REPUBLIC OF KENYA IN THE PRINCIPAL MAGISTRATE’S COURT AT MALABA SUCCESSION CAUSE NO 3B OF 2023 IN THE MATTER OF THE GRISHOM MASIBORE KITAI AND JOYCE NEKESA.............................................................................PETITIONER -VERSUSSAMWEL GITAU…………………………………………………………………….. OBJECTOR RULING. 1. What is before me for determination is an oral application by Mr. Anyona Counsel for the Petitioner that the Objector be appointed as a coadministrator of the estate. The application is made against the background of a matter which has, unfortunately, remained at a standstill for a considerable period of time. 2. The Objector opposes the application. His principal contention is that, being a male child and the only male child of the deceased, he ought to be appointed the sole administrator of the estate. He further states that neither he nor his nephew has been involved in the succession proceedings undertaken before this Court. 3. The history of the matter is relevant. The record shows that as at 7th May 2025 the then Petitioner was deceased. An application for substitution dated 15th September 2025 was subsequently filed and was allowed on 1st October 2025. The matter thereafter proceeded to the stage of filing the summons for confirmation of grant, at which point the present dispute regarding administration arose. 4. The record further shows that the parties have on previous occasions sought time to resolve the dispute at the clan level. No settlement was reached. The Court subsequently referred the parties to mediation. However, there is no evidence on record of any meaningful attempt by the parties to attend or participate in the mediation process. 5. The consequence is that the succession cause has remained substantially stalled since 2023. The estate, beneficiaries and the administration of the estate cannot reasonably be left in abeyance indefinitely merely because the parties have been unable to agree on who should administer it. 6. The issue for determination is whether, in the circumstances of this case, the Objector ought to be appointed as a co-administrator as sought by the Petitioner, or whether, as contended by the Objector, he ought to be appointed the sole administrator by reason of his being a male child. PMSUCC NO. 3B OF 2023 Hon A.Z Ogange- R.M pg. 1
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7. The starting point is section 66 of the Law of Succession Act. The provision vests the Court with the final discretion as to the person or persons to whom a grant of representation should be made, the overriding consideration being the best interests of all concerned. The order of preference under the provision is therefore a general guide and does not confer an automatic right upon any particular beneficiary to administer an estate. 8. In the present case, there being no surviving spouse, the persons entitled on intestacy are the surviving children. Section 38 of the Law of Succession Act provides that where an intestate has left a surviving child or children but no spouse, the net intestate estate devolves upon the surviving child or is equally divided among the surviving children where there is more than one. 9. It follows that the law does not recognize a superior entitlement on account of being a male child as opposed to a female child. This position finds direct support in re Estate of Joseph Mwaura Nderi (Deceased) (2022) KEHC 598 (KLR), where the Court when faced with circumstances akin to this one held that the fact that he was the first child or son of the deceased did not confer any seniority upon him in relation to entitlement to administration. 10. I therefore find no legal basis for the Objector’s contention that his being the only male child entitles him to be appointed the sole administrator of the estate. 11. I have nevertheless taken seriously the Objector’s contention that he has not been involved in the process undertaken by the current administrator. In my view, the concern is best addressed by ensuring his meaningful participation in the administration of the estate rather than by excluding him or conversely granting him exclusive control of the estate. 12. Significantly, the grant is yet to be confirmed. The confirmation process is one in which the beneficiaries and their respective interests must be brought before the court and afforded an opportunity to participate. The objector will therefore have an opportunity to raise any legitimate concerns regarding the beneficiary’s assets and proposed mode of distribution. 13. The appointment of a co administrator would in the circumstances serve a useful purpose. It would bring the objector directly into the administration of the estate, while ensuring that the estate is not held hostage to the present dispute over which of the two children should exercise exclusive control. 14. Taking into consideration the history of the matter and the dispute at hand, I am satisfied that the interests of justice and the proper administration of the estate would best be served by appointing the PMSUCC NO. 3B OF 2023 Hon A.Z Ogange- R.M pg. 2
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objector as a co-administrator, rather than appointing him as the sole administrator as he seeks. 15. For avoidance of doubt, appointment as administrator does not confer beneficial ownership. Both administrators are fiduciaries of the estate and are required to act in the interest of all beneficiaries. Their appointment also does not determine the respective beneficial shares of the parties, which remain subject to confirmation. . Conclusion 16. The upshot of my findings above is that this Application succeeds. Accordingly, I order as follows: i) That the application to appoint the Objector as co-administrator is hereby allowed and the objector Samwel Gitau is hereby appointed as co-administrator of the estate together with Joyce Nekesa. ii) A grant of Letters of Administration Intestate shall issue forthwith in the names of Samwel Gitau and Joyce Nekesa as joint administrators of the estate. iii) The administrators shall file Summons for confirmation of Grant within thirty (30) days from the date hereof. iv) The administrators shall take all necessary steps to progress the administration of the estate. v) The administrators are hereby put on notice that failure to comply with the foregoing directions without reasonable cause shall render the grant liable to revocation under Section 76 of the Law of Succession Act and the Court shall be at liberty to take appropriate action upon the mention date. vi) The parties remain at liberty to pursue mediation in respect of any dispute relating to the administration and/or distribution of the estate. Such mediation, however shall nor operate as a stay of the timelines and directions issued herein. vii) Each party shall bear his or her own costs. viii) The matter shall be mentioned on 7th October 2026 to confirm compliance and for further directions. PMSUCC NO. 3B OF 2023 Hon A.Z Ogange- R.M pg. 3
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RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATE’S COURT THIS 2 ND DAY OF SEPTEMBER, 2026. In the Presence of The Objector Samwel Gitau Present in Person and Mr. Anyona Counsel for the Petitioner Joyce Nekesa the Petitioner Present Court Assistant: Paul Otieno A.Z. OGANGE RESIDENT MAGISTRATE 02.09.2026 PMSUCC NO. 3B OF 2023 Hon A.Z Ogange- R.M pg. 4
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