https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6626

In re Estate of Moisengo (Deceased) (Succession Cause E852 of 2023) [2026] KEHC 6626 (KLR) (Family) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6626 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause E852 of 2023 HK Chemitei, J May 14, 2026 IN THE MATTER THE ESTATE OF VINCENT BEDA MOISENGO (DECEASED) In the matter of Erick Samwel Moisengo Applicant and Naomi M. Pleasant Respondent Ruling 1.This ruling relates to the application dated 21st November, 2025 filed by the Applicant, Fauzia Nyabiosi; seeking for ORDERS THAT:1.Spent.2.This court be pleased to grant partial or full confirmation of the grant for the purpose of settling outstanding medical, travel and funeral expenses incurred in the United States.3.In the alternative, the administrator be authorized to access or liquidate sufficient estate assets to settle the said necessary estate expenses pending the determination of the objection lodged by Erick Samwel Moisengo.4.The court do grant directions for the expeditious hearing and determination of the confirmation of grant, notwithstanding the application to annul issuance of grant, filled.5.Costs of the application be in the cause. 2.The application is based on the grounds thereof and supported by affidavit and further affidavit sworn by Fauzia Nyabiosi on 21st November, 2025. 3.She avers inter alia that she is a beneficiary of the deceased’s estate and that the grant issued in the succession cause had been scheduled for confirmation on 22nd September, 2025. However, before the confirmation could proceed, Erick Samwel Moisengo filed an objection claiming to be a child of the deceased, thereby halting the confirmation process. She states that the objection matter is presently scheduled for mention and/or hearing on 24th November, 2025. 4.According to her, the succession proceedings have remained pending since 2023 despite the deceased having passed away in 2019, resulting in prolonged delay in the administration and distribution of the estate. 5.She further avers that together with Jane Moisengo, they personally financed the deceased’s medical treatment, travel, funeral and burial expenses incurred in the United States of America following his illness and eventual demise. She estimates that the total expenses connected to the deceased’s treatment and interment amount to approximately Kshs. 27 million, out of which Kshs. 18 million was sourced through loans taken by the Applicants to offset the said obligations. 6.She explains that owing to the emergency and distressing circumstances surrounding the deceased’s treatment abroad, not all receipts could be obtained, but that all reasonably available invoices, statements and official documents have been availed to demonstrate the expenditures incurred on behalf of the estate. She maintains that the absence of some receipts does not negate the fact that the expenses were genuinely incurred under urgent and unavoidable circumstances while attending to the deceased overseas. 7.It is her position that the medical, funeral and related expenses constitute lawful liabilities of the estate within the meaning of Section 83 (e) of the Law of Succession Act, which obligates the administrator to settle the deceased’s outstanding liabilities and last expenses. 8.She further states that one of the Applicants has an immediate family member facing a serious medical emergency and that the situation can only be alleviated upon settlement of the outstanding loan obligations. According to her, the continued delay in confirming the grant has prevented settlement of the debts, thereby occasioning undue hardship to the beneficiaries who advanced the funds for the deceased’s benefit. 9.Consequently, she urges the court to grant partial or full confirmation of the grant, or alternatively issue authority permitting access to or utilization of estate assets for purposes of settling the outstanding loans, medical expenses, funeral expenses and the urgent medical needs presently facing the Applicants. 10.In the further affidavit she explains that she personally undertook loans and other financial commitments in order to cater for the deceased’s medical treatment, travel and burial expenses incurred in the United States prior to his death. She further states that her husband has since fallen seriously ill and is presently undergoing hospital treatment, thereby placing her under severe financial strain while she continues servicing the loans previously taken for the deceased’s expenses. 11.According to her, the husband’s condition requires lifelong treatment, regular consultations, diagnostics, medication and continuous medical review, all of which have resulted in substantial medical costs. In support of this position, she annexes medical reports, treatment notes and physician summaries relating to her husband’s condition. 12.The annexed medical documentation from the University of Pennsylvania Health Systems indicates that Sammy Nyabiosi, aged 58 years, has been diagnosed with clinically definite Amyotrophic Lateral Sclerosis (ALS), specifically bulbar onset ALS. The reports detail progressive slurred speech, facial weakness, tongue fasciculations, swallowing and speech difficulties, muscle twitching, weight loss and neurological impairment. The medical evaluations, MRI findings, EMG studies, laboratory investigations and neurological assessments reportedly ruled out alternative causes and confirmed findings consistent with motor neuron disease and ALS. 13.The records further indicate ongoing consultations with neurologists, recommendations for further treatment, speech therapy, medications and follow-up appointments including consultations scheduled at Johns Hopkins Neurology in December 2025. She avers that the financial burden arising from her husband’s medical condition, coupled with the existing loans incurred for the deceased’s treatment and burial expenses, has rendered the delay in confirming the grant highly prejudicial to her and her family. She contends that unless the court grants the orders sought, she risks financial distress and inability to meet both the loan obligations and her husband’s urgent medical needs. She therefore urges the court to consider the annexed medical evidence and grant the necessary orders permitting access to estate funds in order to alleviate the hardship and facilitate settlement of the outstanding obligations. 