1. Erka Anyango Oganda, who I shall hereafter refer to as “the Protestor”, filed the instant petition for the grant of letters of administration intestate of the estate of the deceased on 14th October 2022. In the affidavit in support of the petition, she identified 20 beneficiaries of the deceased (including herself, 5 of whom are deceased) and stated that the deceased owned the following properties:-
(1) Title No Mombasa/Block X/291;
(2) Title No Kisumu/Eat Karachuonyo/Rambira/1570; and
(3) Title No Kisumu/East Karachuonyo/Rambira/1582.
The Petitioner estimated the said properties a be worth a total of Kes.150,000,000.00
2. In the said affidavit in support of the petition, the Protestor did not list any liability(ies) on the part of the deceased and noted that he had “nil” liabilities.
3. The petition was supported by a letter written by the Chief of Frere Town Location, Mombasa, dated 10th May 2022, Mr. Talib Abbas Dola, which corroborated the names of the beneficiaries as given in the said affidavit of the Protestor.
4. When the petition was gazette, Ruth Ariana Oganda and George Oreje Peter Oganda took out an objection on the ground that “the interest of the said objectors is in the entire estate, as the said objectors have been left out of the Petition as the Co-Administrators despite a consent entered into by the entire estate in the presence of the Area Chief and the County Commission at Mombasa and that the schedule of the deceased’s asset therein is in inaccurate/incorrect.”
5. Following a consent entered into by the parties on 25th January 2023, a grant was issued on 24th February 2023 vide which Erka Anyango Oganda and George Oreje Peter Oganda were appointed as the Co-administrators.
6. Vide Summons dated 16th July 2023, the 1st Administrator/Protestor sought to have the 2nd Administrator/Applicant removed as an administrator of the estate of the deceased. After hearing the parties, the Court dismissed the application. In paragraph 49 of the ruling, this Court stated as follows:-
“in the interest of justice and so that the matter is conducted without further delay, the administrators are hereby directed to file Summons for Confirmation of Grant within 90 days of the date hereof.”
7. It is clear that there was no cooperation between the administrators. The foregoing may be explained by the fact that the Protestor was never comfortable with joint administration. As the widow of the deceased, the Protestor sees herself as having a higher rank or interest in the estate greater than that of the Applicant.
8. Vide Summons dated 7th June 2024, purportedly in compliance with this Court’s orders, the 2nd Administrator/Applicant sought to have the grant issued to him and the Protector confirmed. The Applicant identified 21 beneficiaries (both living and deceased) and listed the properties forming the estate as being:-
1. Title No Mombasa/Block X/291 together with developments thereon whose value he gave as being Kes.150,000,000.00;
2. 60% share in Boagan Hotel Ltd;
3. Title No. East Karachuonyo/Karabondi/Plot No 1591;
4. Title No East Karachuonyo/Karabondi Plot No 1570;
5. Costs of Kes.1,300,000.00 awarded to the deceased in Supreme Court Petition No 4 of 2017;
6. Kes.1,338,755.60 held in a joint account in KCB Bank account number 1287199321; and
7. House in Khadija Estate, House No 23.
9. The 2nd Administrator/Applicant proposed a mode of distribution which members of the 1st family agreed to by appending their signatures. None of the members of the 2nd family consented to the proposal.
10. The 1st Administrator/Protestor filed an affidavit of protest sworn on the 4th day of October 2024. She, on her part, identified 15 beneficiaries of the estate (by excluding the 5 deceased beneficiaries she had listed on the affidavit in support of the petition for letters of administration intestate).
11. The Protestor averred that the estate of the deceased owed the firm of Amuga & Co. Advocates Kes.6,000,000.00 for legal services rendered. Further, she stated that she was owed maintenance, which had not been remitted since 2022, while the 2nd administrator had not accounted for the income of the business operating on Title No Mombasa/Block X/291.
12. She objected to the proposed mode of distribution on the grounds that:-
1. Title No Mombasa/Block X/291 could not be transferred to a company but ought to be distributed or shared among the deceased’s beneficiaries;
2. Kes.1,398,140.00 was no longer available as it belonged to the lawyer who represented the deceased;
3. The house No 23 on Khadija Estate did not belong to the estate but was rented from the Mombasa County Government; and
4. She disavowed the company known as Boagan Hotel Ltd as an outfit created by George Oganda to plunder the deceased’s estate.
