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and Divorce Act (Cap 150 Laws of Kenya). She came to learn that her brother-in-law had filed the succession cause in the Sub-ordinate court without disclosing that she is the wife of deceased who serviced him and thereby disinheriting her. 3. The summons was considered and an order revoking the said grant was issued on 4/6/2019 by this court (R.K. Limo J), all transactions related to the said grant were reversed and Joyceline Kagendo and Muchui Miriti were appointed as the administratrix and administrator respectively. They were given liberty to move the court for the confirmation of grant before the expiry of the statutory period of six months. The administrators moved the court with summons for confirmation of grant on 1/2/2020 which has been opposed with a cross-petition. The Petition by way of Cross-Application for a grant 4. The Interested party Didacious Muriithi Kiraithe filed an answer to petition dated 3/7/2020 contending that the summons for confirmation of grant should dismissed as the administrator and the administratrix had full knowledge that he had purchased land parcel No. L.R Muthambi/Upper Kiramba/1759 from the deceased who had however not executed the transfer before his demise. 5. The respondent further filed a petition by way of cross-application of grant. This is based on the ground that he is a creditor in the estate of the deceased having purchased the land Parcel No. L.R No. Muthambi/Upper Karimba/1759 which is part of the estate of the deceased as he died before he executed the transfer. He relies on Section 66 of the Law of Succession Act and urges the court to grant him the letters of administration intestate to the estate. 6. The respondent had filed a statement dated 25/1/2024 but vide a notice dated 29/6/2021 he applied to withdraw that statement and filed a statement of Sabastian Mbabu as his witness statement. The said Sabastian Mbabu stated that he is the one who had agreed with the deceased to purchase 20 points out of Land Parcel No. Muthambi/Upper Karimba/1759 but agreed with the respondent that he would enter the sale agreement on his behalf. The purchase price was Kshs. 170,000/=, he paid a total of Kshs. 110,000/= but the deceased died before the title deed was issued. The deceased sub-divided the land and he (the witness) was to get parcel No. Muthambi/Upper/1790. That he further paid the deceased Kshs. 60,000/= in kind. That the administrator was aware of the transaction. 7. The respondent further filed affidavit sworn by Riungu Ndege in support of his case that the deceased had sold the land to the respondent but died before executing a transfer. 8. The administratrix filed a witness statement. Her contention as that she is the lawful wife of the late Onesmus Miriti and had two issues of the marriage. They had been married under the customs since 1999 and solemnized the marriage in 2010. She stated that the respondent had approached the deceased with an intention buying land from him but she objected. The deceased became violent and she left the matrimonial home. There after pursued the deceased on his death bed to sign documents while he was sick in hospital on 8/3/2013 and he passed away the next day. Thereafter the respondent and her brother-in-law filed succession behind her back. 9. In her affidavit sworn on 1/7/2020 she depones that the deceased was survived by her self and two children and there are no other dependants and there is no provision for other dependants. Her proposal is that land Parcel No. Muthambi/Upper Karimba/1791 be distributed to her and Muthambi/Upper Karimba/1791 be distributed to Daniel Ndege Mwiti and Emmanuel Muchui Mwiti jointly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19445/eng@2025-10-14 2

