In re Estate of Onditi (Deceased) [2026] KEHC 16951 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. E035 OF 2025

IN THE MATTER OF THE ESTATE OF NYARIKI MICHAEL ONDITI (DECEASED)

BETWEEN

GLADYS MUENI OBARE.....................................................................1ST OBJECTOR

ISAAC OSIEMO OBARE…………………………..............................2ND OBJECTOR

AND

GRACE MORAA ONDITI &

MOSES NYABARO ONDITI.......................................................ADMINISTRATORS

RULING

Introduction & Background

1. What is coming up for the court’s determination is whether the Administrators’ Summons for Confirmation of Grant dated 8th May 2026 (“the Summons”) should be allowed or whether the Objectors’ objection to the confirmation is merited. It is common ground that the Deceased died on 10th April 2021 intestate and he was survived by five dependants/beneficiaries:

1) Grace Moraa Onditi – Widow

2) Moses Nyabaro Onditi – Son

3) Benson Oroti Onditi – Son

4) Joshua Onditi Nyariki – Son

5) Joy Zibia Onditi – Daughter

2. On 9th February 2026, this Court issued a Grant of Letters of Administration Intestate to the Administrators and it further directed the Administrators to file a Summons for Confirmation of Grant within 30 days from the date of the Ruling. Pursuant to that order, the Administrators filed the Summons supported by an affidavit sworn by both Administrators on 8th May 2026 where they depone that the Deceased was survived by the five beneficiaries listed above, no application for provision for dependants was pending, the identification and shares of all persons entitled to the estate had been ascertained and determined as per paragraph 4 of the affidavit and that all beneficiaries had duly consented to the mode of distribution.

3. They depone that the estate comprises both movable and immovable properties, including:

1) Mavoko Town Block 3/55644 (0.04 Ha)

2) KJD/Kaputiei North/27489 (0.05 Ha)

3) CIS-Mara/Oleleshwa/19354 (0.043 Ha)

4) Wanjare/Bogitaa/3010 (0.40 Ha)

5) Wanjare/Bogitaa/3032 (0.29 Ha)

6) Nyamira/Genga Plot (0.29 Ha)

7) Block No. 3/3182 (0.031 Ha)

8) 1083 Kiboko 'B' Settlement Scheme (2.3 Ha)

9) AA Plot 1 – Rentals (0.03 Ha)

10) AA Plot 2 – School (0.03 Ha)

11) Gramo Joy Pre & Primary Schools – Kwa Njenga, Kitengela, Makindu

12) Makindu Town Plot

13) Motor Vehicle Registration No. KCV ***B (Nissan Caravan)

14) Motor Vehicle Registration No. KBQ ***B (Toyota Corolla)

15) Bank depoists in Stanbic Bank Kenya, NCBA Bank Kenya and Family Bank

16) Safaricom MPESA/MSHWARI line

17) Kengen shares

18) Safaricom shares

19) Stima Sacco

20) Posta/Telkom Kenya Pension/Benefits

4. The beneficiaries have also executed a Consent to Confirmation of the Grant signed on 8th May 2026 by Benson Oroti Onditi, Joshua Onditi Nyariki and Joy Zibia Onditi. The Objectors filed an affidavit sworn on 15th June 2026 in response to the Summons, asserting that they are creditors of the estate. Their claim arises from Chief Magistrate's Court Milimani Commercial Case No. 8547 of 2019 in which judgment was entered in their favour on 9th November 2022 against the Deceased and others in the sum of Kshs. 3,162,477.23 plus costs and interest. The Objectors aver that the decree remains valid, subsisting and unsatisfied, that they are creditors of the estate and possess a lawful claim and that this court (Rutto J.,) in a ruling delivered on 30th September 2025, acknowledged that enforcement of the decree ought to be pursued within the succession process.

