Firm 22 - Probate and Administration

ADVOCATE TRAINING PROGRAMME
ATP 102: PROBATE AND ADMINISTRATION 2022 PROJECT WORK

BY FIRM 22 CLASS C
COURSE INSTRUCTOR: Ms. ROSE RUTO
SUBMITTED: 9th SEPTEMBER 2022
NO. FIRM 22 MEMBERS STUDENT’S ID SIGNATURE
David Chokaa 20220495
Bill Khabongo 20220822
Kisese Jones Kyalo 20221960
Ann Wangui 20220883
Brillian Njoki 20220534
Rhema Sifuna 20220269
Ayoma Faith 20221114
Elizabeth Ombija 20220440
Leah Wanjiku 20220281

CHAIRPERSON………………………… SECTRETARY…………………………
SIGNATURE……………………………. SIGNATURE………………...................
DATE: ……………………………………. DATE: ………………………………….
DECLARATION
We certify that this project is our original work and has not been presented anywhere for
academic credit. We have referred to a range of sources in the course of preparing this document
which we have accordingly acknowledged.
CHAIRPERSON: …………………………………………..
SIGNATURE: ……………………………………………...
DATE: ……………………………………………………...
COURSE LECTURER: ........................................................
SIGNATURE: ………………………………………………
DATE: ……………………………………………………….
ACKNOWLEDGEMENT
We would like to sincerely acknowledge each other’s valued input in this research. This project
would not be complete without the effort and cooperation from each and every firm member.
We would also wish to express our gratitude to our lecturer Mrs. Rose Ruto for her scholarly
guidance from the very beginning. Her assistance and advice have served a vital role in the
completion of our Project.
LIST OF LEGAL REFERENCES
LEGISLATION AND STATUTES
Constitution of Kenya, 2010.
Marriage Act 2014
Marriage Act cap 150
Law of Succession Act, Cap 160 Laws of Kenya
Age of Majority Act, Cap 33 Laws of Kenya
Births and Deaths Registration act, Cap 149 Laws of Kenya
Land Act, No. 6 of 2012
Probate and Administration Subsidiary Rules
The Co-operative Societies Act of 1997
CASES
Vijay Chand Shah v The Public Trustee
Banks v Goodfellow (1870) LR 5 QB 549
Battan Singh v Armichand (1948) AC 161
Re Estate of Park (1954)
Vaghella v Vaghella (1999) 2 EA 351
Re Estate of Lusila Wairu Waweru (Deceased) [2020] eKLR
Nairobi Court of Appeal Civil Appeal no. 63 of 1984
Dew v Clark 1826 ,Cain v Moon
Agnew v Belfast Banking Co (1896)
Estate of James Ngengi Muigai (deceased) Nairobi High Court Succession Cause Number 523 of
1996
Staniland v Willot (1850) ,In Parfitt v Lawless(1872) ,Re Dudman (1925)
Re Estate of Faith Muita(deceased)2016
Keshavlal Bhoja v Tejalal Bhoja (1967) Ea. 217
Irene Njeri Macharia v Margaret Wairimu Njomo and another Another (1996) eKLR
John Ndung’u Mubea v Milka Nyambura Mubea
NSA v Cabinet Secretary of Interior and Coordination of National Government
In the Matter of the Estate of Bernard Mwaura Kariuki (Deceased),
re Estate of Simon Kiprop Cheruiyot (Deceased)Succession Cause No. 64 of 2010
In re Estate of Gamaliel Otieno Onyiego (Deceased) [2018] eKLR
In the matter of the Estate of Fatuma Binti Umri
In the matter of estate of Benson Joseph Omondi Awinyo (deceased)
In the matter of the estate of clement Albert Etyang (deceased)
Nicholas William Bentley-Buckle & another v. Custody Registrars Services Limited
Re Estate of Bhadrabala Amratlal Bhimji Davda
Re Estate of SMM (Deceased) [2021] eKLR
Re Estate of Patrick Mutisya Munyithya (Deceased) [2018] eKLR
Re Estate of Kabue Ole Lepate (2018)
Sen v Headley (1991)
Woodward v Woodward (1992)
re Estate of G N C (Deceased) [2017] eKLR

