1 . The 1 st and 2 nd Objectors herein have filed an objection to making of a grant dated 23/6/2025 wherein they have averred that their interest in the estate of the deceased is that of being children to the deceased and thus beneficiaries. The reasons for the objection are as follows:
i) That the Objectors have a right to participate in the administration and management of the estate of the deceased hence the need to appoint two (2) of the Objectors to be administrators of the estate of the deceased.
ii) That the Petition as presented and/or filed is incomplete and does not represent the full inventory of the estate of the deceased.
iii) That the 3 rd and 4 th Petitioners have no capacity and/or legal capacity to administer the estate of Richard Ochieng Olwenge who is their grandfather and without them obtaining capacity by taking out letters of administration in their late father’s estate.
iv) That the Petitioners have had selfish engagement in the estate without full disclosure to all beneficiaries of the activities hence the need to have the Objectors in the administration of the estate to oversight the management and/or estate activities. They further accused the Petitioners of the following misdeeds:
a) Opened separate accounts where they divert money from the estate without consulting, obtaining consent and/or authority of all family members.
b) They sold estate properties and pocketed the cash for their private/personal use i.e., scrap metal.
c) Have deliberately left out of the list of assets a lion's portion of the estate so as to disinherit the Objectors.
d) They have used estate property for their own interest, i.e., 10 acres of land in Chemelil.
e) They are running the estate affairs without regard to the Objectors’ interest and/or to the exclusion of the Objectors.
2. The 2 nd Petitioner filed a replying affidavit dated 12/8/2025 on behalf of the Petitioners wherein he averred inter alia; that the grounds of objection raised herein are the same ones that had been raised in their Notice of Objection to making of grant dated 1/9/2023; that the previous Notice of Objection to making of grant aforesaid was canvassed by way of viva voce evidence leading to this court’s ruling dated 9/5/2025 in which it dismissed the notice of objection and directed the Petitioners to proceed to apply for grant of letters of administration; that this court further directed that the Petitioners upon issuance of grant of letters of administration were to file summons for confirmation of grant and also present a statement of accounts over the affairs of the estate of the deceased; that the Objectors herein filed a Notice of Appeal to the Court of Appeal over the said ruling; that the 3 rd and 4 th Objectors later accepted to let the Petitioners proceed and obtain letters of grant of administration as earlier agreed by the majority of the family members; that the Objectors herein later filed an application for stay of proceedings vide an application dated 15/5/2025 which was dismissed by this court on 4/6/2025; that the 1 st and 2 nd Objectors later moved to the Court of Appeal vide an application dated 17/6/2025 seeking for orders of stay of proceedings and an order for injunction pending determination of the intended appeal; that the 1 st and Objectors are now abusing the court process by seeking to have another objection hearing yet the same had been heard and still seek to proceed with their appeal at the Court of Appeal; that the Petitioners would wish to adopt their earlier replying affidavit sworn on 17/11/2023 in opposition to the Objectors Notice of Objection; that the 1 st and 2 nd Objectors do not stand to suffer any prejudice since all administrators are bound by fidelity and to render accounts as directed by the court; that the fact of non-inclusion of certain assets does not defeat the intended grant of letters of administration as the beneficiaries are at liberty to present evidence of those assets and that during confirmation the issue of the assets will be addressed; that it was the Objectors herein who had cited the four Petitioners vide Eldoret High Court Citation Number E015 of 20223; that the four Petitioners were selected through a family voting; that the objection herein is causing delay as the Petitioners cannot file summons for confirmation of grant which delay will affect all the beneficiaries of the estate of the deceased; that the objection is ripe for dismissal.
3. The 1 st Objector filed a supplementary affidavit sworn on 29/8/2025 wherein she averred inter alia; that the mere fact that a similar objection had been raised does not deny the Objectors from relying on a legal provision to pursue their interest in the estate as they are legitimate children of the deceased; that the existence of an appeal in the superior court does not bar the Objectors from contesting proceedings herein as there are no orders of stay of proceedings herein; that they have responded to the move by the Petitioners to obtain grant in line with the legal provisions under the Law of Succession Act; that the persons proposed to take out letters of grant are not best suited as they have wasted the estate and ought to be scrutinized by this court at this stage to avoid wastage of the estate; that the Petitioners agree with the Objectors that the Law of Succession Act places strict requirements on the Petitioners to obtain the consent from the beneficiaries; that the Law of Succession Act (Rule 26(1) and (20 of the Probate and Administration Rules does not contemplate that an election be conducted to select administrators for an estate; that the Objectors filed the citation proceedings at Eldoret High Court to compel the Petitioners to take out letters of grant as there was wastage and mismanagement of the estate; that the Objectors herein had made known to the Petitioners that they wished to be made administrators of the estate; that the Petitioners have left out of the list of assets several properties which comprise of 14 parcels of land, flats, farm house, several plots both in Eldoret and Siaya townships and 32 motor vehicles; that the action of leaving out the said properties by the Petitioners is meant to benefit themselves in total violation of the provisions of section 51 of the Act; that the Petitioners will run amok if the Objectors are not brought on board to check them for the benefit of all beneficiaries; that the Petitioners are under obligation to list all the assets of the deceased before seeking for the grant; that the Notice of Objection to making of grant should be allowed under section 47 and 66 of the Act as well as Rule 73 of the Probate and Administration Rules and that this court decline to grant letters of grant to the Petitioners but order that the Objectors herein be brought on board as administrators to ensure inclusivity, transparency and accountability at all times; that the succession proceedings should not be made to take an adversarial direction but that the objection herein should be seen in positive light; that this court should note that the Petitioners have taken a position that is not legal and sound and thus should proceed to set the record straight by granting the instant objection.