5. The Objectors aver that they have filed a Summons General under sections 37 of the Civil Procedure Act, sections 66, 82, and 83 of the Law of Succession Act and Rules 49 and 73 of the Probate and Administration Rules, seeking recognition as creditors which application they say remains pending. They depone that the decree constitutes a liability of the estate that ought to be provided for before confirmation of grant or distribution and that confirmation and distribution before determination of their claim would occasion grave prejudice and may render recovery impossible.

Analysis and Determination

6. The confirmation of a grant of representation is governed by section 71 of the Law of Succession Act and Rule 40 of the Probate and Administration Rules. Section 71 provides that after the expiration of a specified period, the court may confirm the Grant if it is satisfied that the identity of all persons beneficially entitled to the estate has been ascertained, the shares of such persons have been determined and the grant has been properly administered. Rule 41(3) of the Rules provides that:

Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act, proceed to confirm the grant.

7. Under sections 82 and 83 of the Law of Succession Act, personal representatives have the power and duty to “…ascertain and fix (with the assistance of a duly qualified valuer, where necessary) the value of the respective assets and liabilities of such estate and to make any transfer which may be requisite for giving effect to such appropriation..” and “to ascertain and pay, out of the estate of the deceased, all his debts..” Further, sections 86 and 87 of the Act provide that “Debts of every description enforceable at law and owed by or out of an estate shall be paid before any legacy” and that “If an estate is subject to any contingent liabilities, a personal representative shall not be bound to pay any legacy without a sufficient indemnity to meet the liabilities whenever they may become due.”

8. Section 37 of the Civil Procedure Act also provides that:

37. Legal representative

(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passed it to execute the same against the legal representative of such deceased, or against any person who has intermeddled with the estate of such deceased.

(2) Where the decree is executed against such legal representative, or against any person as aforesaid, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability the court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.

9. In re Estate of Barrack Deya Okul (Deceased) [2018] KEHC 8599 (KLR) Ndung’u J., held as follows:

27. My clear understanding of this requirement is that once a Petitioner is notified of the existence of a liability (debt) by a creditor or once the Petitioner comes to learn of an existing proven liability (debt) owed by the estate, it is mandatory to include such a liability or debt as required above.

28. A decree against a deceased person, in the absence of a variation, setting aside or otherwise being stayed is in my view a proven liability against the estate of the deceased. It must be included in the list of liabilities in form 5 alluded to above.

29. Such a debt shall, as provided for in Section 86 of the Law of Succession Act, be paid before any legacy. For emphasis, that section provides;

“Section 86: Debts of every description enforceable at Law and owed by or out of an estate shall be paid before any legacy”

I have no doubt in my mind that a decree of Court against a deceased person is a debt enforceable at Law.

10. In the ruling of this court of 30th September 2025, the following observations and findings were made:

"38. Whether or not the decree holder was aware of the death, the law requires that estate property be dealt with only through the succession process. In re Estate of Washington Aggrey Jalango Olumu (Deceased) (Succession Cause E19 of 2021) [2022] KEHC 14058 (KLR) (17 October 2022) (Ruling), the court stated that; Case law interpreting Section 37 of the Civil Procedure Act has shown that a decree as envisaged under Section 37 of the Civil Procedure Act is one that can be brought before a succession court for inclusion into the liabilities of the deceased and which must be settled before distribution of the estate is done between and among beneficiaries. It is immaterial that the administrators or beneficiaries were not aware of the decree as they, in the first place, were not parties to those suits/proceedings where decrees were issued against the deceased."

39. A decree obtained against a deceased person ought to be brought before the succession court for inclusion as liabilities of the estate and settled before distribution. It is immaterial whether the administrators or beneficiaries were aware of the decree, as they were not parties to the original proceedings. The decree remains a valid liability of the estate. In this instance since the respondent's decree is yet to be set aside and or varied, it then follows that enforcement must be pursued within the confines of succession law."

……..

