Alice Wanjiru Wagako & 4 others v Rachael Njeri & 2 others

order allowing her to dispense to each beneficiary an equal share of Kshs. 40,690,502. This Summons is yet to be heard and determined. 3. The applicant thereafter filed a further Summons dated 4th February 2026, which forms the subject of the present ruling. She prayed for the following orders: a. Spent; b. Spent; c. That this Honourable Court be pleased to bring forward the hearing of the Summons herein dated 11th November 2025, from 24th February 2026 to a date in the week beginning on 9th February 2026 d. That this Honourable court be pleased to order that the administratrix do advance to each beneficiary an equal share of the Kshs. 40, 690, 502/-, which is pending distribution; e. That as an alternative to 1 above, this Honourable Court be pleased to advance to each beneficiary Kshs. 1.5 million, to enable Susan Wambui Wagako to meet her medical expenses and the other beneficiaries, pending urgent needs such as school fees and general medical fees; f. That the estate does pay the costs of this application 4. The application was based on the grounds set out therein and the 1st applicant’s supporting affidavit. It is her position that the estate presently holds a sum of Kshs. 40,690,502/-, which remains undistributed. The 1st applicant deposed that the 2nd applicant, Susan Wambui Wagako, is entitled to an equal one-eighth (1/8) share of the estate and that she is currently facing urgent medical needs. According to the material placed before the Court, her health has deteriorated, and she requires a surgical procedure described as a Craniotomy and Tumour Excision at Coptic Hospital, Nairobi, at an estimated cost of approximately Kshs. 800,000 or more. The applicants therefore contend that immediate financial intervention from the estate is necessary to safeguard her health and wellbeing. 5. The 1st applicant further deposed that the respondents have, since 2019, consistently opposed equal distribution of the estate, allegedly advancing the position that male heirs should receive a larger share than female heirs. This stance, it is argued, is contrary to the constitutional guarantee of equality, including the principles embodied in Article 45 of the Constitution, as well as the clear provisions of Section 38 of the Law of Succession Act, which mandate equal distribution among surviving children in cases of intestacy. The 1st applicant asserted that such opposition has occasioned prolonged delay in the administration of the estate and has frustrated efforts toward equitable distribution. 6. According to the 1st applicant, the respondents have failed to file responses to the earlier summons dated 11th December 2025, thereby contributing to further delay. She maintained that the continued postponement of distribution has occasioned prejudice to all beneficiaries, and particularly to the 2nd applicant whose medical condition has worsened. The 1st applicant invoked constitutional principles relating to the right to life and human dignity, contending that these rights demand that the Court exercise its discretion to authorise urgent advancement of funds to preserve life and prevent irreparable harm. 7. The 1st applicant deposed that the conduct of the respondents is characterised by the applicants as arbitrary and unreasonable, and reliance is placed on comparative constitutional jurisprudence to underscore the Court’s duty to prevent unjustified deprivation of rights through procedural delay. In the premises, the 1st applicant deposed that it is in the interests of justice for the Court to grant advancement either by directing that the Kshs. 40,690,502/- be shared equally among the beneficiaries https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3603/eng@2026-02-26 2

