https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13071

In re Estate of Obel (Deceased) (Succession Cause 305 of 2011) [2026] KEHC 13071 (KLR) (12 August 2026) (Ruling) Neutral citation: [2026] KEHC 13071 (KLR) Republic of Kenya In the High Court at Nakuru Succession Cause 305 of 2011 PN Gichohi, J August 12, 2026 IN THE MATTER OF THE ESTATE OF ALOIS OPONDO OBEL (DECEASED) Between Calisto Otieno Opondo 1st Applicant Mary Achieng Ogutu 2nd Applicant Selina Aоко Орondo 3rd Applicant Selestine Atieno Oduor 4th Applicant and The Estate of Milka Wangari Alois (Deceased) Respondent Ruling 1.By a Summons for Revocation or Annulment of Grant dated 1st April, 2025 and expressed under Section 76 (a), (b) and (c) of the Law of Succession Act, Rules 44 and 73 of the Probate and Administration Rules, the Applicants seek from the Court the following Orders;-i.Spent.ii.The Honourable Court do issue a temporary injunction restraining the Respondent, whether by herself, her agents, assigns and/or servants or any other person from interfering in any manner whatsoever with the estate of the late Alois Opondo Obel (hereinafter referred to as "the Deceased") pending the hearing and determination of this application.iii.That pending the hearing and determination of this application, the Chief of Wanjohi Location, Kipipiri Sub-county in Nyandarua County be compelled to produce before Court a full list of all the beneficiaries of the Deceased.iv.The Respondent herein be compelled to produce before Court a full and accurate inventory of all the assets of the Deceased.v.The Grant of Letters of Administration herein be revoked/annulled.vi.This Honourable Court orders the Respondent to give a full and accurate account of the estate of the Deceased.vii.The costs of this application be provided for. 2.The Application is supported by the grounds on the face of the Summons and the Applicant’s Supporting Affidavit sworn by the 1st Applicant, Calisto Otieno Opondo, on the same date. He states that he is related to the Deceased by virtue of being his son. 3.He avers that the letters of administration intestate of the deceased were made to Milka Wangari Alois (now deceased) on the 3rd October, 2011 and confirmed on 8th June, 2012. He states that the Deceased was a polygamous man with two houses, the first house being in Siaya while the second house of the Respondent was in Nyahururu. 4.It is his case that the Deceased and the late Milka Wangari Alois did not sire any children together, but the Deceased had taken as his child the Respondent’s daughter, Mary Njeri Kimani, sired before the marriage. 5.He states that the Grant was obtained fraudulently by Milka Wangari Alois, who concealed from the Court that there existed other beneficiaries to the estate and further failed to disclose the full list of the Deceased's Assets, which included the Barclays Bank of Kenya Account. 6.He claims that the proceedings were so discreet that it was not until way after that it was discovered that the Respondent had applied and obtained letters of administration for and left out the rest of the beneficiaries. Therefore, he states that unless the Respondent, her agents, servants, employees and/or assigns or any other person are restrained by this Court, the Respondent may proceed and waste the estate of the Deceased and if this happens, then the first house of the Deceased stands to suffer irreparably. 7.The Applicant therefore prays that the Grant of Representation herein be revoked and/or annulled, a full and accurate account of the estate of the Deceased and for the Respondent to make good any loss or damage so occasioned to any property forming part of the Deceased’s estate and to compensate in the current market value all the property which the Respondent misapplied or subjected it to loss or damage and property that has been wasted and/or unaccounted for. 8.In addition, he states that urgent and immediate intervention of this Court would enable re-distribution of the Deceased’s assets. 9.In response to this application, one Mary Njeri Kimani, a beneficiary of the estate and daughter of the Milka Wangari Alois (now deceased), raised a Preliminary Objection dated 28th October, 2025, seeking the following Orders;-i.That the Applicants’ Application dated 1st April, 2025 is fatally defective and a nullity as the same has been filed against a deceased person.ii.That beneficiaries of the Estate of Milka Wangari Alois (Deceased) have not taken out letters of administration and therefore lack locus standi to sue or to be sued. 10.In addition, she filed a Replying Affidavit sworn on 28th October, 2025. She deposed that Milka Wangari Alois (deceased) died on 22nd August, 2025, and since the case is filed against a deceased person, it is fatally defective. That since the estate of Milka Wangari Alois (Deceased) has not taken out a grant for letters of administration, it lacks locus standi to sue or to be sued. 11.She added that she does not have locus to prosecute this application as no grant of representation has been issued to her by any court authorising her to deal with the Estate of Milka Wangari Alois (deceased) or the estate of Alois Opondo Obel (Deceased), which renders the entire suit incompetent. 