4. The Notice of Objection to the making of a grant dated 23/6/2025 was canvassed by way of written submissions
5. Vide submissions dated 18/2/2026, learned counsel for the 1 st and 2nd Objectors, gave a history of the Objection and submitted that the two objectors are daughters of the deceased, Richard Ochieng Olwenge and who have moved the court vide an Objection to Making of Grant dated 23/6/2025 objecting to making of a grant of representation to the Petitioners herein on grounds inter alia; that the Objectors have a right to participate in the administration and management of the estate hence the need to appoint them as administrators of the deceased' estate; that the Petition as presented and/or filed is incomplete and does not represent the full inventory of the estate of the deceased; that the 3rd and 4th Petitioners have no capacity to administer the estate of the deceased without taking out letters of administration for their late father's estate; that the Petitioners have had selfish engagements in the estate without full disclosure to all beneficiaries of the activities hence the need to have the Objectors in the administration to oversee the management and/or estate activities.
6. It was submitted that the 1st and 2nd Objectors had earlier filed a Notice of Objection to Making of a Grant dated 1/9/2023 which objection was dismissed vide this court's ruling of 9/5/2023 and that the court then appointed the Petitioners as administrators and directed that the cause be gazetted in the usual manner to pave way for issuance of a grant of letters of administration. That the cause was indeed gazetted vide Gazette Notice No. 6764 dated 19/5/2025 inviting objections to the issuance of a grant to the Petitioners to be entered within 30 days from the date of publication and given that the publication was done on 26/5/2025, the 1st and 2nd Objectors filed their objection on 25/6/2025.
7. Learned counsel submitted that the main issue for determination is whether the Objection raised has any merit.
8. It was submitted that the objection has merit because section 67 and 68 of the Law of Succession Act cap 160, Laws of Kenya empowers a party who objects to the application for grant of letters administration to file an objection which objection shall thereafter be considered by the Court in line with section 69 of the Law of Succession Act, cap 160, Laws of Kenya that empowers the Court to interrogate an application for grant of letters of administration where an objection has been raised by virtue of Section 67, 68 and 69 of the Law of Succession Act, cap 160, Laws of Kenya and which power can be exercised even where no objection is raised by virtue of section 70 of the Law of Succession Act, for instance. section 70 (2) of the Law of Succession Act which empowers the court to " call for further evidence as to the due execution or contents of the will or some other will, the making of an oral will, the rights of dependants and of persons claiming interests on intestacy, or any other matter which appears to require further investigation before a grant is made. The 1 st and 2nd Objectors therefore have raised several grounds why a grant of letters of Administration should not be issued in favour of the Petitioners.
9. The first ground relied upon is that the 1st and 2nd Objectors have a right to participate in the administration of the deceased's estate and to be appointed as administrators. It was submitted that this right stems from the provisions of Section 66 of the Law of Succession Act which is very clear that in exercising its discretion the court should 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
It was submitted that in the instant case, Part V of the Law of Succession Act places the order of preference on the children of the deceased where the deceased is survived by a child but no spouse (see section 38 of the Law of Succession Act). It thus follows that the 1 st and 2 nd Objectors being children of the deceased, have equal rights with the rest of their siblings to be appointed as administrators of his estate.
11. It was pointed out that the Petitioners have not denied that the 1 st and 2nd Objectors are children of the deceased. They have also not disputed the fact that the 3rd and 4 th Petitioners are not children of the deceased. All they have stated is that it does not matter who among the deceased's beneficiaries is appointed as an administrator and further deponed at paragraph 11 (d) of their replying affidavit that the Law of Succession Act places strict requirements on them as Petitioners to obtain consent of the other beneficiaries having priority to take out letters of administration, such as the 1 st and 2nd Objectors, before any grant of letters of administration is issued. However, despite claiming not to have any issue with the 1 st and 2 nd Objectors being appointed as administrators they opted to rubbish the 1 st and 2nd Objectors' advocates' letter dated 26/7/2023 in which the 1 st and 2nd Objectors made it clear before the Petition for letter of administration was filed that they wanted to be administrators of the estate of the deceased as per annexure marked JAO 1 of the supplementary affidavit.
12. It was contended that the reason for not considering the 1 st and 2nd Objectors request to be appointed as administrators was that there was an alleged election of who was to be appointed as an administrator in which the Petitioners purportedly emerged winners. They also claimed that since the court in Eldoret High Court Citation Case No. E015 of 2023 they had been ordered to take out letters of administration the issue of any other party claiming to be appointed as administrator could not arise. It was further contended that the Petitioners have further argued that the 1 st and 2nd Objectors had lodged appeals to the Court of Appeal challenging this court's decision on Objection to the Making of a Grant dated 1/9/2023 and therefore it would be an abuse of the court process for the court to entertain the instant objection and further that they have alleged that there are structures put in place to safeguard the 1 st and 2 nd Objectors interest within the Law of Succession Act hence they need not be made administrators. It was submitted that section 66 of the Law of Succession Act gives the 1 st and 2nd Objectors a right to be appointed as administrators and where such right is not exercised there ought to be an express consent executed by them as contemplated under Rule 26 (1) and (2) the Probate and Administration Rules confirming that they do not desire to be appointed as administrators. The said Rule 26 (1) and (2) the Probate and Administration Rules is explicit that:
(1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.
(2) An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require."
