https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11119

In re Estate of the late Leitmann (Succession Cause 501 of 2001) [2026] KEHC 11119 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 11119 (KLR) Republic of Kenya In the High Court at Nakuru Succession Cause 501 of 2001 JM Nang'ea, J July 16, 2026 IN THE MATTER OF THE ESTATE OF THE LATE JOSEPH LEITMANN AND IN THE MATTER OF AN APPLICATION FOR SUBSTITUTION OF THE LATE SUSAN NYAMBURA WAWERU (DECEASED BENEFICIARY) WITH MOSES ANTONY ODHIAMBO, EXECUTOR OF HER WILL Between Moses Antony Odhiambo (Executor of the Estate of Susan Nyambura Waweru, deceased, for the benefit of her sole heir, Evaline Wanjiku) Applicant and Pius Ngugi Mbugua Interested Party and Lucy Wanjiku Leitmann Respondent Ruling 1.For determination is a Notice of Motion dated 23/10/2025 for reliefs as hereunder:1.That the Honourable Court be pleased to substitute the name of Susan Nyambura (deceased, beneficiary) with Moses Antony Odhiambo, her personal representative and the duly appointed Executor of her estate pursuant to the Grant of Probate issued on 29th day of September 2025, to stand in these proceedings for and on behalf of her estate and for the benefit of her sole heir, the minor, E.W.2.That the Honourable Court be pleased to issue orders authorizing the Executor to continue, prosecute and/or defend all proceedings in this cause and in any appeal(s), intended appeal(s), references or related proceedings arising therefrom, and to preserve, enforce and realize the deceased's rights and entitlements.3.That upon substitution being allowed, the Replying Affidavit sworn by Moses Antony Odhiambo, in opposition to the Administrators/Respondent's application for stay, be deemed as duly filed, admitted on record, and properly before this Honourable Court.4.That the substitution herein shall equally apply to Nakuru Court of Appeal Civil Appeal No. 004 of 2024, wherein the Respondent-Administrator has filed an appeal arising from this cause, and that such substitution be effected pursuant to Order 24 Rule 9 of the Civil Procedure Rules, 2010 and the relevant provisions of the Court of Appeal Rules.5.That the Deputy Registrar do forthwith amend the record to reflect the substitution and issue the necessary notices.6.Costs of this application be in the cause. 2.The Applicant swears an affidavit in support of the Motion. He avers that Susan Nyambura Waweru (hereinafter referred to as the deceased Susan) left a Will dated 21/03/2024 in which he was appointed as Executor. The deceased Susan is said to have bequeathed her entire estate to her only child named E.W. in her Will, Probate of which was granted on 29/9/2025. By the Court's Judgment of 12/10/2023, the deceased Susan was said to have been recognized as the lawful wife of the deceased Joseph Leitmann in respect of whose Estate these proceedings relate. 3.In the circumstances, the Court is told that the deceased Susan be substituted as an Administratrix herein with the Applicant so that the interests of the minor are safeguarded. 4.The Applicant also argues various legal points in her affidavit that are better left to Counsel submissions. 5.An Administratrix of the Estate (Lucy Wanjiku Leitmann) who is hereinafter referred to as “the Respondent’’ opposes the Application through her affidavit in reply sworn on 7/10/2025. She dismisses the Application as frivolous, misconceived, and vexatious. It is contended that the Applicant has no locus standi as he is not a beneficiary of this Estate. 6.While conceding that the deceased Susan has been declared as the deceased Leitmann's lawful wife, the Respondent avers that she had appealed the Court's Judgment but the deceased Susan passed on before the appeal could be determined. The Respondent further argues that the deceased Leitmann never had any child with the deceased Susan. According to her, the child the Applicant refers to was neither a biological child of the deceased Leitmann nor adopted by him. It is pointed out that the child was born 7 (seven) years after the death of the deceased Leitmann. 7.The Respondent therefore states that under the law, as advised by her Advocate, the subject cannot share in the Estate of the deceased Leitmann. 