12.It is her case that the estate of Alois Opondo Obel consisted of only two assets, being Title Numbers Nyandarua/Wanjohi/1434 and Nyandarua/Miharati/Township/95. After distribution, the deceased administrator (before her death) transferred her portion of the inheritance, being seven (7) acres carved out of LR. Nyandarua/Wanjohi/1434 to the Children of the 1st House, specifically to the 1st Applicant to hold in trust for himself and in trust of his three (3) other siblings (the 2nd, 3rd and 4th Applicants herein). 13.She added that she also surrendered a portion of her inheritance to the Applicants, being a portion of three (3) acres carved out of LR. No. Nyandarua/Wanjohi/3588. 14.Further, she added that the dispute herein was mediated at the Wanjohi Chief's office on 11th March, 2020 and title documents were handed over to the Applicants at the Wanjohi Sub-Location Chief's office. 15.It is her case that the following assets: Plot No. LR. Nyandarua/Miharati Township/95 (Whole) and 10 acres in LR. No. Nyandarua/Wanjohi/1434, were handed over to the Applicants as part of their inheritance. 16.She averred that the Applicants were the largest beneficiaries of the deceased's assets. In total, the Applicants received 10 acres out of LR No. Nyandarua/Wanjohi/1434 and Plot Number Nyandarua/Miaharati Township/95 (whole). This application is therefore actuated by greed on the part of the applicants. 17.She stated that immediately after receipt of the said parcels of land, the Applicants sold their share of the inheritance and are no longer in possession of the properties. That regarding the deposit at Barclays Bank, the same was used by the Bank to set off loan arrears accrued on a loan borrowed by Alois Opondo Obel (deceased) against Plot Number Nyandarua/Miaharati Township/95. 18.She further stated that the beneficiaries of the estate of Milka Wangari Alois (deceased) have not taken out letters of administration to her estate because there are no assets to administer, having transferred the only asset to the Applicants herein. She added that the estate of Alois Opondo Obel (deceased) has been fully distributed, hence there are no pending claims against the estate and there is therefore no need for reopening the estate. Applicants’ submissions 19.The Applicants submit on three (3) issues namely:-i.Whether the grant was fraudulently obtained;ii.Whether the Respondent is properly joined and served;iii.Whether this Honourable Court should grant the prayers sought. 20.On whether the grant was obtained by means of fraud, it is submitted that Section 76 of the Law of Succession Act stipulates the instances where a grant can be revoked. It is contended that Milka Wangari Alois concealed from the Court that there existed other beneficiaries to the estate and further failed to disclose the full list of assets of the Deceased’s estate. Additionally, they argued that the process was so discreet that the Applicants came to find later that the grant had already been confirmed. 21.The Applicants relied on the decision in re Estate of Ndinguri Karugia (Deceased) [2017] KEHC 6435 (KLR) where the Court held that nondisclosure of all beneficiaries amounted to concealment of material facts and nondisclosure of the deceased as a polygamous man and made the grant of administration intestate and contravened Sections 40, 58 and 84 of the Law of Succession Act. 22.Further reference was made to the case of in re Estate of Wahome Mwenje Ngonoro Deceased [2016] KEHC 2576 (KLR) where the Court found that failure to involve the Applicants at the time of filing amounted to concealment and was in bad faith. 23.As to whether the Respondent is properly joined and served, it was submitted that, the fact of the death of Milka Wangari Alois being known to the Applicants herein, it would not have been imprudent to join her in person as the Respondent, because a suit against a dead person is untenable. That the Estate of the person whom the grant was made is a proper Respondent. 24.It is further argued that the application is not a suit against Milka Wangari Alois but for revocation or annulment of the grant. As for service, it was submitted that in the absence of any known legal representatives of the estate, the proper persons to serve are the estate’s beneficiaries. In support, the Applicants relied on the case of In re Estate George Ragui Karanja (Deceased) [2016] KEHC 6519 (KLR) where the Court held that upon death of one administrator, the grant becomes inoperative and liable for revocation. 25.On the final issue, the Applicants submitted that this Court is vested with jurisdiction to grant the prayers sought by dint of Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. In support of that line of submissions, they relied on the Court of Appeal decision in Floris Piero & another v Giancarlo Falasconi (as the administrator in the estate of Santuzza Bilioti alia Mei Santuzza) [2014] KECA 827 (KLR) as it held that the Law of Succession Act gives the Court wide jurisdiction in dealing with testamentary and administration issues. 