In re Estate of Kilovelo (Deceased) (Probate & Administration 27 of 2018) [2026] KEHC 11339 (KLR) (24 July 2026) (Ruling)

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **P & A NO. 27 OF 2018** **IN THE MATTER OF THE ESTATE OF WILLIMA NGUYO KILOVELO (DECEASED)** JAMES MUTHAMA NGUYO ………………………1ST ADMINISTRATOR JANET MBITHE NYAGA …………………………..2ND ADMINISTRATOR **=AND=** B.M MUNGATA & CO. ADVOCATES …………………..……APPLICANT **=AND=** MULU & COMPANY ADVOCATES ………..INTENDED RESPONDENT **RULING** 1. The application before me is the Chamber Summons dated 26/11/2025 seeking the joinder of the firm of Mulu & Co. Advocates for the purpose of determining the issue of the refund of funds withdrawn from the estate. 2. The grounds for the application are set on the face of the application and the Supporting Affidavit of Sofia K Mutua, Advocate. 3. Essentially, this court found vide Ruling of 29/10/2025 that money paid out of the deceased’s account was paid wrongfully and must be returned to the account / or into the court’s account within 45 days of the ruling. 4. That the money was paid vide a court order in **Machakos Civil Suit No. 487/2008**, and paid to the firm of Mulu & Co. Advocates. 5. The applicant now seeks that this court orders that the firm of Mulu & Co. Advocates be enjoined in this matter for purposes of determining the liability for the refund of the money – as it is upon that firm to account for how the funds were utilized. 6. In a Replying Affidavit sworn on 15/12/2025, by Francis Mulu Advocate, he deponed that indeed he was acting for the Plaintiff in **Machakos Civil Suit No. 487/2008** against one ***Japheth Munywa Nguyo***. That they obtained Judgment for the sum of **Ksh. 920,909** and obtained warrants of arrest for the total sum of **Ksh. 1,002,159**. That he and his client were not parties to the succession cause – and did not know the source of the funds, neither was any explanation given to them. 7. He depones that his reading of this court’s ruling demonstrates that the court is not concerned about the utilization of the funds – but the fact that the withdrawal was without proper authority – that the money paid was not paid on behalf of the estate of the deceased – in addition – that the transfer documents do not show that any funds were withdrawn from the deceased’s account. 8. A letter dated 27/8/19 and banking slip and transfer form are annexed marked FM 3, 4 & 5. 9. That the consent, marking the matter as settled was between his client, and one Japheth Munywa Nguyo and the estate was not involved. 10. Parties filed Written Submissions. 11. For the applicant two issues are set out for determination; 12. **Who should bear the obligation of refunding the funds to the estate?** 13. **Whether the intended interested party should be joined to those proceedings for purposes of determining this issue.** 14. On the 1st issue, counsel argues that an advocate is an agent – for a known principal – that an advocate is considered an agent to their client in all matters and performs tasks the client would otherwise do and that where the principle is disclosed, the agent is not sued/held liable. They rely on **Otieno Ragot & Company Advocates vs National Bank of Kenya Ltd [2023]eKLR; Anthony Francis Wareiheim t/a Wareiheim & 2 others vs Kenya Post Office Savings Bank [2004] eKLR**; They argue that the applicant is the disclosed agent of the administration of the estate and hence not liable; that the money was not withdrawn illegally or fraudulently – that the advocates acted in obedience of a lawful order of the court; further that the applicant did not receive the funds for its own benefits. 15. On the 2nd issue – the applicant relies on Order 1 Rule 10(2) of the Civil Procedure Rules; further relies on **Edermann Property Ltd vs Cooperative Bank (K) Ltd** [**[2015] KEHC 8323 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2015/8323/eng%402015-10-06)**; Lake Basin Development Authority (Intended Interested Party) Civil Case E271 of 2022)[2024] KEHC 10187 (KLR) (Commercial & Admiralty) (11/7/2024) (Ruling**) – for the proposition that a party who is necessary in order to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit can joined to the proceedings – either on application by a party, or by the court’s own motion. 16. It is argued that the applicant did not benefit from the funds and it is imperative that the court effectively and completely adjudicates on the matter – and it can only do so by joining the Intended Interested Party; it is submitted that the Intended Interested Party has not established that the funds have been used to settle the decree. 