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10. The court gave directions that summons be heard by way of viva voce evidence in court. The interested party relied on his statement and the sale agreement dated 3/9/(sic). The applicant relies on her affidavit in support of the summons and the witness statement. Hearing 11. PW1 was Didacious Muriithi Kiraithe and he adopted his witness statement dated 29/6/2021. In cross-examination he stated that the brother of the deceased is the one who filed the succession in the Magistrate’s Court. He stated that he had no evidence to prove that the applicant/administratrix was served with the documents in the lower court. He admitted that he was listed as a dependant although he was not a dependant. 12. PW2 Mbabu Sebastian testified that he assisted the son of his sister buy land. He relied on his witness statement. In cross-examination he stated that he was assisting Didacous Muriithi Kiraithe to buy land. 13. PW3 Riungu Ndege is the one who had filed succession in the lower court. The witness testified that the sale of the land by the deceased had trained the relationship between the deceased and his wife as she had objected to the sale. He admitted that he did not inform the administratrix that he had filed succession. DW1 Jocyline Kagendo testified that she had objected to the sale of the land and placed a caution. She testified that he deceased did not obtain the consent of the Land Control Board to sell the land as she had objected. 2nd interested party’s submissions 14. It is submitted that the deceased willingly sold 20 points piece of land out of Land Parcel Number Muthambi/Upper Karimba/1759 to Didacous Muriithi Kiraithe. That the issue for determinations is whether the applicant is entitled to 20 points of land Parcel No. Muthambi/Upper Karimba/1759. She relies on Section 93(1) of the Law of Succession Act (Cap 160 Laws of Kenya. She further relies on Court of Appeal Decision in Jacinta Wanja Kamau -vs- Rosemary Wanjiru Wanyoike & Another (2013) eKLR where the court stated that: “ Before the applicant could seek protection as a purchase under Section 93 of the Act, she had first to prove that she is a purchaser.” 15. That Didacous Muriithi has sufficiently proved that he was he purchaser of 20 points out of land Parcel No. Muthambi/Upper Karimba/1759. That the deceased had entered into a binding agreement with the purchaser and the death of the deceased did not discharge him from the obligations or liabilities under the contractual agreement, nor does it obliterate his right under those transactions. 16. It is further submitted that the personal representative comes in to fulfill those obligations or liability under the contract or to realize any right or benefit thereof for the estate of the deceased. The applicant further urges the court to find that the doctrine of constructive trust applies in this matter and relies on In Re Estate of Nasotokini Ole Sane alias Nasotokini Lesane (Deceased) (2019) eKLR where the court stated that: “ …the administrators basically have no land of their own. They are the voice of the dead so their role is to execute and administer the estate on behalf of the deceased person. In law therefore, administrators cannot take what the deceased had legally bequeathed to the particular protestors.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19445/eng@2025-10-14 3

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17. The applicant further relies on Macharia Mwangi Maina & 8 Others -vs- Davidson Mwangi Kagiri 2014 eKLR she has also cited Steadman -vs- Steadman (1976) AC 536 @ 540. The applicant urges the court to find that the claim by the applicants has merits and should be allowed. The Administratrix’s Submissions. 18. It is submitted that the objectors were aware that the administratrix had not consented to the sale of land by the deceased and proceeded to purchase the land from the deceased based on this submission the administratrix urges the court to find that the applicant is not a bona fide purchaser for value without notice. That the grant was revoked as the original petitioner had misled the court on the whereabouts of the deceased’s wife. 19. On the protest or objection to the confirmation of grant, the administratrix relies on Rule 40(6) of the Probate and Administration Rules which provides that: “ Any person rushing to object to the proposed confirmation of grant shall file in the cause in duplicate at the Principal Registry an affidavit of protest in Form 10 against such confirmation stating the grounds of his objection.” 20. The administratrix submits that no affidavit of protest was filed and the objection filed is incompetent. She further submits that objection to making of a grant is provided under Section 66 & 68 of the Law of Succession Act and Rule 17 of the Probate and Administration Rules. She relies on Meru High Court Succession Cause No. 160/1997 where Justice Lenaola (as he then was) struck out an objection which had been preferred after the grant had been issued. It is further submitted that the court with jurisdiction to determine whether the agreement was valid or not is the Environment and Land Court but this court. Analysis and Determination 21. 22. I have considered the evidence adduced and the submissions. The issues which arise for determination are: 1. Whether the objection is properly before this court. 2. Whether the court has jurisdiction to determine whether the applicant is entitled to 20 points out of land parcel No. Muthambi/Upper Muthambi/Karimba/1759. Whether the objection is properly before this court The interested party Didacous Muriithi Kiraithe filed a Petition by way of Cross-Application for grant under Section 66 and Section 68 of the Law of Succession Act. Under Section 66 of the Act the court has the sole discretion to determine who should be given the grant of letters of administration. However, a person can object to the grant of letters of administration to a particular person. Section 6 of the Law of Succession Act provides that: “ (1) No grant of representation, other than a limited grant for collection and preservation of assets, shall be made until there has been published notice of the application for such grant, inviting objections thereto to be made known to the court within a specified period of not less than thirty days from the date of publication, and the period so specified has expired. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19445/eng@2025-10-14 4