TABLE OF CONTENTS
DECLARATION..........................................................................................................................iii
ACKNOWLEDGEMENT...........................................................................................................iii
LIST OF LEGAL REFERENCES..............................................................................................iv
LEGISLATION AND STATUTES.........................................................................................iv
CASES........................................................................................................................................iv
VALIDITY OF MR. NYANKE’S WILL....................................................................................1
Introduction....................................................................................................................................1
Capacity..........................................................................................................................................1
Age...................................................................................................................................................1
Sanity..............................................................................................................................................1
Insane delusions.............................................................................................................................3
Form and Procedures of the Will.................................................................................................4
Writing............................................................................................................................................4
Execution........................................................................................................................................4
Witnesses........................................................................................................................................4
Bequests :........................................................................................................................................5
Procedure to enforce will at the High Court...............................................................................9
Forms to be Filed;........................................................................................................................10
HOW THE ESTATE SHALL DEVOLVE TO EACH OF THE ENTITLED PERSONS...11
What constitutes the estate:........................................................................................................12
Who are the lawful dependants;.................................................................................................12
Procedure for applying for grant of representation of Nyanke’s Estate;...............................15
If Mr. Nyanke Died Without a Valid Will (Intestate);.............................................................15
Forms to be Filed;........................................................................................................................16
How Property Will Devolve to Each Entitled Person;.............................................................16
Distribution..................................................................................................................................17
ISSUE OF MONEY IN ABSA BANK ZIMBABWE.............................................................17
ISSUE OF RITA’S ACCESS TO MONEY IN RICHMAN BANK TO USE FOR THE
FUNERAL....................................................................................................................................19
Case law........................................................................................................................................21
Conclusion....................................................................................................................................21
ISSUE OF CAR KEYS GIVEN TO JONA...............................................................................21
Facts;.............................................................................................................................................21
Issues;............................................................................................................................................22
Analysis;........................................................................................................................................24
Conclusion;...................................................................................................................................24
THE APPROPRIATE PETITIONS THAT WOULD BE MADE FOR THE WILL IF
VALID AND WHERE THERE IS NO WILL RESPECTIVELY..........................................24
P & A 79......................................................................................................................................24
P & A 3........................................................................................................................................26
FORM 43......................................................................................................................................30
P & A. 80.......................................................................................................................................31
FORM 12......................................................................................................................................33
FORM 5........................................................................................................................................35
FORM 11......................................................................................................................................38
FORM 57 .....................................................................................................................................40
Form 38.........................................................................................................................................42
FORM 41......................................................................................................................................44
BIBLIOGRAPHY........................................................................................................................45
QUESTION 1
VALIDITY OF MR. NYANKE’S WILL
Introduction
A will is the last testament of a deceased person indicating the manner in which the deceased’s
property shall be passed on to those named in it. It is a legal declaration of a person's wishes
regarding the disposal of his or her property or estate after death. 1Section 3 of the Law of
Succession Act provides that it is the legal declaration by a person of his wishes and intentions
regarding the disposition of his property after death, duly made and executed according to the
provisions of part II of the Act.2 The law provides the form of ones will as either an Oral or
Written will as indicated under section 8 of the Act,3 oral being a will communicated verbally to
witnesses4 while a written one is reduced into writing in a document. In this case, Mr. Nyanke
made a written will which is part of the acceptable forms.
Capacity
A will shall only be valid if the testator satisfies the provisions of Section 5 of the law of
Succession Act on persons capable of making a will. Capacity in this matter will be looked into
from the aspect of;
Age
Section 5(1) states that every person who is not a minor may dispose their property, the age of
majority being 18 years5 in the Republic of Kenya. Although his date of birth is unknown, upon
the time of his demise, Mr. Nyanke had lived for over 30 years based on the time he got married
and began working. Therefore, on the question of age, Mr. Nyanke’s will passes.
Sanity
Sec 5(1)6 further provides that everyone who is of sound mind may dispose of their property by
will and hence incapacitates people of unsound mind. Section 5(3) of the Law of Succession Act
sets a rebuttable presumption of law that any person making a will is presumed of sound mind.
Section 5(3) and 5(4) of the Law of Succession Act place the burden of proving that the
testator/testatrix is not of sound mind on the person alleging that fact. Section 5(3) of the Law of
1
Merriam – Webster dictionary
2
The Law of Succession Act Sec 3
3
Ibid
4
Black’s Law Dictionary
5
Age of Majority Act Sec 2 Cap 33 Laws of Kenya and Article 260 Constitution of Kenya 2010
6
The Law of Succession Act
Succession Act states that the state of mind of the testator can be incapacitated by mental or
physical illness, drunkenness, or from any other cause.7
This is however exceptional to those with partial insanity, whereby they experience lucid
moments and make a will during such intervals as was the decision in Vijay Chand Shah v The
8
Public Trustee whereby the deceased was in much suffering from syphilis and diabetes, but
was evidenced that he executed the will during a lucid moment and hence the will was valid. To
determine whether Mr. Nyanke had the mental capacity to make the will, the 4 ingredients
outlined by Cockburn J in Banks v Goodfellow (1870) LR 5 QB 549 have to be satisfied. First,
the testator/testatrix must understand the significance of making his will. Second, the
testator/testatrix must recall all his properties that he wishes to dispose of. Third, the
testator/testatrix must recall all dependants and understand their moral claims upon him. Fourth,
the testator/testatrix should not have any delusions of the mind that would affect their
dispositions to the dependants. These elements can be summarized as sound mind, sound
memory, and sound understanding. If one element misses, then soundness of mind can be
challenged.9
The importance of sound memory was highlighted in the case of Battan Singh v Armichand
(1948) AC 161. The court noted that if a person makes a will excluding close relatives, it should
be determined if the person at the time could recollect who the close relatives were, their claims
to the property and intelligently discern why they are excluded. In that case, the testator who was
ill, had been suffering from denied that he had any relations anywhere which the court took as
evidence of degrading memory due to the illness. In the present case, Mr. Nyanke did not