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pending final confirmation of the grant, or in the alternative, by ordering that each beneficiary be advanced Kshs. 1.5 million pending the ultimate distribution of the estate. 8. The 1st and 2nd respondents opposed the summons vide a Replying affidavit dated 16th February 2026. They contended that the summons is improper, premature and calculated to circumvent earlier directions of the Court which required that a full and comprehensive accounting of the estate be undertaken before confirmation of the grant and any distribution. 9. The respondents depose that the applicant had previously, in 2019, filed a similar application seeking partial distribution of the estate, which application was dismissed. They refer to a ruling of this court delivered on 7th October 2025, in which the Court observed that there existed several “loose ends” regarding the estate and directed that such issues be addressed within a full summons for confirmation so as to present a complete picture of the estate assets before distribution could be considered. 10. The central dispute, according to the respondents, concerns rental income derived from two properties, namely L.R. No. 209/1496 (Nyakio House) and L.R. No. 209/2211/2 (Second Avenue, Parklands). Whereas the 1st applicant asserted that the estate holds Kshs. 40,690,502/-, the respondents maintained that as at 2019, the rent collected stood at Kshs. 12,609,502/-, and that from 2019 to date, an additional sum of Kshs. 69,016,666.66 had been collected. They averred that the total rent collected amounts to approximately Kshs. 118,909,501.99 (or Kshs. 118,949,501.99 as later stated), which, in their view, had not been properly accounted for. They accused the 1st applicant of deliberately omitting rental income collected after 2019 in order to facilitate partial distribution on the basis of incomplete figures. 11. The respondents further argue that the 1st applicant had acted in disregard of the Court’s directions by filing a confirmation application dated 28th November 2025 contrary to the earlier ruling, and thereafter filing the present Summons before the prior application could be heard. They contended that the 1st applicant has failed to file proper and comprehensive accounts as required of an administrator under the Law of Succession Act, thereby frustrating the Court’s ability to oversee orderly administration of the estate. 12. It is also their position that partial distribution at this stage would prejudice beneficiaries and amount to piecemeal administration. They allege that a parcel of land known as Nyandarua/Pasenga/183 was sold prior to confirmation of the grant and that no proper records of the sale proceeds or rental income have been furnished. They therefore question the transparency and propriety of the administration to date. 13. The 1st and 2nd respondents reject the 1st applicant’s suggestion that their opposition is rooted in male chauvinism or bias against equal distribution. They state that their objection is grounded solely on the need for accountability, transparency and full disclosure of all estate assets before any distribution is undertaken. While expressing sympathy for Susan Wambui, whose surgery was reportedly funded through fundraising efforts, they maintain that the responsibility for the present situation lies with the administrator’s alleged failure to properly account for estate funds. 14. In the premises, the respondents urge the Court to dismiss the Summons and to direct the applicant to file a full Summons for Confirmation reflecting the entirety of rental income collected, which they state amounts to Kshs. 118,949,501.99 rather than Kshs. 40,690,502/-. They further pray that proper and accurate financial records be furnished before any distribution of the estate is sanctioned. 15. As a rebuttal, the 1st applicant filed two further affidavits dated 18th February 2026 and 23rd February 2026. In response to the replying affidavits filed by the 1st and 2nd respondents, she first clarified the procedural posture of the matter. She deposed that this summons was certified urgent and scheduled https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3603/eng@2026-02-26 3

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for an inter partes hearing on 19th February 2026. She contended that the respondents’ affidavits were filed and served out of time and that, in substance, they responded to her earlier Summons dated 28th November 2025 rather than to the present application. 16. According to the 1st applicant, the 1st and 2nd respondents do not directly address the issues raised in the current summons. 17. The 1st applicant then addresses the question of the estate funds. She explained that the estate of the deceased is itself a beneficiary of the estate of her late father in Nairobi High Court Succession Cause No. 1871 of 2002. She maintains that the deceased’s estate has only received Kshs. 40,690,502, which is presently held in accounts operated by three law firms pursuant to a decree issued in Winding Up Cause No. 10 of 2007 and various High Court rulings delivered by Justices Ochieng, Rawal, Aroni and Musyoka. She clarifies that L.R. No. 209/2211/2 (Second Avenue, Parklands) was sold for Kshs. 28,000,000, and that this sum forms part of the Kshs. 40,690,502 in question. She further states that L.R. No. 209/1496 (Nyakio House) has not been sold, although a prospective purchaser has offered Kshs. 300,000,000. It is her position that any grievances relating to the administration of her late father’s estate ought to be pursued in Succession Cause No. 1871 of 2002 and not within the present cause concerning her late mother’s estate. 18. In response to the allegations concerning rental income, the 1st applicant disputed the respondents’ assertion that the estate has received approximately Kshs. 118 million in rent. She depones that Tysons Limited has managed L.R. No. 209/1496 since 2009 and that the property has suffered mismanagement, with certain months yielding no net rental income. She stated that rental income and its distribution are subject to court orders made in their late father’s succession and winding-up proceedings and that the estate herein has not received additional rental income between 2019 and 2026. She reiterated that the funds belonging to this estate remain intact in the accounts held by the three law firms. She further alleged that the 3rd respondent had previously taken possession of part of L.R. No. 209/1496 and received rental income without accounting to the executrix of their late father’s will. 19. The applicant denied the allegations that she had failed to account for estate funds. She denied receiving any estate monies personally and refuted the allegation that Nyandarua/Pasenga/183 was improperly sold, stating that the sale was undertaken with the consent of all beneficiaries. She also contends that the respondents have not annexed lease schedules, bank statements or other documentary evidence to substantiate their claims of higher rental income. 20. Her central position, as reiterated in both affidavits, is that the estate of the deceased had only received Kshs. 40,690,502, which is the sum forming the basis of the present application for advancement. She maintained that the 1st and 2nd respondents are improperly conflating this estate with disputes arising from their late father’s estate and that any accounting disputes under the winding-up proceedings must be ventilated in that forum. She concluded that the funds in question remain intact and available, but that their distribution is being delayed and frustrated by the respondents’ continued opposition. Determination 21. I have considered the summons, the rival affidavits and the entire record of the court. The issue falling for determination is whether this Court may authorise the release of estate funds prior to confirmation of grant and, if so, to what extent. 22. Under Section 79 of the Law of Succession Act, the property of a deceased person vests in the personal representative upon the grant of representation. However, such vesting is fiduciary in nature. The administrator does not hold the estate as a beneficial owner but as trustee for those ultimately entitled. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3603/eng@2026-02-26 4

