https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6823

In re Estate of Thomas Kimuri Baithana (Deceased) (Succession Cause 141 of 1999) [2026] KEHC 6823 (KLR) (Family) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 6823 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 141 of 1999 PM Nyaundi, J May 21, 2026 IN THE MATTER OF THE ESTATE OF TKB (DECEASED) Ruling Introduction 1.This ruling is in reference to 3 applications-a.Summons dated 6th October 2023 presented under Sections 47, 74 and 76 (d) (ii) of the Law of Succession Act, where in the applicants PKM and AMK, seek the following ordersi.Spentii.That the amended certificate of confirmation of grant dated 10th November 2010 be amended to reflect the correct beneficiaries in so far as the property distribution is concerned.iii.That the properties held in trust for AM and LK be transferred to them as they have attained the age of majorityiv.That INK be removed as administrator of the estate herein and be substituted with AMKv.Costs be provided for.b.Summons dated 21st March 2024, presented under Section 45, 46, 47, 66, 70, 76 and 82(b)(ii), and under Rules 49 and 73 of the Probate and Administration Rules, and under Order 40, Rules 1, 2 and 9 of the Civil Procedure Rules, wherein the applicant, IN Kimari, seeks the following orders-i.Spentii.Spentiii.Spentiv.Spentv.That an order do issue restraining the PKK himself, agents and or servants be barred from intermeddling, committing acts of waste or cutting down trees or other plants on the Estate propertiesvi.That he be removed as the 1st administrator of the estate of the deceased until the hearing and determination of this mattervii.That the OCS Laare Police station be directed to ensure that the Orders issued herein are complied withviii.That the above orders be supervised by the local police station near where the above properties are situated, and if acts of waste are committed by the said PKK, the said Police Station should move as provided by Section 45 of the Law of Succession Cap 160 and if need be to charge the said Mr Njeru (sic) with the offence of intermeddling with the Estate.ix.That this Honourable Court do make any other order that this Honourable Court deems fit to grantx.That costs of this application be in the cause.c.Summons for revocation, annulment of an Administrator and rectification, amendment and confirmation of Grant dated 17th February 2026 presented under Section 35, 47, 56,71, 75A, 76 (a) of the Law of Succession Act and rules 41, 44 46, & 73 of the Probate and Administration rules wherein the applicant LK Kimari seeks the following orders-i.Spentii.Spentiii.Spentiv.Spentv.Spentvi.Spentvii.That this Honorable Court be pleased to amend the grant issued on 10th November 2020 and remove the names of PKK and instead add the name of INK and LK Kimuri and issue a fresh grant in the name of the new administrators only.viii.That in the alternative to Prayer 7 above the 1st Administrator namely Paull Kirimi Kimuri be removed as an administrator of the estate herein and be substituted with other willing beneficiary of the estate.ix.That this Honourable Court does deem LK Kimuri as a beneficiary and this Honourable Court does make provision for deem it fit to provide for LK Kimuri in the deceased estate from all parcels of Land known as LR No. Ithimantuambui/ 3XXX -2.6 ha (ancestral home/ farm) and LR No. Ithimantuambui/ 3XXX -0.39 ha (ancestral home/ farm Ax.That this Court does make a declaration that the deceased beneficiaries namely Moses Ithalie (now deceased) Pamela Kathon, Paul Kirimi, Irene Kimuri and LK and AM are all entitled to share equally all that parcels of land known as LR No. Ithimantuambui/ 3XXX -2.6 ha (ancestral home/ farm) and LR No. Ithimantuambui/ 3XXX -0.39 ha (ancestral home/ farm Axi.That this Court does make a declaration that the parcels of land known as LR No. Ithimantuambui/ 3XXX -2.6 ha (ancestral home/ farm) and LR No. Ithimantuambui/ 3XXX -0.39 ha (ancestral home/ farm A was the deceased herein matrimonial home and therefore the deceased beneficiaries namely Moses Ithalie (now deceased) Pamela Kathoni, Paul Kirimi, Irene Kimuri and LK and AM herein ancestral home.xii.That this Honorable Court be pleased upon the removal of the name of the 1st administrator PKK as the Administrator of the estate and that it deems it fit to issue a new grant in the names of the of INK and LK Kimuri and the same be confirmed.xiii.That this Honorable Court do make, any other order that this Honourable Court deems fit to grantxiv.That the Costs of this application be costs in the cause 2.The Applications were canvassed via written submissions. At the time retired to write the ruling, only the applicant, PKK and AMK had filed their submissions pursuant to directions issued on 18th February 2026. The Submissions are dated 10th February 2026. 