High Court 13188 of 2026

5. It is worth noting that No objection was lodged within the prescribed period or at all. Consequently, upon the expiry of the statutory period, the Grant of Letters of Administration with the Will Annexed was issued to the applicants, thereby appointing them as the personal representatives of the deceased's estate, with the powers and duties as prescribed under Section 83 of the Law of Succession Act, Cap. 160, Laws of Kenya. 6. Upon the expiry of six (6) months from the date of the grant, the administrators filed the present Summons for Confirmation of Grant dated 15th April, 2026, pursuant to Section 71(1) of the Law of Succession Act, seeking confirmation of the grant to facilitate the distribution of the deceased's estate in accordance with the deceased's will. 7. The summons came up for hearing on 18th June, 2026, on which date, the court examined the administrators and the beneficiaries with a view of verifying their respective identities, their relationship with the deceased, their views regarding the appointment of the administrators, the assets and liabilities comprising the deceased's estate, and the proposed mode of distribution, so as to ascertain whether there was consensus on the same. 8. In consideration of the summons (application), I have read through the supporting affidavit, the annexures thereto, and examined the administrators and the beneficiaries on the averments in the said supporting affidavit and consent. The court is of the view that the sole issue falling for determination is whether the Grant of Letters of Administration with the Will Annexed issued on 5th February, 2025 ought to be confirmed. 9. Confirmation of grants is priory governed by the provisions of Section 71 of the Law of Succession Act and Rule 40 of the Probate and Administration Rules. Section 71 provides that: (a) 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. (b) 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.(2A)Where a continuing trust arises and there is only one surviving administrator, if the court confirms the grant, it shall, subject to Section 66, appoint as administrators jointly with the surviving administrator not less than one or more than three persons as proposed by the surviving administrator which failing as chosen by the court of its own motion. (c) The court may, on the application of the holder of a grant of representation, direct that such grant be confirmed before the expiration of six months from the date of the grant if it is https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13188/eng@2026-07-09 2

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satisfied-(a)that there is no dependant, as defined by Section 29, of the deceased or that the only dependants are of full age and consent to the application;(b)that it would be expedient in all the circumstances of the case so to direct. (d) Notwithstanding the provisions of this section and Sections 72 and 73, where an applicant files, at the same time as the petition, summons for the immediate issue of a confirmed grant of representation the court may, if it is satisfied that-(a)there is no dependant, as defined by Section 29, of the deceased other than the petitioner;(b)no estate duty is payable in respect of the estate; and(c)it is just and equitable in all circumstances of the case, immediately issue a confirmed grant of representation. Rule 40 of the Probate and Administration Rule, states: (a) Where the holder of a grant which has not been confirmed seeks confirmation of the grant he shall apply for such confirmation by summons in Form 108 in the cause in which the grant was issued, supported by an affidavit in Form 8 or 9 exhibiting the grant together with an estate duty compliance certificate or other satisfactory evidence that no estate duty is payable and setting out the full names of the deceased person to whose estate the grant relates, and he shall satisfy the court that no application under Part III of the Act is pending. (b) An application for confirmation by virtue of Section 71(3) of the Act shall be by summons in Form 109 in the cause and the applicant shall in addition to the requirements of Subrule (1) satisfy the court by affidavit in Form 18 that there is in existence no dependant of the deceased and that it is expedient in all the circumstances of the case that the grant be confirmed before the expiration of six months from its date of making. (c) Save in the case of whole or partial intestacy or where the application is brought by virtue of Section 71(3) of the Act, there shall be filed with the summons an affidavit containing the following information and particulars so far as known to the applicant—(a)the names, ages and addresses of the children of the deceased by whom he was survived (whether or not they were being maintained by him immediately prior to his death) and of such of his parents, stepparents, grand-parents, grand-children whom he had taken into his family as his own, brothers, sisters, half-brothers and half-sisters, as were living at his death and were being maintained by him immediately prior thereto with full details of the manner and extent and for what period they were being or had been so maintained;(b)in the case of a male deceased, his wife or wives or former wife or wives living at his death and, in the case of a female deceased, her surviving husband if he was being maintained by her immediately prior to her death with full details of the manner and extent and for what period he was being or had been so maintained. (d) Where the deceased has died wholly or partially intestate the applicant shall satisfy the court that the identification and shares of all persons beneficially entitled to the estate have been ascertained and determined. (e) Where it appears to the principal registrar that an application has been made in any registry for the confirmation of a grant to the estate of a deceased in regard to which a caveat has been entered pursuant to rule 15 and is subsisting, the principal registrar shall send a notice in Form 111 to the caveator warning him of the making of the application and notifying him that if he wishes to object to the confirmation of the grant he must file in duplicate an affidavit of protest in Form 10 in the principal registry within fifteen days (or such longer period as the registry for reasons to be recorded may allow) from the receipt of the notice, in default of which the caveat shall cease to have effect in regard to the confirmation of the grant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13188/eng@2026-07-09 3