13. It was further contended that the alleged vote, which is alien in the Law of Succession Act, or the citation proceedings taken out by the 1 st and 2nd Objectors could not oust the express provisions of the law in so far as obtaining express consent to making of grant of Letters of administration from all beneficiaries is concerned and ensuring that the persons contemplated under section 66 of the Law of Succession Act are given priority during the appointment of administrators. The 1 st and 2nd Objectors are therefore justified in objecting to a grant of letters of administration being issued in favour of the Petitioners who have bypassed the provisions of the law. Reliance was placed in the case of
Nanzala v Mulunda (Succession Appeal 1 of 2021) 120231 KEHC 2829 (KLR ) where the Court held as follows:
"The question that follows, is whether, upon being granted leave by the court to apply, the respondent was obliged to comply with the requirements of the Law of Succession Act and the Probate and Administration Rules, governing applications for representation. The answer to that is in the positive. The grant of leave to apply for representation, upon issuance of a citation, does not override the law on the process to be followed in applying for representation to an estate. The Citor, upon being granted that leave, has to comply with the requirements of section 51 of the Law of Succession Act and the rules in the Probate and Administration Rules relevant to petitions for representation. One such Rule is7 (7), and the other is Rule 26...
...The deceased had 11 children, being 5 sons and 6 daughters, going by the Chief's letter. All the 11 had a right to administer the estate of their late father. That would mean that if only 1 of them sought representation, he had to comply with Rule 26, by notifying the other 10 of his petition, and providing evidence of the same, by way of renunciation, consent or affidavit. I have very closely scoured and perused through the filed papers from the trial court, and I have not come across any renunciation of right to apply for representation by the other 10 children, nor consents by them, allowing the petitioner to go ahead despite them also being entitled to petition. I have also not seen an affidavit, in compliance with Rule 26(2), explaining the absence of the renunciations or consents under Form 38 or 39, by the other 10 children of the deceased. Rule 26 is in mandatory terms. The failure to comply with it is a defect in the process. "
14. It was also submitted that insofar as there is an appeal before the Court of Appeal over the decision made in the Objection to making of a grant dated 1/9/2023, there is no law which has been cited that bars this court from handling the 1 st and 2nd Objectors. That objection to the making of a grant because there is a Notice of Appeal lodged to the Court of Appeal over a ruling delivered in the matter in respect of the Notice of Objection to the Making of Grant dated 1/9/2023 should not be an issue since section 47 of the Law of Succession Act gives this Court a wide latitude 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. In any event, all what the 1 st and 2nd Objectors have done is to exercise their right as provided under section 67(1) as read together with section 68 of the Law of Succession Act by filing the instant Notice of Objection. That it should be noted that no previous notice had been published in the Kenya Gazette over the estate as contemplated under section 67 of the Law of Succession Act inviting an objection and as such the objection is properly within the law and ought to be considered by this court to ensure that the petition presented represents the entire estate of the deceased and the administrators appointed have the best interest for the deceased's estate. Further, it was pointed out that the first safeguard put in place is contained under section 66 of the Law of Succession Act so that at that initial stage the court is provided with a golden opportunity to ensure that the best suited party is appointed as an administrator and after the beneficiaries have had their say on whether they indeed consent to the applicants being appointed as administrators because at the end of the day it is the beneficiaries who are the main stakeholders in the probate and administration process and if there is doubt as to whether the applicants petitioning for grant of letters of administration are best suited to take up that role then the court cannot shut its eyes just because along the way the law had provided additional safeguards and thus it must start at the inception because sometimes it may be impossible to undo the damage done if a rogue person ends up mismanaging the estate.
15. It was submitted that the Court has been presented with evidence to show that the Petitioners should not be entrusted with administering the estate and shutting its eyes to this glaring misgivings on the Petitioners' suitability as the Petitioners never wanted to take out letters of administration and the 1 st and 2nd Objectors having moved the court in Eldoret were perceived as the Petitioners' enemies for moving the court and by virtue of being women the Petitioners position was that they have no right over administration of their late father's estate and therefore cannot be appointed administrators hence the resistance against the 1 st and 2 nd Objectors request to be administrators
16. It was further submitted that the Petition as presented and/or filed is incomplete and does not represent the full inventory of the estate of the deceased. This court was urged to take note of the fact that it was an admitted fact during the oral testimony given by the 2nd Petitioner, Joram Omondi, that indeed some of the deceased's property had been left out. It was submitted that to date, despite this confession having been made including his admission that he was in possession of motor vehicle registration number KAH 261 T which belongs to the deceased and which he "forgot" to list in the schedule of assets little has been done by the Petitioners to date to review the list of assets they presented to court and include all the properties that the 1 st Objector had highlighted during the objection proceedings and the reason is simple: the Petitioners simply want to keep the properties to themselves without the court putting them to account with the sole selfish intention of disinheriting the Objectors of their rightful inheritance. Hence, with this state of affairs, the 1 st and 2nd Objectors are justified in objecting to the making of the grant in favour of the Petitioners and that they should not keep quiet and wait to file an affidavit of protest at the confirmation stage as proposed by the Petitioners.
Reliance was placed in section 51 (2) (h) of the Law of Succession Act, cap 160, Laws of Kenya which mandates an applicant to make a full inventory of all the assets and liabilities of the deceased and that indeed contemplates that at the time of applying for letters of administration all the known assets of the deceased should be set out in the petition so that the beneficiaries are all kept in the know as well as the court so that at the time of distribution of the estate, the Court is fully equipped to make an informed decision should parties fail to agree and to ensure that the deceased's estate is not hidden and/or kept away from distribution and /or is not wasted by failure to bring all the assets on board. It was submitted that no contrary legal provision has been cited that permits and /or allows a petitioner for grant of letters of administration to deliberately fail to list part of the estate in the list of assets and that in fact, section 52 of the Law of Succession Act criminalizes such acts /omissions.