26.Further, they argued that despite their fear that distribution has happened, Section 47 and Rule 73 give this Court extensive powers, including reconstituting the estate of the deceased, as it was held in re Estate of Adriano Nthiga Thangari (deceased) [2024] KEHC 8913 (KLR). 27.The Applicants further submitted that in light of the apparent injustice to them, the Court should be guided by Article 159 of the Constitution and disregard procedural technicalities that might bedevil the present application but consider all the evidence of the fraudulent obtaining of the impugned grant. Mary Njeri Kimani’s submissions 28.She framed the following issues for determination:-i.Is the suit as framed competent?ii.Consequences of filing a suit against a deceased person.iii.Can a suit be filed against an estate where there are no letters of administration? Locus standi?iv.Whether the grant should be revoked? 29.She argued the first two issues jointly. It was submitted that the suit against the Respondent is null and void ab initio since the Respondent died before the present application was filed. That the suit is incompetent as a dead person cannot be sued and therefore, the application ought to be struck out in limine. 30.In support, she relied on Naikuni v Naikuni & 7 others; Manyuele (Applicant) [2025] KEELC 3064 (KLR) where the Court held that a dead person cannot be sued and technically, a suit filed against a deceased person is invalid and a nullity from inception. 31.They emphasised that the Court ought to strike out the entire suit against the estate of Milka Wangari Alois (deceased) with costs. 32.As to whether a suit can be filed against an estate where no letters of administration have been obtained, reliance as placed on the cases of Isaya Masira Momanyi vs Daniel Omwoyo & Another [2017] eKLR, and Beatrice Wambui Kiarie vs Beatrice Wambui Kiarie & 9 Others [2018] eKLR and Rajesh Pranjivan Chudasama Vs Sailesh Prajivan Chudasam [2014] eKLR to submit that where there are no letters of administration Mary Njeri Kimani does not have locus standi to respond to the said application as she has neither taken out letters of administration regarding the late Milka Wangari Alois (deceased), nor is she an administrator of the estate of the deceased herein. 33.On whether the grant should be revoked, it was submitted that the parties herein have already settled this matter out of court in the presence of the area Chief Wanjohi Sublocation. That the application herein is a calculated move actuated by greed to dispossess the rest of the beneficiaries of their shares in the estate. Analysis and determination 34.This Court has considered the Summons for Revocation or Annulment of Grant dated 1st April, 2025 and the arguments for and against it. From the record, the issues that fall for determination are:-1.Whether without letters of administration, Mary Njeri Kimani has locus standi to defend or prosecute these succession proceedings.2.Whether the proceedings herein filed against the deceased administrator are nullity ab initio.3.Whether the Grant issued on 3rd October, 2011 and confirmed on 8th June, 2012 can be revoked or annulled.4.What orders can the Court issue in the circumstances5.Who bears the costs of the Summons. 35.With respect to the first and second issues, this Court, in its directions of 29th May 2025, and during the proceedings of 16th June 2025, sought clarification on whether the Respondent was properly joined. To that end, Mary Njeri Kimani, a beneficiary, was permitted to file a response to guide the Court in its consideration of the matter. 36.It is not in dispute that the Grant of Letters of Administration was issued on 3rd October 2011 and confirmed on 8th June 2012 in favour of Milka Wangari Alois. It is equally undisputed that the said administrator passed away on 22nd August 2013 and letters of administration have not been taken in respect of her estate. 37.It is further acknowledged that the deceased herein was a polygamous man, having established two households. The first comprising the Applicants and the second associated with the deceased administrator and her daughter Mary Njeri Kimani. 38.In Ibrahim V Hassan & Charles Kimenyi Macharia [2019] KEHC 10121 (KLR) the Court observed as follows:“Locus standi is basically the right to appear or be heard in court or other proceedings. That means if one alleges the lack of the same in certain court proceedings, he means that party cannot be heard, despite whether or not he has a case worth listening to. The issue herein is whether the Applicant lacks the requisite locus standi to seek relief from the court to revoke the grant in question issued to the Respondent. In my view, issues as regards locus standi are critical preliminary issues which must be dealt with and settled before dwelling into other substantive issues”.The position in law as regards locus standi in succession matters is well settled. A litigant is clothed with locus standi upon obtaining a limited or a full grant of letters of administration in cases of intestate succession. In Otieno v Ougo [1986-1989] EALR 468, the Court rendered itself thus:“… An administrator is not entitled to bring any action as administrator before he has taken out letters of administration. If he does, the action is incompetent as of the date of inception.” 