https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6434

In re Estate of David Oduor Opela (Deceased) (Succession Cause E015 of 2025) [2026] KEHC 6434 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6434 (KLR) Republic of Kenya In the High Court at Siaya Succession Cause E015 of 2025 DK Kemei, J May 14, 2026 IN THE MATTER OF THE ESTATE OF DAVID ODUOR OPELA (DECEASED) Between Beatrice Susan Achieng Ogutu 1st Petitioner Matilda Awuor Oduor 2nd Petitioner and Tabitha Kasia Wesa Objector Ruling 1.The Petitioners filed an application dated 15/4/2026 seeking the following reliefs:i.Spent.ii.That the court do issue a special/limited grant allowing the Petitioner to access the deceased’s bank account at Standard Chartered Bank Account No. 01002XXX, Kakamega Branch and Dollars Account No. 87002XXX, Nairobi Branch and be allowed to withdraw from and operate the account for purposes of paying fees and upkeep or the children’s upkeep(school fees and maintenance) as an immediate need.iii.That the Petitioner be allowed to access the deceased’s account number 01002XXX, Kakamega Branch, and Dollars Account number 87002XXX, Nairobi branch to withdraw money for the school fees and maintenance of the deceased’s children namely:1)CAAO-[Particulars Withheld] University2)VAO- [Particulars Withheld] High School3)MGH Oduor- [Particulars Withheld] SchoolEvery other time that the same is required, pending confirmation of the grant and distribution of the estate.iv)That the Applicant/Petitioner do keep accounts of all such expenditures as shall be from the accounts at Standard Chartered Bank Account number 01002XXX, Kakamega Branch, and Dollars Account number 87002XXX, Nairobi branch, for and produce the accounts during and for confirmation of grant or wherever required.v)Costs of the application be in the cause 2.The application is supported by the affidavit of BSAO and on grounds inter alia; that the Petitioner filed this petition on 5/11/2025 hoping that the same would be heard and grant given by the beginning of the year or before schools opened in January 2026; that the gazzettement was delayed up only on the 13/2/2026 after schools opened for the first time; that the Petitioners were hoping that there would be no objection to the grant of letters of administration and thus struggled to raise fees but only part of it was raised; that an objection has been raised by Tabitha Kasia Wesa wanting to be declared a wife and an administrator; that there is a likelihood of the matter taking a long time before being heard and the Petitioner may not be able to pay the school fees for the coming term which begins in May 2026 as follows:1. CAAO[Particulars Withheld] University..........................................Kshs 146, 396/522. VAO[Particulars Withheld] High School...............................Kshs 236, 064/753. MGH[Particulars Withheld] School...................................Kshs 130, 501/00And maintenance being:-1. Shopping for the house...................15000/2. Food, medical and miscellaneous.......40,000/3 C's upkeep that includes shopping at University----20,000/4. V’s transport for 3000/ x 3 per term........9000/5. Rent arrears for three months from February, March, April 2026.......105,000/6. Monthly rent of .............36,000/7. Monthly service fee of .......8,000/; that there is no dispute that the named students are beneficiaries of the estate being children of the deceased and will suffer irreparably if they are to miss in their education while the estate money is lying in the bank; that it is not in dispute that the deceased was paying fees and maintenance for the children; that it is only fair and just that the innocent children do not suffer due to the objection in the cause; that the children of the deceased have arrears of fees and hostel fees and that the petitioners are struggling with maintenance in terms of rent, food, clothing, service, collection and transport. 3.The Objector filed a Notice of Preliminary objection dated 22/4/2026 wherein she raised the following grounds:i)That the application is incompetent and bad in law for seeking the issuance of a special/limited grant when there is on record a pending objection to the making of a grant which renders the proceedings contentious under Rule 17 of the Probate and Administration Rules.ii)That the application is an abuse of court process as it seeks to achieve indirectly what the Applicant cannot achieve directly namely:-a)Access and control of the assets of the estate solely by the Applicant before issuance of a full grant or confirmation of grant.b)To defeat or circumvent the pending objection proceedings.iii)The application offends the provisions of section 54 and 67 of the Law of Succession Act, which contemplate issuance of special/limited grants only in special and justifiable circumstances which have not been demonstrated.iv)The application is premature and misconceived as the issue of who is entitled to administer the estate must first be determined before any grant, whether special/limited or full can properly issue.v)No exceptional or urgent circumstances have been demonstrated by the Applicant to warrant the issuance of a special/limited grant.vi)The application if allowed will occasion prejudice to the Objector and other beneficiaries of the estate by effectively placing estate assets under the control of the Applicant prior to the determination of the Objection.The Objector therefore prayed that the Application dated 15/4/2026 be struck out or dismissed and costs be borne by the Applicant personally. 