17. It was submitted that the fact that the Petitioners are hell bent on proceeding with the succession cause despite all the deceased's assets not being brought on board is a clear red flag particularly when one looks at the role of a legal representative which is fiduciary in nature and which requires the person tasked with that role to be transparent and accountable in administering the estate. That it is on account of these actions that the 1 st and 2nd Objectors seek that the court declines to grant the Petitioners the grant of letters of administration because if at this early stage the Petitioners cannot be entrusted to even give a full inventory of the assets, then what more can they do when the power of being administrators is bestowed unto them?
18. As regards the third ground of objection, it was submitted that the 3rd and 4th Petitioners have no capacity to administer the estate of the deceased without taking out letters of administration for their late father's estate. That by virtue of section 66 of the Law of Succession Act, the 3rd and 4th Petitioners rank lower than the 1 st and 2nd Objectors in so far as who is to be considered for appointment as administrator is concerned. That because the 3rd and 4th Petitioners are grandchildren to the deceased and that they are not legal representatives of the their late father's estate as no letters of administration had been taken out to give them authority to agitate any claim on behalf of the deceased' estate, it follows that they have absolutely no capacity to be appointed as administrators to the estate that is subject of these proceedings.
19. As regards the fourth ground of objection, it was submitted that the Petitioners have had selfish engagements in the estate without full disclosure to all beneficiaries of the activities hence the need to have the Objectors included in the administration to oversee the management and/or estate activities. That it is the 1 st and 2nd Objectors' position that the grant should not be issued to the Petitioners as they have been dealing adversely with the deceased's property by opening separate accounts where they have diverted funds that form part of the deceased's estate, selling some of the deceased's properties, using the deceased's land in Chemelil and deliberately leaving out a huge chunk of the deceased's properties from the schedule of assets.
20. It was submitted that the 1 st and 2nd Objectors' claims that the Petitioners have deliberately been mismanaging the estate and by extension intermeddled with it have not in any way been denied and/ or controverted and even when the 2nd Petitioner testified he stayed clear of the accusations meaning he had nothing to say because that was and is the truth. That in fact the 1 st and 2 nd Objectors contention that some of the deceased's assets were not listed in the schedule of assets by the Petitioners was confirmed during the hearing when the 2nd Petitioner, Joram Ochieng confirmed that he indeed kept motor vehicle registration number KAH 261 T which was acquired by the deceased for himself and was using it and which was not listed as part of the assets to be administered. That he also confirmed that the deceased owned motor vehicle registration number KAW 342 and many others, which were not included in the schedule of assets in the Petition for grant of letters of administration. He further conceded to the fact that the deceased purchased many motor vehicles and properties which may have not been included in the Petition.
21. It was contended that whereas this was an issue that was pointed out to the Petitioners in the 1 st and 2 nd Objectors' advocates letter dated 26/7/2023 contained at pages 50 of the replying affidavit by the 2 nd Petitioner, the concerns raised by the Objectors were ignored with the Petitioners arguing that the issue of deliberating on the assets owned by the deceased was not important at the stage of applying for a grant of letters of administration but should await confirmation stage. It was submitted that the same is against the law under section 51 of the Act which mandates an applicant to make a full inventory of all the assets and liabilities of the deceased.
22. Further, it was contended that at the confirmation stage the court will only be dealing with the assets listed in the schedule of assets. That it therefore does not make any sense for the Petitioners to argue that the issue of a comprehensive list of assets should be shelved until the confirmation stage because it is expected that by the time the matter reaches confirmation stage all the properties of the deceased ought to have been brought on board That in light of the Petitioners' admission that some of the deceased's assets were left out and in view of their failure to discharge the obligation placed upon them under section 51 (2) (h)of the Law of Succession Act cap 160, Laws of Kenya to give a full inventory of all the deceased's assets, it goes without saying that the Objection is merited as the Petition cannot be allowed to proceed in the state it is in now which is contrary to the law as stated. Reliance was placed on the case of In re Estate of Joseph Mapesa Nakuku (Deceased) 120191 eKLR where the Court held as follows:
"Succession law is about distribution of the property of a dead person. Indeed, the whole process is about the property. A person who does not leave behind any property is said to have no estate, and there would be no basis for conducting succession proceeding’s to his estate for there would be nothing to distribute. That being the case, it is critical that the person seeking representation should disclose all the assets that the deceased died possessed of, for that is what constitutes the estate of the deceased. From the material on record, it would appear that the deceased died possessed of several assets, but two are certain, Butsotso/lngotse/569 and 1110. The administrator disclosed only one in his petition and in his application for confirmation of his grant,
Butsotso/Ingotse/1110. It transpired that that was the only property that he was interested in. He knew that Butsotso/Ingotse/556 was also estate property, going by his witness statement filed herein on 14th November 2016. Yet, he left out this property in his schedule of the assets of the estate, even though he had petitioned for representation to the estate of the deceased. His approach was selfish and reeked of self-centeredness.
The framework for applications for grants of representation is set out in section 51 of the Law of Succession Act. The most relevant portions are in subsection (2)(g)(h), which state as follows:
"Application for Grant
51. (1) every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner.