3.It is submitted that the respondent's conduct necessitates her removal as an administrator, and reference is made to the decisions in Re Estate of Mohamed Salah Awke (Succession Cause E1303 of 2020) [2023] KEHC 19681 (KLR) and Karoba and Another (Succession Cause No 209 of 2012) [2022] KEHC 15606 (KLR). Context 4.The succession Cause relates to the Estate of Thomas Kimuri Baithana (deceased) who died 9th October 1995. At the time of his death he was survived by the following beneficiariesa.Elizabeth Ciongondu wife (Adult)b.Moses Ithalie Son (Adult)c.Moses Kiogora Son (Adult)d.Pamela Kathoni Daughter (Adult)e.Paul Kirimi Son (Adult)f.IN Daughter (Adult)g.LK Daughter (Minor)h.AM Son (Minor) 5.Grant of Letters of Administration issued to Elizabeth Ciongondu and Moses Ithalie Moses on 30th March 1999. The adult children of the deceased all consented to the issuance of this grant. Following the death of Elizabeth, Moses Ithalie moved the Court for rectification of the Grant vide application dated 20th November 2002. The application was supported by a consent dated 20th November 2002 executed by all the adult children of the deceased. A fresh grant issued to PKK and Moses Ithalie on 23rd July 2003. 6.Under the Summons for Confirmation of Grant dated 30th July 2004, the administrators moved the Court to confirm the Grant and distribute the estate in accordance with paragraph 5 of the Supporting affidavit. That application was supported by the deceased’s adult children, as evidenced by the Consent attached to the Summons for confirmation of the Grant. The Grant was subsequently confirmed, and a Certificate of Confirmation of Grant was issued on 27th October 2004. The Grant was then rectified on 27th July 2005 to include an additional asset, National Industrial Credit Bank Limited Cheque No. 14022 for Kshs 333,270, and to provide for its distribution among the beneficiaries. The application for rectification of the Grant was consented to by all the adult children of the deceased, as per the consents attached to the application. 7.Moses Ithlathie Thomas’ death on 13th July 2006 necessitated the presentation of an application to replace him with IN as joint administrator alongside PKK. The application was consented to by all the adult children of the deceased, and accordingly, a fresh grant was issued to IN and PKK on 10th November 2010. 8.In issuing the fresh Grant, the Court directed as follows-The particulars of Confirmation shall remain the same, save that where the name of Moses Ithalie Thomas appears, it shall be replaced by that of IN. Analysis And Determination 9.Having considered the pleadings herein, the facts, the submissions and the relevant law, I frame the following as the issues for determination-a.Whether the grant issued herein on 10th November 2010 should be revoked?b.Whether the Certificate of Confirmation of Grant issued herein should be variedc.Arising from (a) and (b) what are the consequential orders 10.All the applications seek the revocation of the grant to remove an administrator. The application of 6th October 2023 seeks the removal of IN and her replacement by AM as administrator. While the applications dated 21st March 2024 and 17th February 2026 seek the removal of PKK as administrator and the appointment of LK in his place. 11.It is submitted that IN acted fraudulently in extracting a certificate of confirmation of Grant that did not reflect the orders of the Court, as it altered the distribution of the estate, which was not the intention of the parties in the application dated 26th May 2010. 12.In her response vide replying affidavit sworn on 31st May 2024, she denies the charge against her and avers that the current mode of distribution discriminates against the female beneficiaries and that her co-administrator has threatened to disinherit the family of Moses Ithalie Kimuri (deceased) as no provision has been made for his family. She asserts that apart from LR No. Ithima/ Antuambui/1XXX, the other assets of the deceased’s estate are yet to be distributed. 