https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11395

In re Estate of Chebii (Deceased) (Miscellaneous Succession Cause E007 of 2021) [2026] KEHC 11395 (KLR) (24 July 2026) (Ruling) Neutral citation: [2026] KEHC 11395 (KLR) Republic of Kenya In the High Court at Kabarnet Miscellaneous Succession Cause E007 of 2021 TM Matheka, J July 24, 2026 Between Angeline Salvic Chebii Objector and Geofrey Kiprotich Kiptoo Administrator and Kiptoon & Company Advocates Interested Party Ruling 1.Before me is the summons for Revocation of grant dated 30/10/2025. It is brought by Angeline Salvic Chebii who depones that she is the biological daughter of the deceased. 2.Angelic contends that the grant issued, and confirmed on 25/4/2025 should be revoked on the following grounds:1)That she and her brother David Kiptony who were adults at all material times were not consulted and did not consent to the confirmation of the grant contrary to Rule 40(8) of the Probate and Administration Rules.2)That there were some shenanigans in the matter as the application summons for confirmation of grant was filed on 19/6/2025 and the confirmation of grant issued on 25/4/2025.3)That the beneficiaries were never called or summoned to attend court on the date the summons for confirmation of grant was heard contrary to Section 71 of the Law of Succession Act and Rule 41 of the Probate and Administration Rules.4)That there were unknown liabilities indicated in the confirmation of grant as legal fees yet the directive by the court was that the same be fated had not been complied with. That this was a ploy by the Administrator to swindle the estate to the great prejudice of the beneficiaries. That this exaggeration and inflation of the legal fees was in collusion with the 3rd party to enable the administration to derive a personal benefit them the same Contrary to schedule 10 of the Advocates Remuneration Order 2014.5)That the distribution of the estate was based on an unprocedural grant or irregularly obtained confirmation of grant. 3.The summons is supported by the affidavit of Angelic Salvic Chebii sworn on 30/10/2025. She depones that her father had 2 wives and lists the members of each house. She comes from the 1st house.The administrator Geoffrey Kiprotich Kiptoo is her brother 4th born in her mother’s house.She reiterates the grounds above and adds:- The interested party’s fee note That the administrator has failed to comply with Section 83(a) (b) (d) and (e) of the Law of Succession Act. She has annexed her correspondence challenging the administrators actions, She asks that the grant issued on 5/8/2019, and Confirmation of grant made on 25/4/2025 both to Geoffrey Kiprotich Kiptoo, be revoked. 4.The Administrator opposed the summons vide the Replying affidavit sworn on 17/12/2025. he depones that the matter was determined through the judgment rendered on 26/4/2025, on the mode of distribution of the estate. 5.That he filed summons for confirmation of grant dated 5/1/2023, the applicant and David Chebii refused to consent and proceeded to file their protest dated 6/2/2023 and 16/3/2023 respectively. 6.That these were heard by way of Viva voce evidence. That the 2 protesters fully participated in the hearing which culminated in the judgment of 25/4/2025 which is annexed; and the confirmation of grant annexed regarding the asset of the estate Baringo/Sabatia – 103/171. 7.That the applicant is now misleading the court and misrepresenting the facts, that the summons confirmation of grant dated 12/5/2025 was erroneously uploaded; that the law, Rule 40 and 41 of the Probate and Administration Rules were complied with. 8.That there was no order that the bill of costs be taxed before being indicated as a liability of the Estate and that matters Advocate client legal fees are not within the province of this court to deal as that is a matter for the taxing master and can only be raised by the aggrieved Advocate or client. 9.Further that there is no provision of law regarding the presence of all beneficiaries at the hearing of the summons for confirmation of grant. 10.That the allegation of collusion to exaggerate the legal fees is a serious allegation and should be made to the relevant authorities or particulars be tabled before the court. 11.That the applicant was aggrieved by the appointment of the respondent as administrator of the estate, that she is “ an irritant, problematic, frivolous, disrespectful towards for mother, siblings” Annexed in the applicants refused to consent to the distribution of the estate; Judgment of Hon. Ngetich –J as she was then was, confirmation of grant showing distribution of the estate, at 6.8 acres as liabilities. 