13. For the reasons stated, she urged that the matter was not ripe for confirmation of grant as the deceased's net estate had yet to be collected and ascertained.
14. She accused the Co administrator of not cooperating with her to administer the estate.
15. The Summons for Confirmation of Grant and the Protest were canvassed by way of Written Submissions, which were highlighted on 13th November 2024. I shall refer to the parties' written submissions below.
16. The written submissions of the 2nd Administrator/Applicant are dated 7th November 2024. The Applicant’s counsel submitted that the application was filed in compliance with the Court orders of 7th March 2024.
17. Learned counsel for the Applicant averred that costs of Kes.1,298,140.00 were awarded by the Supreme Court to the deceased in respect of Petition No 4 of 2017; Coast Professional Freighters Ltd vs Welsa Bange Oganda Ayoo & 3 others as party and party costs. The said sum was received by the firm of Amuga & Co. Advocates. In the learned’s counsel’s view, the sum was an asset of the estate and thus available for distribution.
18. It was urged that prior to filing the Summon for Confirmation of Grant, the Applicant sought the concurrence of the 2nd house but that their overture attracted no response. Upon failing to get a response, the Applicant filed the instant application.
19. Counsel submitted that the only issue pending in this matter was whether the confirmation of grant should be issued. It was urged that there was no reason not to as all the debts had been paid, and nothing was outstanding. Regarding the debt allegedly owed to Amuga & Co. Advocates, it was submitted that the same was not a just debt payable by the estate as it had not been proven or justified. Justification of the said debt could only be done by way of taxation.
20. The Applicant’s counsel submitted that the costs of Kes.1,398,140.00 belonged to the estate. Regarding income in respect of the Mombasa property, it was urged that Kes.1,338,955.60 was held in the Joint account in the names of Applicant and one John Oganda while further sums were in a joint account in the names of the parties’ advocate.
21. The Applicant's counsel submitted that the role of the Court was to distribute the estate of the deceased to the beneficiaries.
22. Relying on the following cases Florence Makena vs John Maruri M’Ibere & others [2017]eKLR, re Estate of Gideon Manthi Nzioka (deceased) [2015]KEHC 944 (KLR), Wangari Mburu vs Mary Wairimu Kamau [2017] KEHC 9779 (KLR), re Estate of Kamau Njoroge (deceased) [2023] KEHC 24940 (KLR) and re Estate of Thoma Mwirichia (deceased) [2019]KEHC 8561(KLR) the Applicant’s counsel urged that I should dismiss the Protest and confirm the grant.
23. The Protestor filed two sets of submissions. The first was filed on 4th November 2024. In the submissions, it was urged that the 1st Administrator/Protestor was aware that the deceased’s estate owed money, which should be paid off before the grant could be confirmed. In particular, she referred to the debts allegedly owed to the firm of Amuga & Co. Advocates. It was further submitted that land rates were owed in respect of Title No. Mombasa/Block X/291. The identity and number of beneficiaries was also disputed.
24. Counsel for the Protestor referred to section 83 (d) of the Law of Succession Act and averred that the duty of an administrator was to ascertain and pay out of the estate of the deceased, all its debts and that under section 83(e) the administrators were required “… to produce to the Court a full and accurate inventory of the asset and liabilities of the deceased.”
25. Counsel for the Protestor urged the Court to be guided by the decision of Musyoka, J in re Estate if Mukhobi Namonya (deceased) [2020]eKLR in support of the proposition that confirmation of grant could not be done before all the liabilities of the estate had been paid/settled.
26. Mr Amuga denied that the costs of Kes.1,300,000.00 ascertained by the Registrar of the Supreme Court as belonging to the deceased did not belong to the estate. Similarly, counsel submitted that the house in Khadija Estate did not belong to the deceased either.
27. The Supplementary submissions of the Protestor was dated 11th November 2024. The Protestor’s counsel urged that the Applicant did not file an affidavit in response to the protest. By dint of the said action, it was submitted that the Applicant thereby admitted to what was deposed therein. Regarding costs paid to Amuga & Co. Advocates, it was urged that the retainer was never denied. Counsel denied that it was necessary for him to tax the bill of costs, arguing that his entitlement to the fees had not been disputed.
