https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8564

In re Estate of the Late Muema alias Predrick Phili Muema (Deceased) (Succession Cause E3435 of 2022) [2026] KEHC 8564 (KLR) (Family) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8564 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause E3435 of 2022 HK Chemitei, J June 18, 2026 IN THE MATTER OF THE ESTATE OF THE LATE FREDRICK PHILIP MUEMA alias FREDERICK PHILIP MUEMA (DECEASED) Between Philip Collins Ngila Muema 1st Applicant Philip Nickol Muema kioko 2nd Applicant and Ruth Ndunge Muema 1st Respondent Catherine Muleyo Muema 2nd Respondent Ruling Consolidated Ruling 1.There are two sets of applications before the Court which I shall give a consolidated ruling. 2.The first application by the 3rd and 4th Executors is dated 4th August 2025 in which it seeks orders that:(a)The certificate of confirmation of grant dated 17th March 2025 be amended to include the Will annex dated 22nd and 23rd February 2021. 3.The same is premised on the affidavits sworn by the said Applicants on the same date. 4.The substance of the application is that despite the grant being confirmed based on the deceased Will dated 23rd April 2020, there existed another Will dated 22nd and 23rd February 2021 made and executed by the deceased. The same was left out by the counsel when the petitioning for the probate herein. 5.They also deponed that there are several creditors to the estate and the Executors have been unable to agree on how to proceed as the first family would wish to have the estate distributed whereas on their part, they would wish to have the liabilities sorted out as a matter of priority. 6.They also deponed that they had identified some 10 acres parcel of land which the deceased had earmarked for sale which proceeds will satisfy the entire estates liabilities and the balance will be paid out to the beneficiaries. 7.It is their case therefore that the Will annex be admitted as evidence and subsequently the liabilities be sorted out before the grant is fully executed by having the beneficiaries enjoy their inheritance. 8.The application is opposed by the 1st and 2nd Executors through their replying affidavit sworn on 19th September 2025 on the grounds inter alia that the same introduces a new twist to the cause as the new will annex was suspect and that it cannot be introduced in the manner the Applicants are doing. That the same runs afoul the provisions of Section 74 of LSA as well as Rule 43 of the Probate Rules thereof. 9.The Respondents have accused the Applicants of failing to implement the grant so as each of the beneficiaries could get their respective share in the estate. 10.The second application by the 1st and 2nd Executors is dated 19th September 2025 seeking the following reliefs:(a)That this Court be pleased to appoint the Deputy Registrar to execute the transmission documents on behalf of all the Administrators pursuant to the certificate of grant and as outlined in the deceased will.(b)That a mandatory order be issued to the Land Registrar of the relevant registries to accept, process and register the documents execute by the Deputy Registrar pursuant to the order of this Court and to effect the requisite entries in the land registries in favour of the beneficiaries. 11.The application is based on the grounds thereof and the Applicant’s sworn joint affidavit dated the same date. 12.The substantive issue raised in the said affidavit is the fact that the four Executors have been unable to agree on the execution of the transmission documents in favour of the beneficiaries despite the grant being confirmed on 17th March 2025. 13.The Applicants are accusing the 3rd and 4th Executors from delaying and or refusing to sign their part hence causing the beneficiaries to suffer loss and inability to enjoy the estate. 14.Consequently, they are asking the Court to grant the application by allowing and authorizing the Deputy Registrar to execute the transmission instruments. 15.The 3rd and 4th Executors through their joint sworn affidavit dated 30th September 2025 have denied their assertion by arguing that they did not refuse to execute their part and that they needed the estates liabilities to be settled first before distribution. 16.It is their deposition that unless the liabilities are settled then it shall be incumbent upon the Executors to shoulder the same afterwards. Further that it was trite law that before the distribution of the estate the liabilities ought to be settled as of first instance. 17.The Court directed the parties to file written submissions which they complied and I have perused the same extensively together with the cited authorities and I see no reason to reproduce the same here. Analysis And Determination 18.There are two issues for determination namely, whether the will annex which the second and third Executors wishes to have it admitted as the deceased genuine Will and secondly whether the estate ought to be distributed before the liabilities are settled. 19.The issue of the Deputy Registrar signing the transmissions instruments is peripheral for now. 20.On the first issue of the discovered Will annex, I entirely agree with the Respondents that the same cannot be introduced in the manner the Applicants are attempting to do. This is a primary instrument and I find that unless by consent, as they did in the first Will, the same must be subjected to scrutiny and if necessary, by formal introduction to the proceedings and if necessary be subjected to cross examination. 21.The more significant question is why the same came late in the day after the grant had been confirmed and whether it shall have any bearing on the first Will which the parties admitted by consent. 22.In my view therefore the same must be subjected to greater scrutiny and not in the manner the Applicants are suggesting. 23.As to the settlement of debts, I agree with the 3rd and 4th Executors that the provisions of Section 83 and 86 of the Succession Act demands that the estates liabilities must be settled before the distribution is done. 24.It is possible as submitted by the Respondents that the attached liabilities are questionable. The same however has been placed on record and cannot be ignored. The creditors might be required at some point to prove the same and in the premises the Court will take it that the estate is indebted to them. 25.What is the best way forward for now? The Applicants or the 2nd house have suggested that there was a 10-acre parcel of land along Mombasa Road near Daystar University which had been earmarked for sale by the deceased so as to settle the liabilities and any balance will go to the beneficiaries. 26.I did not see any strong opposition from the 1st house. In my view if the value is over Kshs. 350 million as they said then it ought to be disposed and settle any proven liabilities. I state proven deliberately since in such a situation the law demands that any creditor must establish that the deceased or the estate owed him any amount. 27.Since it appears prima facie that the estates liabilities might not exceed the value of the intended identified property for sale, I find that there is no need of holding the transmissions of the properties to the beneficiaries as contained in the confirmed grant. Each of them must be allowed to enjoy their bequest as the Executor’s moot how to settle the liabilities, if any, by disposing the above asset. 28.Consequently, and in view of what I have stated above I direct as hereunder:(a)The alleged Will annex by the deceased dated 22nd and 23rd February 2021 shall be subjected to scrutiny by way of oral evidence and the parties are directed within 30 days from the date herein to file a formal application to have the same admitted as evidence in this cause.(b)The land measuring 10 acres situate along Mombasa Road near Daystar University and which is earmarked for sale to settle the estates liabilities shall be disposed by the Executors and the proceeds shall be used to settle any estates proven liabilities and the balance shall be distributed among the beneficiaries.(c)In complying with order (b) above the parties shall agree on modalities including but not limited to opening a joint account to have the purchase consideration placed therein pending verification of any liabilities by any creditors and subsequently sharing out to all the beneficiaries.(d)The Executors shall proceed to execute the transmission instruments in favour of the beneficiaries as per the grant confirmed on 4th August 2025 within 30 days from the date herein and in the event of any Executor failing to execute the Deputy Registrar of this Court shall be at liberty to execute without further notice.(e)Costs in the cause. DATED SIGNED AND DELIVERED AT NAIROBI VIA VIDEO LINK THIS 18TH DAY OF JUNE 2026.H K CHEMITEIJUDGE, FCIARB.