REPUBLIC OF KENYA
IN THE HIGH COURT AT MACHAKOS
SUCCESSION CAUSE NO E013 OF 2025
IN THE MATTER OF THE ESTATE OF MICHAEL TIMOTHY KILILI (DECEASED)
JACQUELINE MWENDE KAMWANZA............................................. 1ST APPLICANT
GRACE NDUNGE MUSAU .............................................................2ND APPLICANT
VERSUS
FRANCISCA MBULA MWEU .........................................................1ST ADMISTATRIX
JACOB MUTUKU MANGANGI .................................................2ND ADMINISTRATOR
RULING
1. This ruling is on the Applicants’ Summons for reasonable provisions of dependants (“the application”) and Affidavit of protest (“the protest”) both dated 29th January 2026 and ostensibly similar in nature and seek reliefs of an almost similar nature wherein the Applicants are seeking for reasonable provision as dependants of Michael Timothy Kilili (“the deceased testator”), the contents of the Will dated 28th October 2021 notwithstanding. The reliefs sought are anchored under the provisions of Sections 26, 27, 28 and 29 of the Law of Succession Act and Rule 45 and 73 of the Probate and Administration Rules.
2. The application’s supporting affidavit and the protest are sworn on 29th January 2026 by Jacqueline Mwende Kamwanza, the 1st Applicant and are based on the grounds that the Applicants are the wife and daughter respectively of the late Gerald Musau Kilili, who was a son of the deceased testator herein. The said son Gerald Musau Kilili predeceased the deceased testator on 6th October 2021 following a short illness. That the 1st Applicant was married to the late Gerald Musau Kilili under Kamba Customary Law, and were blessed with two children from their marriage; Grace Ndunge Musau, 2nd Applicant and Emmanuel Mulwa Musau (a minor).
3. Prior to his death, the late Gerald Musau Kilili had lost his employment, and the deceased testator was supporting him directly by permitting him to collect rental income from his properties in Kangundo. Upon his death, the Applicants were left without any means of support and in a state of destitution.
4. That separate proceedings concerning the Estate of Gerald Musau Kilili are pending, namely Kangundo MCSUCC E070 of 2022 and Machakos High Court Family Appeal E003 of 2023. The Applicants state that it is important to note, however, that the present application is not concerned with the Succession of the Estate of Gerald Musau Kilili, and those proceedings are referenced here for context only.
5. The Applicants bring this application as dependants of the late Gerald Musau Kilili, and they protest the distribution of the deceased testator's estate on that basis. Notwithstanding that the testator disposed of his property by Will, the Applicants contend that they are entitled to reasonable provision from the estate, having been left without adequate support following the death of their husband and father.
6. In response to the application and protest, the Petitioners/Respondents filed a Replying Affidavit sworn on 13th February 2026 by Francisca Mbula Mweu, the 1st Respondent stating the instant application and protest are premature, frivolous, vexatious and an abuse of court process. That the Applicants have no locus to file these pleadings as there are separate proceedings in respect to the estate of Gerald Musau Killi, which was filed in Kangundo MCSUCC E070 of 2022 which is now Machakos High Court Family Appeal E003 of 2023 on who are the lawful rightful dependents and representatives of the estate of Gerald Musau Kilili (deceased). The Respondents aver that Michael Timothy Kilili (deceased testator) and Gerald Musau Kilili (deceased son) are father and son respectively and the two estates are totally and legally different, Gerald Musau Kilili died intestate while Michael Timothy Kilili died testate.
7. The court is yet to determine who the beneficiaries and lawful dependents of Gerald Musau Kilili (deceased) are. Hence, the Applicants cannot assume that position yet there are other beneficiaries claiming in the case of SUCCESSION CAUSE NO. E70 OF 2022; IN THE MATTER OF THE ESTATE OF GERALD MUSAU KILILI (DECEASED) at Kangundo Law Courts. The current proceedings are in respect to Michael Timothy Kilili (deceased) and not Gerald Musau Kilili (deceased) whom she claims under. The Respondent argue that the Applicants' Summons for Reasonable Provision of Dependants, Affidavit in support of Summons for Reasonable Provision of Dependants and Affidavit of Protest all dated 29th January 2026 should be dismissed with costs to the Administratrix and Administrator.
8. Parties canvassed the application and protest herein together by way of written submissions. The Applicants’ submissions are dated 15th June 2026 filed by Mungutu Ngulukyo & Co. Advocates whilst the Respondents’ submissions dated 2nd April 2026 filed by Koceyo & Co. Advocates. The submissions replicate the summary above and I wish not to duplicate the same here.
Analysis and determination
9. I have carefully considered the application, the protest, the replying affidavit, the supplementary affidavit and the written submissions of the parties’ advocates. The two issue I form for my consideration are:-
i. Whether the Applicants have locus standi to institute the Affidavit of Protest and the Summons for Reasonable Provision of Dependants.
ii. Whether the Applicants are Dependants of the deceased testator under the provisions of Section 29 of the Law of Succession Act.
i. Whether the Applicants have locus standi to institute the Affidavit of Protest and the Summons for Reasonable Provision of Dependants.
10. The question of locus standi is a threshold matter, and it is appropriate that it be resolved first before the Court turns to the substantive issues that follow. The Applicants must demonstrate that they have a sufficient legal interest in the estate of the deceased testator to entitle them to be heard. It is the Applicants' submission that they do whereas the Respondents submit that the Applicants lack capacity to represent the estate of Gerald Musau Kilili (deceased’s son) and assert derivative rights arising therefrom.