4.The Objector also filed a replying affidavit dated 24/4/2026 wherein she vehemently opposed the application and averred inter alia; that the school fees for the Petitioner’s children are exaggerated and further the deceased had never enrolled the children in high cost schools; that the 1st Petitioner had separated with the deceased for over ten years and the Objector was the one taking care of the deceased until he died and that the 1st Petitioner was nowhere; that she was personally depending on the deceased together with her daughter; that the entire estate will be lost if the funds are used up at this stage before the grant is issued or confirmed; that the application has been made with the sole aim of obtaining a premature distribution and dissipation of the net estate through the back door; that it is therefore fair and just that the dispute as to who should administer the estate is first resolved and the net estate ascertained and distributed before any money is paid out of the deceased’s bank accounts. 5.The application was canvassed by way of written submissions. 6.Learned counsel for the Petitioner submitted that the Applicant has already availed the requisite evidence to the effect that the Petitioners are the legitimate beneficiaries of the estate of the deceased and that the 1st Petitioner has annexed the chief’s letter confirming that she is the widow. It was also submitted that the children who are in school are indeed the children of the deceased as confirmed by the birth certificates annexed to the affidavit in support. Further, it was submitted that the issue of the accounts containing the money sought to be withdrawn belonging to the deceased is not disputed and that the application only seeks for a limited grant pending the determination of the objection and confirmation of grant. 7.It was also submitted that the application herein is anchored on Article 53(2) of the Constitution, Section 82 and 83 of the Succession Act. Learned counsel placed reliance in Article 53(2) of the Constitution on the rights of the child and which puts a lot of emphasis on the best interest of the child and that the same must be adhered by the court and that the Petitioner seeks nothing else but for the interest of the deceased’s children to be considered. 8.The Appellant’s counsel contended that Sections 82 and 83 of the Law of Succession Act anchor the fact that representatives of the estate can use the estate money for expenses which cannot await the final distribution of the estate such expenses are bound to be expenses to minors and beneficiaries that can be accounted for. It was submitted that the Applicants are ready to account for any money that may be spent in the education and maintenance of the children and further, the amount is a known figure, and at the final distribution, everyone will account. 9.As regards the Objection, it was submitted that the objection filed before court does not contest that the Petitioner is a wife of the deceased but the Objector only insists that she was also a wife and ought to be a co-administrator. That the objection is one issue that has to be determined by evidence and proof that Objector was a wife and ought to be an administrator which does not hinder the urgent need of paying fees to the children of the deceased and that the same does not stop the urgency of the current application and does not affect the fact that objection will be heard on its own merits. 10.It was also submitted that whereas the Objector has opposed the issue of the school fees, she confirms that the children belong to the deceased. It was the proposition of the Applicant that the Objector’s fears could be taken care of if the money is channeled directly to the schools. As regards the Objector’s claim to have her child included, it was submitted that the Petitioners are opposed to the same until the objection is heard and determined. 11.It was finally submitted that it is in the best interest of the children of the deceased to allow them proceed with their education without interruptions even as the Objection is canvassed and hence the application should be allowed as prayed. Reliance was placed in the Succession cause No. E035 of 2021 at Meru High Court In the Estate of SMM (Deceased) and in the matter of BK & TK (minor). 