12.There was a further affidavit sworn by the applicant on 12/1/2026 where she reiterates that the confirmation of grant departs from the judgment of the court; that in the judgment the court did not determine any liabilities on the part of the estate of the deceased, that the only liability would be legal fees which had not been taxed. That the administrator has not set out what the 6.8 acres set out as liabilities will specifically pay for. 13.That the administrators reluctance to render account creates impression that he has something to hide. 14.The interested party filed grounds of opposition dated 17/12/2025 that the applicant’s enjoining of the Interested party was defective, frivolous, incompetent and an abuse of the court process. Submissions 15.Parties filed written submissions and highlighted the same on 22/6/2026. 16.The objector sets out for determination the issues:i.Whether the Objector’s Summons for Revocation of Grant dated 30th October 2025 meets the threshold under Section 76 of the law of Succession Act to warrant revocation of the grant issued herein.ii.Who should bear the costs of these proceedings? 17.On the 1st issue the objector relies on Section 76 of the Law of Succession Act and reiterates the irregularities set out in the affidavit and the further affidavit in supporting the Summons for Revocation Grant. 18.In addition, that the share of the 1st house was given as 52.75 Acres, but in the sharing out the same is less by 2.25acres which is unexplained; that the Interested party cannot be heard to say that his fees is to the tune of 6.8 acres of the estate, that no liabilities were disclosed to the beneficiaries and the court to see the Interested party’s demand for legal fees. 19.That the Interested party and the Administrator should bear the costs of this application. 20.In highlighting the submissions Mr. Ndambuki for objectors submitted that to begin with the objectors had not signed the consent for distribution of the share of the first house among the beneficiaries. 21.Secondly that the 6.8 acres set out as liabilities of the estate was a false statement by the Administrator. That the deceased had no liabilities, and what was set in the grant was the exaggerated fees of the Interested party – counsel for the petitioner. 22.Mr. Kiptoon for the Interested party and the Petitioner submitted that the firm was appointed by the Administrator and some of the beneficiaries to represent and guide them in this matter, that the matter was previously in the subordinate court and transited to this court under Misc. Cause E007/2021. 23.On the application before court, counsel placed before court issues for determination.a.Whether the alleged interested party was procedurally enjoined in the proceedings?b.Whether the issues raised are Res judicata?c.Whether the Applicant/Objector is deserving the prayers sought?d.Who should bear the costs of these proceedings? 24.On the 1st issue he relies on Mbiti vs Rugiri & 4 Others: Njiru & 4 Others [2023] KEHC 20540(KLR) on the procedure for enjoining an Interested party where the court relied on Rule 7 of the constitution of Kenya (Protection of Rights & Fundamental Freedom) practice and procedure Rules 2013. 25.He also cited Francis Karioki Muruatetu & Another –vs- R & 5 Others petition 15 as consolidated with 16 of 2013 [2016] eKLR on the guiding principles of enjoining Interested partys. 26.He argues that the applicant did not adhere to procedure under Order 1 rule 2(b) (sic) of the CPR, which requires that a formal application be filed, he urged the court to strike out the firm of Kiptoon & Co. Advocates from the proceedings. 27.He cited further, Trusted Society of Human Rights Alliance –vs- Matemo & 3 Others KESC 26 (KLR) & Rule 25 of the Mutunga Rules. 28.That the firm of Kiptoo & Co. Advocates was not a beneficiary of the estate of the deceased. 29.On the issue of Res Judicata counsel submitted that the applicant had filed previous applications on the same issues herein. That this included the chamber summons 25/8/2021 for temporary injunction against the respondent from dealing with Baringo/Sabatia 103/171, prayer granted on 14/10/2021, that the objectors objections were dealt with after she filed her Affidavit of Protest dated 6/2/2023. 30.That on the question of the administrator rendering accounts, it was submitted that the court dealt with that issue vide the Ruling of 30/9/2025. That the Administrator is bound by Section 83 of the Law of Succession Act but the applicant has obstructed his compliance, that the Ruling on legal fees was dealt with by court vide Rulings of 30/9/2025, 28/1/2025 where the court directed that any dispute on the legal fees could be taxed as the costs of the cause would be borne by the estate, that in any event the issue would be dealt with when the Administrator rendered accounts. That the instructing client is the administrator, and that the objector has minimal role and can only await when accounts have been rendered to raise any issue. 31.That the prayer to be appointed co-administrator was sought and dealt with by the court in Ruling of 30/9/2024. 