make provision for his other relatives like his aunt who states she was a dependant by
virtues of receipts.
The highlights that whether Mr. Nyanke knew of his other families will help determine validity
of the will The second person was a woman who claimed that she had been married
uncustomary law by Mr. Nyanke five years ago and they had a five-year-old daughter
June.
7
Law of Succession Act Cap. 160 Laws of Kenya s. 5(1), 5(3), and 5(4).
8
Nairobi Court of Appeal Civil Appeal no. 63 of 1984
9
(1870) LR 5 QB 549
2
On the issue of understanding, In the Estate of Park (1954) CA P. 112 provides some guidance.
The testator was alleged not to have had a valid will because the marriage entered into was
invalid. The court held that since the testator understood the purpose for which the will was
being made, the will was valid. In this case, any allegation that Mr. Nyanke did not
understand the importance and effect of the will is unlikely to be successful.
Insane delusions
In Dew v Clark 1826 it was established that a person suffers from insane delusions if he holds a
belief of a particular matter which no rational person could hold and the belief cannot be
eradicated from his mind by reasoning with him. Owing from the behavior of Mr. Nyanke, it is
clear that upon the time that his advocate brought the will to him to execute, he was having
insane delusions as he said that two angels would come to sign it and that he was being
summoned to an urgent meeting by his ancestors.
However, an insane delusion does not necessarily make a will invalid as long as the delusions do
not render the testator’s power of understanding, impaired. This was illustrated in the case of
Banks v good fellow (1870) QB 549 Mr. Banks, frequently believed that he was being visited by
evil spirits and molested by a Mr. Alexander who had died. He wrote a will that left the estate to
his niece, and it was challenged by the son of Mr. Banks’ half-brother for lack of capacity and
the court found that the delusions did not affect the way in which he disposed his property and
hence his will held to be valid. In Vaghella v Vaghella (1999) 2 EA 351, the Court of Appeal of
Tanzania insisted that for insane delusions to be considered by the court, there must be a
connection between the will and the delusions, the poisoning of affections and the perversion of
the sense of right.
The Fact that Mr. Nyanke refused to sign and told him that two angels will come from
heaven to sign it. That night, Mr. Nyanke jumped through the window of the hospital
shouting that he was called urgently by his deceased great grandfather who died twenty
years earlier, that the was required in heaven for a meeting immediately, were his delusions
and they got in the way of him signing and executing his will as they led him to think that two
angels would come to sign it. This led him to defer from the sense of what is right which was to
sign and execute the will to give it validity consequently leaving the will unexecuted.
3
Form and Procedures of the Will
Writing
Section 8 of the Law of Succession Act provides for either oral and written wills which are to be
governed by different formalities.10 In this case, Mr. Nyanke made a written will which is part of
the acceptable forms.
Execution
Under section 11 of the Law of Succession Act, unless a testator signs or affixes their mark to a
will, or has it signed by another person in their presence and direction, the will shall not be
valid.11 In re Estate of Lusila Wairu Waweru (Deceased) [2020] eKLR the court examined
the importance of the formalities and procedures under the law of Succession Act. The court
stated that where the signature or mark of the testator/testatrix is not included, the will is invalid
as it does not comply with the formal requirements and procedures. 12 According to the facts of
the present case, Mr. Nyanke did not execute the will. This means the will is invalid by the
court. After the advocate completed preparing the will, he took it to Mr. Nyanke for
signature; but Mr. Nyanke refused to sign and told him that two angels will come from
heaven to sign it.
Therefore, Mr. Nyanke’s will is invalid owing to the fact that his insane delusions affected
his power of understanding that he needed to affix his mark on the will and consequently
led to him not signing it.
Witnesses.
Under section 11(c) of the Law of Succession Act, the will has to be attested to by at least two
competent witnesses. Competent witness is defined under section 3 of the Law of Succession
Act as where the witness is of sound mind and full age. The witnesses have to sign the will
before the testator although they can each sign without other witnesses not being present. In the
Matter of the Estate of James Ngengi Muigai (deceased) Nairobi High Court Succession
Cause Number 523 of 1996 clarified that two or more witnesses can sign at different times but
in the presence of testator. In Mr. Nyanke’s case, he did not sign the will which means the
first hurdle that the witnesses should see the testator sign or affix their mark was not met.
The will can be challenged as invalid based on the issue that it was not signed by the
10
Law of Succession Act s. 8.
11
12
In re Estate of Lusila Wairu Waweru (Deceased) [2020] eKLR.
4
testator. The witnesses cannot therefore have seen the testator sign as required by law if
any.
In conclusion having examined the general reasons for which a will can be declared invalid or
void, we turn to the bequests to each beneficiary to assess how it is impacted by the relationship
to Mr. Nyanke. Mr. Nyanke’s will is not valid because of lack of sound memory and it was
not executed.
Bequests :
a) Tommy and Chris
Black’s Law Dictionary 8th Edition defined a bequest as a gift of personal property through a
will. William Musyoka classifies gifts into residuary gifts, pecuniary gifts, demonstrative gifts,
general gifts, and specific gifts. Mr. Nyanke made various gifts under the will which will all be
evaluated in this section.
The bequests to Tommy and Chris who were the sons to Mr. Nyanke and it not established if
they died before or after their father and if the death of a beneficiary under a will and that of the
testator occur close together, it will be necessary for the executors to try to establish who died
first. It may be that the testator and beneficiary have died in a common accident. If evidence
exists that the beneficiary predeceased the testator, however close the deaths, the doctrine of
lapse applies and the gift to the beneficiary will fail.
Under section 43 of the Law of Succession Act, where there is no evidence as to the order of
deaths, as where persons die in a common accident, for the purpose of succession, the deaths are
presumed to have occurred in order of seniority. The elder person is presumed to have died first
in this case Mr. Nyanke and since they did not have any spouses or children left behind the rules
of intestacy will apply to their bequests where the property shall devolve to their mother who is
nearest blood relation as guided by the table of consanguinity.
b) Jona
Mr. Nyanke also left car keys to one of his cars to his best friend with instructions that he should
keep the car in an event that he does not recover. This demonstrates a gift in contemplation of
5
death13(donatio mortis cause) and In Cain v Moon14 sets down the following requirements that
need to be satisfied for such a gift to me valid: The person giving the gift must die from
whatever he was contemplating dying from, the type of gift mist be movable property, the
receiver of the gift must be given the means of accessing the gift, the beneficiary of the gift must
survive the person giving the gift and the person giving the gift must not survive the illness or
danger they were suffering from. In Staniland v Willot15 it was held that the gift must be made
in contemplation of the approach of death from existing disease or other impending peril, but not
necessarily expectation of immediate death.16 The death of a donor need not be imminent, but the
donor must believe that they are dying or they are likely to die in a particular way for example
they may believe that they are dying from a terminal disease or at risk of dying from a dangerous
expedition. Section 31(d) and (ii)provides that a gift in contemplation of death would be valid if
the donor makes the gift in such circumstances as to show that he intended it to revert to him
should he survive the contemplated illness or danger. A donatio mortis causa is revocable and
31(ii section) states that the donor may at any time before his death lawfully request the done to
return the gift.If a person commits suicide which was the case with Mr. Nyanke the gift
automatically fails as that was not what he anticipated to die from. The condition that the gift be
made in contemplation of death cannot be satisfied where the donor contemplates their own
death by suicide. Section 31(c) provides that no gift made in contemplation of death shall be
valid if the death is caused by suicide. Agnew v Belfast Banking Co17 held it was against public
policy to uphold a gift which was intended to take effect by means of suicide. In Re Dudman18
the donor committed suicide, as he could not cope with his terminal illness. The court followed
Agnew v Belfast Banking Company and in addition, held that the donation failed on the ground
of public policy. The legal position stated in these two cases is still the law in Kenya by virtue of
section 31(i) of Law of Succession Act.
The gift by Mr. Nyanke to his old best friend Jona fails by virtue of his cause of death being
that he committed suicide therefore the car KEZ130U shall form part of Mr., Nyanke’s
estates.
13
Section 31 Law of succession Act
14
Lord Russell in the case of Cain v Moon (1896)
15
(1850)
16
Section 31 Law of Succession Act, CAP 160 Laws of Kenya
17
(1896)
18
(1925)
6
c) Yano
The bequest to Mr. Nyanke’s neighbor Yano will not pass as it demonstrates importunity which
is one of the factors that affects the testator's knowledge and approval. Section 7 of the Law of
Succession Act provides that a testator must exercise his free Will in the distribution of his estate
and the absence of such free will invalidate a Will. 19 A will or any part of a Will, the making of
which has been caused by fraud or coercion, or by such importunity as takes away the free
agency of the testator, or has been induced by mistake, is void.20
Importunity is defined as insistent begging by a person to the testator to leave them