28. It was further submitted that ownership of house No 23, Khadija Estate, ought to be determined, and the accounts for income collected by the 2nd Administrator/Applicant from the business operated on Title No Mombasa/Block X/291 needed to be ascertained.
29. The Court was referred to the decisions of the Court in re Estate of Sanaga Okonda (deceased) [2020]eKLR, re Estate of Makakha Kasabuli (deceased) [2019]eKLR, re Estate of Amanya Namwiba (deceased) [2020]eKLR and re Estate of David Kyulli Kaindi (deceased) [2016]eKLR.
30. Regarding the authorities relied upon by the applicant it was urged that they are irrelevant to the matter in contention in this cause.
31. For the foregoing reasons, Mr Amuga urged that the application before the Court was premature. Counsel submitted that the liabilities of the estate ought to be ascertained and settled first before the grant could be confirmed.
32. I have considered the application, the affidavit of protest and the written and oral submissions of the parties. I must now determine if the protest has merit and whether the summons for confirmation of the grant should be confirmed.
33. Section 72 (1) and (2) of the Law of Succession Act provides that:-
“(1) After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.
(2) Subject to subsection (2A), the court to which application is made, or to which any dispute in respect thereof is referred, may-
(a) if it is satisfied that the grant was rightly made to the applicant, and that he is administering, and will administer, the estate according to law, confirm the grant; or
(b) if it is not so satisfied, issue to some other person or persons, in accordance with the provisions of sections 56 to 66 inclusive, a confirmed grant of letters of administration in respect of the estate, or so much thereof as may be unadministered; or
(c) order the applicant to deliver or transfer to the holder of a confirmed grant from any other court all assets of the estate then in his hands or under his control; or
(d) postpone confirmation of the grant for such period or periods, pending issue of further citations or otherwise, as may seem necessary in all the circumstances of the case:
Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed the grant shall specify all such persons and their respective shares.”
34. It is evident from the foregoing that the Court may when a Summons for Confirmation of grant is filed, confirm the grant, issue a confirmed grant to another person who is entitled, order the applicant to deliver up an asset to the holder of a confirmed grant or postpone the confirmation of the grant.
35. The proviso to section 71(2) of the said Act states clearly that a grant may not be confirmed until all persons entitled to the estate have been identified and their shares determined.
36. The Court notes that the Petition in this case was filed unilaterally by the 1st Administrator/Protestor. There are disputes as to the identities of the beneficiaries. The Protestor asserts that there were only 15 beneficiaries, while the Applicant has a different number of beneficiaries. It is also clear that the parties have not agreed on what assets form the estate not determined what, if any, liabilities are attached to it.
37. It may not be possible to determine each beneficiary's entitlement to the estate until all the beneficiaries have been identified. Even after the beneficiaries have been ascertained, the estate, the subject to distribution is that which is left after all liabilities have been paid. Therefore, the debts owing, if any, must be identified and settled, or arrangements must be made for their settlement.
38. Although the Protestor argues that there are only 15 beneficiaries, this needs to be determined. The deceased issues of the decedent herein may have had their own children who would be entitled to take their parents' inheritance. I note that with respect to the issue of beneficiaries, the Protestor hasn’t been quite forthright, as evidenced by the contents of her affidavit in support of the Petition. The same is not in full agreement with the contents of the affidavit of protest.
39. The foregoing is also evident in respect of the liabilities of the deceased, where she appears to be approbating and reprobating the liabilities of the estate.
40. Having said so, I note that ascertainment of liabilities of the deceased may not be wished away. This issue may not be wished away. It will be necessary to establish if:-
1. The firm of Amuga & Co. Advocates is owed money, and if so, what amount?
2. Whether house No 23 in Khadija Estate belongs to the deceased?
3. Whether the assets listed in the affidavit in support of the petition belong to the estate?
41. In my view, it will only be possible to confirm the grant once the issues above have been resolved.
42. I therefore agree with the decision of Muyoka J inIn re Estate of Sananga Okonda (Deceased) [2020] KEHC 4054 (KLR) wherein the learned Judge said as follows:-
“ With respect to the assets of the estate, which should be considered to be available for distribution, the court, in In Re Estate of Stephen Nzau Koka (Deceased) [2019] eKLR, said:
“45. It is important to determine which properties belong to the deceased estate. The issue for determination here is the distribution of the estate of the deceased. According to section 3 of the Act “estate” means “the free property of a deceased person” while “free property” “free property”, in relation to a deceased person, means “the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death.” It is therefore clear that the only property that forms part of the estate of the deceased is that property which the deceased herein was legally competent to dispose of during his lifetime and in which by that time his interests had not been terminated.