32.On the issue of consent, it is submitted that where an Affidavit of Protest has been filed, the rule 40 and 41 of the probate and Administration Rules are not applicable. 33.That the distribution of the estate was by consent where the 2 houses agreed on the shares where House 1 would get 52.75 acres, and house 2 would get 30 acres. That the dispute is the mode of distribution within the 1st house. 34.It was submitted further that the application for summons for Confirmation of Grant does not have to indicate the liabilities of the estate. 35.That the Ruling of 30/9/2025 settled the issue of individual shares. The court is referred to Re Estate of Gichere (Deceased) Misc Succ Cause E007/2023 2026 KEHC 8425(KLR) where the court held;“22.The allegation by the Applicants that the process of obtaining the grant was defective and tainted with material nondisclosure is not supported. The personal representatives herein properly obtained letters of administration to administer and distribute the estate and I am satisfied that no contrary claims were made in objection or protest to the issuance and confirmation of the grant. In the High Court case of in the Estate of Julius Mimamo (Deceased)[2019] eKLR the court analyzed the unique position in law held by the personal representative of a deceased person by stating as follows;“...personal representatives administer estates on the strength of legal instruments made to them by the probate court. The vesting of the estate of the deceased on the personal representatives by virtue of Section 79 of the Act, flows from the instrumentality of the grant of representation. Upon representation being made, the grant holder then becomes entitled to exercise the statutory powers conferred upon personal representatives by Section 82 of the Act and incurs the duties imposed on them by Section 83 of the Act. Additional powers flow from and duties are imposed by other statutes, such as the Trustee Act. Under Section 82 of the Act, there are powers to enforce and defend causes of action on behalf of the estate, to sell or convert estates assets to assent of bequest and legacies on the beneficiaries, among others. Acts done or actions taken on behalf of the estate or for the benefit of the estate would have to be accounted for. In other words, the personal representatives are bound to account for every action they take on behalf of the estate, for they exercise powers on delegation.” 36.It is further submitted that revocation of grant is discretionary, but that the discretion must be exercised on sound grounds based on evidence of wrongdoing: the interests of all the beneficiaries of the estate, and the interests of justice must be taken into account. 37.It is submitted that on the issue of liabilities, the 6.8 Acres is not just legal fees, but the cost of distributing the estate and will be well accounted for when distribution has been concluded as per Section 82 of the Law of Succession Act. 38.It is further argued that the applicant has not appealed against the judgment of the court. 39.The court is urged to dismiss the application with costs to the Administrator. Anayslis and Determination 40.I have carefully considered the application, the rival Affidavits, annextures and submissions. Looking at the the Judgment delivered on 25/4/225, the Hon Ngetich J as she then was The in making the final orders rendered herself thus:-1.The estate of the deceased is made up of one asset Baringo/Sabatia – 103/171.2.The 1st House is allocated 52.75 Acres , one acre to go to the Petitioner, the rest, 51.75 Acres be shared equally between all the children of the 1st house, with the widow as the additional unit.3.The 2nd house to have 30 Acres.4.Costs of the cause be paid from the estate of the deceased. 41.Pursuant to this Judgment a certificate of Confirmation of grant was made on 25/4/2025 in which the distribution was set out as follows:- 1st House –The 52.75 acres is shared thus: To each beneficiary 6.1. Acres, to the Petitioner 7.1 acres; to liabilities 6.8 Acres. 2nd HouseThe whole of 30 Acres. 42.It is this certificate of confirmation of grant that has provoked the Summons for Revocation of Grant dated 30/10/2025. 43.The issue for determination for is whether the Summons has any merit. 44.Section 76 of the Law of Succession Act provides that a grant can be revoked at any time should the court find that any of grounds set out therein have been established by the applicant.The applicant raises the following grounds inter alia:- That the certificate of confirmation of grant was obtained by giving false information to the court That she and other beneficiaries did not participate in the distribution of the estate. That the administrator has not disclosed the extent of the alleged liabilities of the estate That the administrator in not acting in the best interests of the estate by acceding to exaggerated /inflated legal fees from the interested party. That the administrator has failed to comply with the law regarding the duties and responsibilities. 