12.Vide submissions dated 28/4/2026, learned counsel for the Objector submitted that by her application dated 15th April 2026, the 1st Petitioner is essentially asking this court to partially distribute the estate of the deceased as the Applicant has made a prayer that she be issued with a special limited grant allowing her to access the deceased’s accounts and be allowed to withdraw from and operate the accounts for purposes of paying fees and upkeep of the children (School fees and maintenance) as an immediate need. Learned counsel contended that this request is contrary to the provisions of section 55(1) of the Law of Succession Act, Cap. 160 provides that “No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets, or to make any division of property, unless and until the grant has been confirmed as provided in Section 71”. 13.It was submitted that the sums the Applicant seeks to withdraw from the bank accounts of the deceased are huge, and the Applicant seeks a further order allowing her to withdraw money from the accounts e.very other time that the same is required pending confirmation of the grant and distribution of the estate. It was contended that from her supporting affidavit, the Applicant is seeking sums exceeding Kshs. 735,565/= and monthly rent of Kshs. 35,000/=; monthly service fee of Kshs. 8,000/=, and shopping for the house of Kshs. 15,000/=. It was further contended that the submission by the Applicant’s Advocates that the amounts claimed for school fees are not contented is not true and further that there is a vast estate to be distributed is also not true. That the Objector is of the view that is not it true that the orders sought are limited for purposes of fees and maintenance of the deceased’s children. 14.It was submitted that the Objector has already raised salient issues inter alia; that there is an objection on record which requires to be heard and determined first to enable the court determine who should administer the estate; that the court is yet to determine the extent of the net estate; that the court is yet to determine and identity the beneficiaries; that the Applicant seeks to steal a match on the Objector by accessing and dissipating the net estate for her own personal gain before the estate is administered and the grant confirmed; that the Applicant seeks to disinherit the Objector; that as matters stand, the Applicant has not even demonstrated that the huge sums she is seeking to withdraw from the bank accounts of the deceased is available. Learned counsel placed reliance in the case of In re Estate of Samuel Karime Kimani [2025] eKLR, where Namisi J held as follows:-“21.The 2nd Applicant averred that she and her two children were dependent on the Deceased for their upkeep. She stated a figure of Kshs 35,000/- per month and provided copies of the Disability Registration Certificates for the three. In their Supporting Affidavit, the Applicants averred as follows:14.That, as advised by our Advocates, M/s Ameka & Co. Advocates, which advice we verily believe to be correct, the spirit behind sections 45 and 82 of the Law of Succession Act is to preserve the property of a deceased person until the beneficiaries and their respective shares are identified, ascertained, and distributed18.That any payments made to beneficiaries should be subject to consensus or the determination of this Honourable Court.22.As rightly stated by the Applicants themselves, for payments to be made to beneficiaries, the consent of the Beneficiaries would be required. In this instance, neither the Respondent nor the other Beneficiaries have given their consent to what would amount to partial distribution of the estate. Partial distribution unless consented to was rightly declined by the court in In re Estate of Gershom Kamau Kirima (Deceased) [2015] eKLR where it was noted inter alia that;-“I am therefore of the view that Mr. Wanjau is only entitled to the payments that were consented upon by all the beneficiaries and the interests of justice cannot be served by partial distribution of the estate to one beneficiary whatever his circumstances, unless the beneficiaries consent, as they have previously done, to such partial distribution.”23.From the foregoing and in the circumstances of this cause, I find that the prayer to release of monies forming part of the estate of the deceased pending confirmation of the grant, which amounts to partial distribution cannot be granted at this stage on the material placed before this Court”. 15.Learned counsel submitted that the above position squarely applies to the instant application in that there is an objection on record which is yet to be determined, yet the Applicant now seeks to have the estate partially distributed to her, for her benefit and that of her children. That she also seeks to be allowed to have a free access to the bank accounts of the deceased to withdraw money every time that the same is required pending confirmation of the grant and distributions of the estate. It is clear that the orders sought by the Applicant will not only be in violation of the law, especially Section 55 (1) of the Act, but are also very unreasonable and strange. It was submitted that even the case which the Applicant’s Advocates have cited in support of her application does not support the application. In that case (In the matter of Estate of SMM (deceased)), this court (Edward M. Muriithi, J) said the following:-“8.The court also considers that the size of the estate has not been established and there are 2 other beneficiaries – a widow and daughter as shown in the Chief’s letter – who are interested in the estate. The authority to access the money in the accounts should be limited to school fees and reasonable school related expenses having regard to the spouses’ shared parental responsibility to provide for their children and the third party interest of the co-widow and daughter.” 