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(2) 23. A notice under subsection (1) shall be exhibited conspicuously in the courthouse, and also published in such other manner as the court directs.” The notice of objection is shall be lodged in court with the court which will in turn give notice to the objector to file an answer to the applicant and a cross application within a given period. Section 68 of the Law of Succession Act provides as follows: “ (1) Notice of any objection to an application for a grant of representation shall be lodged with the court, in such form as may be prescribed, within the period specified by such notice as aforesaid, or such longer period as the court may allow. (2) Where notice of objection has been lodged under subsection (1), the court shall give notice to the objector to file an answer to the application and a cross application within a specified period.” 24. On the other hand, ‘Rule 17(1) of the Probate and Administration Rules’ provides that any person who has not applied for a grant and wishes to object to the making of grant which has already been applied for by another person may do so by lodging within the period specified in the notice of the application published under Rule 7(4) of the Rules. 25. The Act gives timelines within which a party wishing to file objection to making of a grant should do so. For an objection to be properly on record and for the court to entertain it, the same should be filed within the set timelines. Failure to file the objection as provided under the Act is not a procedural technicality but a statutory requirement. 26. It cannot be salvaged under Section 159(2)(d) of the Constitution which urges the court to do justice without undue regard to procedural technicalities. This is so because if no objection is filed, the court proceeds to issue the grant. Once the court issues the grant the regime for challenging the grant changes, any person who intended to fie the objection is not shut out as the Act has provisions for revocation of the grant which a party may invoke. This is provided under Section 76 of the Law of Succession Act. 27. The decision cited by the administrator in Meru High Curt Succession Cause No. 160/97 by Justice Lenaola as he then was held that: “ The issue is whether or not there is a proper objection to the making of the grant of representation” capable of being resolved by this court. The matter is important because, that is the substantive matter under consideration and if it is improperly before court, then it can only be struck off and all issues raised in the hearing cannot be addressed. Section 68 of the Law of Succession Act provides as follows: (See above …Supra). The import of these provisions as read with Rule 17 of the Probate and Administration Rules is that an objection cannot be made once a grant has been issued or in other words, an objection can only be made before a grant of letters of administration has been made. In that instant incase a grant was issued to the respondent on 14/1/1999 and therefore to object to it after issuance would amount to a legal absurdity because this court would be acting in vain and in contradiction of the law if it attempted to make orders regarding the grant already issued by way of application for objection to making of a https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19445/eng@2025-10-14 5

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grant which grant has already been made… clearly a grant has been issued my hand are tied by the law from entertaining this objection.” 28. In this matter, the previous grant was revoked on the application by the now administratrix. She and another were appointed on 6/6/2019 as the administratrix together with Mutwiri Miriti as the administrator. The objection to making grant and petition by way of cross-application of grant were filed on 3/7/2020. The record shows that on 3/5/2019 the applicant was given 14 days to respond to the summons for revocation of grant. It is worth noting that in the summons for revocation of grant, the administratix was seeking an order that she be issued with a temporary grant of letters of administration. No objection to the making of grant to her was filed as the summons was not opposed. 29. It is then clear from the record that at the time the applicant filed the objection and petition by way cross-petition the grant had been issued. In line with Section 68 of the Law of Succession Act and Rule 17 of the Probate and Administration Rules the objection to making the grant and petition by way of cross petition were time barred as no objection could be filed after the grant had been issued. Such an objection was supposed to be filed before the gran was issued. The objection and the petition by way of cross petition are not properly before court. 30. The Act provides that where a summons for confirmation of grant has been filed and a party is opposed to the mode of distribution, he or she may file an affidavit of protest. Section 71(1) of the Law of Succession Act provides as follows: “ (1) 31. 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.” Rule 40(6) of the Probate and Administration Rules provides that: “ Any person wishing to object to the proposed confirmation of a grant SHALL file in the cause in duplicate at the Principal Registry an affidavit of protest in Form 10 against such confirmation stating the grounds of his objection.” 32. Rule 40(8) provides that where no protest is filed, the court may allow the application. The applicant did not file any affidavit of protest. The application before this court is the summons for confirmation of grant and therefore the summons for confirmation of grant is not opposed. 33. Whether the applicant is entitled to 20 points of Land Parcel No. Muthambi/Upper Karimba/1759 The applicant is urging the court to determine whether he is entitled to a portion of land which forms the estate of the deceased. Tied to this issue is the question whether this court has jurisdiction to entertain the application by the applicant. The applicant claims that he is a creditor in the estate of the deceased having paid some money to purchase a portion of twenty (20) points out of Land Parcel No. Muthambi/ Upper Karimba/1759 which is part of the estate of the deceased. 34. Section 79 of the Law of Succession Act provides that: “ The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19445/eng@2025-10-14 6