46. Therefore, as held in Mpatinga Ole Kamuye vs. Meliyo Tipango & 2 Others (2017) eKLR:
“…before distribution of the estate of the deceased under Section 71 of the Law of Succession Act Cap 160; the Court must satisfy itself that the beneficiaries of the estate are the legitimate beneficiaries of the estate; that there are assets that comprise of the deceased's estate and are available for distribution after settling all liabilities and having the net estate for distribution.”
47. Section 24(a) of the Land Registration Act provides that the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto. Section 26(1) of the same Act on the other hand provides that the certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge save for the exceptions provided thereunder.”
43. I have perused the Court file. I haven’t seen documents of title in respect of the purported assets of the deceased. I am, therefore, unable to tell whether the various assets said to belong to the deceased are, on the face of it, his.
44. Although this Court has the duty to distribute the estate, it won't do so until the conditions are right. At the same time, it won't shirk its responsibilities by feigning helplessness.
45. Flowing from the foregoing, and as the parties have not agreed on the extent of the estate and who the beneficiaries are, it would not be in the interest of justice to confirm the grant at this point.
46. I, therefore, find and hold that it is necessary to establish if the following properties belong to the estate before the grant is confirmed
1. Title No Kisumu/East Karachuonyo/Rambira/1591;
2. Title No Kisumu/East Karachuonyo/Rambira/1570;
3. Title No Kisumu/East Karachuonyo/Rambira/1582;
4. 60% share in Boagan Hotel Ltd; and
5. Costs awarded to the deceased in the cause before the Supreme Court and the Courts below.
47. In a similar vein it is necessary to establish what the liabilities of the estate are. In particular:-
1. whether the estate owes the firm of Amuga & Co. Advocates any money for legal services rendered to the deceased or the estate; and
2. Land rent or rates in respect of Title No Mombasa/Block X/291.
48. I do not agree with the submissions of Mr Amuga that he needs not to tax his bills since he submitted his fee notes. I need to be satisfied that he delivered services to the deceased or his estate and that the fees payable pursuant to those instructions have been established either through consent or by way of taxation. Without consent or taxation of costs, the Court cannot hold that the estate owes the said counsel any money. I am not at all comfortable with the fact that Mr Amuga, who filed the Petition and is also the beneficiary of the alleged debt, did not include the said debt in the affidavit in support of the Petition. The explanation given for this is with respect, nothing but weasel words.
49. I further find and hold that the identities of the beneficiaries must also be ascertained. If the deceased heirs had issues, those issues have the right to a share of the estate and must be listed as such. To fail to do so would be unjust.
50. To enable the speedy conclusion of the matter, I order that:-
1. Searches of Titles Number E.KARACHUONYO / KARABONDI PLOT NO 1591, E. KARACHUONYO / KARABONDI PLOT NO 1570, E. KARACHUONYO / KARABONDI PLOT NO 1582, Kisumu/East Karachuonyo/Rambira/1591, Kisumu/East Karachuonyo/Rambira/1570 and Kisumu/East Karachuonyo/Rambira/1582 be filed within 60 days of the date hereof
2. Form CR12 in respect of Boagan Hotel Ltd be filed within 60 days of the date hereof;
3. The firm of Amuga & Co. Advocates to tax their bills and file certificates of costs within 60 days of the date hereof; and
4. Counsels of the parties to file land rent and or land rates demand notes regarding Title No. Mombasa/Block X/291 within 60 days of the date hereof.
51. Section 71 of the Law of Succession Act gives this Court the jurisdiction to postpone the confirmation of grant. It is clear that the administrators still have work to do before the grant can be confirmed. For this reason, the application dated 7th June 2024 is stood over to a date in future for reconsideration after the parties have complied with the above directions.
52. In the circumstances I order that the Summons for Confirmation of Grant dated 7th June 2024 be mentioned on 26th March 2025 for further directions.