something when making their will. The insistent nature will deny the testator of knowledge
and approval and hence the bequest will not pass in this case to Yano. In the Matter of the
Estate of Julius Mimano (Deceased), the court defined importunity as undue influence. This is
because there is no coercion, force, or duress but there is pressure on the testator which causes
them to capitulate just to get rid of the pressure.21
Mr Nyanke’s bequeathed his car KDK 105Kto his following his incessant begging to leave
him. However, the instructions by Mr. Nyanke to his lawyer as regards the bequest to
Yano, do not indicate that Mr. Nyanke was convinced by Yano and so on his own volition
attempted to gift Yano. It rather comes across that Mr. Nyanke made the bequest in order
to quell the pressure by Yano. This seems to be an instance of importunity which would
void the bequest as illustrated in the Julius Mimano case.
d) Rev. Goodman;
Rev.Goodman bequest demonstrates an instance of undue influence, common in confidential

relationships, particularly those of a religious nature. In Parfitt v Lawless22 the testatrix left her
residuary estate to a Roman Catholic priest who was her confessor and who lived with her and
her husband. It was alleged that the confidential relationship between them gave rise to a
presumption of undue influence. In Re Harden a testatrix had a spiritual adviser who claimed
that he could hear messages from the spiritual team (the other side) on how she should dispose of
19
In the matter of the estate of Lusila Wairu Waweru(deceased)
20
Section 7 Law of Succession Act
21
In re Estate of Julius Mimano (Deceased) [2019] eKLR
22
(1872)
7
her property. The testatrix hence left a substantial amount of her property to her spiritual adviser
and the will was challenged and declared invalid on grounds of undue influence on the part of
the spiritual adviser.
In Karanja and another v Karanja23 Githinji stated that the burden of proving that a will was
caused by fraud or coercion or importunity was on the person alleging the same. The person
attacking the will has to provide evidential proof that the will is invalid.
The bequest to Rev.Goodman might fail if it is determined that it was made under the
reason he would offer prayers for Mr. Nyanke to go to heaven.
e) Money in Filla Sacco and retirement to daughter June though it is nominated to

Rita.
Nomination is a direction given by a nominator to another person or entity who or which is