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10. 11. (f) 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. (g) The registrar shall without delay forward to the applicant a copy of each protest filed in the cause under Subrule (5) or (6). (h) Where no affidavit of protest has been filed the summons and affidavit shall without delay be placed by the registrar before the court by which the grant was issued which may, on receipt of the consent in writing in Form 37 of all dependants or other persons who may be beneficially entitled, allow the application without the attendance of any person; but where an affidavit of protest has been filed or any of the persons beneficially entitled has not consented in writing the court shall order that the matter be set down as soon as may be for directions in chambers on notice in Form 74 to the applicant, the protester and to such other persons as the court thinks fit. (i) In giving directions the magistrate’s court may in a case before it either order that the application for confirmation should proceed in that court, or at the request of any party or of its own motion order that it be transferred to the High Court and give all necessary consequential directions in that behalf to enable the application to be dealt with by the High Court. It is now settled that confirmation of grant is not a mere procedural formality. Rather, it is a substantive judicial process through which the court authorizes the distribution of the capital assets of the deceased's estate. However, in confirming a grant, the court must satisfy itself that: (i) The identities of all persons beneficially entitled to the estate have been ascertained and their respective consents obtained where necessary; (ii) The respective shares or interests of the beneficiaries have been properly identified so as to safeguard their proprietary rights; and (iii) The process accords with the constitutional guarantee of a fair hearing under Article 50(1) of the Constitution. Further being a testate Administration, the provision under section 35, 66 and 76 of the Succession Act must be ensured by the court. Section 35 grounds; (1)Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to—(a)the personal and household effects of the deceased absolutely; and(b)a life interest in the whole residue of the net intestate estate:Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.(2)A surviving spouse shall, during the continuation of the life interest provided by subsection (1), have a power of appointment of all or any part of the capital of the net intestate estate by way of gift taking immediate effect among the surviving child or children, but that power shall not be exercised by will nor in such manner as to take effect at any future date.(3)Where any child considers that the power of appointment under subsection (2) has been unreasonably exercised or withheld, he or, if a minor, his representative may apply to the court for the appointment of his share, with or without variation of any appointment already made.(4)Where an application is made under subsection (3), the court shall have power to award the applicant a share of the capital of the net intestate estate with or without variation of any appointment already made, and in determining whether an order shall be made, and if so what order, shall have regard to— https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13188/eng@2026-07-09 4

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(a)the nature and amount of the deceased's property;(b)any past, present or future capital or income from any source of the applicant and of the surviving spouse;(c)the existing and future means and needs of the applicant and the surviving spouse;(d)whether the deceased had made any advancement or other gift to the applicant during his lifetime or by will; (e)the conduct of the applicant in relation to the deceased and to the surviving spouse;(f)the situation and circumstances of any other person who has any vested or contingent interest in the net intestate estate of the deceased or as a beneficiary under his will (if any); and(g)the general circumstances of the case including the surviving spouse's reasons for withholding or exercising the power in the manner in which he or she did, and any other application made under this section.(5)Subject to the provisions of sections 41 and 42 and subject to any appointment or award made under this section, the whole residue of the net intestate estate shall on the death, or, in the case of a widow, re-marriage, of the surviving spouse, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children. Section 66 of the Succession Act provides; When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—(a)surviving spouse or spouses, with or without association of other beneficiaries;(b)other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;(c)the Public Trustee; and(d)creditors:Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will. Section 76 states; A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion— (a)that the proceedings to obtain the grant were defective in substance;(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either-(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances. 12. In the present case, the administrators have filed a joint affidavit sworn on 15th April, 2026 in support of the Summons for confirmation of grant. In that affidavit, they confirm that the Grant of Letters of Administration with the Will Annexed was issued to them jointly on 5th February, 2025. They have further identified all the beneficiaries of the deceased's estate, including those who are not administrators, at paragraph 2 of the supporting affidavit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13188/eng@2026-07-09 5

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13. The administrators have also identified the assets comprising the deceased's estate and set out the proposed mode of distribution at paragraph 8 of the supporting affidavit, which faithfully reflected the wishes of the deceased as expressed in his written will dated 17th February, 1998, pursuant to section 66 of the Law of Succession Act. 14. To ensure transparency and fairness in the administration of the estate, all the beneficiaries attended court on the hearing date, where they were examined on oath. Each beneficiary confirmed his or her identity and relationship to the deceased, acknowledged the assets comprising the estate, and expressed agreement with the proposed mode of distribution. It is confirmed that none of the beneficiaries raised any objection to either the confirmation of the grant or the distribution proposed by the administrators in satisfaction of the provision of section 76 of the Law of Succession Act. 15. Having considered the application, the supporting affidavit, the annexures thereto, and the evidence of the administrators and beneficiaries, I am satisfied that the applicants have complied with the requirements of Section 35,66,71 and 76 all of the Law of Succession Act and Rule 40 of the Probate and Administration Rules. I am also satisfied that the proposed distribution faithfully gives effect to the testamentary wishes of the deceased as contained in his written will. I further find that there is no legal impediment to the confirmation of the grant that has been presented. 16. There being no pending application or objection by any person seeking to protest the summons for confirmation of grant, the court proceeds to allow the same and order that: a. The Grant of Letters of Administration issued to Kennedy Nyaga Njuguna and Irene Wangari Njuguna on 5th February, 2025, be and is hereby confirmed; b. The petitioners be and are hereby appointed as personal representatives of the Estate of Elizaphan Njuguna Gatitu (deceased), to manage and distribute the assets and liabilities, (if any) thereof, pursuant to section 82 (1) of the Law of Succession Act. c. A certificate of confirmation of grant to issue as per the schedule in the affidavit in support of the summons for confirmation of grant; and d. Being a family matter, there shall be no order as to costs. RULING DATED, SIGNED AND DELIVERED THIS 9TH DAY OF JULY,2026. HON. DORAH CHEPKWONY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13188/eng@2026-07-09 6

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