39.This Court therefore affirms that locus standi in succession matters is a jurisdictional threshold. In the present case, locus standi would only be conferred upon a person holding a valid grant of representation to the estate of Milka Wangari Alois. The mere fact that one beneficiary of the estate of the deceased herein overlaps with that of the deceased administrator does not, without more, translate into legal capacity. The Court cannot cure the defect by simply substituting names. Authority must flow from a duly issued grant. 40.In the premises, Mary Njeri Kimani, not having obtained such letters in retard to the estate of Milka Wangari Alois (deceased), lacks the legal capacity to defend or prosecute these succession proceedings or to speak on behalf of her late mother. 41.Regarding the second issue, Mary Njeri Kimani has consistently maintained that these proceedings are incurably defective, contending that a suit cannot be initiated against a deceased administrator whose beneficiaries have not taken out letters of administration. 42.The argument that a deceased person cannot sue or be sued is fundamentally accurate. Even where an application for revocation of grant is lodged within the estate in which the grant was issued, the deceased administrator cannot defend a claim against them. Jurisdiction presupposes a living party or a duly constituted estate represented by administrators clothed with authority to act. 43.Since the summons was anchored against a non‑existent legal person, it cannot be sustained in law. Service upon a dead person is also a legal impossibility and the proceedings so instituted collapse at inception. As Lord Denning famously stated in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169:“You cannot put something on nothing and expect it to stay there. It will collapse." 44.Applying that principle, the Applicants’ Summons dated 1st April, 2025 is procedurally defective and cannot be sustained. Consequently, these proceedings collapse and cannot be salvaged by argument or by mere reference to overlapping beneficiaries. 45.As to whether the grant should be revoked, Section 76 of the Law of Succession Act provides for revocation and annulment of grant and the same provides as follows:76.Revocation or annulment of grant“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion-a.that the proceedings to obtain the grant were defective in substance;b.that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;c.that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;d.that the person to whom the grant was made has failed, after due notice and without reasonable cause either-i.to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court has ordered or allowed; orii.to proceed diligently with the administration of the estate; oriii.to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; ore.that the grant has become useless and inoperative through subsequent circumstances.” 46.In the case of Julia Mutune M’mboroki v John Mugambi M’mboroki, Gikundi M’mboroki, Linet Nthiori Ndingu & Naomi Gatimba [2016] KEHC 7023 (KLR), Gikonyo, J had this to say:“In my view, therefore, where the sole administrator is a natural person, and he or she dies, the grant becomes useless or inoperative by reason of subsequent event of his demise. I am aware that the Law of Succession Act does not define or say what constitutes “the grant has become useless and inoperative through subsequent circumstances.” But, in my opinion, death of an Administrator would be a sufficient reason to revoke a Grant for having become useless and inoperative due to subsequent demise of its holder. Accordingly, in such case, the proper procedure is to apply for revocation of grant of letters of administration under section 76(e) of the Law of Succession Act on the reason that the grant has become useless and inoperative through subsequent circumstances and a grant to be made to another person named in the application.” 47.Following the death of the deceased administrator, the grant became moot and inoperative. Any action thereafter in respect of the estate was null and void. That includes transfers, distribution or sale. 48.Be that as it may, a Succession dispute is unique. The Court handling such matters has a duty to protect the estate of the deceased, including protection from the beneficiaries of the estate. 49.In that regard, Section 76 of the Law of Succession Act explicitly clothes this Court with the mandate to revoke or annul a grant on its own motion. This power may be exercised even where factors such as fraud, concealment of material facts or other material facts are brought to light. 50.This Court has perused the Petition for Letters of Administration filed by the deceased administrator dated 24th June, 2011. The undisputed facts on the record reveal that the deceased was a polygamous man, yet the entire 1st House was completely omitted from the proceedings. Further, there was no notice and their written consents were not obtained or filed alongside the Petitioner as mandated by Rule 26 of the Probate and Administration Rules. 