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35. The Section provides that all the property of the deceased shall vest in the personal representative of the deceased. On the other hand, Section 83 of the Law of Succession Act lays down the duties of personal representative. These include settling all the debts of the deceased. Section 83(d) provides that: “ Personal representatives shall have the following duties: d) 36. to ascertain and pay out of the estate of the deceased, all his debts.” The duties of the Probate and Administration court are laid down under Section 2(1) of the Law of Succession Act which provides as follows: “ Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after, the commencement of this Act and to the administration of estates of those persons.” 37. This is also stated in the preamble which states that it is “ An Act of Parliament to amend, define and consolidate the law relating to intestate and testamentary succession and the administration of estates of the deceased persons and for purposes connected therewith and incidental thereto.” 38. The law is well settled that jurisdiction of the courts stems from the Constitution and the statute. The issue which the applicant is asking the court to determine is a claim to own land. Article 162(2)(b) of the constitution states that: “ Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to: - the environment and the use and the occupation of , the land and title to land.” 39. The legislation on Environment and Land under this article is the Environment and Land Court Act Cap 8 D Laws of Kenya which in it preamble provides as follow: “ An Act of Parliament to give effect to Article 162(2)(b) of the constitution, to establish a superior court to hear and determine disputes relating to the environment and use and occupation of, and title to, land and to make provision for its jurisdiction functions and powers and for connected purposes.” 40. The Act at Section 2 defines court to mean “Environment and Land Court established under Section 4 pursuant to Article 162(2)(b).” It is therefore clear that the court with jurisdiction to determine whether the applicant is entitled to 20 points of Land Parcel No. Muthambi/Upper Karimba/1759 is the Environment and Land court Act. 41. The claim by the applicant that he bought land from the deceased was disputed by the administratrix who stated that she had objected to the sale and the deceased had been made to sign acknowledging receipt of money some few hours before his death having been admitted in the hospital for some time. There is therefore a dispute on the whole issue of purchase of land by the applicant which this court has no jurisdiction to determine. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19445/eng@2025-10-14 7

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42. The applicant also seeks protection under Section 93(1) of the Law of Succession Act which provides as follows: “ (1) 43. All transfers of any interest in immovable or movable property made to a purchaser either before or after the commencement of this Act by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act. (2) A transfer of immovable property by a personal representative to a purchaser shall not be invalidated by reason only that the purchaser may have notice that all the debts, liabilities, funeral and testamentary or administration expenses, duties, and legacies of the deceased have not been discharged nor provided for.” It is apparent from the proceedings in the Magistrate’s court that the applicant was listed with his own approval and consent as a child of the deceased Form 9 paragraph which the administratrix had annexed in her documents at paragraph 2 states as follows: “ The deceased was survived by the following children: - 44. a. Riungu Ndege b. Didacous Muriithi Kiraithe c. Dan Miriti d. Mutwiri Miriti The form P & A 5 also indicates that he survived the deceased. The applicant also signed Form 37B as a dependant within the meaning of Section 29 of the Law of Succession Act. So, the applicant had posed as a dependant not a purchaser of land for value. The applicant was not a purchase for value without notice. He acted fraudulently by posing as a child of the deceased. He was also aware that the administratrix had objected to the sale. I agree with the counsel for the administratrix that the applicant was not a bona fide purchaser worth the protection by this court under Section 93 of the Law of Succession Act (Supra). Conclusion 45. For the reasons stated above, I find that the Objection and the Petition by way of Cross-petition are not properly before court. This court lacks the requisite jurisdiction to entertain the applicant’s claim. 46. The law of Succession Act at Section 5 defines “wife” to mean – “includes a wife who is separated from her husband…” Section 29(a) of the Law of Succession Act defines the meaning of dependant as follows: “ a) The wife or wives, or former wife or wives and the children of the deceased whether or not maintained by the deceased immediately prior to his death.” 47. The administratrix is therefore for all intents and purposes a dependant of the deceased and a person entitled to his estate. I therefore find that the summons for confirmation of grant has merits. 48. I therefore order that the grant of letters of administration intestate issued to the administratrix and Daniel Ndege Miriti alias Mutwiri Miriti on 6/6/2019 is confirmed. The estate of the deceased shall be distributed as follows: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19445/eng@2025-10-14 8

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1. Muthambi/Upper Karimba/1791: - Daniel Ndege Miriti and Emmanuel Muchui Miriti – Jointly 2. Muthambi/Upper Karimba/1790 - Jocyline Kagendo – Life Interest I award the costs to the Administratrix and Administrator. DATED, SIGNED AND DELIVERED AT CHUKA THIS 14TH DAY OF OCTOBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19445/eng@2025-10-14 9

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