precedents outlined above.
19. The law of Succession is made in such a manner that the obtaining of the grant is not an end to an aggrieved party’s rights. One can challenge the grant by seeking its revocation or annulment or even file a protest to the mode of distribution.
20. The upshot is that I find that the objection is devoid of any contestable status under the Law of Succession Act. The Objection as taken out is misconceived, bad in law and incompetent. The same is struck out.
21. Parties shall bear their own costs.
It is so ordered.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 4TH MARCH 2026
NOEL ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 4TH MARCH 2026