16.It was also submitted that the Objector has demonstrated, prima facie, that she is a co-widow who was living with and being maintained by the deceased, together with her daughter and that the Applicant cannot therefore be allowed to withdraw the huge sums, she seeks to access before the size of the estate is determined and her share of the net estate is established and further that even if the Applicant was the only widow of the deceased, which is not the case, the order she is seeking would still be unavailable to her. 17.As regards the plea that there is need to pay school fees, it was submitted that it must be noted that the Applicant has a shared parental responsibility to provide for her children. Further, the child at the University of Nairobi, CAO, is a regular student who pays only Kshs. 30,116/= per semester and her only pending fee balance is Kshs. 13,718/=. These facts are confirmed by the Applicant’s own affidavit (Annexure BSAO/1). Counsel sought to point out to the court the fact that the other child in school, VAO, enjoys a 75% academic scholarship at Nova Pioneer School and who only pays 25% of the applicable fees. This fact is also confirmed by the Applicant’s own affidavit (Annexure BSAO/3). Again, it was contended that by alleging that the deceased’s children require the huge amounts the Applicant is claiming in her application, the Applicant is deliberately misleading the court and she cannot be entitled to this court’s exercise of discretion. In any event, the Applicant has not told the court why she, as a parent cannot settle the small college fees of Kshs. 30,116/= per semester for C or the 25% of the fees payable for V or Kshs. 62,500/= which she says is payable for M at [Particulars Withheld] School. Further, the claims for monthly maintenance, e.g, monthly Rent of Kshs. 35,000/=, Service Charge of Kshs. 8,000/=, Food and Medical of Kshs. 40,000/= and Rent Arrears of Kshs. 105,000/= are outrageous and contrary to law. In any event, the deceased was not providing these kinds of support or maintenance to the Applicant during his lifetime and the Applicant cannot now suddenly make these claims urgent responsibilities of the deceased after his death!!! 18.Considering the further facts that the deceased died on 2nd September, 2025 and this application has been made after more than 6 months, it was submitted that there is no urgency in the matter and that the Applicant should wait for a grant to be issued in the normal manner after the Objector’s objection has been dealt with and the grant is confirmed. Reliance was placed in the case of In re Estate of Welsa Bange Oganda [2024] eKLR, where Gregory Mutai, J said the following on the issue of maintenance in a case of a polygamous deceased person:-“40.Further, and for clarity, the law, as I understand it, in regard to polygamous marriages is that the properties of the deceased are divided to each house in accordance with the formula given in section 40 of the Act. Thereafter, the widow has a life interest in the net estate of the deceased due to her household.41.Thus, in this case, the 1st Administrator/Applicant has no life interest in the estate of the deceased that belongs to the 1st house. To be able to ascertain over which assets she has life interest the estate must be distributed.42.Thus, in my view, her interest calls for her to move with alacrity to ensure that the estate is administered. Rather than be the spanner in the works, she ought to be a cog in the wheel to ensure that administration is completed without further delay.”In the present circumstances, it was contended that it is the Applicant who has delayed issuance of a grant because of her deliberate decision to exclude the Objector from the petition she filed in court yet she knows very well that the Objector has an interest in the deceased’s estate as a widow. The Applicant’s averment at Paragraph 4 of her reply to the objection confirms that she all along knew about the Objector’s interest in the estate. Learned counsel urged this court to find that the facts of this case are in all fours with the foregoing case in re estate of Welse Bange Oganda (supra). That the Applicant cannot be allowed to delay administration of the estate of the deceased while at the same time she is asking the court to allow her to withdraw huge sums from the estate accounts even before the issuance of a grant. The deceased was polygamous and the Applicant and her children will eventually be entitled only to the share of the net estate that will be allocated to her house. 