(2) Every application shall include information as to— (a) the full names of the deceased; (b) the date and place of his death;
(c) his last known place of residence;
(d) the relationship (if any) of the applicant to the deceased;
(e) whether or not the deceased left a valid will;
(f) the present addresses of any
[...truncated]
i) That the Objectors have a right to participate in the administration and management of the estate of the deceased hence the need to appoint two (2) of the Objectors to be administrators of the estate of the deceased.
ii) That the Petition as presented and/or filed is incomplete and does not represent the full inventory of the estate of the deceased.
iii) That the 3 rd and 4 th Petitioners have no capacity and/or legal capacity to administer the estate of Richard Ochieng Olwenge who is their grandfather and without them obtaining capacity by taking out letters of administration in their late father’s estate.
iv) That the Petitioners have had selfish engagement in the estate without full disclosure to all beneficiaries of the activities hence the need to have the Objectors in the administration of the estate to oversight the management and/or estate activities. They further accused the Petitioners of the following misdeeds:
a) Opened separate accounts where they divert money from the estate without consulting, obtaining consent and/or authority of all family members.
b) They sold estate properties and pocketed the cash for their private/personal use i.e., scrap metal.
c) Have deliberately left out of the list of assets a lion's portion of the estate so as to disinherit the Objectors.
d) They have used estate property for their own interest, i.e., 10 acres of land in Chemelil.
e) They are running the estate affairs without regard to the Objectors’ interest and/or to the exclusion of the Objectors.
2. The 2 nd Petitioner filed a replying affidavit dated 12/8/2025 on behalf of the Petitioners wherein he averred inter alia; that the grounds of objection raised herein are the same ones that had been raised in their Notice of Objection to making of grant dated 1/9/2023; that the previous Notice of Objection to making of grant aforesaid was canvassed by way of viva voce evidence leading to this court’s ruling dated 9/5/2025 in which it dismissed the notice of objection and directed the Petitioners to proceed to apply for grant of letters of administration; that this court further directed that the Petitioners upon issuance of grant of letters of administration were to file summons for confirmation of grant and also present a statement of accounts over the affairs of the estate of the deceased; that the Objectors herein filed a Notice of Appeal to the Court of Appeal over the said ruling; that the 3 rd and 4 th Objectors later accepted to let the Petitioners proceed and obtain letters of grant of administration as earlier agreed by the majority of the family members; that the Objectors herein later filed an application for stay of proceedings vide an application dated 15/5/2025 which was dismissed by this court on 4/6/2025; that the 1 st and 2 nd Objectors later moved to the Court of Appeal vide an application dated 17/6/2025 seeking for orders of stay of proceedings and an order for injunction pending determination of the intended appeal; that the 1 st and Objectors are now abusing the court process by seeking to have another objection hearing yet the same had been heard and still seek to proceed with their appeal at the Court of Appeal; that the Petitioners would wish to adopt their earlier replying affidavit sworn on 17/11/2023 in opposition to the Objectors Notice of Objection; that the 1 st and 2 nd Objectors do not stand to suffer any prejudice since all administrators are bound by fidelity and to render accounts as directed by the court; that the fact of non-inclusion of certain assets does not defeat the intended grant of letters of administration as the beneficiaries are at liberty to present evidence of those assets and that during confirmation the issue of the assets will be addressed; that it was the Objectors herein who had cited the four Petitioners vide Eldoret High Court Citation Number E015 of 20223; that the four Petitioners were selected through a family voting; that the objection herein is causing delay as the Petitioners cannot file summons for confirmation of grant which delay will affect all the beneficiaries of the estate of the deceased; that the objection is ripe for dismissal.
3. The 1 st Objector filed a supplementary affidavit sworn on 29/8/2025 wherein she averred inter alia; that the mere fact that a similar objection had been raised does not deny the Objectors from relying on a legal provision to pursue their interest in the estate as they are legitimate children of the deceased; that the existence of an appeal in the superior court does not bar the Objectors from contesting proceedings herein as there are no orders of stay of proceedings herein; that they have responded to the move by the Petitioners to obtain grant in line with the legal provisions under the Law of Succession Act; that the persons proposed to take out letters of grant are not best suited as they have wasted the estate and ought to be scrutinized by this court at this stage to avoid wastage of the estate; that the Petitioners agree with the Objectors that the Law of Succession Act places strict requirements on the Petitioners to obtain the consent from the beneficiaries; that the Law of Succession Act (Rule 26(1) and (20 of the Probate and Administration Rules does not contemplate that an election be conducted to select administrators for an estate; that the Objectors filed the citation proceedings at Eldoret High Court to compel the Petitioners to take out letters of grant as there was wastage and mismanagement of the estate; that the Objectors herein had made known to the Petitioners that they wished to be made administrators of the estate; that the Petitioners have left out of the list of assets several properties which comprise of 14 parcels of land, flats, farm house, several plots both in Eldoret and Siaya townships and 32 motor vehicles; that the action of leaving out the said properties by the Petitioners is meant to benefit themselves in total violation of the provisions of section 51 of the Act; that the Petitioners will run amok if the Objectors are not brought on board to check them for the benefit of all beneficiaries; that the Petitioners are under obligation to list all the assets of the deceased before seeking for the grant; that the Notice of Objection to making of grant should be allowed under section 47 and 66 of the Act as well as Rule 73 of the Probate and Administration Rules and that this court decline to grant letters of grant to the Petitioners but order that the Objectors herein be brought on board as administrators to ensure inclusivity, transparency and accountability at all times; that the succession proceedings should not be made to take an adversarial direction but that the objection herein should be seen in positive light; that this court should note that the Petitioners have taken a position that is not legal and sound and thus should proceed to set the record straight by granting the instant objection.