14.The application is further supported by affidavit sworn by Naomi M. Pleasants on 14th December, 2025. She avers inter alia that she is an administrator of the deceased’s estate. She confirms that the grant issued in the succession cause remains unconfirmed due to an objection lodged by Erick Samwel Moisengo, which has delayed the administration of the estate. Nevertheless, she avers that the estate continues to bear pressing liabilities that arose before and immediately after the deceased’s demise, which ought to be settled pursuant to Section 83 (e) of the Law of Succession Act. 15.She states that Fauzia Nyabiosi and Jane Moisengo personally incurred substantial medical, travel, funeral and related expenses while the deceased was receiving treatment and upon his subsequent death in the United States of America. She explains that the expenses were incurred urgently and necessarily to preserve the deceased’s health, dignity and burial arrangements, thereby constituting lawful estate liabilities recoverable from the estate. 16.According to her, a significant portion of the expenses was financed through loans obtained by the beneficiaries, which loans remain unpaid and continue to accrue interest, thereby exposing them to financial hardship. She further explains that although not all original receipts could be obtained due to the urgency and circumstances surrounding the treatment abroad, sufficient invoices, statements, loan documents, medical bills, funeral invoices and related supporting documents have been availed and notarized to demonstrate that the expenditures were genuinely incurred on behalf of the estate. 17.The annexures attached to the affidavit comprise of notarized financial and medical documentation intended to substantiate the alleged estate liabilities. These include ACH payment confirmations and retirement account withdrawals by Jane Moisengo from JPMorgan Chase savings plans amounting to several thousands of dollars, Citibank retirement account statements in the name of Fauzia Nyabiosi, loan request confirmations reflecting borrowing undertaken to finance expenses, as well as multiple medical invoices and statements from healthcare providers in the United States relating to treatment rendered to the deceased. 18.The documents further include pathology, radiology, anesthesia, laboratory and physician billing statements, alongside funeral invoices issued by Michael J. Ambruso Funeral Directors Inc., reflecting funeral and burial expenses totaling several thousand dollars. The annexures collectively seek to demonstrate both the existence of the expenses and the financial burden allegedly assumed by the beneficiaries for the benefit of the estate. 19.She further deposes that one of the Applicants’ immediate family members is currently suffering from a serious medical condition requiring urgent treatment and that the continued delay in settling the outstanding loans has exacerbated the financial and medical distress faced by the family. She states that as administrator she is under a statutory obligation to settle the lawful debts of the estate but is constrained by the absence of confirmation of grant or express authority of the court. 20.It is therefore her position that partial confirmation of the grant, or alternatively limited authority to liquidate or access specific estate assets, would facilitate settlement of the medical, funeral and loan-related liabilities without prejudicing the pending objection proceedings. She contends that the orders sought are reasonable, necessary and consistent with proper estate administration, equity and justice, adding that no beneficiary or interested party would suffer prejudice since the intended purpose is solely the settlement of lawful estate obligations. She undertakes to account fully for any monies utilized and to treat any future claims against the estate fairly and transparently in accordance with the law. 21.The application is opposed vide replying affidavit sworn by Eric Samwel Moisengo on 28th November, 2025. He avers inter alia that the application is legally untenable since the grant issued to the administrator has not yet been confirmed and therefore the court lacks jurisdiction to authorize distribution or utilization of estate assets before confirmation. He maintains that no distribution or dissipation of estate assets should occur pending determination of his objection and revocation proceedings. 22.The deponent further avers that the Applicants are misleading the court by portraying the delay in confirmation as having been caused by his objection, whereas in his view the delay resulted from the administrator’s own failure to diligently administer the estate. He states that the Applicants and the administrator have continued to enjoy and utilize estate income in Kenya while residing abroad, yet they have allegedly failed to produce a full and accurate inventory of the estate’s assets and liabilities as required under Section 83 (e) of the Law of Succession Act. 23.He also accuses the Applicants of concealing material facts, including alleged assets and property held in the United States and claims that the liabilities and expenses being advanced are exaggerated and intended to unjustly deplete the estate. He disputes the sincerity and legitimacy of the claims relating to medical and funeral expenses, arguing that the deceased’s burial expenses and upkeep ought to have been catered for by the deceased’s pension and other resources available to the family. 24.According to him, the Applicants are improperly attempting to use claims of medical hardship and emergency to secure indirect distribution of estate assets before confirmation of the grant. He asserts that the alleged liabilities must first be verified and determined before any estate property can be accessed or distributed, emphasizing that claims against an estate should ordinarily be ascertained prior to confirmation of grant. 