High Court 6709 of 2026

(d) That costs of this application be paid out of the estate. 2. The application was premised on the grounds that on the 1st November, 2013, the Court of Appeal in Civil Appeal No. 118 of 2006 ordered that a Grant of Letters of Administration Intestate in respect of the estate of Hemresiana Omolo Ochogo (deceased) be issued to Moses Odero Onditi, Dalmas Ochogo Onditi, Robert Onyango Onditi and Gilbert Otieno Okite, yet the Court is yet to comply with the said order. They further averred that orders had been made herein for the distribution of the estate before the issuance or confirmation of the Grant; and that the delay in issuing the Grant is prejudicing the rightful beneficiaries of the estate and is therefore contrary to the interests of justice. 3. The application was supported by the affidavit of Moses Odero Onditi, the 1st applicant, in which he reiterated the grounds aforestated and annexed a copy of the decision of the Court of Appeal dated 1st November, 2013 in Civil Appeal No. 118 of 2006. They urged for the issuance and immediate confirmation of Grant of Letters of Administration Intestate in respect of the estate of the deceased and that the estate of the deceased be distributed as follows: (a) Kanyada/Kotieno-Katuma 'B'/145 and 146 be registered jointly in the names of Gilbert Otieno Okite, Moses Odero Onditi, Dalmas Ochogo Onditi and Robert Onyango Onditi; (b) Kanyada/Kotieno-Katuma 'B'/2476 to be registered jointly in the name of Gilbert Otieno Okite, Moses Odero Onditi, Dalmas Ochogo Onditi and Robert Onyango Onditi. 4. The petitioner, Gilbert Otieno Okite, opposed the application vide his Replying Affidavit sworn on 26th May 2025 contending that the application is bad in law, ill-conceived and an abuse of the process of the Court. In his view, the application ought to be dismissed with punitive costs to deter such abuse of the processes of the Court in future. He averred that this matter is concluded in that it has been heard and determined on merits and the Grant confirmed. The petitioner further deposed that, after the judgment of the Court of Appeal given on 1st November 2013 in which grant to the deceased's estate was given to the Objectors and Petitioner jointly, this matter was then taken up by this Court to determine the issue of distribution. Thereafter, the distribution was done in proceedings in which the applicants participated fully and a ruling delivered on 16th October 2018. 5. The petitioner averred that the said ruling is, and represents a confirmation of grant in this matter. He added that subsequent proceedings have been held herein and accounts rendered pursuant to the ruling dated 25th April 2025; and that by making an application that he be directed to render accounts under Section 83 of the Law of Succession Act, the applicant’s acknowledged that Grant of Letters of Administration Intestate had been confirmed and the entire properties of the estate given to him. According to the petitioner, having rendered complete accounts and the properties of the estate being in his name, there is nothing further for the Court to hear or determine in respect of the estate.[6] The application was argued by way of written submissions. Thus, the applicants relied on their written submissions dated 16th June 2025. They reiterated their assertion that the initial Grant to the petitioner had been revoked and an order made by the Court of Appeal for a fresh Grant to be issued in their joint names with the petitioners. They relied on the authority of Re Estate of Makhoka Idris Khasabuli (deceased) [2019] eKLR for the proposition that where there are joint administrators there is only one grant and one administration or representation to the estate of the deceased. 6. Therefore, the applicants submitted that the four administrators hold one grant and must work together and take a common stand as the assets of the estate are vested in all the four administrators named in the Grant. According to the applicants, the four administrators have never sat even to collect the assets of the estate of the deceased as provided by Section 82 of the Law of Succession Act. They further submitted that in the instant case the respondent has been acting alone collecting assets and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6709/eng@2026-04-30 2

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transferring everything to himself. They urged the Court to allow the application dated 4th April 2025 and make appropriate orders that will enable the estate of the deceased to be appropriately administered. 7. The respondent relied on his written submissions dated 14th July 2025 and reiterated that, following the decision of the Court of Appeal, the parties moved the Court for confirmation of Grant; and that the estate has since been administered to conclusion. The respondent submitted therefore that the application is res judicata. He relied on Section 83 of the Law of Succession Act and the case of Kenya Commercial Bank Ltd v Muiri Coffee Estate Ltd & another [2016] eKLR in urging the Court to dismiss the application with costs. 8. As was observed by the Court in the ruling dated 25th April 2024, this is an old matter in which the parties have been unable to come to an agreement on the way forward. The background is well captured in the Judgment of the Court of Appeal dated 1st November 2013. The Court of appeal noted that the initial grant issued to the respondent had been revoked; and therefore in the absence of a fresh Grant, any transmission of the estate property to himself cannot be lawful. What that means was aptly captured in Re Estate of Makhoka Idris Khasabuli (deceased) (supra) as follows: 9. 13. The deceased died on 2nd January 2017. The first administrator was appointed a year later on 9th January 2018. The other administrators followed on 8th November 2018. In the intervening period, between the date of death and that appointment, the businesses that the deceased was running continued running and the income from the assets continued being generated and collected. Section 45 of the Law of Succession Act outlaws handling of estate assets by persons who have no authority to handle it. Such authority comes only from a grant of representation, and anyone who does so handle estate property without a grant intermeddles with the estate. The fact that one is a surviving spouse of a deceased person or a child of the deceased grants them no authority to handle estate property unless and until they are granted representation. That would mean that all those persons who handled or took over the running of the businesses of the deceased and the collection of rental income immediately upon his demise, and before they were appointed administrators, intermeddled with the estate. 14. The law takes a serious or dim view of intermeddling. Under section 45 of the Act, it is a criminal offence and a person found guilty of handling estate property without authority can be fined or even sent jail or subjected to both fine and imprisonment. Under the same provision, such a person should account to the person who is ultimately appointed administrator. The Court of Appeal ordered in explicit terms that a fresh Grant be issued in the names of the petitioner and the applicants. In the premises, to unlock the impasse herein, it is important for the parties to submit a fresh application for distribution. The Court has powers under Section 47 of the Law of Succession Act to make such orders as are necessary to meet the ends of justice. It states: “ The High Court shall have jurisdiction to make any grant of representation or to determine any dispute under this Act…” 10. In the same vein, Rule 73 of the Probate and Administration Rules provides that: Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6709/eng@2026-04-30 3

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11. Accordingly, I find merit in the Chamber Summons dated 4th April 2025. The same is hereby allowed and orders granted as follows: (a) That Grant of Letters of Administration Intestate be issued in the joint names Moses Odero Onditi, Dalmas Ochogo Onditi, Robert Onyango Onditi and Gilbert Otieno Okite as ordered by the Court of Appeal in Civil Appeal No. 118 of 2006 on 1st November 2013. (b) That the four administrators do file a joint application for confirmation of Grant along with a proposed Mode of Distribution in respect of the estate of Hemresiana Omolo Ochogo (deceased) for consideration and approval by the Court. (c) That costs of this application be paid out of the estate. It is so ordered. DATES, SIGNED AND DELIVERED VIRTUALLY THIS 30TH APRIL 2026. ……………………………… OLGA SEWE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6709/eng@2026-04-30 4

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