53. As this is a family matter I make no orders as to costs.
54. Orders accordingly.
Dated and signed at Mombasa this 14th day of January 2025. Delivered virtually via Microsoft TEAMS.
(1) Title No Mombasa/Block X/291;
(2) Title No Kisumu/Eat Karachuonyo/Rambira/1570; and
(3) Title No Kisumu/East Karachuonyo/Rambira/1582.
The Petitioner estimated the said properties a be worth a total of Kes.150,000,000.00
2. In the said affidavit in support of the petition, the Protestor did not list any liability(ies) on the part of the deceased and noted that he had “nil” liabilities.
3. The petition was supported by a letter written by the Chief of Frere Town Location, Mombasa, dated 10th May 2022, Mr. Talib Abbas Dola, which corroborated the names of the beneficiaries as given in the said affidavit of the Protestor.
4. When the petition was gazette, Ruth Ariana Oganda and George Oreje Peter Oganda took out an objection on the ground that “the interest of the said objectors is in the entire estate, as the said objectors have been left out of the Petition as the Co-Administrators despite a consent entered into by the entire estate in the presence of the Area Chief and the County Commission at Mombasa and that the schedule of the deceased’s asset therein is in inaccurate/incorrect.”
5. Following a consent entered into by the parties on 25th January 2023, a grant was issued on 24th February 2023 vide which Erka Anyango Oganda and George Oreje Peter Oganda were appointed as the Co-administrators.
6. Vide Summons dated 16th July 2023, the 1st Administrator/Protestor sought to have the 2nd Administrator/Applicant removed as an administrator of the estate of the deceased. After hearing the parties, the Court dismissed the application. In paragraph 49 of the ruling, this Court stated as follows:-
“in the interest of justice and so that the matter is conducted without further delay, the administrators are hereby directed to file Summons for Confirmation of Grant within 90 days of the date hereof.”
7. It is clear that there was no cooperation between the administrators. The foregoing may be explained by the fact that the Protestor was never comfortable with joint administration. As the widow of the deceased, the Protestor sees herself as having a higher rank or interest in the estate greater than that of the Applicant.
8. Vide Summons dated 7th June 2024, purportedly in compliance with this Court’s orders, the 2nd Administrator/Applicant sought to have the grant issued to him and the Protector confirmed. The Applicant identified 21 beneficiaries (both living and deceased) and listed the properties forming the estate as being:-
1. Title No Mombasa/Block X/291 together with developments thereon whose value he gave as being Kes.150,000,000.00;
2. 60% share in Boagan Hotel Ltd;
3. Title No. East Karachuonyo/Karabondi/Plot No 1591;
4. Title No East Karachuonyo/Karabondi Plot No 1570;
5. Costs of Kes.1,300,000.00 awarded to the deceased in Supreme Court Petition No 4 of 2017;
6. Kes.1,338,755.60 held in a joint account in KCB Bank account number 1287199321; and
7. House in Khadija Estate, House No 23.
9. The 2nd Administrator/Applicant proposed a mode of distribution which members of the 1st family agreed to by appending their signatures. None of the members of the 2nd family consented to the proposal.
10. The 1st Administrator/Protestor filed an affidavit of protest sworn on the 4th day of October 2024. She, on her part, identified 15 beneficiaries of the estate (by excluding the 5 deceased beneficiaries she had listed on the affidavit in support of the petition for letters of administration intestate).
11. The Protestor averred that the estate of the deceased owed the firm of Amuga & Co. Advocates Kes.6,000,000.00 for legal services rendered. Further, she stated that she was owed maintenance, which had not been remitted since 2022, while the 2nd administrator had not accounted for the income of the business operating on Title No Mombasa/Block X/291.
12. She objected to the proposed mode of distribution on the grounds that:-
1. Title No Mombasa/Block X/291 could not be transferred to a company but ought to be distributed or shared among the deceased’s beneficiaries;
2. Kes.1,398,140.00 was no longer available as it belonged to the lawyer who represented the deceased;
3. The house No 23 on Khadija Estate did not belong to the estate but was rented from the Mombasa County Government; and
4. She disavowed the company known as Boagan Hotel Ltd as an outfit created by George Oganda to plunder the deceased’s estate.
13. For the reasons stated, she urged that the matter was not ripe for confirmation of grant as the deceased's net estate had yet to be collected and ascertained.
