https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8917

In re Estate of the Late Wainaina (Deceased) (Succession Cause E029 of 2023) [2026] KEHC 8917 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8917 (KLR) Republic of Kenya In the High Court at Murang'a Succession Cause E029 of 2023 DO Chepkwony, J June 18, 2026 IN THE MATTER OF THE ESTATE OF THE LATE APOLO KIHARA WAINAINA ALIAS APOLO KIHARA WAINAINA (DECEASED) Ruling 1.For determination before this court is the Summons for Confirmation of Grant dated 2nd December,2025 which seeks:-a.That the Grant of Letters of Administration Intestate made to the said Peter Kimari Kihara, Dickson Gachanja Kihara and James Mwangi Kihara in this matter, on 7th May,2024 to be confirmed and issued Peter Kimari Kihara, Dickson Gachanja Kihara and James Mwangi Kihara.b.That the costs of this application be in the cause. 2.The application is supported by the Peter Kimari Kihara,Dickson Gachanja Kihara and James Mwangi Kihara sworn even alongside the annexed Consents to Confirmation of Grant sworn by beneficiaries a full inventory of all the assets and liabilities of the deceased as at the time of his death on 6th October,2022 and the proposed mode of distribution of the deceased’s Estate, executed by all beneficiaries. 3.I have perused the record and established that this is an Intestate Succession in that the Deceased died without leaving a Will and the Petitioner(s) then petitioned for the Grant of Letters of Administration Intestate, which was issued on 7th May,2024 to three (3) Administrator(s) namely, Peter Kimari Kihara,Dickson Gachanja Kihara and James Mwangi Kihara being sons of the Deceased, wherein they were granted authority to manage the Estate of the Deceased, Apollo Kihara Wainaina alias Apollo Kihara Wainaina This application was then published in the Kenya Gazette on 12th January,2024 inviting anyone who might have an objection to lodge the same in court within thirty (30) days from the date of publication. 4.It is worth noting that no objection was raised against the application for Grant of Letters of Administration by anyone and at the lapse of thirty (30) days, the Petitioners were granted the Letters of Administration Intestate where they were made personal representatives of the Estate of the Deceased with power to deal with the property/assets and liabilities of the Deceased’s Estate in the manner provided for under Section 83 of the Law of Succession Act Cap 160 of the Laws of Kenya. 5.Upon the lapse of six (6) months after the issuance of Letters of Administration, the Petitioners then filed Summons (an application) for Confirmation of Grant dated 2nd December,2025 to enable them distribute the deceased’s Estate amongst the beneficiaries pursuant to Section 71(1) of the Law of Succession Act, Cap 160. 6.The Summons for Confirmation of Grant was fixed for hearing in open court on 27th May,2026 on which date the court proceeded to read out the grant and explained its full particulars to the Administrators and Beneficiaries in Kiswahili language which they all understood. The record shows that the court recognised Peter Kimari Kihara, Dickson Gachanja Kihara and James Mwangi Kihara as the and Children of the Deceased, thus Administrator and Beneficiaries respectively. 7.At the hearing, the court also went ahead and examined the Administrators and all the surviving Beneficiaries so as to verify their respective identities, relationship with the Deceased, their views on the appointment of the personal representative/ Administrators, the identified and listed properties or assets and liabilities of the Deceased’s Estate and proposed mode/plan of distribution of the said Estate amongst the beneficiaries or survivors of the Deceased so as to confirm their sentiments on the same. Determination 8.Having examined the Administrator and Beneficiaries of the Deceased’s Estate, the court has also read through the summons and documents in support thereof and finds the sole issue for determination being whether the Grant of Letters of Administration issued on 7th May,2025 can be confirmed. 9.Confirmation of Grant is governed by the provisions of Section 71 of the Law of Succession Act and Rule 40 of the Probate and Administration Rules.Section 71 of the Law of Succession provides that:‘‘(1)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.(2)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 un administered; 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.(3)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 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.(4)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 Rules States that:1.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. 10.At confirmation of Grant, Section 71(2) of the Law of Succession obligates the court, especially in cases of intestacy to be satisfied as to the proper identification of all persons beneficially entitled and their respective shares before authorising distribution. Rule 40(1)(4) and (8) requires disclosure of all beneficiaries and their consents vide an affidavit. 11.Confirmation of Grant is not a pro-forma exercise. It is a judicial act that lends legal authority to distribution of capital assets. As such, before Confirmation of Grant, the court must be satisfied as to the identity and consent of all persons beneficially entitled to the deceased’s estate, (ii) the proper quantum or shares to which they are entitled to in order to protect the property rights of the estates’ beneficiaries; and (iii)give effect to the constitutional guarantee of fair hearing under Article 50(1) of the Constitution. 12.In this case, the court confirms that the two appointed Administrators of the Deceased’s Estate have filed an Affidavit sworn on 2nd December, 2025 in support of the Summons of Confirmation of Grant. In this affidavit, the Administrator/Applicant have confirmed that he was such vide a Gazette Notice No. Vol. CXXVI of 12th January, 2024. They have also identified the Beneficiaries who are not Administrators, being daughters and sons of the Deceased at Paragraph Five (5) of their Supporting Affidavit the beneficiaries are identified as Fraciah W. Kihara, Peter Kimani Kihara, Dickson Gachanja Kihara, James Mwangi Kihara,Moses Wainaina Kihara and Anne Njeri Kihara. Further they have identified the assets of the Deceased’s Estate and set out the schedule on the mode of distribution of the said Estate thereof at paragraph 6 of their affidavit. 13.Also, the court has confirmed that the Administrators and all the Beneficiaries of the Deceased’s Estate (being sons and daughters of the deceased) signed and filed a Consent in which they have confirmed their agreement to the listed assets/properties alongside the proposed mode or plan of distribution of the Deceased’s Estate as set out at Paragraph six (6) of the said Supporting Affidavit. 14.For transparency and fair administration of justice, the Beneficiaries to the Estate of the Deceased were notified of the Summons for Confirmation of Grant and attended court where they were examined on oath and each confirmed that they had no objection with the listed assets of the deceased and were in agreement with the proposed mode of distribution as set out at Paragraph six (6) of the said Supporting Affidavit which is in consistent with the principles of distribution in cases of Intestate Succession as set out under Section 71 of the Law of Succession Act (Cap 160). 15.All in all, this court is satisfied that the Petitioners have followed the requisite steps in compliance with the provisions of Section 71 of the Law of Succession Act by filing all the required documents following land court procedure. 16.And there being no pending application by any person(s) 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 the said Peter Kimari Kihara, Dickson Gachanja Kihara and James Mwangi Kihara on 7th May,2024 be and is hereby confirmed.b.The Petitioners be and are hereby appointed as personal representative of the Estate of Apolo Kihara Wainaina alias Apollo Kihara Wainaina (Deceased) to manage and distribute the assets and liabilities, (if any) thereof.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.d.Being a family matter, there shall be no order as to costs.It is so ordered. RULING DELIVERED DATED AND SIGNED AT MURANG’A THIS 18TH DAY OF JUNE, 2026.D. O. CHEPKWONYJUDGE