holding funds on behalf of the nominator, to pay the funds on the nominator’s death to a nominee
appointed by nominator, nominated during the lifetime of the nominator. 24 In re Estate of Faith
Muita (deceased) 201625 the High court of Nairobi affirmed that nominations operate outside the
laws of succession and operate under the rules of a particular scheme. Further the court stated
that the property that is subject of a nomination does not form part of the nominator’s estate
because the funds are meant to be paid to the nominee of the nominator 26and as such, the person
to whom the funds ought to be paid is designated. 27Nominated funds therefore cannot pass by the
will of the nominator, does not form part of the nominator’s estate and consequently, does not
vest in the representatives of the deceased. 28These funds are not governed by the law of
succession because they do not form part of the deceased’s free property. The money left in Filla
Sacco therefore undisputedly belongs to Rita and not June. The Co-operative Societies Act of
1997 provides that upon the death of a member, a co-operative society may transfer the share or
interest of deceased to a person nominated by the Act. The Co-operative society needs not grant
of probate to transfer the funds. The only situation in which the nomination could be revoked is;
a) the subsequent marriage of the nominator and b) the death of the nominee prior to the death
23
(2002) eKLR
24
Parry and Clark: The Law of Succession and Law of Succession W.M Musyoka
25
Succession Cause 1324 of 2013
26
Succession cause 1324 of 2013
27
Ibid
28
Succession Cause 1324 and Laws of Succession: W.M Musyoka
8
of the nominator29.This is not the case in the matter of Mr. Nyanke and Rita, their relationship
being that of a husband and wife and the nominator and nominee. Although nomination becomes
operational upon the death of the nominator, it does not comply to the formalities of the Law of
Succession.30
f) Bequest to all the money in Absa bank in Zimbabwe to daughter Charlene
The executors and representatives appointed by a Mr. Nyanke will receive grants that operate
only on his property situated in Kenya thereby implying that they would need to get necessary
grants in Zimbabwe to allow Charlene to benefit from the money in her father’s Absa account in
Zimbabwe. Section 4(1)(b) states that succession of movable property of a deceased person shall
be regulated by the law of the country of the domicile of the deceased at the time of his death. 31
The domicile of a person is someone's true, principal, and permanent home where they have
physically lived, regard as home, and intends to return even if currently residing elsewhere. 32Mr.
Nyanke’s domicile was in Kenya and the property in question, money, is movable and therefore
the laws of Kenya shall apply. However, 33 the grant obtained in Kenya shall largely depend on
the law in Zimbabwe. Section 77(1) provides that once the foreign grant is given it has to be
deposited with the High Court and sealed with the seal of the court. 34 In the event of a matter in
the administration of the grant, it shall be heard by the courts of the country from which the
administrator got the authority to act as was said in Keshavlal Bhoja v Tejalal Bhoja (1967) Ea
217 where a Ugandan resident sued the administrator of their deceased’s father’s estate in a
Ugandan court yet the grant was obtained from a Kenyan court.
Procedure to enforce will at the High Court.

Section 51 of the Law of Succession Act provides for the process of applying for a grant of
representation. It is also outlined in Rule 7 to 14 of the Probate and Administration Rules. For
one to apply, the appropriate order of priority for persons entitled to apply has to be followed.
The order of priority is outlined in section 66 of the Law of Succession Act. Any of the persons
qualified can apply but section 56(1)(b) of the Law of Succession Act limits the number to only
29
Ibid
30
Ibid
31
Law of Succession Act
32
Cornell Law School
33
Law of Succession: M.W Musyoka
34
Law Succession Act
9
four. The order of preference applicants are as follows; surviving spouses, other beneficiaries
with priority as according to their beneficial interest as provided for by Part V, public trustee and
then creditors.35 Letters of administration in respect to Mr. Nyanke’s estate shall be granted any
executor. The appointed executor will then confirm that they have met the requisite threshold.
The executor will then proceed to make application under section 51 of the Law of Succession
Act and Rule 7-14 of the Probate Administration Rules to make the application.
Forms to be Filed;
In the present case Rita is the surviving spouse she therefore can apply for the grant of
representation. They have to prepare several forms. First is the petition which is Form P & A 80.
Second is the affidavit which is Form P & A 5. Third is the affidavit of means which is Form P
& A 12. Fourth is the affidavit of justification of proposed suit which is Form P & A 11. Fifth is
the guarantee of personal sureties which is Form P & A 57. Sixth is the death certificate which
has to be attached. Seventh is the consent form which is Form P & A 38 which is important
because the children surviving the deceased are adults and have to consent. Usually the forms
can be downloaded from the Judiciary website.
Other additional requirements include ensuring that the Petition follows the required format. The
certificate of death can be the certified copy by a Commissioner of Oaths. The Affidavit in
support of the Petition should be properly executed. There has to be a letter from a chief from
Nakuru or other authority that outlines the beneficiaries of the estate of the deceased. The
guarantors or sureties should be properly availed. The application, if it for a full grant should also
include banking slips paying for the advertisement in the Kenya Gazette special issue. There
should be copies of title documents to show the deceased owned the assets. Since the estate has a
minor, there has to be more than one petitioner for the grant. The will and two copies of it should
be attached. The contact details of the applicants should also be included in the documents.
After filing the forms, there will be an advert in the Kenya Gazzette for about thirty-day period
to enable anyone with an objection to file one. If there are any objections, they can be filed using
a petition which enables the advertisement to be suspended until the objections are determined.
Once the thirty-day period lapses without an objection, the temporary grant is usually issued. The
temporary grant will last for six months with the person holding the temporary grant being
35
The Law of Succession Act sec 66.
10
referred to as the personal representative. During the six months of the temporary grant, the
personal representative only has the duty of preserving and collecting the assets and should not
distribute the estate. After six months of the deceased’s death, anyone can petition the court to
confirm the grant of letters of administration. The Notice of the Petition or application for grant
has to be sent to every entitled person under the start.
HOW THE ESTATE SHALL DEVOLVE TO EACH OF THE ENTITLED PERSONS