14. She accused the Co administrator of not cooperating with her to administer the estate.
15. The Summons for Confirmation of Grant and the Protest were canvassed by way of Written Submissions, which were highlighted on 13th November 2024. I shall refer to the parties' written submissions below.
16. The written submissions of the 2nd Administrator/Applicant are dated 7th November 2024. The Applicant’s counsel submitted that the application was filed in compliance with the Court orders of 7th March 2024.
17. Learned counsel for the Applicant averred that costs of Kes.1,298,140.00 were awarded by the Supreme Court to the deceased in respect of Petition No 4 of 2017; Coast Professional Freighters Ltd vs Welsa Bange Oganda Ayoo & 3 others as party and party costs. The said sum was received by the firm of Amuga & Co. Advocates. In the learned’s counsel’s view, the sum was an asset of the estate and thus available for distribution.
18. It was urged that prior to filing the Summon for Confirmation of Grant, the Applicant sought the concurrence of the 2nd house but that their overture attracted no response. Upon failing to get a response, the Applicant filed the instant application.
19. Counsel submitted that the only issue pending in this matter was whether the confirmation of grant should be issued. It was urged that there was no reason not to as all the debts had been paid, and nothing was outstanding. Regarding the debt allegedly owed to Amuga & Co. Advocates, it was submitted that the same was not a just debt payable by the estate as it had not been proven or justified. Justification of the said debt could only be done by way of taxation.
20. The Applicant’s counsel submitted that the costs of Kes.1,398,140.00 belonged to the estate. Regarding income in respect of the Mombasa property, it was urged that Kes.1,338,955.60 was held in the Joint account in the names of Applicant and one John Oganda while further sums were in a joint account in the names of the parties’ advocate.
21. The Applicant's counsel submitted that the role of the Court was to distribute the estate of the deceased to the beneficiaries.
22. Relying on the following cases Florence Makena vs John Maruri M’Ibere & others [2017]eKLR, re Estate of Gideon Manthi Nzioka (deceased) [2015]KEHC 944 (KLR), Wangari Mburu vs Mary Wairimu Kamau [2017] KEHC 9779 (KLR), re Estate of Kamau Njoroge (deceased) [2023] KEHC 24940 (KLR) and re Estate of Thoma Mwirichia (deceased) [2019]KEHC 8561(KLR) the Applicant’s counsel urged that I should dismiss the Protest and confirm the grant.
23. The Protestor filed two sets of submissions. The first was filed on 4th November 2024. In the submissions, it was urged that the 1st Administrator/Protestor was aware that the deceased’s estate owed money, which should be paid off before the grant could be confirmed. In particular, she referred to the debts allegedly owed to the firm of Amuga & Co. Advocates. It was further submitted that land rates were owed in respect of Title No. Mombasa/Block X/291. The identity and number of beneficiaries was also disputed.
24. Counsel for the Protestor referred to section 83 (d) of the Law of Succession Act and averred that the duty of an administrator was to ascertain and pay out of the estate of the deceased, all its debts and that under section 83(e) the administrators were required “… to produce to the Court a full and accurate inventory of the asset and liabilities of the deceased.”
25. Counsel for the Protestor urged the Court to be guided by the decision of Musyoka, J in re Estate if Mukhobi Namonya (deceased) [2020]eKLR in support of the proposition that confirmation of grant could not be done before all the liabilities of the estate had been paid/settled.
26. Mr Amuga denied that the costs of Kes.1,300,000.00 ascertained by the Registrar of the Supreme Court as belonging to the deceased did not belong to the estate. Similarly, counsel submitted that the house in Khadija Estate did not belong to the deceased either.
27. The Supplementary submissions of the Protestor was dated 11th November 2024. The Protestor’s counsel urged that the Applicant did not file an affidavit in response to the protest. By dint of the said action, it was submitted that the Applicant thereby admitted to what was deposed therein. Regarding costs paid to Amuga & Co. Advocates, it was urged that the retainer was never denied. Counsel denied that it was necessary for him to tax the bill of costs, arguing that his entitlement to the fees had not been disputed.
28. It was further submitted that ownership of house No 23, Khadija Estate, ought to be determined, and the accounts for income collected by the 2nd Administrator/Applicant from the business operated on Title No Mombasa/Block X/291 needed to be ascertained.
