1. Tahir Sheikh Said, a Mombasa business magnate popularly referred to as “TSS”, died on 10th January 2017. At the time of his demise, he had executed a will dated 12th June 2012, in which he appointed the Citees as the executors. Notwithstanding the time that has lapsed, no petition for the grant of probate of his will has been filed. The executors' failure to petition for probate of the will of the said deceased person has led the Citor to file the instant citation, seeking to compel the executors to either petition for the grant of representation, refuse to do so formally, or show cause why the grant should not issue to him.
2. The application is opposed. Osman Tahir Sheikh Said, in a deposition made on 24th November 2025, while admitting that they (executors) had not petitioned for the grant of probate, impugned the suitability of the Citor. He averred that the Citor was a troublemaker for having previously filed an originating summons, which this Court struck out, for taking over and exclusively using a property identified as Title No Kwale/Tiwi Beach Block/90, and for engaging in fraud in respect of Title No Kwale/Diani Complex/471. Osman averred that Citor was sued in respect of the 2 properties. He averred that Jamal was therefore not a person who could be entrusted with the management of the deceased's estate.
3. It was urged that the obligations of the executors took effect from the date of death of the deceased, and it was, on that basis, that they had defended the estate in various suits, which he averred were too many for him to enumerate in a replying affidavit.
4. He denied that the estate was being wasted or mismanaged. Whereas he admitted that 2 properties had been sold, he averred that if any other properties had been sold, that was pursuant to the exercise by banks of statutory power of sale, which would have occurred despite their valiant defence. Osman stated that the executors would file a petition for the grant of probate once the status of the estate was ascertained and also after a consensus had been reached between family members “to avoid dissensions in the family.”
5. The citation was canvassed by way of written submissions. The Citor’s submission is dated 13th January 2026. It was urged that, under Rule 23(1) read with Rule 73 of the Probate & Administration Rules, this Court had jurisdiction to issue the necessary orders. Counsel for the Citor stated that 9 years had elapsed since the deceased's death, a period he considered unreasonable. In his view, the citation was intended to trigger the filing of the petition for the grant of probate. He accused the administrators of failing to apply for probate without undue delay, of neglecting to preserve and administer the estate for the benefit of all beneficiaries, of failing to render accounts, of failing to act transparently, and of failing to protect the estate. He stated that the estate was in disarray. He therefore prayed that, if the citees couldn’t administer the estate, he be allowed to petition for a grant of letters of administration with will annexed, and that he be awarded costs.
6. In the submissions dated 8th January 2026, the Citee counsel submitted that the citation ought to be dismissed. He identified issues for determination as being:
1. Whether the citees should be compelled to immediately petition for a grant of probate; and
2. Whether the Citor should be allowed a petition for the grant in any event.
7. Regarding the first question, it was urged that the executors may perform most of the acts pertaining to their office before probate of the will is granted. That being so, the estate wasn’t worse off for failure to petition for a grant of probate. Secondly, the status of the properties was unascertainable until it was determined if they were lawfully charged; there was doubt as to what properties constituted the estate of the deceased. Counsel relied on the case of In re Estate of George Kung'u Wainaina (Deceased) [2023] KEHC 21928 (KLR), where it was held that:
“It is this court's considered view that the Citation herein is premature, being that the suit at the ELC court is still pending, where the ownership of the suit properties ought to be determined. The probate court herein cannot proceed with distribution of the deceased’s assets that have not been ascertained, as it lacks the requisite jurisdiction to deal with issues touching on ownership of property.”
8. Counsel submitted that there was near unanimity in the family that the petition for the grant of probate should not be filed at this point to avoid dissension. Regarding the capacity of the Citor, it was urged that he wasn’t a suitable person to be appointed as an administrator.
9. I have considered the Citation, the response thereto, the submissions of the parties and the applicable law. I agree with counsel for the Citees that the office of an executor takes effect immediately upon the deceased person's death. I am guided by the decision of the Court in the case of Osman Tahir Sheikh Said & 2 others v Bank of Africa Limited [2019] KEHC 2038 (KLR), where the Court stated as follows:
“The plaintiff in the instant case has attached a copy of the will of the late Tahir Sheikh Said, drawn by Messrs. Aboo &Company, advocates, and altered on 12th June, 2012. And paragraph 9 of the said will reads:
“I appoint my children (1) Osman Tahir Sheikh Said (son), (2) Amina Tahir Sheikh Said (Daughter), and (3) Said Ahmed Tahir Sheikh Said (son) to be the joint executors and Trustees of this my will.”
From the foregoing, it is my considered view that as the appointed executors in the deceased’s will, the plaintiffs can commence any proceedings in their capacities as administrators pending the grant of probate.”
10. The foregoing notwithstanding, I note that the deceased died in 2017. 9 years have lapsed since then. In my view, such a period is inordinate, even when the particular estate's circumstances are considered. The executors have had ample time to prepare an inventory of the deceased's assets and liabilities and to identify those that are the subject of litigation. In my view, without probate proceedings, the beneficiaries have no way of establishing whether the estate is being well-managed or whether the executors are acting in good faith. The lack of probate proceedings indefinitely delays the devolution of the estate and prejudices the beneficiaries.
11. The prejudice is quite evident. The Citees say that the Citor has intermeddled with 2 properties. It is unlikely that such an action, if true, would have occurred if the probate proceedings had commenced. In any case, without probate of the will, the dependants have no way to ensure that the executors act in an accountable and transparent manner for their benefit.
12. In the circumstances, I am of the view that the application has merit. I order and direct that the executors file and serve a petition for the grant of probate of the deceased's written will within 90 days of the date hereof. In default, the Citor shall be at liberty to petition for the grant of letters of administration with the written will annexed.
