In re Estate of Barasa alias Wafula Sakwa (Succession Cause E402 of 2024) [2026] KEMC 576 (KLR)

4. It was the objector’s evidence that he jointly owned Divine Mercy School with the deceased through a partnership, and that they jointly ran the bank account in running Divine Mercy School. It is against this backdrop that the objector averred that the Petitioner ought to have included him in his Petition for the Grant of Administration Intestate herein as a beneficiary of the deceased’s estate. 5. These grounds were further reiterated in the objector’s supporting affidavit, sworn on 03 rd March 2025, which this court need not reproduce in this ruling. The Objector relied on the letter dated 10th January 2021, and a Memorandum of Understanding dated 15th January 2021 executed between him and the deceased in support of their alleged partnership ownership in owning the school. 6. Mr. Joseph Thiong’o; the Branch Manager Equity Bank Kangemi branch, also testified before this court in support of the Objector’s case regarding the bank account. His testimony was that the bank account was opened on 21 st May 2022 jointly by the objector and the deceased. He added that according to their bank rules, where one signatory of a joint account dies, no withdrawals are made from that joint bank account before succession proceedings in respect of the deceased signatory’s estate are concluded. 7. The Petitioner opposed the instant Application through an Affidavit sworn by himself on 25 th August 2025. He averred that the school was not part of the deceased’s estate, hence

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the Objector should not be allowed to participate in the succession proceedings herein. He placed reliance on the school’s Certificate of Registration for Basic Education dated 07th December 2015, showing that the school was being managed by one C. Simiyu Makhanu. 8. The Petitioner also urged this court to find that the Objector intermeddled in the deceased’s estate for having withdrawn funds from the bank account after the deceased’s death. He craved for an order requiring the Objector to refund the said money for distribution to the deceased’s legitimate beneficiaries. Parties’ Written Submissions 9. The Petitioner did not file his written submissions. 10. The Respondent filed his written submissions reiterating that he was a beneficiary of the deceased’s estate who ought to be involved in the deceased’s estate’s succession proceedings. He added that the withdrawals made from the bank account after the deceased’s death were made on the strength of post-dated cheques which the deceased had reportedly signed before his death. ANALYSIS AND DETERMINATION 11. This court has given due regard to the pleadings, evidence, and the written submissions placed before it by the parties herein.

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12. This court takes the view that the issues that commend to this court for determination are:a) Whether this Application is properly before this court b) Whether the objector is a beneficiary of the deceased’s estate c) What other orders commend to this court Whether the instant Application is properly before this court 13. It is imperative to note from the onset that the Grant of Letters of Administration Intestate herein, which was the subject of the objection proceedings before this court, was granted to the Petitioner on 29 th January 2025 and issued on 17th February 2025. 14. An objection is usually filed to object to the issuance of a Grant of Letters of Administration or probate to a Petitioner (see section 68 of the Law of Succession Act and Rule 17 of the Probate and Administration Rules). The foregoing shows that the objection herein having been filed way after the grant of the Grant of Letters of Administration to the Petitioner, was overtaken by events. 15. In view of the above, the objector herein ought to have filed a Protest to the confirmation of the Grant (see Rule 40 (6) of the Probate and Administration Rules) or Summons for the Revocation of the Grant herein. 16. The foregoing begs the question of whether this court should fold its arms and down its tools. This court takes the

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view that this is a proper case for this court to seek refuge from Article 159 (2) (d) of the Constitution, which obligates this court to administer justice without undue regard to procedural technicalities. 17. The position taken by this court is informed by the fact that, despite the procedural infraction by the objector, his pleadings adequately set out the dispute between him and the Petitioner. The Petitioner, on the other hand, adequately responded to the concerns raised by the Objector. In the circumstances, the procedural infraction by the objector herein did not prejudice the Petitioner in any way whatsoever. 18. Flowing from the above, this court finds and holds that the instant Application is properly before this court. Whether the objector is a beneficiary of the deceased’s estate 19. The evidence placed before this court leaves no doubt in this court’s mind that the deceased’s assets included the school and the bank account. 20. The Objector also placed before this court a letter dated 10th January 2021 and a Memorandum of Understanding dated 15th January 2021 showing that he was the deceased’s partner in running the school. 21. The Petitioner relied on the school’s Certificate of Registration for Basic Education, dated 07 th December 2015, to show that the Objector was not the school’s co-owner.

