https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9631

In re Estate of Miriti (Deceased) (Succession Cause E057 & E926 of 2023 (Consolidated)) [2026] KEHC 9631 (KLR) (Family) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 9631 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause E057 & E926 of 2023 (Consolidated) RA Oganyo, J July 2, 2026 IN THE MATTER OF THE ESTATE OF CATHERINE KAGWIRI MIRITI (DECEASED Between Lisa Kathambi Miriti 1st Applicant Linet Karwirwa Ochieng 2nd Applicant and Kenneth Kirema Miriti Respondent Ruling 1.Coming up on 23rd June, 2026 was succession cause no. E057 of 2023 for viva voce evidence in respect to the application dated 24th November, 2023 when mention was made of another cause no. E 926 of 2023 having been filed. Parties sought for directions on how to proceed with the two and whether it was possible to consolidate both. 2.It is worth noting that the two causes are in respect of the estate of the same and singular deceased person known as Catherine Kagwiria Miriti. 3.Where two succession causes have been filed over the same estate, one alleging that the deceased died intestate and the other asserting that the deceased left a valid will, the preferable course is not an outright consolidation for all purposes, but rather:i.Stay one cause pending determination of the validity of the alleged will; orii.Consolidate the causes only for the limited purpose of determining the preliminary issue of testacy, after which the court should proceed under the appropriate legal regime depending on its finding. 4.After carefully perusing both files, I have noted that;i.)Cause no. E057 of 2023 seeking a grant of probate was the first to be filed on 18th January, 2023 and a grant of probate was issued on 20th June 2023. However, an objection dated 24th November, 2023 was raised seeking revocation of the grant, citing that the deceased did not have a valid will.ii.)Subsequently, Cause no. E926 of 2023 was filed on 22nd November, 2022 seeking grant of letters of administration intestate. 5.The question before me is whether to consolidate the two files. Consolidation is a procedural matter and at the discretion of the court. Upon perusal of the two causes, I am of the considered view that they fall within different regimes of succession administration thus consolidation will not serve the ends of justice. 6.The Law of Succession Act recognizes only two mutually exclusive modes of succession: Testate succession (where there is a valid will); and Intestate succession (where there is no valid will). The court cannot therefore simultaneously administer the same estate under both regimes. 7.This Court has emphasized that the first duty of a probate court is to determine whether the deceased died testate or intestate, because that finding determines the applicable law governing administration. The ruling by Muchelule J (as he was then) in the case of In re Estate of Milka Njambi Njuguna (Deceased) (Succession Cause 399 of 2019) [2022] KEHC 11387 (KLR) (Family) (6 June 2022) (Ruling), state:“... All that I am saying at this time is that, if the deceased left a written Will, there ought to have been a petition for the grant of probate, and not petition for the grant of letters of administration intestate……. I ask that the petition shall be set down for hearing on 8th November 2022 to determine whether the deceased died testate or intestate. " 8.This statement illustrates that testacy is a threshold issue that logically precedes distribution or appointment of the administrators. 9.Secondly, Consolidation is procedural, not substantive. This Court possesses inherent powers under section 47 of the Law of Succession Act, and Rule 73 of the Probate and Administration Rules to make orders necessary for the ends of justice. 10.Rule 73 provides: "Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court." Accordingly, the court has jurisdiction to consolidate proceedings where justice demands. However, consolidation should serve procedural convenience and avoid conflicting decisions—not merge incompatible legal regimes. 11.Thirdly, full consolidation may be problematic for the following reason:A petition for probate is founded on the existence of a valid will (Part II of the Law of Succession Act); whereas Letters of Administration Intestate presuppose that no valid will exists. (Part V of the Law of Succession Act)12. 12.These causes therefore rest on contradictory factual foundations/regimes. If consolidated without first resolving the validity of the will, the court risks: determining beneficiaries under Part V of the law of succession Act while a will remains unresolved under Part II of the same Act; or appointing administrators under Part V of the Act when executors may validly exist under Part II of the Act; thus, issuing inconsistent grants. The succession court should avoid parallel grants over the same estate. 13.Further under Section 76 (a) of the law of succession, the grant issued may be revoke if the correct regime is not invoked. Conclusion 14.I thus direct that Cause No. E926 of 2023 be stayed until the issue of the Will is fully addressed and determined. The determination of Cause no E057 of 2023 will automatically determine the fate of either Causes before me.It is so directed.Right of appeal 30 days. DATED, SIGNED AND DELIVERED THIS 2ND DAY OF JULY, 2026.HON. R. A. OGANYO, MRS.JUDGE.In the presence of; -Court Assistant…. SanaMr. Agimba for one of the Executrix viz Linet MiritiMr. James Ngugi for the Executrix Lisa MiritiMr. Kitonga for the Applicant/Objector.