17. For the Intended Respondent it is submitted that 2 issues arise:- 18. **Whether the application dated 26/11/2025 is merited.** 19. **Who will bear the costs of this application?** 20. On the first issue the applicant relies on **Joseph Njau King’ori vs Robert Maina Chege& 3 others [2002] eKLR** – which bears similar principles as Erdemann herein above. 21. They also relied on Order 1 Rule 10(2) of the Civil Procedure Rules. Citing **Pravin Bowry vs Johnward & Anor [2015] eKLR** where the court referred to the Ugandan case of **Deported Asians Custodian Board” vs Jaffer Brothers Ltd (1999) 1 EA 55(SCU)** - they argue that there is a difference between a party who ought to have been joined, and a party whose presence is necessary – and in joining the party the court has to exercise its discretion within the set parameters. 22. It is submitted that from the facts already set out in matter, the proposed respondent has no legitimate and identifiable stake in this matter – to warrant being joined in the proceedings. 23. On the 2nd issue – citing section 27 of the Civil Procedure Act the court is urged to award costs to the intended respondent to be paid by the applicant firm. 24. I have carefully considered the submissions, the application, the rival affidavits. I have also re-read the ruling that is said to have brought up this matter. 25. I have considered the provisions of Order 1 Rule 10 on joinder of parties – and the authorities cited by both counsel. They lay down the guiding principles for joinder. 26. The issue then is, – is the application merited? Should the firm of Mulu & Co. Advocates be joined to this Succession Cause? 27. To begin with – this is a Succession Cause – the outcome of the cause will be the distribution of the estate of the deceased to the beneficiaries as per the Law of Succession Act. So – upon which law – would the court be joining the law firm to this cause – it is noteworthy that the application is not cited as brought under any law – the law – Order 1 Rule 10 (2) is actually cited in the submissions. 28. Is the intended respondent a necessary party? 29. The Ruling I made was to the effect that money was taken out of the estate of the deceased without authority – the Law of Succession Act is very clear about who, when and how the estate of a deceased person is to be dealt with. In the ruling I made – it was clear to me that the issue was not what the money was used for: The issue is that the money was taken out of the estate – through the applicant. It was my considered view that it was open the applicant to return the money to the estate. 30. In any event there is no evidence placed before court that the money taken out of the estate was the money that the applicant used to settle the alleged decree. 31. The arguments put forward by the applicant in my view appear to re-litigate the issue bringing up facts that I considered when I made the now impugned ruling. I cannot sit on appeal of the conclusions I draw from those facts and make new conclusions. 32. The fact is that I found that the applicant withdrew money from the estate, I found that it was done without proper authority, I found that the applicant ought to have known better. I found that the estate of the deceased had been reduced due to the money that the applicant withdraw, and it is not the duty of this court as the Probation & Administration Court to deal with the issue of who did what after the money was withdrawn. It is for the applicant to return the money – and pursue recovery for themselves from whoever they claim the money was paid to. 33. The estate cannot be burdened with such issues – yet this was not done for the estate/on behalf of the estate. 34. Hence I find that the application is not merited. 35. On that basis of the foregoing the application is denied. 36. Regarding costs – costs follow the event – to be paid by the applicant to the intended respondent. 37. Orders accordingly. RULING dated signed and delivered virtually at Eldama Ravine (Sub-Registry) this 24th July 2026. **MUMBUA T MATHEKA** **JUDGE** **In the presence of**:- CA Chrispol. Ms. Mutua for Applicant Mr. Mutunga Musili holding Brief for Muli for Administrators s. Mr. Mwangi holding brief for Mr. Mulu intended Respondent Mr. Munyasia for Naomi & Benjamin Kilovelo (beneficiaries)