As has been earlier discussed, it is our position that the deceased, Mr. Nyanke died intestate. This
is because he had not executed his will and further, he did not have the right mental capacity to
draw and execute a will. Section 34 of the Law of Succession Act defines intestacy to include
where a person has not made a will that can take effect. Section 26 of the Law of Succession
Act provides that the court can make orders for reasonable provision of a dependant out of the
deceased’s net estate. These orders can be made where the dependant has not been adequately
provided for by a valid will or where the deceased died intestate. Therefore, the court will bear
the burden of dividing his property. In addition to that, Section 3 of the Law of Succession Act
describes a net estate as the estate of a deceased person after payment of reasonable funeral
expenses, debts and liabilities, expenses of obtaining probate or letters of administration and
other reasonable expenses. Further, the same provision of law provides the definition of a net
intestate estate as the estate of a person who died intestate after payment of the expenses, debts,
liabilities and any other estate duty. The circumstances to be taken into account by court when
making an order regarding intestacy are: the nature and amount of the deceased’s property, any
past, present or future capital or income from any source of the dependants, the existing and
future needs and means of the dependants, whether the deceased had made any advancement or
other gift to the dependants in his lifetime, the conduct of the dependant in relation to the
deceased among others.36
Therefore, to determine the estate of Mr. Nyanke, this paper will seek to analyze which property
belonged to Mr. Nyanke at the time of his death minus any pending payments of expenses, debts,
liabilities and any other estate duty. Besides that, this paper will also analyze who are the lawful
dependants of Mr. Nyanke’s estate and the procedure to be followed for the dependants to
receive the property from Mr. Nyanke’s estate.
36
Law of Succession Act, s28
11
What constitutes the estate:
1. 200 Acres of land in Molo minus the sold pieces.37
2. 5 motor vehicles (KDK 105K, KDG 112G and KEZ 130U, KDA 120K, KDC 112G)
The cars that had been previously bequeathed to Chris and Tommy under the will remain as part
of the estate. This is because the will is invalid and therefore all the property is to be treated as
they were before the will was created.
3. Money in Absa Bank in Zimbabwe of account number 14310513

4. 1 house.
The house that was jointly owned by Rita and Mr. Nyanke cannot be included as part of the
estate. This is because joint property passes on to the surviving spouse and cannot be passed on
to the children. Rita can seek legal action to recover the property because it is considered as
matrimonial property under Section 2 and 6 of the Matrimonial Property Act and matrimonial
property can only be sold after consent has been given by both parties. 38 In Irene Njeri
Macharia v Margaret Wairimu Njomo & Another (1996) eKLR, the Court of Appeal found
that where property was jointly owned under a joint tenancy between a husband and wife, then it
could not be passed under a will or inheritance. This is because of jus accrescendi, the principle
of survivorship, as stated under section 91(4) of the Land Registration Act, hence upon Mr.
Nyanke’s death, the property can be said to have devolved upon Rita.
Who are the lawful dependants;