25.He further contends that the court should not allow itself to be used to sanitize transactions that may ultimately be found unlawful or prejudicial to the estate. The deponent additionally challenges the process through which the grant was obtained, alleging concealment of material facts and exclusion of dependants and beneficiaries. He maintains that he is a son of the deceased and annexes several documents in support of his claim, including a birth certificate, copies of identity documents, passports and letters allegedly issued by local administration authorities identifying him and other persons as children or dependants of the deceased. 26.He argues that the Applicants’ attempts to deny his relationship with the deceased are dishonest and intended to exclude him from the estate. Consequently, he urges the court to dismiss the application for partial confirmation or access to estate assets with costs, on the basis that it is premature, unnecessary and intended to prejudice pending revocation proceedings. 27.The parties have not filed written submissions. Analysis And Determination 28.I have read the application and the response thereto and the issue for determination is whether this court should grant partial or full confirmation of the grant or alternatively authorize access to and utilization of estate assets for purposes of settling the alleged medical, travel, funeral and loan-related expenses pending determination of the objection and revocation proceedings. 29.In re Estate of Edward Mutuku Mwando (Deceased) [2022] eKLR, Odunga J stated as follows: “I also agree with the position in Benson Mutuma Muriungi vs. C.E.O. Kenya Police Sacco & Anor (2016) eKLR and re Estate of M’Ngarithi M’Miriti [2017] eKLR that: “Whereas there is no specific definition provided by the Act for the term intermeddling, it refers to any act or acts which are done by a person in relation to the free property of the deceased without the authority of any law or grant of representation to do so [Emphasis mine]. The category of the offensive acts is not heretically closed but would certainly include taking possession, or occupation of, disposing of, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act. I should add that any act of acts which will dissipate or diminish or put at risk the free property of the deceased are also acts of intermeddling in law. I reckon that intermeddling with the free property of the deceased is a very serious criminal charge for which the person intermeddling may be convicted and sentenced to imprisonment or fine or both under section 45 of the Law of Succession Act. That is why the law has taken a very firm stance on intermeddling and has clothed the court with wide powers to deal with cases of intermeddling and may issue any appropriate order (s) or protection of the estate against any person.” 30.It is not disputed that the grant issued herein remains unconfirmed and that there is a pending objection and application for revocation of grant by Erick Samwel Moisengo, who claims to be a son and beneficiary of the deceased’s estate. 31.On one hand, the Applicants contend that they personally incurred substantial medical, funeral and travel expenses on behalf of the deceased in the United States and that the same constitute lawful liabilities of the estate recoverable under Section 83 (e) of the Law of Succession Act. They have annexed various invoices, loan documents, medical bills, retirement account withdrawals and funeral expense records in support of the claim. 32.The court also takes judicial notice of the annexed medical documentation demonstrating that one of the Applicants’ family members is presently suffering from a serious medical condition requiring continuous treatment. On the other hand, the objector disputes both the legitimacy and extent of the liabilities claimed and contends that the Applicants are effectively seeking indirect distribution of estate assets before confirmation of grant and before ascertainment of all beneficiaries and liabilities of the estate. 33.The Law of Succession Act imposes a duty upon personal representatives to ascertain and settle the lawful liabilities of an estate. However, the same law equally safeguards estate property from premature distribution, dissipation or intermeddling prior to confirmation of grant and ascertainment of beneficiaries. Any act likely to dissipate or place estate property at risk before lawful authorization may amount to intermeddling contrary to Section 45 of the Law of Succession Act. 34.In the present matter, the liabilities alleged by the Applicants remain contested. Equally contested is the status of the objector as a beneficiary of the estate. The court is therefore required to strike a delicate balance between preserving the estate pending determination of the objection proceedings and ensuring that legitimate liabilities of the estate are not ignored to the detriment of those who may have expended funds for the deceased’s benefit. 35.Prima facie this court is persuaded that the applicant incurred substantial amount of money in the treatment and subsequent interment of the deceased herein. 36.However, looking at the estate assets the court is unable with precision to ascertain its actual value without the same being availed. This is so because were the court to accede to the Applicants request then it would definitely be expected to deal with actual value of the estate and not simple mentioned in the affidavits on record. I note that there are capital assets as well as shares which value is unascertainable and I find it prudent that the best way is to have a proper valuation or estimates before making any conclusion. 37.In the premises, the application is held in abeyance pending the filing of the full value of the estate and any valuation of the mentioned properties. The exercise be undertaken forthwith. 38.Meanwhile the objection proceedings be fixed for hearing by way of oral evidence. 39.The matter be mentioned before the Deputy Registrar of this court for fixing a suitable hearing date. 40.Each party to bear its costs. DATED SIGNED AND DELIVERED AT NAIROBI VIA VIDEO LINK THIS 14TH DAY OF MAY 2026.H K CHEMITEIJUDGE