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23. Section 82 of the Act sets out the powers of personal representatives, while Section 83 imposes mandatory duties, including the duty to render accounts and to complete administration within the prescribed period. Crucially, Section 71 of the Act provides that confirmation of grant is the statutory process through which the Court ascertains and approves the respective shares of beneficiaries. Until confirmation, no beneficiary acquires a crystallised proprietary entitlement to a specific portion of the estate. 24. The Court of Appeal in Gitau & 2 Others v Wandai & 5 Others [1989] KLR 231 emphasised that the distribution of estate property before confirmation is irregular unless sanctioned by law. Similarly, in In re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR, the Court reiterated that confirmation proceedings are the mechanism through which the Court ensures fairness and finality in distribution. 25. In the ruling of this Court dated 7th October 2025, a prayer for partial confirmation was dismissed because there were unresolved issues regarding the proceeds of the sale of a parcel of land previously allocated to Irene Wamukore, and because it was unclear how the sum of Kshs. 12,609,502 sought to be distributed had been computed. The absence of clarity and full disclosure rendered partial confirmation untenable. That reasoning remains sound. Confirmation must proceed on a complete and transparent record. 26. The present application seeks advancement for all beneficiaries. That relief cannot be granted. To release equal sums to all beneficiaries in the absence of confirmed shares would effectively amount to partial distribution. Given the unresolved accounting disputes and the pending Summons for Confirmation dated 28th November 2025, such an order would undermine the statutory scheme under Section 71 of the Act. 27. However, the circumstances of the 2nd applicant stand on a different footing. The medical evidence placed before the Court demonstrates that she requires urgent surgical intervention. The Constitution under Article 26 protects the right to life, while Article 28 protects human dignity. These constitutional values inform the Court’s exercise of discretion in succession matters. 28. The estate funds are not shown to be dissipated. A limited and accountable release for urgent medical necessity, properly documented and later reconciled at confirmation, falls within the Court’s inherent jurisdiction under Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules, which preserve the Court’s power to make such orders as may be necessary for the ends of justice. 29. It is noteworthy that under Section 83(e) and (g) of the Law of Succession Act an administrator is imposed upon the duty to produce to the Court a full and accurate inventory of the assets and liabilities and to render accounts. Given that disputes persist regarding rental income and sale proceeds, it is imperative that full accounts be filed before confirmation can proceed. Transparency in administration is not optional; it is statutory. 30. Accordingly, the Court makes the following orders: a. A sum of Kshs. 1,500,000 shall be released from the estate funds and paid to the 2nd applicant, Susan Wambui Wagako, strictly for purposes of meeting her urgent medical expenses. b. The said sum shall be fully accounted for and shall be taken into consideration in computing the 2nd applicant’s ultimate entitlement at confirmation of grant. c. The administratrix shall, within sixty (60) days from the date hereof, file a comprehensive, verified statement of accounts of the estate from the date of her appointment as administrator https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3603/eng@2026-02-26 5

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to the year 2026, detailing all income received, assets realised, expenditures made, and the present status of all estate funds; only then shall the parties proceed to confirmation stage. d. Costs be in the cause. Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF FEBRUARY 2026 ……………………………………… E.K. OGOLA JUDGE In the presence of: Mr. Ndung’u Kuria…………………………………………………………… for the Applicant Mr. Kinyanjui………………………………………………………………… for the Petitioner Gisiele Muthoni Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3603/eng@2026-02-26 6

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