The meaning of a dependant is provided for under section 29 of the Law of Succession Act as
the spouse and the children of the deceased whether or not maintained by the deceased
immediately prior to his death. It also includes the deceased’s parents, step- parents,
grandparents, grandchildren, step-children, children whom the deceased had taken into his family
as his own, brothers and half-brother and half-sisters as were being maintained by the deceased
immediately prior to his death.
Rita
Section 98 of the Marriage Act validates Rita and Mr. Nyanke’s marriage under it. Besides
that, Section 35 of the Law of Succession Act provides that where a deceased who died intestate
37
Land Act, s51
38
Matrimonial Property Act, Section 12
12
has left one surviving spouse and children, the surviving spouse is entitled to the personal and
household effects of the deceased and a life interest in the whole residue of the net intestate
estate. During the period of life interest, the surviving spouse can sell any of the property subject
to the interest if it is necessary for their maintenance. 39 Further Rita falls under the meaning of a
dependant under section 29 of the Law of Succession Act. Besides that, for all the property
acquired during marriage, she can be considered as the joint owner.40
Charlene
Charlene is the surviving daughter of Rita and Mr. Nyanke. She therefore is considered as a
dependant under section 29 of the Law of Succession Act. Consequently, she is a beneficiary of
the estate. However, she is not entitled absolutely to the property but the surviving spouse holds
the property in trust for the children.41
June and the 30-year-old man
Section 3(2) of the Law of Succession Act recognizes that a child shall include a child born out
of wedlock to a male person, whom he has expressly recognized and accepted as a child of his
own or whom he has assumed parental responsibility. In John Ndung’u Mubea v Milka
Nyambura Mubea, the court held that children of an adulterous union are children for purposes
of succession.42 For June, there is proof by photograph that Mr. Nyanke knew her and would
even spend time with her. Even so, the court in NSA v Cabinet Secretary of Interior and
Coordination of National Government43 declared that section null and void to the extent that it
is inconsistent to the Constitution Article 53(1)(e) and Article 27(1) and (4). The court held that
a child should be taken care of by both parents regardless of the fact that the parents were not
married to each other. Therefore, even children born out of wedlock are considered children of
the man whether he chooses to recognize them as so or not. 44 Consequently, June and the 30-
year-old man will be considered as part of the dependants and will get a share of the estate as
long as they prove that they are Mr. Nyanke’s children. A birth certificate will cement this claim
if produced.
39
Law of Succession Act, Section 37
40
In the matter of the Estate of Anjuri (Deceased)
41
Law of Succession Act, Section 41
42
Civil Appeal 76 of 1990
43
[2019] eKLR
44
Matheka v Matheka
13
In the Matter of the Estate of Bernard Mwaura Kariuki (Deceased), the learned judge
asserted the position on birth certificates stating that being official government documents, they
must be taken to be dispositive of the matters they present unless contrary evidence is
presented.45 To boot, section 12 of the Births and Deaths Registration Act touches on the entry of
the father in the register and hence provides that a father will only be entered in the register upon
‘joint request’ by him and the mother or proof of statutory or customary marriages. 46 Of import
however, is that in this case, oral evidence was adduced to corroborate the birth certificates in
proving that the Petitioner’s children were children of the deceased. Also, it would make a
stronger case to take a DNA test as proof of paternity.47
June’s Mother
Junes Mother would have to try to prove that she was married by showing that the elements of a
customary marriage such as necessary rituals were performed. Her claim could be based on
section 3(5) of the Law of Succession Act. However, the provisions of the Marriage Act 2014
in effect have repealed section 3(5) of the Law of Succession Act. This is because when it was
enacted, the Marriage Act Cap. 150 was the marriage law in place. Since Cap. 150 is not in
place, the Marriage Act 2014 takes precedence in answering the question of who is a wife.
Section 3(5) was used to ‘circumvent’ section 37 of the repealed Marriage Act Cap. 150 as was
the case in Irene Njeri Macharia v Margaret Wairimu Njomo and another. 48 It now seems
the position in the law has reverted back to Re Ruenji’s Estate and Re Ogola’s Estate as
regards not recognizing a customary law wife, as a wife for any purposes, if she was married to a
man under a subsisting monogamous marriage.49
June’s Mother is not considered a beneficiary to the estate. She claims to have married Mr.
Nyanke 5 years ago under customary law, however, in 2014, the current Marriage Act was
passed into law. Section 9 of the Marriage Act stipulates that a married person shall not while in
a monogamous marriage, contract another marriage. It should be noted that under Section 98 of
the Marriage Act, marriages that had been registered under the Marriage Act Chapter 150 fall
under the Marriage Act No. 4 of 2014 and therefore Mr. Nyanke’s marriage to June’s mother is
45
In re Estate of Simon Kiprop Cheruiyot (Deceased)Succession Cause No. 64 of 2010
46
Cap. 149
47
W M Musyoka, Law of Succession (1st edn, LawAfrica Publishing Ltd 2006).
48
Civil Appeal 139 of 1994
49
[1977] KLR 21; [1978] KLR 18
14
invalid. Therefore, she does not fall into any category of dependants and will not receive a share
of the estate.
Mr. Nyanke’s Aunt
Mr. Nyanke’s Aunt can fall under Section 26 and 29 of the Law of Succession Act as a
dependant as long as she shows that she was being maintained by Mr. Nyanke. In re Estate of
Gamaliel Otieno Onyiego (Deceased) [2018] eKLR the court recognized that family members
can inherit from other family members. Further, In the Matter of the Estate of Fatuma Binti
Umri,50 other relatives can access the estate through Section 26 for reasonable provision if they
can show that they were dependent on the intestate immediately prior to his death. In this case,
she even has receipts to prove that Mr. Nyanke had been sending money to her via Mpesa so that
she could be able to buy medicine. Therefore, she is considered as a beneficiary of the estate.
Yano, Rev Goodman and Jona
Section 29 dependants are those related to the deceased through blood or marriage. Neither
Yano, nor Rev. Goodman, nor Jona fall under the category of dependants. This is because they
were not being maintained by Mr. Nyanke when he was alive but had just received some
property under the invalid will. In addition to that, Jona was given the car when Mr. Nyanke
thought he may not recover from his sickness. This can be considered as a gift in contemplation
of death under section 31 of the Law of Succession Act. The elements to be considered are
whether the deceased had been contemplating death and whether the beneficiary had received
possession of the property or a means of receiving the property after death had been provided.
However, this is invalidated if the deceased commits suicide. The same was held in the case of
Angnew v Belfast Banking Co.51 Therefore, the court will not consider them as beneficiaries.
Procedure for applying for grant of representation of Nyanke’s Estate;

If Mr. Nyanke Died Without a Valid Will (Intestate);
It involves appointing an Administrator to administer the estate of a deceased person. Section 66
of the Law of Succession Act outlines the persons entitled to apply for the letters of
administration in order of priority. Since there is no surviving spouse, the children of Mr.
50
Probate and Administration Rules no. 21 of 1994.
51
[1896] 2 IR 204
15
Nyanke are entitled to apply for the grant of letters. Section 56 of the Law of Succession Act
outlines that the grant cannot be given to more than four people at a time.
Under section 47 and 48, the High Court and Magistrate Court can hear succession matters.
However, in the present case, Mr. Nyanke’s estate far exceeds the value of 20 million shillings
which is within section 7 of the Magistrates Court Act. The High Court is the appropriate court
to file the application. After the application is filed, it will be advertised in the Kenya Gazette.
This gives persons with objections about 30 days to lodge the objection. If there are no
objections, a temporary grant of letters of administration will be issues. After 6 months, the
Administrator is able to apply for confirmation of the grant.
Forms to be Filed;
A Petition is to be filed in the appropriate Form 80 and accompanied by a supporting affidavit.
Documents that have to be attached include Form 11 which is the affidavit of justification by
proposed sureties. Form 12 which is the affidavit of justification by the proposed administrator
also has to be filed. Form 57 which is the guarantee of personal sureties will be attached. Form
38 which is the consent if applicable. There has to be a certified copy of the death certificate. The
identity card of the person applying should be attached. A letter from the area chief (Nakuru
area) should list all of Mr. Nyanke’s beneficiaries, their ages, and relationship to Mr. Nyanke.
Each of the sureties should attach their identity cards. There should also be attached proof that
Mr. Nyanke owned all the properties. In this case, there should be title deeds and log books.
How Property Will Devolve to Each Entitled Person;

