Maiyo v Maiyo & 2 others (Probate & Administration E002 of 2023) [2026] KEHC 10936 (KLR) (25 June 2026) (Ruling)

Maiyo v Maiyo & 2 others (Probate & Administration E002 of 2023) [2026] KEHC 10936 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 10936 (KLR) Republic of Kenya In the High Court at Kapsabet Probate & Administration E002 of 2023 OA Sewe, J June 25, 2026 IN THE MATTER OF THE ESTATE OF LAURENCE KIMAIYO SANG (DECEASED) AND IN THE MATTER OF AN APPLICATION FOR CONFIRMATION OF GRANT AND IN THE MATTER OF A PROTEST BY STEPHEN KIPKETER A MAIYO (DECEASED) Between Salina Jepkemboi Maiyo Applicant and Kennedy Kipkemboi Maiyo 1st Respondent Joseph Kipkosgei Maiyo 2nd Respondent Asbel Kibiwot 3rd Respondent Ruling 1.The Summons dated 26th May 2026 was filed by Salina Jepkemboi Maiyo, the widow of the Protestor, Stephen Kipketer A Maiyo. It was filed pursuant to Article 159 of the Constitution of Kenya, Sections 1A, 1B, 3, 3A of the Civil Procedure Act and Order 12 Rule 7, Order 32 Rule 15 and Order 51 of the Civil Procedure Rules for orders that:(a)Spent(b)That the Court be pleased to grant leave to the applicant, Salina Jepkemboi Maiyo, to substitute the protestor, Stephen Kipketer A Maiyo who died on 13th December 2025 to defend the rights of the deceased protestor herein.(e)That costs of the application be provided for. 2 .The application was predicated on the grounds that the applicant is the widow of the protestor who died on 13th December 2025. She averred that she has been given Limited Grant of Letters of Administration Ad Litem for the purposes of collecting and preserving the estate of the deceased protestor, Stephen Kipketer A Maiyo. The applicant further averred that this cause is pending hearing and determination of the Protest filed by Stephen Kipketer A Maiyo before his demise; and that the protestor had substantively prepared himself for the hearing. 3 .The applicant also stated that the family of the protestor is now apprehensive that, unless the application for substitution is allowed, the protest may be dismissed for want of prosecution with the attendant risk of the family losing their only place of abode. She therefore posited that it is in the interest of justice that the application be allowed and added that the respondents will not be prejudiced in any way as they shall be given a chance to be heard. 4 .The application was supported by the affidavit of the applicant sworn on 26th May 2026 in which she reiterated the grounds aforementioned. In proof of her averments, the applicant annexed copies of the Grant of Letters of Administration Ad Litem, Burial Permit, the Certificate of Death and witness statements prepared for purposes of hearing of the Protest. 5 .The application was not opposed by the respondents and having considered it alongside the documents annexed to the Supporting Affidavit, I am satisfied that it is meritorious; save to say that, although it was brought under the provisions of the Civil Procedure Act and Rules, the dispute is governed by the Law of Succession Act, Cap 160, which is a stand-alone piece of legislation intended for the expeditious disposal of succession disputes. Accordingly, the provisions of the Civil Procedure Rules are, in the main, inapplicable unless specifically imported by Rule 63 of the Law of Succession Act. That provision states:“(1)Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 (Cap. 21, Sub. Leg.), … shall apply so far as relevant to proceedings under these Rules.(2)Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased person shall be those existing and in force immediately prior to the coming into operation of these Rules.” 6 .None of the provisions relied on by the applicant fall in the category mentioned in the above Rule. That notwithstanding Section 47 of the Law of Succession Act stipulates that: ““The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient…” 7 .Similarly, Rule 73 of the Probate and Administration Rules provides that:Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. 8 .Therefore, the Court has the requisite jurisdiction to make the orders sought. 9.In the result, the Summons dated 26th May 2026 is hereby allowed and orders granted as follows:(a)That leave be and is hereby granted to the applicant, Salina Jepkemboi Maiyo, to come on record as the substitute for the protestor, Stephen Kipketer A Maiyo, who died on 13th December 2025 to defend and prosecute the rights of the protestor herein.(b)That costs of the application be costs in the cause.It is so ordered. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAPSABET THIS 25TH DAY OF JUNE 2026…………………………………….HON. OLGA SEWEJUDGE