19.It was finally submitted that no good ground or reason has been given by the Applicant to warrant issuance of a “special limited grant” or an order to access the deceased’s bank accounts to withdraw the huge sums claimed by the Applicant. The application dated 15th April, 2026 should therefore be dismissed with costs. 20.I have given due consideration to the application and the rival submissions. It is not in dispute that the requisite grant of letters of administration intestate is yet to be issued. It is also not in dispute that the Objector’s Objection is yet to be determined. I find the issue for determination is whether the application has merit. 21.It is noted that the 1st Petitioner’s application dated 15th April 2026 principally seeks that she be allowed to access some monies in the deceased’s bank accounts in order to pay school fees and other related expenses for the children who are still undergoing studies in various institutions. Ordinarily, Administrators usually approach the probate courts for a limited grant of letters of administration ad Colligenda as they await the full grant and confirmation of the same. However, in such circumstances, there should not be any objections or disagreements among the beneficiaries and hence the key determining factor is the evidence of agreement or consent by the beneficiaries. If there is no such consent and the beneficiaries are opposed or have rival standpoints regarding the estate, then it would be appropriate for the court to determine those issues before it can make any orders in that regard. 22.I have noted from the various bank accounts and the fees schedules for the 1st Petitioner’s children as well as her request to be allowed to continue drawing monies from the said accounts as and when required. It is thus quite clear that the 1st Petitioner is essentially asking this court to partially distribute the estate of the deceased as the Applicant has made a prayer that she be issued with a special limited grant allowing her to access the deceased’s accounts and be allowed to withdraw from and operate the accounts for purposes of paying fees and upkeep of the children (School fees and maintenance) as an immediate need. I am in agreement with the sentiments of learned counsel for the Objector that this request is contrary to the provisions of section 55(1) of the Law of Succession Act, which provides as follows:“No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets, or to make any division of property, unless and until the grant has been confirmed as provided in Section 71”. 23.It is also noted that the sums the Applicant seeks to withdraw from the bank accounts of the deceased are huge, and that the Applicant seems to require a further order allowing her to withdraw money from the accounts every other time that the same is required, pending confirmation of the grant and distribution of the estate. As the exact amounts in the aforesaid banks is yet t be disclosed, it would be premature to order a release of the sums sought by the 1st Petitioner at this stage and also due to the fact that the Objector has vociferously opposed the application. There is a likelihood that the estate might end up being dissipated before the estate is distributed to the beneficiaries in the end. 24.It is common ground that the Objector has already raised salient issues inter alia; that there is an objection on record which requires to be heard and determined first to enable the court determine who should administer the estate; that the court is yet to determine the extent of the net estate; that the court is yet to determine and identity the beneficiaries; that the Applicant seeks to steal a match on the Objector by accessing and dissipating the net estate for her own personal gain before the estate is administered and the grant confirmed; that the Applicant seeks to disinherit the Objector; that as matters stand, the Applicant has not even demonstrated that the huge sums she is seeking to withdraw from the bank accounts of the deceased is available. In the case of In re Estate of Samuel Karime Kimani [2025] eKLR, Namisi J, faced with a similar scenario, held as follows:-“21.The 2nd Applicant averred that she and her two children were dependent on the Deceased for their upkeep. She stated a figure of Kshs 35,000/- per month and provided copies of the Disability Registration Certificates for the three. In their Supporting Affidavit, the Applicants averred as follows:14.That, as advised by our Advocates, M/s Ameka & Co. Advocates, which advice we verily believe to be correct, the spirit behind sections 45 and 82 of the Law of Succession Act is to preserve the property of a deceased person until the beneficiaries and their respective shares are identified, ascertained, and distributed18.That any payments made to beneficiaries should be subject to consensus or the determination of this Honourable Court. 