29. The Court was referred to the decisions of the Court in re Estate of Sanaga Okonda (deceased) [2020]eKLR, re Estate of Makakha Kasabuli (deceased) [2019]eKLR, re Estate of Amanya Namwiba (deceased) [2020]eKLR and re Estate of David Kyulli Kaindi (deceased) [2016]eKLR.
30. Regarding the authorities relied upon by the applicant it was urged that they are irrelevant to the matter in contention in this cause.
31. For the foregoing reasons, Mr Amuga urged that the application before the Court was premature. Counsel submitted that the liabilities of the estate ought to be ascertained and settled first before the grant could be confirmed.
32. I have considered the application, the affidavit of protest and the written and oral submissions of the parties. I must now determine if the protest has merit and whether the summons for confirmation of the grant should be confirmed.
33. Section 72 (1) and (2) of the Law of Succession Act provides that:-
“(1) After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.
(2) Subject to subsection (2A), the court to which application is made, or to which any dispute in respect thereof is referred, may-
(a) if it is satisfied that the grant was rightly made to the applicant, and that he is administering, and will administer, the estate according to law, confirm the grant; or
(b) if it is not so satisfied, issue to some other person or persons, in accordance with the provisions of sections 56 to 66 inclusive, a confirmed grant of letters of administration in respect of the estate, or so much thereof as may be unadministered; or
(c) order the applicant to deliver or transfer to the holder of a confirmed grant from any other court all assets of the estate then in his hands or under his control; or
(d) postpone confirmation of the grant for such period or periods, pending issue of further citations or otherwise, as may seem necessary in all the circumstances of the case:
Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed the grant shall specify all such persons and their respective shares.”
34. It is evident from the foregoing that the Court may when a Summons for Confirmation of grant is filed, confirm the grant, issue a confirmed grant to another person who is entitled, order the applicant to deliver up an asset to the holder of a confirmed grant or postpone the confirmation of the grant.
35. The proviso to section 71(2) of the said Act states clearly that a grant may not be confirmed until all persons entitled to the estate have been identified and their shares determined.
36. The Court notes that the Petition in this case was filed unilaterally by the 1st Administrator/Protestor. There are disputes as to the identities of the beneficiaries. The Protestor asserts that there were only 15 beneficiaries, while the Applicant has a different number of beneficiaries. It is also clear that the parties have not agreed on what assets form the estate not determined what, if any, liabilities are attached to it.
37. It may not be possible to determine each beneficiary's entitlement to the estate until all the beneficiaries have been identified. Even after the beneficiaries have been ascertained, the estate, the subject to distribution is that which is left after all liabilities have been paid. Therefore, the debts owing, if any, must be identified and settled, or arrangements must be made for their settlement.
38. Although the Protestor argues that there are only 15 beneficiaries, this needs to be determined. The deceased issues of the decedent herein may have had their own children who would be entitled to take their parents' inheritance. I note that with respect to the issue of beneficiaries, the Protestor hasn’t been quite forthright, as evidenced by the contents of her affidavit in support of the Petition. The same is not in full agreement with the contents of the affidavit of protest.
39. The foregoing is also evident in respect of the liabilities of the deceased, where she appears to be approbating and reprobating the liabilities of the estate.
40. Having said so, I note that ascertainment of liabilities of the deceased may not be wished away. This issue may not be wished away. It will be necessary to establish if:-
1. The firm of Amuga & Co. Advocates is owed money, and if so, what amount?
2. Whether house No 23 in Khadija Estate belongs to the deceased?
3. Whether the assets listed in the affidavit in support of the petition belong to the estate?
41. In my view, it will only be possible to confirm the grant once the issues above have been resolved.
42. I therefore agree with the decision of Muyoka J inIn re Estate of Sananga Okonda (Deceased) [2020] KEHC 4054 (KLR) wherein the learned Judge said as follows:-
“ With respect to the assets of the estate, which should be considered to be available for distribution, the court, in In Re Estate of Stephen Nzau Koka (Deceased) [2019] eKLR, said:
“45. It is important to determine which properties belong to the deceased estate. The issue for determination here is the distribution of the estate of the deceased. According to section 3 of the Act “estate” means “the free property of a deceased person” while “free property” “free property”, in relation to a deceased person, means “the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death.” It is therefore clear that the only property that forms part of the estate of the deceased is that property which the deceased herein was legally competent to dispose of during his lifetime and in which by that time his interests had not been terminated.