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22. A reading of the said Certificate of Registration for Basic Education shows that there is no mention of the school’s owner in that certificate. That certificate only lists one C. Simiyu Makhanu as the school’s manager. It follows that the said certificate does not prove ownership of the school. 23. The Petitioner did not lead any evidence to controvert the contents of the letter dated 10 th January 2021 or the contents of the Memorandum of Understanding dated 15 th January 2021 placed before this court by the Objector. In the absence of evidence to controvert the contents of the said documents, the only irresistible conclusion to be drawn is that the objector is the school’s co - owner. 24. Mr. Thiongo’s evidence that the bank account was a joint account run by the deceased and the objector was also not impeached. That evidence proved on a balance of probabilities that the objector had an interest in the bank account. 25. It is against this backdrop that this court finds that the objector is a beneficiary of the deceased’s estate. 26. The Petition for the Grant of Letters of Administration Intestate filed by the Petitioner herein on the other hand listed the deceased’s death gratuity valued at Kshs. 2,000,000/= as his sole asset. 27. It is abundantly clear from the foregoing that the Petitioner did not disclose all the deceased’s assets when he

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moved this court for a Grant of Letters of Administration Intestate in respect of the deceased’s estate. What other orders commend to this court 28. This court has had the benefit of going through the Petition herein; that Petition does not list the school and the bank account among the deceased’s assets. 29. Further, the letter dated 13th December 2024 from the chief Kabula location filed in this court by the does not disclose whether the deceased was survived by his parents or siblings other than the Petitioner. That letter only states that the Petitioner was the deceased’s next of kin. This court takes the view that the said letter needs to expressly state whether or not the deceased was survived by his parents and other siblings, other than the Petitioner. 30. Section 51 (2) (g) of the Law of Succession Act requires a Petitioner to disclose the names and addresses of all surviving spouses, children, parents, brothers, and sisters of the deceased. 31. The Petition herein does not comply with the provisions of section 51 (2)(g) of the Law of Succession Act. In the circumstances, and given the failure by the Petitioner to list the objector among the deceased’s estate’s beneficiaries, this court holds that the Grant of Letters of Administration Intestate granted to the Petitioner on 29 th January 2025 was obtained through material non-disclosure.

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32. This was a proper case for the objector to move this court for revocation of the Grant herein for material nondisclosure (see section 79 of the Act). The Objector did not pray for such orders. 33. Be that as it may, section 48 (1) of the Law of Succession Act provides thus: Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49 , a magistrate shall have jurisdiction to entertain any application and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which ……. Rule 73 of the Probate and Administration rules provides: “Nothing in these rules shall limit or otherwise affect the inherent power of the court to make such orders as maybe necessary for the ends of Justice or to prevent abuse of the process of the court.” 34. The sections of the law reproduced above set out this court’s inherent powers in making appropriate orders in a probate matter where the circumstances of a case permit.

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35. Further, Section 79 of the Act permits this court to revoke a grant suo moto if the court is satisfied about the existence of any of the grounds listed therein. This court has already made a finding that the grant herein was obtained by the Petitioner through material non- disclosure by the Petitioner failing to disclose all the deceased’s assets and beneficiaries. Material non-disclosure is one of the grounds for the revocation of a grant. 36. Therefore, the grant herein must be revoked. 37. Before penning off, this court notes that the objector admitted that funds were withdrawn from the bank account after the deceased’s death. Mr. Thiong’o was forthright in his testimony that the bank does not allow withdrawal of funds from an account after one of the signatories' death until succession proceedings in respect of the deceased’s estate are concluded. 38. The objector submitted that the funds withdrawn from the account after the deceased’s death were withdrawn through post – dated cheques reportedly signed by the deceased before his death. 39. Going by Mr. Thiong’o’s testimony, it follows that even where the deceased had signed post-dated cheques as alleged by the objector, the deceased’s death automatically stopped the withdrawal of funds from that bank account pending conclusion of succession proceedings with respect to the deceased’s estate.

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40. The above shows that the Objector dealt with funds from the bank account without the requisite authority. That constitutes the objector's intermeddling in the deceased’s estate. 41. Section 45 of the Law of Succession Act outlaws intermeddling with the estate of a deceased person. It provides: “Expect as, far as expressed authorized by this Act or by any other written Law, or by a grant of representation under this Act, no person shall, for any purpose take possession or dispose of or otherwise intermeddle with any free property of a deceased person. Any person who contravenes the provision of this section shall – be guilty of an offence and liable to a fine not exceeding Ten Thousand Shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment and be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting any payments made in due course of administration.” 42. Despite this court having found that the objector intermeddled in the deceased’s estate, this court declines to impose the sentence prescribed at this stage by allowing the objector to account for all the funds withdrawn from the account from the date of the deceased’s death to date,

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failure to which the court will make appropriate orders against the objector. DETERMINATION 43. Given the above, this court makes the following orders: a) Grant of Letters of Administration Intestate herein granted to the Petitioner on 29th January 2025 and issued on 17th February 2025 is revoked b) The Petitioner to file a fresh Petition for Letters of Administration Intestate in respect of the deceased’s estate setting out all the deceased’s assets and beneficiaries in line with the terms of this ruling within 30 days of today c) The Objector is granted thirty (30) days from the date hereof to account for all the funds withdrawn from the account from the date of the deceased’s death to date d) Each party to bear their costs Ruling read, signed and delivered in open Court at Bungoma this 22nd day of January 2026. T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Onyancha for Objector C/A: Rioba

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