4. The Notice of Objection to the making of a grant dated 23/6/2025 was canvassed by way of written submissions
5. Vide submissions dated 18/2/2026, learned counsel for the 1 st and 2nd Objectors, gave a history of the Objection and submitted that the two objectors are daughters of the deceased, Richard Ochieng Olwenge and who have moved the court vide an Objection to Making of Grant dated 23/6/2025 objecting to making of a grant of representation to the Petitioners herein on grounds inter alia; that the Objectors have a right to participate in the administration and management of the estate hence the need to appoint them as administrators of the deceased' estate; that the Petition as presented and/or filed is incomplete and does not represent the full inventory of the estate of the deceased; that the 3rd and 4th Petitioners have no capacity to administer the estate of the deceased without taking out letters of administration for their late father's estate; that the Petitioners have had selfish engagements in the estate without full disclosure to all beneficiaries of the activities hence the need to have the Objectors in the administration to oversee the management and/or estate activities.
6. It was submitted that the 1st and 2nd Objectors had earlier filed a Notice of Objection to Making of a Grant dated 1/9/2023 which objection was dismissed vide this court's ruling of 9/5/2023 and that the court then appointed the Petitioners as administrators and directed that the cause be gazetted in the usual manner to pave way for issuance of a grant of letters of administration. That the cause was indeed gazetted vide Gazette Notice No. 6764 dated 19/5/2025 inviting objections to the issuance of a grant to the Petitioners to be entered within 30 days from the date of publication and given that the publication was done on 26/5/2025, the 1st and 2nd Objectors filed their objection on 25/6/2025.
7. Learned counsel submitted that the main issue for determination is whether the Objection raised has any merit.
8. It was submitted that the objection has merit because section 67 and 68 of the Law of Succession Act cap 160, Laws of Kenya empowers a party who objects to the application for grant of letters administration to file an objection which objection shall thereafter be considered by the Court in line with section 69 of the Law of Succession Act, cap 160, Laws of Kenya that empowers the Court to interrogate an application for grant of letters of administration where an objection has been raised by virtue of Section 67, 68 and 69 of the Law of Succession Act, cap 160, Laws of Kenya and which power can be exercised even where no objection is raised by virtue of section 70 of the Law of Succession Act, for instance. section 70 (2) of the Law of Succession Act which empowers the court to " call for further evidence as to the due execution or contents of the will or some other will, the making of an oral will, the rights of dependants and of persons claiming interests on intestacy, or any other matter which appears to require further investigation before a grant is made. The 1 st and 2nd Objectors therefore have raised several grounds why a grant of letters of Administration should not be issued in favour of the Petitioners.
9. The first ground relied upon is that the 1st and 2nd Objectors have a right to participate in the administration of the deceased's estate and to be appointed as administrators. It was submitted that this right stems from the provisions of Section 66 of the Law of Succession Act which is very clear that in exercising its discretion the court should 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
It was submitted that in the instant case, Part V of the Law of Succession Act places the order of preference on the children of the deceased where the deceased is survived by a child but no spouse (see section 38 of the Law of Succession Act). It thus follows that the 1 st and 2 nd Objectors being children of the deceased, have equal rights with the rest of their siblings to be appointed as administrators of his estate.
11. It was pointed out that the Petitioners have not denied that the 1 st and 2nd Objectors are children of the deceased. They have also not disputed the fact that the 3rd and 4 th Petitioners are not children of the deceased. All they have stated is that it does not matter who among the deceased's beneficiaries is appointed as an administrator and further deponed at paragraph 11 (d) of their replying affidavit that the Law of Succession Act places strict requirements on them as Petitioners to obtain consent of the other beneficiaries having priority to take out letters of administration, such as the 1 st and 2nd Objectors, before any grant of letters of administration is issued. However, despite claiming not to have any issue with the 1 st and 2 nd Objectors being appointed as administrators they opted to rubbish the 1 st and 2nd Objectors' advocates' letter dated 26/7/2023 in which the 1 st and 2nd Objectors made it clear before the Petition for letter of administration was filed that they wanted to be administrators of the estate of the deceased as per annexure marked JAO 1 of the supplementary affidavit.
12. It was contended that the reason for not considering the 1 st and 2nd Objectors request to be appointed as administrators was that there was an alleged election of who was to be appointed as an administrator in which the Petitioners purportedly emerged winners. They also claimed that since the court in Eldoret High Court Citation Case No. E015 of 2023 they had been ordered to take out letters of administration the issue of any other party claiming to be appointed as administrator could not arise. It was further contended that the Petitioners have further argued that the 1 st and 2nd Objectors had lodged appeals to the Court of Appeal challenging this court's decision on Objection to the Making of a Grant dated 1/9/2023 and therefore it would be an abuse of the court process for the court to entertain the instant objection and further that they have alleged that there are structures put in place to safeguard the 1 st and 2 nd Objectors interest within the Law of Succession Act hence they need not be made administrators. It was submitted that section 66 of the Law of Succession Act gives the 1 st and 2nd Objectors a right to be appointed as administrators and where such right is not exercised there ought to be an express consent executed by them as contemplated under Rule 26 (1) and (2) the Probate and Administration Rules confirming that they do not desire to be appointed as administrators. The said Rule 26 (1) and (2) the Probate and Administration Rules is explicit that:
(1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.
(2) An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require."