"41. A balance must be struck between preserving the estate from unlawful dissipation and recognizing the rights of decree-holders. Section 66 of the Law of Succession Act recognizes creditors as persons entitled to lodge claims in succession proceedings. The Respondents are at liberty to present their claim in this succession cause or to seek leave under Section 37 of the Civil Procedure Act to execute against the legal representatives. The appellants to have the liberty to move the court appropriately, in Nairobi CMCC No. 8547 of 2019 to challenge the validity of the judgment rendered on 9th November 2022."

11. Applying the aforementioned principles to the present case, it is clear that the Objectors hold a valid, subsisting decree issued on 9th November 2022 in Chief Magistrate's Court Milimani Commercial Case No. 8547 of 2019 against the Deceased together with others, in the sum of Kshs. 3,162,477.23 plus costs and interest. The decree has not been set aside, reviewed, or stayed by any competent court. Under section 66 of the Law of Succession Act, creditors are expressly recognized as persons entitled to lodge claims in succession proceedings. The Objectors have filed a Summons General dated 15th December 2025 seeking recognition as creditors and inclusion of the decree as a liability of the estate which application remains pending and it was filed in compliance with the court’s direction of 30th September 2025.

12. The Administrators' affidavit in support of the Summons did not disclose the existence of the decree or the Objectors' claim and this omission is significant because section 83 of the Law of Succession Act requires personal representatives to pay all debts and liabilities of the deceased before distribution and I find that the Administrators' failure to disclose the decree contravenes their statutory duty of full disclosure.

13. Since the decree has not been set aside, reviewed, or stayed and the Objectors have not been paid, I find that their claim is valid and enforceable against the Administrators as the legal representatives of the Deceased. I am in agreement with the Objector’s deposition that if the Grant is confirmed and the estate distributed before the Objectors' claim is determined, the Objectors may be unable to recover the decretal sum. The beneficiaries would receive the estate assets and the Objectors would be left without recourse which would occasion grave prejudice to the Objectors and would be contrary to the principles of justice and equity. As stated in the introductory part, the estate comprises substantial assets, including land, businesses, rental properties and motor vehicles and that the decretal sum of Kshs. 3,162,477.23 plus costs and interest can be satisfied from the estate without rendering the beneficiaries destitute. The balance of convenience therefore favours the Objectors and the Administrators and beneficiaries will not suffer irreparable harm if confirmation is deferred until the Objectors' claim is determined. In contrast, the Objectors will suffer irreparable harm if the estate is distributed and the decree remains unsatisfied.

14. In summary, I find that the objection to the confirmation of grant is merited. The Objectors have established valid and enforceable claims against the estate of the Deceased as the decree issued on 9th November 2022 in CMCC No. 8547 of 2019 is a proven liability of the estate. The Administrators have a statutory duty under sections 82, 83 and 86 of the Law of Succession Act to pay all debts and liabilities of the deceased before distributing the estate. Accordingly, the Summons is premature and it is deferred pending determination of the Objectors' provision for settlement of the decretal claim.

Conclusion and Disposition

15. The Court now makes the following final orders:

1)  The Objectors GLADYS MUENI OBARE and ISAAC OSIEMO OBARE have proved their claim and that the estate owes them a sum of Kshs. 3,162,477.23 plus costs and interest.

2) The Administrators shall within 45 days from the date herein be at liberty to agree and value any of the estate properties for purposes of sale and satisfaction of the aforementioned liability

3) No distribution of the estate shall proceed unless and until the Objectors' decree has been fully settled or adequate provision made for its settlement.

4) Parties are at liberty to apply.

5) The Objectors are awarded costs of the objection

DATED SIGNED AND DELIVERED virtually this 27th DAY OF OCTOBER

2026

............................................................................

J W W MONGARE

JUDGE

In the presence of;

1. Ms. Mwangi holding brief for Mr. Kiroko Ndegwa for the Applicant/Objectors

2. N/A for the Administrator

3. Abdisalan- Court Assistant