11. The High Court at Nakuru in the case of Law Society of Kenya vs Commissioner of Lands & Others, Nakuru High Court Civil Case No.464 of 2000, defined Locus Standi as follows:
“Locus Standi signifies a right to be heard; a person must have sufficiency of interest to sustain his standing to sue in a Court of Law”.
12. Further in the case of Alfred Njau and Others vs City Council of Nairobi [1982] KAR 229, the Court also held that: -
“The term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings”.
13. Therefore, locus standi means the right to appear before and be heard in a court of law. Without it, even when a party has a meritorious case, he cannot be heard because of that. Locus standi is so important that in its absence, the party has no basis to claim anything before the Court.
14. Turning to this case, the deceased testator herein had a son, the late Gerald Musau Kilili, who was a direct beneficiary of his estate. The late Gerald Musau Kilili predeceased the Testator on 6th October 2021. He was survived by the 1st Applicant, who is alleged to be his wife, and the 2nd Applicant, who is alleged to be their daughter and their son Emmanuel Mulwa Musau, currently aged 13 Years old. His death before the testator is the central fact that gives rise to the question of locus.
15. The Applicants contend that they bring this application as dependants of the late Gerald Musau Kilili, and they protest the distribution of Michael Timothy Kilili (Father to Gerald Musau Kilili), the deceased testator's estate on that basis. The question is therefore whether the Applicants, can step forward in his place and assert a claim on behalf of the late Gerald Musau Kilili over the estate of his deceased testator.
16. This question was addressed in the case of Re Estate of Wahome Njoki Wakagoto [2013] eKLR where W. Musyoka J 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.”
17. In the case of Re Estate of Luka Modole (Deceased) [2019] KEHC 5430 (KLR) the court observed that the children of a deceased son have a right of representation in the estate of their grandfather, where their own father was not provided for. The Court held that:
“Grandchildren are a factor where their own parents are dead, whereupon they would come in by virtue of the principle of representation, to take the share that their dead parents would have taken as children of the deceased.”
18. Guided by the above decisions, the only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. In this matter the 1st Applicant who is said to be the mother of the 2nd Applicant is still alive, hence the 2nd Applicant has no legal basis to have instituted the application and protest herein.
19. There is no dispute that there exist pending proceedings in respect to the estate of Gerald Musau Killi, which were filed in Kangundo MCSUCC E070 of 2022 with an appeal arising therefrom being Machakos High Court Family Appeal E003 of 2023 on who are the lawful rightful beneficiaries, dependents and representatives of the estate of Gerald Musau Kilili (deceased). The abovementioned cases concern the determination of the lawful administrators, legal representatives and beneficiaries of the estate of Gerald Musau Kilili (deceased) in which the 1st Applicant has filed a Petition by way of cross-application for a grant seeking to be appointed as a Co-Administrator.
20. On the foregoing therefore, unless and until a determination is made as to whether or not the Applicants or any of them are the lawful beneficiaries, rightful dependents and legal representatives of the estate of Gerald Musau Kilili (deceased), the Applicants lack capacity to represent the estate of Gerald Musau Kilili (deceased) and assert derivative rights arising therefrom in the estate of Michael Timothy Kilili. I agree with the Respondents’ position that the application is pre-mature and incompetent. The Applicants have not presented any Grant of letters ad litem to allow them make the application herein.
ii. Whether the Applicants are Dependants of the deceased testator under the provisions of Section 29 of the Law of Succession Act.
21. Having found that the Applicants lack the locus standi to be before this Court, nonetheless, I will procced to determine whether the Applicants qualify as dependants of the deceased testator herein within the meaning of Section 29 of the Law of Succession Act. This is a critical issue because it is their status as dependants forms the legal foundation of their entitlement to seek reasonable provision from the testator's estate.
22. Section 26 provides as follows: -
“Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased's estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fit shall be made for that dependant out of the deceased's net estate”.
23. Section 29 provides as follows: -
"For the purposes of this Part, "dependant" means
a. the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;
b. such of the deceased’s parents, step-parents, grandparents, grandchildren, stepchildren, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and
c. where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”
24. The Applicants have at paragraph 18 of the protest deponed that they bring this application as the wife and on behalf of the children of the deceased's son and in our capacity as dependants under the principle of representation enshrined in the Law of Succession Act. They have not produced any evidence to support the alleged dependency on Michael Timothy Kilili (deceased testator). While the Court is empowered to make reasonable provision for dependants, such discretion is only exercisable where the Applicant establishes that they qualify as dependants and that the deceased failed to make reasonable provision for them.
25. The Applicants' claim is derivative, arising from the estate of Gerald Musau Kilili (deceased), whose beneficiaries and dependants are yet to be determined.
26. In addition, the Applicants have not demonstrated legal dependency upon the deceased, Michael Timothy Kilili (deceased), within the meaning of Section 29. The estate herein is testate, and the deceased exercised his testamentary freedom through a valid Will that is yet to be appropriately challenged.
27. Accordingly, allowing the present application and protest would pre-empt the outcome of the pending succession proceedings relating to the Estate of Gerald Musau Kilili (deceased).
The Applicants have failed to lay any proper legal or evidential basis to warrant this Court' s intervention.
Disposition
28. The upshot is that the Applicants’ Summons for reasonable provisions of dependants (“the application”) and Affidavit of protest (“the protest”) both dated 29th January 2026 are found to be without merit and the same are dismissed with no order as to costs.
29. It is hereby so ordered.
RULING DATED, SIGNED & DELIVERED ON VIRTUAL TEAMS AT MACHAKOS THIS 2ND NOVEMBER 2026
NOEL ADAGI
JUDGE
Source: Supplied judgment file.