13. It was further contended that the alleged vote, which is alien in the Law of Succession Act, or the citation proceedings taken out by the 1 st and 2nd Objectors could not oust the express provisions of the law in so far as obtaining express consent to making of grant of Letters of administration from all beneficiaries is concerned and ensuring that the persons contemplated under section 66 of the Law of Succession Act are given priority during the appointment of administrators. The 1 st and 2nd Objectors are therefore justified in objecting to a grant of letters of administration being issued in favour of the Petitioners who have bypassed the provisions of the law. Reliance was placed in the case of
Nanzala v Mulunda (Succession Appeal 1 of 2021) 120231 KEHC 2829 (KLR ) where the Court held as follows:
"The question that follows, is whether, upon being granted leave by the court to apply, the respondent was obliged to comply with the requirements of the Law of Succession Act and the Probate and Administration Rules, governing applications for representation. The answer to that is in the positive. The grant of leave to apply for representation, upon issuance of a citation, does not override the law on the process to be followed in applying for representation to an estate. The Citor, upon being granted that leave, has to comply with the requirements of section 51 of the Law of Succession Act and the rules in the Probate and Administration Rules relevant to petitions for representation. One such Rule is7 (7), and the other is Rule 26...
...The deceased had 11 children, being 5 sons and 6 daughters, going by the Chief's letter. All the 11 had a right to administer the estate of their late father. That would mean that if only 1 of them sought representation, he had to comply with Rule 26, by notifying the other 10 of his petition, and providing evidence of the same, by way of renunciation, consent or affidavit. I have very closely scoured and perused through the filed papers from the trial court, and I have not come across any renunciation of right to apply for representation by the other 10 children, nor consents by them, allowing the petitioner to go ahead despite them also being entitled to petition. I have also not seen an affidavit, in compliance with Rule 26(2), explaining the absence of the renunciations or consents under Form 38 or 39, by the other 10 children of the deceased. Rule 26 is in mandatory terms. The failure to comply with it is a defect in the process. "
14. It was also submitted that insofar as there is an appeal before the Court of Appeal over the decision made in the Objection to making of a grant dated 1/9/2023, there is no law which has been cited that bars this court from handling the 1 st and 2nd Objectors. That objection to the making of a grant because there is a Notice of Appeal lodged to the Court of Appeal over a ruling delivered in the matter in respect of the Notice of Objection to the Making of Grant dated 1/9/2023 should not be an issue since section 47 of the Law of Succession Act gives this Court a wide latitude 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. In any event, all what the 1 st and 2nd Objectors have done is to exercise their right as provided under section 67(1) as read together with section 68 of the Law of Succession Act by filing the instant Notice of Objection. That it should be noted that no previous notice had been published in the Kenya Gazette over the estate as contemplated under section 67 of the Law of Succession Act inviting an objection and as such the objection is properly within the law and ought to be considered by this court to ensure that the petition presented represents the entire estate of the deceased and the administrators appointed have the best interest for the deceased's estate. Further, it was pointed out that the first safeguard put in place is contained under section 66 of the Law of Succession Act so that at that initial stage the court is provided with a golden opportunity to ensure that the best suited party is appointed as an administrator and after the beneficiaries have had their say on whether they indeed consent to the applicants being appointed as administrators because at the end of the day it is the beneficiaries who are the main stakeholders in the probate and administration process and if there is doubt as to whether the applicants petitioning for grant of letters of administration are best suited to take up that role then the court cannot shut its eyes just because along the way the law had provided additional safeguards and thus it must start at the inception because sometimes it may be impossible to undo the damage done if a rogue person ends up mismanaging the estate.
15. It was submitted that the Court has been presented with evidence to show that the Petitioners should not be entrusted with administering the estate and shutting its eyes to this glaring misgivings on the Petitioners' suitability as the Petitioners never wanted to take out letters of administration and the 1 st and 2nd Objectors having moved the court in Eldoret were perceived as the Petitioners' enemies for moving the court and by virtue of being women the Petitioners position was that they have no right over administration of their late father's estate and therefore cannot be appointed administrators hence the resistance against the 1 st and 2 nd Objectors request to be administrators
16. It was further submitted that the Petition as presented and/or filed is incomplete and does not represent the full inventory of the estate of the deceased. This court was urged to take note of the fact that it was an admitted fact during the oral testimony given by the 2nd Petitioner, Joram Omondi, that indeed some of the deceased's property had been left out. It was submitted that to date, despite this confession having been made including his admission that he was in possession of motor vehicle registration number KAH 261 T which belongs to the deceased and which he "forgot" to list in the schedule of assets little has been done by the Petitioners to date to review the list of assets they presented to court and include all the properties that the 1 st Objector had highlighted during the objection proceedings and the reason is simple: the Petitioners simply want to keep the properties to themselves without the court putting them to account with the sole selfish intention of disinheriting the Objectors of their rightful inheritance. Hence, with this state of affairs, the 1 st and 2nd Objectors are justified in objecting to the making of the grant in favour of the Petitioners and that they should not keep quiet and wait to file an affidavit of protest at the confirmation stage as proposed by the Petitioners.
Reliance was placed in section 51 (2) (h) of the Law of Succession Act, cap 160, Laws of Kenya which mandates an applicant to make a full inventory of all the assets and liabilities of the deceased and that indeed contemplates that at the time of applying for letters of administration all the known assets of the deceased should be set out in the petition so that the beneficiaries are all kept in the know as well as the court so that at the time of distribution of the estate, the Court is fully equipped to make an informed decision should parties fail to agree and to ensure that the deceased's estate is not hidden and/or kept away from distribution and /or is not wasted by failure to bring all the assets on board. It was submitted that no contrary legal provision has been cited that permits and /or allows a petitioner for grant of letters of administration to deliberately fail to list part of the estate in the list of assets and that in fact, section 52 of the Law of Succession Act criminalizes such acts /omissions.