13.From her response, I gather that the respondent did not alter the mode of distribution, but she is dissatisfied with it. Indeed, the orders of Hon. Kimaru J directed that her name be included in the certificate of confirmation of Grant and clarified that the mode of distribution was to remain undisturbed. 14.The applicant also seeks her removal on the basis that she has been intermeddling with the estate. I have considered the evidence on record and do not consider it sufficient to hold that she has been intermeddling with the estate. Accordingly, I find that no basis has been laid to necessitate the revocation of the appointment of IN as administrator. 15.The application dated 21st March 2024 seeks the removal of Paul Kimuri on the basis of his intermeddling with the estate, in particular with the land parcels LR No. Ithima/ Antuambui/3474 and LR No. Ithima/Antuambui/3474 3XXX. It is common ground that the grant herein is confirmed. The certificate of confirmation of grant issued herein confirms that the cited parcels of land were to be transmitted to Paul Moses Ithalie, AM and Moses Ithalie jointly. 16.Since the parcel of land has been distributed to him, it is not possible to bring a charge of intermeddling against him. I therefore decline to revoke the grant issued to him on this basis. 17.In the application dated 17th February 2026, the applicant seeks revocation of the grant on the following grounds as enumerated under paragraph 21 of her supporting affidavit-a.Interfering and intermeddling with the estate of the deceasedb.leasing out properties of the deceased unilaterally without the mandate of both the co- administrator and consent of the other beneficiaries/co-administratorc.Collecting sums in excess of KSHS 900,000/ (Kenya Shillings Nine Hundred Thousand Only) from one Peter Gitonga Karathod.Exposing the estate to creditors with a further Kshs 800000 (Kenya Shillings Eight Hundred Thousand Only) collected from another lessor for the same periode.Exposing the family home to ridicule and constant police raids as a result of carrying out illegal activities while brewing illicit alcohol at the family farmf.Harassing the daughters of the deceased and previously (in 2016) removed doors and locks to the bedrooms in the family home to deny them access and threaten them with bodily harm if they visit the family homeg.Failing to account for income which has been received from leasing of properties of the deceasedh.Exposing the estate of the deceased to legal proceeding both civil and criminal suits owing to. (sic)i.Administering, distributing and varying the distribution of the estate without the consent of the other siblings or deceased children.j.Harassing the 2nd Administrator verbally and turning her to a ceremonial role over the years while making decisions alone.k.Being of unbalanced temperament character, unstable and incoherent in communication as a result of substance abuse tendenciesl.Harassing the 2nd Administrator for money favours, and even bail for aggressive behaviors with neighbours in 2022m.Reckless behaviour leading to hospital bills incurred through the estaten.The mental state of the 1st administrator has become erratic/ questionable due to substance abuse, having recently banished the younger brother, AM, from the ancestral home, causing public nuisance to the neighboring community and posing a menace to local law enforcement. 18.In addition, it is submitted that the respondent is responsible for the delay in transmitting the estate. It is also submitted that the administrators failed to include all of the deceased's assets. 19.I have set out above in extensor the various applications relating to Petition for Grant, its confirmation and rectification over the years. It is not possible to fault the issuance of the grant of letters of administration herein as on all occasions the adult children of the deceased consented either to the grant of letters or to the rectification. My perusal of the record shows that the provisions of Section 71 of the Law of Succession Act were complied with. 20.The allegation raised against the respondent in the application dated 17th February 2026 as set out under paragraph 17 above are grave, they are however unsubstantiated. Likewise, the charge that the administrators omitted some of the assets of the deceased has not been substantiated. The applicant has not submitted documentation that establishes ownership by the deceased. 