45.The Preliminary issue is whether the firm of Kiptoon & Company Advocates was properly joined as an interested party. At the outset it is evident that the proper procedure was not followed. 46.However, the question the court asked itself is – why would the applicant find that this was necessary to join the firm as an interested party, albeit without following the laid down procedure? 47.One of the annexures to the supporting affidavit of the applicant is (“ASC –S”). a letter from the firm of Kiptoon & Company Advocates to the Administrator dated 26/4/2024 headed “Fee Note” . Somewhere in the letter counsel says –“As agreed 12% of the value of the Estate: Ksh 5,760,000/=Court fees – 2000/=10% VAT – 921,600Total 6,683,600 48.It is noteworthy that this was one day after the Certificate of Confirmation of Grant dated 25/4/2025 where the Administrator unilaterally slashed 6.8 Acres from the share of the 1st house and named it: Liabilities. The applicant put two and two together and arrived at the conclusion that there was collusion. On the face of its that is how it appears. That the administrator would unilaterally decide what amount to liabilities of the estate and take it out of the shares of the beneficiaries without consulting them created the basis for this application, and for the ‘joinder’ of the law firm. 49.It is argued by the administrator that the Judgment of the court provided for this. However, a perusal of the record shows that there were no liabilities pleaded and no liabilities proved as against the estate of the deceased. and mor importantly there were also no orders issued by the court on the settlement of any liabilities. 50.That is why the deposition by the Administration and his submissions and those of the “Interested Party” with regard to legal fees, untenable. 51.They take the position that the issue of legal fees is between the Administrator and the firm of the interested party. That is far from being correct. The costs of administering the estate in this case are to be borne by the estate, from the sole asset of the estate. The court already identified the shares of each beneficiary and demand for fees appears related to the slashing of the estate which affected the individual share of each beneficiary of the estate in the first house. 52.It is therefore not correct that this is an issue to left to the whims of the administrator and the Advocate representing him to determine this issue. The administrator owes it to the estate and the beneficiaries to make them aware of and the extent to which the estate becomes indebted to the Advocate. And this cannot just be at the rendering of accounts. it has to be alive in the matter and be dealt with as the estate is being distributed. To that extent I find the Administrator’s conduct of unilaterally coming up with liabilities and adding it to the certificate of confirmation of grant. 53.The administrator exercises statutory delegated authority and his powers are not absolute. He is not responsible or answerable unto himself, and his counsel represents the estate. It cannot be said that the objector or the other beneficiaries have little or no role on the issue of legal fees; they do and the duty of the administrator is to be open about this to avoid the appearance of hiding something. This is because the settlement of the costs of administrating the estate will determine the final shares of the beneficiaries. 54.To the applicant the fee note appears exaggerated and inflated . It is evident that the attitude of the Administrator that he has absolute power of the estate led to the applicant’s bringing the firm of Kiptoon & Company Advocates into the matter in a bid to show to the court the reasons why the grant ought to be revoked, because through the fee note raised, the firm is laying a claim on the estate, and in addition – the firm is supporting the Administrator’s position that he is not accountable on the issue of legal fees until he has completed the distribution of the estate. 55.Counsel also took the position that the Summons for Confirmation of Grant did not have to reveal the liabilities of the estate: Again, that is not the position of the law. 56.The form P & A 5 filed at the time of lodging the petition requires that the assets and liabilities of the estate be divulged at that time :– In this case no liabilities were divulged at filing and these cannot be sprung on the estate in the manner that the Administrator has done herein. 57.To that extent the Administrator is not being forthright.The creation of liabilities of 6.8 Acres was not in the Judgment of the court. The Summons for Confirmation of Grant ought to have clearly set out the distribution as per the Judgment of the court and liabilities ought to have been brought to the attention of the court. 