17. It was submitted that the fact that the Petitioners are hell bent on proceeding with the succession cause despite all the deceased's assets not being brought on board is a clear red flag particularly when one looks at the role of a legal representative which is fiduciary in nature and which requires the person tasked with that role to be transparent and accountable in administering the estate. That it is on account of these actions that the 1 st and 2nd Objectors seek that the court declines to grant the Petitioners the grant of letters of administration because if at this early stage the Petitioners cannot be entrusted to even give a full inventory of the assets, then what more can they do when the power of being administrators is bestowed unto them?
18. As regards the third ground of objection, it was submitted that the 3rd and 4th Petitioners have no capacity to administer the estate of the deceased without taking out letters of administration for their late father's estate. That by virtue of section 66 of the Law of Succession Act, the 3rd and 4th Petitioners rank lower than the 1 st and 2nd Objectors in so far as who is to be considered for appointment as administrator is concerned. That because the 3rd and 4th Petitioners are grandchildren to the deceased and that they are not legal representatives of the their late father's estate as no letters of administration had been taken out to give them authority to agitate any claim on behalf of the deceased' estate, it follows that they have absolutely no capacity to be appointed as administrators to the estate that is subject of these proceedings.
19. As regards the fourth ground of objection, it was submitted that the Petitioners have had selfish engagements in the estate without full disclosure to all beneficiaries of the activities hence the need to have the Objectors included in the administration to oversee the management and/or estate activities. That it is the 1 st and 2nd Objectors' position that the grant should not be issued to the Petitioners as they have been dealing adversely with the deceased's property by opening separate accounts where they have diverted funds that form part of the deceased's estate, selling some of the deceased's properties, using the deceased's land in Chemelil and deliberately leaving out a huge chunk of the deceased's properties from the schedule of assets.
20. It was submitted that the 1 st and 2nd Objectors' claims that the Petitioners have deliberately been mismanaging the estate and by extension intermeddled with it have not in any way been denied and/ or controverted and even when the 2nd Petitioner testified he stayed clear of the accusations meaning he had nothing to say because that was and is the truth. That in fact the 1 st and 2 nd Objectors contention that some of the deceased's assets were not listed in the schedule of assets by the Petitioners was confirmed during the hearing when the 2nd Petitioner, Joram Ochieng confirmed that he indeed kept motor vehicle registration number KAH 261 T which was acquired by the deceased for himself and was using it and which was not listed as part of the assets to be administered. That he also confirmed that the deceased owned motor vehicle registration number KAW 342 and many others, which were not included in the schedule of assets in the Petition for grant of letters of administration. He further conceded to the fact that the deceased purchased many motor vehicles and properties which may have not been included in the Petition.
21. It was contended that whereas this was an issue that was pointed out to the Petitioners in the 1 st and 2 nd Objectors' advocates letter dated 26/7/2023 contained at pages 50 of the replying affidavit by the 2 nd Petitioner, the concerns raised by the Objectors were ignored with the Petitioners arguing that the issue of deliberating on the assets owned by the deceased was not important at the stage of applying for a grant of letters of administration but should await confirmation stage. It was submitted that the same is against the law under section 51 of the Act which mandates an applicant to make a full inventory of all the assets and liabilities of the deceased.
22. Further, it was contended that at the confirmation stage the court will only be dealing with the assets listed in the schedule of assets. That it therefore does not make any sense for the Petitioners to argue that the issue of a comprehensive list of assets should be shelved until the confirmation stage because it is expected that by the time the matter reaches confirmation stage all the properties of the deceased ought to have been brought on board That in light of the Petitioners' admission that some of the deceased's assets were left out and in view of their failure to discharge the obligation placed upon them under section 51 (2) (h)of the Law of Succession Act cap 160, Laws of Kenya to give a full inventory of all the deceased's assets, it goes without saying that the Objection is merited as the Petition cannot be allowed to proceed in the state it is in now which is contrary to the law as stated. Reliance was placed on the case of In re Estate of Joseph Mapesa Nakuku (Deceased) 120191 eKLR where the Court held as follows:
"Succession law is about distribution of the property of a dead person. Indeed, the whole process is about the property. A person who does not leave behind any property is said to have no estate, and there would be no basis for conducting succession proceeding’s to his estate for there would be nothing to distribute. That being the case, it is critical that the person seeking representation should disclose all the assets that the deceased died possessed of, for that is what constitutes the estate of the deceased. From the material on record, it would appear that the deceased died possessed of several assets, but two are certain, Butsotso/lngotse/569 and 1110. The administrator disclosed only one in his petition and in his application for confirmation of his grant,
Butsotso/Ingotse/1110. It transpired that that was the only property that he was interested in. He knew that Butsotso/Ingotse/556 was also estate property, going by his witness statement filed herein on 14th November 2016. Yet, he left out this property in his schedule of the assets of the estate, even though he had petitioned for representation to the estate of the deceased. His approach was selfish and reeked of self-centeredness.
The framework for applications for grants of representation is set out in section 51 of the Law of Succession Act. The most relevant portions are in subsection (2)(g)(h), which state as follows:
"Application for Grant
51. (1) every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner.
(2) Every application shall include information as to— (a) the full names of the deceased; (b) the date and place of his death;
(c) his last known place of residence;
(d) the relationship (if any) of the applicant to the deceased;
(e) whether or not the deceased left a valid will;
(f) the present addresses of any
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