13. Each of the parties shall bear their own costs.
14. It is so ordered.
Dated and signed in Nairobi, this 20th day of April 2026. Delivered virtually through Microsoft TEAMS.
2. The application is opposed. Osman Tahir Sheikh Said, in a deposition made on 24th November 2025, while admitting that they (executors) had not petitioned for the grant of probate, impugned the suitability of the Citor. He averred that the Citor was a troublemaker for having previously filed an originating summons, which this Court struck out, for taking over and exclusively using a property identified as Title No Kwale/Tiwi Beach Block/90, and for engaging in fraud in respect of Title No Kwale/Diani Complex/471. Osman averred that Citor was sued in respect of the 2 properties. He averred that Jamal was therefore not a person who could be entrusted with the management of the deceased's estate.
3. It was urged that the obligations of the executors took effect from the date of death of the deceased, and it was, on that basis, that they had defended the estate in various suits, which he averred were too many for him to enumerate in a replying affidavit.
4. He denied that the estate was being wasted or mismanaged. Whereas he admitted that 2 properties had been sold, he averred that if any other properties had been sold, that was pursuant to the exercise by banks of statutory power of sale, which would have occurred despite their valiant defence. Osman stated that the executors would file a petition for the grant of probate once the status of the estate was ascertained and also after a consensus had been reached between family members “to avoid dissensions in the family.”
5. The citation was canvassed by way of written submissions. The Citor’s submission is dated 13th January 2026. It was urged that, under Rule 23(1) read with Rule 73 of the Probate & Administration Rules, this Court had jurisdiction to issue the necessary orders. Counsel for the Citor stated that 9 years had elapsed since the deceased's death, a period he considered unreasonable. In his view, the citation was intended to trigger the filing of the petition for the grant of probate. He accused the administrators of failing to apply for probate without undue delay, of neglecting to preserve and administer the estate for the benefit of all beneficiaries, of failing to render accounts, of failing to act transparently, and of failing to protect the estate. He stated that the estate was in disarray. He therefore prayed that, if the citees couldn’t administer the estate, he be allowed to petition for a grant of letters of administration with will annexed, and that he be awarded costs.
6. In the submissions dated 8th January 2026, the Citee counsel submitted that the citation ought to be dismissed. He identified issues for determination as being:
1. Whether the citees should be compelled to immediately petition for a grant of probate; and
2. Whether the Citor should be allowed a petition for the grant in any event.
7. Regarding the first question, it was urged that the executors may perform most of the acts pertaining to their office before probate of the will is granted. That being so, the estate wasn’t worse off for failure to petition for a grant of probate. Secondly, the status of the properties was unascertainable until it was determined if they were lawfully charged; there was doubt as to what properties constituted the estate of the deceased. Counsel relied on the case of In re Estate of George Kung'u Wainaina (Deceased) [2023] KEHC 21928 (KLR), where it was held that:
“It is this court's considered view that the Citation herein is premature, being that the suit at the ELC court is still pending, where the ownership of the suit properties ought to be determined. The probate court herein cannot proceed with distribution of the deceased’s assets that have not been ascertained, as it lacks the requisite jurisdiction to deal with issues touching on ownership of property.”
8. Counsel submitted that there was near unanimity in the family that the petition for the grant of probate should not be filed at this point to avoid dissension. Regarding the capacity of the Citor, it was urged that he wasn’t a suitable person to be appointed as an administrator.
9. I have considered the Citation, the response thereto, the submissions of the parties and the applicable law. I agree with counsel for the Citees that the office of an executor takes effect immediately upon the deceased person's death. I am guided by the decision of the Court in the case of Osman Tahir Sheikh Said & 2 others v Bank of Africa Limited [2019] KEHC 2038 (KLR), where the Court stated as follows:
“The plaintiff in the instant case has attached a copy of the will of the late Tahir Sheikh Said, drawn by Messrs. Aboo &Company, advocates, and altered on 12th June, 2012. And paragraph 9 of the said will reads:
“I appoint my children (1) Osman Tahir Sheikh Said (son), (2) Amina Tahir Sheikh Said (Daughter), and (3) Said Ahmed Tahir Sheikh Said (son) to be the joint executors and Trustees of this my will.”
From the foregoing, it is my considered view that as the appointed executors in the deceased’s will, the plaintiffs can commence any proceedings in their capacities as administrators pending the grant of probate.”
10. The foregoing notwithstanding, I note that the deceased died in 2017. 9 years have lapsed since then. In my view, such a period is inordinate, even when the particular estate's circumstances are considered. The executors have had ample time to prepare an inventory of the deceased's assets and liabilities and to identify those that are the subject of litigation. In my view, without probate proceedings, the beneficiaries have no way of establishing whether the estate is being well-managed or whether the executors are acting in good faith. The lack of probate proceedings indefinitely delays the devolution of the estate and prejudices the beneficiaries.
11. The prejudice is quite evident. The Citees say that the Citor has intermeddled with 2 properties. It is unlikely that such an action, if true, would have occurred if the probate proceedings had commenced. In any case, without probate of the will, the dependants have no way to ensure that the executors act in an accountable and transparent manner for their benefit.
12. In the circumstances, I am of the view that the application has merit. I order and direct that the executors file and serve a petition for the grant of probate of the deceased's written will within 90 days of the date hereof. In default, the Citor shall be at liberty to petition for the grant of letters of administration with the written will annexed.
13. Each of the parties shall bear their own costs.
14. It is so ordered.
Dated and signed in Nairobi, this 20th day of April 2026. Delivered virtually through Microsoft TEAMS.