58.In addition, a simple mathematical calculation of the manner in which he distributed the estate, even with the doubtful liabilities of 6.8 Acres, there is missing from the 1st house a total of 2.25 acres unaccounted for in his distribution in the certificate of confirmation of grant.This position was is also supported by counsel. He submitted that this would bear the cost of subdivision/Registration, of the estate. So, what is this additional 6.8 acres going to do? 59.The Administrator went out of the order of the court regarding the distribution of the estate with respect to the 1st house. The share was 52.75 Acres. There are 7 members of the first house. He was to take one extra acre, leaving 51.75 Acres. 51.75 divided by 7=7.39 Acres. So ideally the Confirmation of Grant ought to have indicated that each member was to get 7.39 Acres and for him 8.39 Acres. His distribution says – 6 of the members get 6.1 acres each, which is equal to 36.6acres , add his 7.1acres. That gives a total of 43.7acres. Add the alleged liabilities of 6.8 Acres giving a total of 50.5 acres. There is no explanation in the grant of the missing 2.25 acres. 60.So clearly this Administrator was not entirely truthful in the certificate of confirmation of grant that he obtained. The grant is not consistent with the Judgment of the court and I found no explanation by the administrator as to why he distributed the estate like that. 61.I acknowledge the provisions of Section 83 of the Law of Succession Act which provides for the duties of the personal representative to include:-(c)to pay, out of the estate of the deceased ALL expenses of obtaining the grant of representation, and all other reasonable expenses of administration. 62.It is expected in order to fulfil this duty the administrator will put together the said expenses to the beneficiaries where their respective shares are affected The Administrator did not involve the applicant or the other beneficiaries in deciding that only the share of the 1st family would bear the cost of what he termed liabilities. 63.Clearly that would not be fair – as any liabilities of the estate must be borne by the whole estate and should be determined and deducted/provided for at the distribution of the estate. 64.The Judgment did not say that the 1st house would bear the cost of administration of the estate – the court stated that the estate would bear the cost of the administration of the estate. 65.The concern of this court is that the administrator herein has taken the provisions of section 79 of the Law of Succession Act literally – that the property has vested in him – he has not read the full provisions of the law as his powers are subject to the any limitation imposed by the grant. 66.In this case the limits were set by the Judgment which told him how he was to distribute the estate pay the costs of the administration from the estate. 67.Is the question of revocation res judicata making this court functus officio?Section 76 states that the grant of representation whether or not confirmed, may at any time be revoked or annulled of the court decides – order on application by any interested party or of its own motion… 68.Evidently, there is no limitation, the court is bound to act on sound grounds and in the best interests of those beneficially entitled and to the best interest of the estate.from the foregoing I find that there was a false allegation that the estate had liabilities worth 6.8 Acres, and there is concealment of the whereabouts of 2.25 Acres of the estate. 69.To that end the application to revoke the grant is merited. 70.The grant made on 25/4/2025 be and is hereby revoked.What orders should issue?Due to the issue of legal fees, and the cost of administering the estate – it will be necessary for the two houses to be represented so as to agree on the mode of paying legal fees and any other costs. 71.Considering the conduct of the current administrator the 1st house is granted leave to provide an additional administrator to secure the interests of the other beneficiaries. 72.In the meantime – Status Quo of the estate as at the time of the judgment be maintained. In the end1.The Grant made on 25/4/2025 be and is hereby revoked; Status Quo of estate be maintained.2.Each house has leave to appoint another member of their house as additional administrator within 30 days with effect from 27th July 2026. An amended grant to issue upon the names being presented to court.3.Within 6 months hereof the administrators to account for the finalized administration of the estate.4.The matter be mentioned before the deputy Registrar within 30 days with effect from 27th July 2026 for progress on compliance.5.The ‘Interested Party’ be and is hereby is removed.6.Costs of this application are costs in the cause RULING DATED, SIGNED AND DELIVERED AT ELDAMA RAVINE (SUB-REGISTRY) THIS 24TH JULY 2026.MUMBUA T MATHEKAJUDGEIn the presence of:-Mr. Ndambuki for the ApplicantMr. Kiptoon for the Administrator