46. Therefore, as held in Mpatinga Ole Kamuye vs. Meliyo Tipango & 2 Others (2017) eKLR:
“…before distribution of the estate of the deceased under Section 71 of the Law of Succession Act Cap 160; the Court must satisfy itself that the beneficiaries of the estate are the legitimate beneficiaries of the estate; that there are assets that comprise of the deceased's estate and are available for distribution after settling all liabilities and having the net estate for distribution.”
47. Section 24(a) of the Land Registration Act provides that the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto. Section 26(1) of the same Act on the other hand provides that the certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge save for the exceptions provided thereunder.”
43. I have perused the Court file. I haven’t seen documents of title in respect of the purported assets of the deceased. I am, therefore, unable to tell whether the various assets said to belong to the deceased are, on the face of it, his.
44. Although this Court has the duty to distribute the estate, it won't do so until the conditions are right. At the same time, it won't shirk its responsibilities by feigning helplessness.
45. Flowing from the foregoing, and as the parties have not agreed on the extent of the estate and who the beneficiaries are, it would not be in the interest of justice to confirm the grant at this point.
46. I, therefore, find and hold that it is necessary to establish if the following properties belong to the estate before the grant is confirmed
1. Title No Kisumu/East Karachuonyo/Rambira/1591;
2. Title No Kisumu/East Karachuonyo/Rambira/1570;
3. Title No Kisumu/East Karachuonyo/Rambira/1582;
4. 60% share in Boagan Hotel Ltd; and
5. Costs awarded to the deceased in the cause before the Supreme Court and the Courts below.
47. In a similar vein it is necessary to establish what the liabilities of the estate are. In particular:-
1. whether the estate owes the firm of Amuga & Co. Advocates any money for legal services rendered to the deceased or the estate; and
2. Land rent or rates in respect of Title No Mombasa/Block X/291.
48. I do not agree with the submissions of Mr Amuga that he needs not to tax his bills since he submitted his fee notes. I need to be satisfied that he delivered services to the deceased or his estate and that the fees payable pursuant to those instructions have been established either through consent or by way of taxation. Without consent or taxation of costs, the Court cannot hold that the estate owes the said counsel any money. I am not at all comfortable with the fact that Mr Amuga, who filed the Petition and is also the beneficiary of the alleged debt, did not include the said debt in the affidavit in support of the Petition. The explanation given for this is with respect, nothing but weasel words.
49. I further find and hold that the identities of the beneficiaries must also be ascertained. If the deceased heirs had issues, those issues have the right to a share of the estate and must be listed as such. To fail to do so would be unjust.
50. To enable the speedy conclusion of the matter, I order that:-
1. Searches of Titles Number E.KARACHUONYO / KARABONDI PLOT NO 1591, E. KARACHUONYO / KARABONDI PLOT NO 1570, E. KARACHUONYO / KARABONDI PLOT NO 1582, Kisumu/East Karachuonyo/Rambira/1591, Kisumu/East Karachuonyo/Rambira/1570 and Kisumu/East Karachuonyo/Rambira/1582 be filed within 60 days of the date hereof
2. Form CR12 in respect of Boagan Hotel Ltd be filed within 60 days of the date hereof;
3. The firm of Amuga & Co. Advocates to tax their bills and file certificates of costs within 60 days of the date hereof; and
4. Counsels of the parties to file land rent and or land rates demand notes regarding Title No. Mombasa/Block X/291 within 60 days of the date hereof.
51. Section 71 of the Law of Succession Act gives this Court the jurisdiction to postpone the confirmation of grant. It is clear that the administrators still have work to do before the grant can be confirmed. For this reason, the application dated 7th June 2024 is stood over to a date in future for reconsideration after the parties have complied with the above directions.
52. In the circumstances I order that the Summons for Confirmation of Grant dated 7th June 2024 be mentioned on 26th March 2025 for further directions.
53. As this is a family matter I make no orders as to costs.
54. Orders accordingly.
Dated and signed at Mombasa this 14th day of January 2025. Delivered virtually via Microsoft TEAMS.