21.I conclude, therefore, that the grounds for revocation of the grant as enumerated under Section 76 of the Law of Succession Act have not been complied with. 22.The 2nd issue is whether the Certificate of Confirmation of Grant ought to be varied as regards the mode of distribution as proposed. Both applicants in the applications dated 21 March 2024 and 17 February 2026 seek that the certificate of confirmation be revised and the estate be redistributed to enhance the share of the female beneficiaries and to make provision for the families of the deceased sons of the deceased. The applications challenge the current mode of distribution and state that it favours the sons and does not provide for the daughters. 23.The proceedings leading to the confirmation of grant on 27th October 2004 confirm that the Summons for Confirmation of Grant was consented to by the adult children of the deceased, two of whom were female. The grounds upon which a consent can be set aside are well settled and were stated in Flora Wasike -vs- Destimo Wamboko [1982 – 88] 1 KAR 266, the Court of Appeal held that:(i)It is settled law that the consent judgment can only be set aside on the same grounds as would justify the setting aside of a contract for example fraud, mistake or misrepresentation… 24.None of those is alleged in the current case. When the matter came up for rectification vide application dated 4th May 2005, no objection was raised. Nor was any objection raised when a subsequent application, dated 26th May 2010, leading to the appointment of IN as co-administrator, was made. In her proposal for distribution of the estate, the applicant, in application of 17th February 2026, yields her interest in Ithima/ Antuambui/4XXX and instead seeks a share of Ithima/ Antuambui/ 3XXX and of Ithima/ Antuambui/ 3XXX. 25.She has not presented tangible evidence to demonstrate that the distribution in the Certificate of Confirmation is discriminatory against her. Based on the affidavit in support of the Petition, she was 9 years old in 1999. This means that by 2008 she had attained the age of majority. She has not attempted to explain the 18-year delay in presenting this application. Whereas she submits that she was not allocated a share, the Certificate of Confirmation of Grant speaks for itself - she is the allottee of Ithima/ Antuambui/ 4XXX. 26.For the aforestated reasons, I decline to review or vary the Certificate of Confirmation of Grant. 27.Accordingly, the final and consequential orders are-a.The applications dated 6th October 2023, 21st March 2024 and 17th February 2026 are dismissed.b.The estate of the deceased will be distributed in accordance with the certificate of confirmation of the Grant rectified on 27th July 2005.c.The Certificate of Grant is rectified to align with the Grant of letters of administration as issued on 10th November 2010.d.As all the beneficiaries are adults, the Administrators will transmit directly to each beneficiary their respective share of the Estate.e.The Certificate is further rectified to reflect that two beneficiaries who are now deceased.f.The Certificate of confirmation of Grant is amended thus- Name of Beneficiary (ies) Description of Property Shares Estate of Moses Ithalie ThomasPKKAM Ithima/ Antuambui/ 3XXX (2.6 Ha)Ithima/ Antuambui/ 3XXX. To be held jointly in equal shares Estate of Moses Kiogora Ithima/ Antuambui/XXX 0.39 Ha Absolutely PKK Ithima/ Antuambui/ 1XXX 0.37 Ha Absolutely LK Ithima/ Antuambui/ 4XXX Absolutely Estate of Moses Ithalie Thomas Ithima/ Antuambui/5XXX 0.04 Ha Absolutely Pamela KathoniINK Nyambene County Council plot N. 40B Jointly in Equal shares Stephen MunganiaEstate of Moses Ithalie Thomas National Industrial Credit Bank Limited Cheque No. 14022 for Kshs 333,270 To be shared equally 28.The Administrators will finalise transmission within 6 months and submit a report in accordance with Section 83 (g) 29.In the event that any of the administrators fails to sign and document or instrument to facilitate transmission within 14 days of delivery to them, the Deputy Registrar of the Family Division will execute the same on their behalf.1.Each party will bear their own costs2.Parties are at liberty to appeal; the party exercising their right of appeal to do so within 30 days. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 21ST DAY OF MAY, 2026.P. M NYAUNDIJUDGEIn the Presence ofFardosa Court AssistantKariu for 2nd Administrator