https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8959

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **SUCCESION CAUSE NO 592 OF 2005** **IN THE MATTER OF THE ESTATE OF NATHAN AMBETSA SHIREKULE- (DECEASED)** **AND** **IN THE MATTER OF AN APPLICATION BY THE PUBLIC TRUSTEE OF THE REPUBLIC OF KENYA UNDER SECTION 6 (2) OF THE PUBLIC TRUSTEE ACT (CHAPTER 168 LAWS OF KENYAFOR LETTERS OF ADMINISTRATION INTESTATE TO THE ESTATE OF NATHAN AMBETSA SHIREKULE – DECEASED** **AND** **IN THE MATTER OF THE CONFIRMATION OF THE GRANT OF LETTERS OF ADMINISTRATION TO THE ESTATE OF THE DECEASED UNDER SECTION 71 LAWS OF SUCCESSION ACT CHAPTER 160 LAWS OF KENYA** **RULING.** 1. The office of the public trustee who had been issued with the letters of administration filed summons for confirmation of the grant in an application dated 8th February 2022. 2. In an affidavit sworn by the assistant public trustee for confirmation, he listed the deceased, Nathan Ambetsa Shirekule surviving beneficiaries as follows; 3. Prisca Ambetsa- adult daughter 4. Gladys Masitsa- adult daughter 5. Elizabeth Mayenje- Adult daughter 6. David Ambunya- adult son 7. Christine sisia- Adul daughter 8. Alfred salikha- adult Grandson. 9. The assistant public trustee proposed that deceased asset being Butsotso/ Shikoti/12757 be shared equally among all beneficiaries. 10. Some of the beneficiaries being Elizabeth Mwenje Ambetsa and Christine Shisia Karakacha respectively filed objection to the proposed mode of distribution by stating that their mother had only 3 children being herself Elizabeth Muhenje Ambetsa, David Ambunya Ambetsa and Christine shisia Karakacha and stated that the other persons stated as beneficiaries are not her siblings and there is no evidence that they were children to the deceased. 11. She claimed that David Ambunya Ambetsa, disappeared from home more than 20 years ago and has not been heard from and his whereabouts unknown. 12. She objected to the mode of distribution and states that the property being Butsotso/ Shikoti 12757 be distributed as follows Elizabeth Muhenje – whole and Christine Shisia Karakacha- nil. 13. At the time of writing this ruling none of the parties had filed their written submissions. **Analysis and determination.** 1. I have considered the application as well as the objection and find the main issue for determination is whether this court should confirm the above grant or not. 2. Section 38 of the Law of Succession Act, Cap 160 Laws of Kenya provides as follow; ***"Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children."*** 1. The law under section 38 of the Law of succession act is clear, where a deceased dies intestate leaving children and no surviving spouse, the estate devolves equally upon all the surviving children. 2. The applicant claims that the beneficiaries stated by the public trustee are not the children of the deceased. 3. The burden of proving entitlement to inherit lies upon the person asserting that the other beneficiaries’ status. The court cannot distribute an estate to persons whose relationship to the deceased has not been established. The public trustee has not provided any evidentiary proof of the relationship between the deceased and the persons identified as beneficiaries 4. In the present case, the Public Trustee merely listed six persons as beneficiaries. The record before the court discloses no birth certificates, letters from the area chief, family records, affidavits of relationship or any other documentary evidence demonstrating that Prisca Ambetsa, Gladys Masitsa and Alfred Salikha were children or dependants of the deceased. 5. The Court is therefore unable, on the material presently before it, to conclusively find that Prisca Ambetsa, Gladys Masitsa and Alfred Salikha are beneficiaries entitled to inherit from the estate. 6. In her objection, the applicant states that the brother, David Ambunya Ambetsa should be excluded as a beneficiary as he disappeared 20 years ago and his whereabouts unknown. This court notes that disappearance alone does not extinguish inheritance rights. The law relating to presumption of death is provided under Section 118A of the Evidence Act which states: ***"Where it is proved that a person has not been heard of for seven years by those who might be expected to have heard of him if he had been alive, there shall be a rebuttable presumption that he is dead."*** 1. However, such presumption does not arise automatically. A formal finding by a competent court is ordinarily required before a missing person can be treated as deceased for purposes of succession. 2. In the absence of evidence showing that David Ambunya Ambetsa has been legally declared dead, this court cannot simply extinguish his entitlement to inheritance. 3. The court therefore rejects the proposal that the entire estate be transmitted to Elizabeth Muhenje Ambetsa to the exclusion of David Ambunya Ambetsa. 4. Having considered the summons for confirmation of grant, the affidavits on record, the objection filed by Elizabeth Muhenje Ambetsa and Christine Shisia Karakacha, I find that the court lacks sufficient evidence to conclusively determine all the rightful beneficiaries of the estate. 5. Consequently, I make the following orders: 6. The summons for confirmation of grant dated 8th February 2022 is hereby declined at this stage. 7. The proposed mode of distribution by the Public Trustee is not allowed. 8. The objection by Elizabeth Muhenje Ambetsa and Christine Shisia Karakacha succeeds to the extent that the court finds that the identities and entitlement of some of the purported beneficiaries remain unproven. 9. The Public Trustee shall, within ninety (90) days, file a comprehensive affidavit together with supporting evidence identifying all the beneficiaries of the deceased and their relationship to the deceased. 10. Appropriate evidence shall also be placed before the court regarding the status of David Ambunya Ambetsa concerning his disappearance 11. Upon compliance with the foregoing directions, the summons for confirmation shall be reconsidered on priority basis. 12. Each party shall bear their own costs, this being a family succession dispute. 13. Mention 18.11.2026 for compliance and for further directions. 14. Orders accordingly. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 17TH DAY OF JUNE, 2026.** **S.MBUNGI** **JUDGE** **In the presence of:-** **CA:** Velma/Zilda Parties absent. Advocates absent. Court Assistant to upload the ruling on the CTS forthwith.