8.The Applicant reiterates the contents of the of his Affidavit in support of the Motion in his supplementary affidavit. He contends that the Respondent is re-litigating issues that have been settled in the Judgment of 12/10/2023 alluded to above. The Applicant further refers to legal issues which ought not to be part of an affidavit. 9.The Interested Party has not replied to the Application. 10.Learned Counsel for the parties filed written submissions. Citing Sections 79, 82 and 83 of the Law Succession Act, the Applicant’s Advocates submit that all property of a deceased person vests in the personal representative who may sue and be sued on behalf of his Estate. As an appointed Executor of the deceased Susan's Will, the Applicant is said to have full legal standing to represent the deceased's interest in this Estate. 11.Further making reference to Section 2 (1) Law Reform Act, the Applicant argues that causes of action subsisting against or vested in any person at the time of his death shall survive for the benefit of and against his Estate (see the case of Maina & Another vs Wanyiri & 2 Others; Kimani & 4 Others (2023) KEHC 23414 relied upon by Counsel in this regard. The court is therefore told that a beneficiary of the Estate of a deceased person can be substituted in his place. 12.The Applicant’s Advocates note that the Judgment of 12/10/2023 declared the deceased Susan a “beneficiary with enforceable entitlements” to the Estate of the deceased Leitmann. The deceased was not only entitled to a life interest in the deceased Leitmann's Estate, according to Counsel. The court is referred to Re Estate of M’Ikome M'Matiri (Deceased) (2019) KEHC 1045 (KLR) where it was observed;“...the right of a surviving spouse in the marriage property is a fundamental constitutional issue... Therefore reducing a spouse's right in matrimonial property to a mere life interest offends the Constitution." 13.The Applicant also pitches tent on Article 45(3) of the Constitution provides:“Spouses have equal rights in the marriage and in the matrimonial property." 14.According to the Applicant, the Will elevated any life interest vested in the deceased Susan to an absolute heritable interest. 15.The Respondent’s Advocates retort that the Rights of a spouse who dies before confirmation of Grant do not automatically transmit to a heir unless crystallized into a vested share (see Re Estate of Zakayo Njuguna Gitau (Deceased) [2020] KEHC among other cases cited by Counsel). 16.In the opinion of the Respondent the subject Minor (EW) does not also qualify under sections 3 (2) & 29 of the Law of Succession Act because she was not a child of the deceased herein and was not maintained by the deceased at the time of his death. It is reiterated that only an Administrator of the deceased's Estate may be substituted, but only if a share in the Estate has crystallized. 18.I have considered the parties’ arguments. There is no dispute that the deceased Susan was the widow of the deceased Leitmann and therefore had an interest in his Estate as determined in the court's Judgment of 12/10/2023. The Applicant is the Executor of the Will of the deceased Susan. In this capacity of Executor of her Will, the Applicant has the right to be substituted as Administrator in place of the deceased in order to take care of the interests of her Estate. Whether or not the deceased Susan's child (E.W.) is entitled to a share of the Estate of the deceased Leitmann through her deceased mother is an issue for determination at the time of confirmation of the Grant. I shall not determine the issue in this Application. 19.In the premises, the Application is partly allowed as follows:a)The Applicant in his capacity as the Executor of the Will of the deceased Susan Nyambura Waweru is substituted in her place as an Administrator of the Estate of the late Joseph Leitmann.b)The prayer that the Applicant's reply to the Respondent's Application for stay of execution filed herein be deemed as duly filed may only be considered in that Application.c)Regarding prayer (4), the Court may not issue orders touching upon a matter already before the Court of Appeal.d)The parties shall bear their own cots of the Application.Ruling accordingly. J. M. NANG’EA, JUDGE.RULING, DATED, SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF JULY, 2026.In the presence of:Applicant’s Advocate, Ms KamoingRespondent’s Advocate, Ms Nyabuto for Ms Gathecha.Court Assistant (Jeniffer).J. M. NANG’EA, JUDGE.