51.To completely ignore a whole house from succession proceedings is a fundamental breach of statutory law as Section 40 of the Law of Succession Act provides that the estate of a polygamous deceased person must be distributed among all houses according to the number of children. 52.It is evident that there was concealment of material facts in the case and therefore the proceedings to obtain the grant were defective. 53.It is also not lost to this Court that the distribution of the estate was fundamentally flawed and tainted, given that one Alois Mwangi Kimani, a grandson of the deceased, inherited land parcels directly from the estate of the deceased herein in total disregard and violation of the strict statutory line of inheritance. 54.In the matter of the Estate of Veronica Njoki Wakagot (Deceased) [2013] KEHC 1930 (KLR), the Court held as follows:-“Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents. In this case, the applicant’s mother survived the deceased. She is the one entitled under Part V to inherit her mother, the applicant’s deceased grandmother. The applicant clearly has no claim under Part V so long as his mother survived the deceased.” 55.In the circumstances of this case, Alois Mwangi Kimani should not have been included as a beneficiary of the estate hereunder, and any property bequeathed unto him is a nullity. 56.This Court is thus satisfied that the Grant herein issued to the deceased administrator was obtained through concealment of material facts. Further, the distribution was procedurally defective. 57.Under Section 47 of the Law of Succession Act, this Court has jurisdiction to intervene and to prevent injustice and safeguard the integrity of the process. That mandate is reinforced by Rule 73 of the Probate and Administration Rules. 58.Consequently, while the Applicant's Summons must be struck out, this Court’s recourse is to step in on its own motion, and revoke the inoperative and tainted grant. 59.Mary Njeri Kimani maintained that the estate was already distributed, with the Applicants being the largest beneficiaries of the deceased's assets, having received 10 acres out of LR No. Nyandarua/Wanjohi/1434 and Plot Number Nyandarua/Miaharati Township/95 (whole), and the instant application is a waste of precious judicial time. 60.She further argued that there was a meeting at the chief’s office where the dispute was settled and that titles have already been transferred and sold. However, there is nothing on record to substantiate the assertion that the estate was distributed as claimed. 61.This Court is guided by the Certificate of Confirmation of Grant, which reveals that the estate was not properly distributed. One house was excluded from its rightful share. The alleged meeting at the chief’s office and subsequent transfers cannot override the statutory process in the law of Succession. 62.They cannot validate the impugned distribution tainted by exclusion. It follows then that any purported transfers founded upon a defective and tainted Grant cannot attract statutory protection. 63.Where the foundation is flawed, subsequent dealings are equally tainted. Section 93 of the Law of Succession Act gives protection to owners or purchasers to a level of protection in cases where the law has been complied with. 64.To be specific, the said Section provides:(1)All transfers of any interest in immovable or movable property made to a purchaser either before or after the commencement of this Act by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act.” 65.While addressing the rationale of Section 93, the Court in Monica Adhiambo vs Maurice Odero Koko [2016] KEHC 6805 (KLR) held:“…The reality of the situation is that provisions of Section 93 do not validate unlawful acts and what was intended by Section 93 was that where a grant is properly and lawfully issued, then Section 93 can come to the rescue of such a purchaser. In my humble view, the underlying objective of the law of Succession Act is to ensure that beneficiaries of deceased persons inherit the property.” 66.To protect the integrity of the estate and the rights of all beneficiaries, this Court makes the following Orders:-1.The Grant of letters of administration intestate issued to Milka Wangari Alois (now deceased) on the 3rd October, 2011 and confirmed on 8th June, 2012 is hereby revoked.2.Any sale, purchase, transfer, subdivision and/or transaction in relation to Title Numbers Nyandarua/Wanjohi/1434 and Nyandarua/Miharati/Township/95 is hereby cancelled, and the properties shall revert to the estate of the deceased herein.3.A fresh grant shall issue to two administrators to be proposed by the family to represent each of the two houses of Alois Opondo Obel, the deceased herein.4.This being a family issue, each party shall bear its own costs DATED AND SIGNED AT NAIROBI THIS 7TH DAY OF AUGUST, 2026.PATRICIA GICHOHJUDGEDELIVERED AT NAKURU THIS 12TH DAY OF AUGUST, 2026.………………………DR. JOSEPH SERGONJUDGE