https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6818

In re Estate of Mutta Thirikwa (Deceased) (Succession Cause E282 of 2025) [2026] KEHC 6818 (KLR) (Family) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 6818 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause E282 of 2025 PM Nyaundi, J May 21, 2026 IN THE MATTER OF THE ESTATE OF MUITA THIRIKWA (DECEASED) Ruling Introduction 1.By Petition dated 20th January 2026, the Petitioner seeks the grant of letters of administration ad colligenda bona to enable him to access the deceased’s bank accounts held at Equity Bank Limited, Meru Branch. He states that the money is required to meet the urgent medical needs of Rebecca Nyaruai Muhoro, who is the widow of the deceased. 2.The Petition is supported by the affidavit of the Petitioner, sworn on 20th January 2026. He has attached an Order dated 12th February 2025 appointing him as guardian of Rebecca Nyaruai Muhoro. He has also sworn a supplementary affidavit on 7th April 2026 with documentation evidencing that Rebecca Nyaruai Muhoro is the widow of the deceased, medical records from Mama Lucy Kibaki Hospital showing she is unwell. 3.The Petition is supported by Joyce Wanjiru Munene, who swore an affidavit on 27th March 2026 and by Mary Muthoni Kiarie, whose affidavit was sworn on 13th April 2026. Both are daughters of Rebecca Nyaruai Muhoro and confirm that she is elderly and in need of medical attention. 4.George Thirikwa Muita is a stepbrother of the applicant. He is opposed to the application and has sworn an affidavit on 26th February 2026. He avers that the deceased and Rebecca Nyaruai Muhoro were separated in 1968, and she was not dependent on the deceased in her lifetime. He further avers that the threshold for issuing a grant has not been met. 5.The Petition was canvassed via written submissions; the Petitioner’s submissions are dated 24th April 2026. The issues identified for determination are-a.Whether the threshold for the issuance of a limited grant of letters of administration ad colligenda bona under Section 67(1) of the Act and Rule 36 of the Probate and Administration Rules has been met;b.Whether the deceased’s widow, Rebecca Nyaruai Muhoro, remains a lawful dependant entitled to be maintained out of the estate notwithstanding the alleged historical separation;c.Whether the consent of beneficiaries is a mandatory precondition to the issuance of a grant ad colligenda bona;d.Whether the estate is at risk of wastage and dissipation such as to warrant the urgent preservatory orders sought;e.Whether the Objector’s allegations of dishonesty, personal gain and inconsistency rebut the genuineness and necessity of the application; andf.Who shall bear the costs of this application? 6.It is submitted that the threshold for the grant of letters ad colligenda bona has been met and reference made to the decisions in Re Estate of Daniel A. Korir Kipkurui (Deceased) [2021] eKLR and Re Estate of Jennifer Kusuro Musiwa (Deceased) [2021] KEHC 4632 (KLR) 7.It is submitted that the widow is a beneficiary of the estate, as her marriage with the deceased had not been dissolved. Reliance is placed on the decisions in Karanja v Karanja [1976] KLR 307; Re Estate of Leroinka Ole Ntutu (Deceased) [2008] eKLR; and Mary Rono v Jane Rono & Anor [2005] eKLR to assert the widow's entitlement to the deceased's estate. 8.In any event, it is argued that the consent of the other beneficiaries is not mandatory on account of the nature of the grant sought. It is also submitted that the estate is at risk of waste, hence necessitating the issuance of a grant of letters of administration ad colligenda. 9.It is submitted that the Objector is guilty of intermeddling with the estate contrary to the express provisions of Section 45 of the Law of Succession Act, and reference is made to the decision in Re Estate of Ndiba Thande (Deceased) [2013] eKLR. Analysis And Determination 10.Having regard to the pleadings filed herein, submissions on record and the relevant law, I deduce the issues for determination to be-a.Whether or not the Petitioner has met the legal threshold for the grant of letters of administration ad colligenda?b.What are the consequential orders arising from (a) above? 11.In submissions, the Petitioner submits that the grant should issue because the estate is at risk of being wasted. This particular limb is not included in the Petition before the Court. In the Petition, the grant is sought to cater for the widow's medical needs. It is well established by judicial precedent that parties are bound by their pleadings, and submissions cannot be the avenue through which fresh evidence is adduced. This was well articulated by Mrima J in David Otieno Migore v South Nyanza Sugar Co. Limited [2018] eKLR.thus-…is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. 12.Further, the Court of Appeal in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] e KLR stated as follows:Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented. 13.The Petitioner seeks maintenance from the deceased’s estate on behalf of the widow. He provides no evidence of the medical bills in question. I have no basis for estimating the amount. It is trite law that he who alleges must prove. In law, the burden of proof lies upon the party who asserts the existence of a fact or set of facts. Section 107 of the Evidence Act, Cap 80, Laws of Kenya, provides as follows:-Burden of Proof(1)whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 14.In the case of Evans Nyakwana -vs- Cleophas Bwana Ongaro [2015] eKLR, it was held that: -As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(1) of the Evidence Act, Chapter 80, Laws of Kenya. Furthermore, the evidential burden is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of the law of proof of that fact shall lie on any particular person……………. 15.On this ground, the Petition will fail. 16.On account of the fact that an administrator is yet to be appointed, the prayer relating to the intermeddling of the estate is incompetent. In the matter of the Estate of Geoffrey Meitamei Lonina – Deceased (2012) eKLR, where the applicant was seeking for interlocutory orders in circumstances that were similar as in this case, Dulu J., held as follows:Indeed, under section 45 (1) & (2) of the Law of Succession Act (Cap 160), this court has powers to protect the assets of a deceased person. However, in my view, only an administrator or an interested party in an existing administration cause, can apply for protection of the deceased’s assets. In the present matter, no application for letters of administration has been filed under sections 51, 53 or 54 of the Law of Succession Act.Therefore, in my view, the provisions of section 45 of the Act cannot be brought into play by the applicant. She has no legal standing in law to bring the present application. On that account, I find that the application is misconceived. 17.The interests of the estate will be best served by expediting the hearing of the Objection; accordingly, the matter will be mentioned by the Deputy Registrar on 3rd June 2026 for directions. 18.On account of the relationship between the parties, there shall be no order as to costs. 19.Parties are at liberty to appeal, and the Party exercising that right to do so within 30 days. It is so ordered SIGNED, DATED AND DELIVERED IN VIRTUAL COURT THIS 21st DAY OF MAY 2026.P. M NYAUNDIJUDGEIn the Presence ofFardosa Court AssistantKariu for 2nd Administrator