25.As rightly stated by the Applicants themselves, for payments to be made to beneficiaries, the consent of the Beneficiaries would be required. In this instance, neither the Respondent nor the other Beneficiaries have given their consent to what would amount to partial distribution of the estate. Partial distribution unless consented to was rightly declined by the court in In re Estate of Gershom Kamau Kirima (Deceased) [2015] eKLR where it was noted inter alia that;-“I am therefore of the view that Mr. Wanjau is only entitled to the payments that were consented upon by all the beneficiaries and the interests of justice cannot be served by partial distribution of the estate to one beneficiary whatever his circumstances, unless the beneficiaries consent, as they have previously done, to such partial distribution.” 26.From the foregoing and in the circumstances of this cause, I find that the prayer to release of monies forming part of the estate of the deceased pending confirmation of the grant, which amounts to partial distribution cannot be granted at this stage on the material placed before this Court”.Also, in the case of In the matter of Estate of SMM (deceased)), this court Muriithi, J held as follows:-“8.The court also considers that the size of the estate has not been established and there are 2 other beneficiaries – a widow and daughter as shown in the Chief’s letter – who are interested in the estate. The authority to access the money in the accounts should be limited to school fees and reasonable school related expenses having regard to the spouses’ shared parental responsibility to provide for their children and the third party interest of the co-widow and daughter.” 27.When this matter was placed before me, i broached to the parties as to whether they could reach a consent regarding the orders sought so that the issue of the children’s concerns could be addressed. However, the parties could not reach an agreement and hence the need to determine the application. The Objector has claimed that she was a wife to the deceased and that she was the one who lived with the deceased for about ten years until his demise, while the 1st Petitioner maintains that the Objector is a Johnny-come-lately and a visitor in the home of the deceased and as such she is a stranger in the estate. The Objector has gone ahead to claim that she is a co-widow who was living with and being maintained by the deceased, together with her daughter and that the Applicant cannot therefore be allowed to withdraw the huge sums that she seeks to access before the size of the estate is determined and her share of the net estate is established and further that even if the Applicant was the only widow of the deceased, which is not the case, the order she is seeking would still be unavailable to her. Due to the rival contestations and inability to reach a consensus, it is my considered view that the request to access monies at this stage must be shelved and the parties directed to ventilate the issue of the Objection before the issue of whether it is appropriate to order for release of monies from the estate accounts. 28.It is noted that the 1st Petitioner has urged this court to consider the salient provisions of Article 53 of the Constitution regarding the rights of the children of the deceased. Indeed, this court is always in loco parentis to children and as such it must always be guided by the best interest of the child. Whereas the situation of the children might be that dire, certain issues which arise to the fore namely, that the 1st Petitioner while filing for letters of grant of administration intestate did not file the application contemporaneously so as not to be inordinate and further that the 1st Petitioner appeared to confirm that she had been handling the issue of the children in her own ways. That being the position and in view of the fact that there is an Objection, it is appropriate to direct the parties to ventilate on the Objection first so that the issue of who is to be made an administrator could be determined. If the present application is allowed at this stage, then there is likelihood of prejudice to be suffered by the eventual beneficiaries of the estate who might end up without any share of the estate. 29.An analysis of the rival contestations by the parties herein leads me to come to the conclusion that it is appropriate to first determine the Objection lodged by the Objector herein before the issue of whether a special/limited grant could be considered. Consequently, it is my finding that no sufficient reasons have been furnished by the 1st Petitioner to warrant issuance of a “special/ limited grant” or an order to access the deceased’s bank accounts and to withdraw monies therein. Hence, I find the 1st Petitioner’s application dated 15th April, 2026 lacks merit. The same is dismissed. Each party to bear their own costs. Parties are now directed to set down the Objection to making of a grant dated 20/2/2026 as a matter of priority.Orders accordingly. DATED AND DELIVERED AT SIAYA, THIS 14TH DAY OF MAY 2026D.KEMEIJUDGEIn the presence of :Gikunda...............for Petitioners/ApplicantsAmuga...............................for ObjectorM/s Mourine.......................Court Assistant