The court will consider the nature and amount of the deceased property. When considering the
nature and amount of the property, the court will identify the cash value of Mr. Nyanke’s
property and exclude the liabilities in order to get the accurate amount of the property. The court
will also consider any past, present, or future capital or income from the source of the dependant.
The court should also consider the financial obligation and responsibilities of the dependants. In
the matter of estate of Benson Joseph Omondi Awinyo (deceased) Koome J took into
consideration the fact that the applicant was a pensioner and was receiving financial support
from his other children. The existing and future means and needs of the dependant . When
devolving the estate of the deceased consideration on the needs of each dependant should be
considered, these are the physical, financial and emotional circumstances. In the matter of the
estate of clement Albert Etyang (deceased), the dependant who was four years old was a
16
grandchild of the deceased, Koome J considered that the child’s future to be regarding his
welfare and education. This consideration is for the benefit of June’s child who are still young
and their existing and their future are more than those of other dependants.52
The court looks at the relationship between the deceased and the dependant to determine if it
was positive or negative. In John Gitata Mwangi and others .vs Jonathan Njuguna Mwangi
and others, Bosire J considered the fact that one of the applicants was not in good terms with the
deceased and that he had immigrated to another country and they had no contact. The other
applicant was found to have also had problems with the deceased. 53 This will apply to June
where the court will look at the nature of their relationship between her and Mr. Nyanke
The estate of Mr. Nyanke is estimated to be worth 200 million using the above discussed this is
how the property will devolve amongst Mr. Nyanke’s dependants. Each of the children is
considered a unit for the purpose of inheritance and the property will devolve as follows. It is
important to note that the figures assigned are for purposes of showing some of the
considerations that the court will use.
Distribution.
NO. DEPENDANT SHARE RELATIONSHIP
1. Rita 90 million Wife
2. Charlene 50 million Daughter
3. 5yr Old June 50 million Daughter(Minor needs provision)
4. Elderly Lady 10 Million Aunt.
ISSUE OF MONEY IN ABSA BANK ZIMBABWE.

The Law of Succession Act's Section 4 (1) (b) illuminates that succession to the movable
property of a deceased person shall be regulated by the law of the country of the domicile of that
person at the time of his death54. Given that Mr. Nyanke was domicile in Kenya at the time of his
death, Kenyan law will apply to the money in Zimbabwe in this case. Hence, it is necessary to
obtain letters of administration in Kenya. Section 77 of the Law of Succession Act outlines the
steps for sealing grants from the Commonwealth and other countries it provides ‘where a court
52
Nairobi HCSC No. 1099 of 2002
53
Nairobi CACA No. 213 of 1997
54
Law of Succession Act s. 4(1)(b).
17
or other body in any Commonwealth country or any other foreign country specified by the
Attorney-General by notice in the Gazette has jurisdiction in matters of probate or
administration, has granted probate or letters of administration, or an equivalent thereof, in
respect of a deceased person's estate, either before or after the commencement of this Act, such
grant may, on being produced to, and a copy deposited with the High Court, be sealed with the
seal of that court, and shall be of like force and effect, and have the same operation in Kenya, as
though that court had approved and confirmed it’ .55 Further Section 78 of the Law of Succession
Act further provides that a ‘duplicate of any grant sealed with the seal of a Commonwealth or
foreign nation court or other authority, or a copy thereof certified as correct by, or on behalf of,
that court or authority, has the same effect as the original’.
The pertinent Kenyan law is applicable since the nation of domicile determines the laws
governing movable property. The Probate and Administration Subsidiary Rules' 42 specifies
the process to be followed when handling grants involving Kenya and other states. 56 Zimbabwe
automatically qualifies as a Commonwealth nation covered by the Act because it was once a
British colony. The Probate and Administration Rules therefore call for the completion of
specific forms. According to Section 42(2), the application shall be brought by petition in forms
81 or 82 supported by affidavit in form 7.57
In re Estate of G N C (Deceased) [2017] eKLR provides guidance in cases where the deceased
had property abroad. Regarding the properties abroad the court explained that the administrators
did not have the grant or equivalent document from Greece that stated the Deceased's portion of
his father's estate resealed in Kenya as required by Section 77 of the Law of Succession Act as
read with Rule 42(1) of the Probate and Administration Rules because these assets were in a
foreign country. The court went further to explain that Rule 42(1) & (2) of the Probate and
Administration Rules requires that every application be brought by petition, supported by
affidavit and which should be dealt with by a High Court Judge
The presiding judge in the case Nicholas William Bentley-Buckle & another (suing in their
capacity as executors of the estate of Anthony William Bentley-Buckle (deceased) v.
55
56
The Probate and Administration Subsidiary Rules' s. 42
57
The Probate and Administration Subsidiary Rules' s.42(2)
18
Custody Registrars Services Limited58 stressed the significance of the authenticity of the grant
of letters of administration or probate before resealing in order to ensure that no dispute arises
and that the personal representative is fully authorized to administer the estate.The judge in Re
Estate of John Musambayi Katumanga - (Deceased) 59 indicated that the bank balance was a
component of the decedent's estate. Going by this decision, the funds at Absa Bank Zimbabwe
are thus a part of Mr. Nyanke's net intestate estate, and their distribution is subject to the
requirements of Section 38 of the Act, which mandates an equal distribution to the deceased's
surviving children.
After receiving the grant of letters of administration for Mr. Nyanke's estate from the High Court
in Kenya, the personal representative is required to travel to Zimbabwe, through the Kenyan
High Commissioner she will be introduced to a resident lawyer licensed to practice law in
Zimbabwe, to seek assistance in having the High Court of Zimbabwe renew the grant of letters
of administration so that she can manage Mr. Nyanke's movable property in Zimbabwe,
including the money in Absa Bank. The lawyer will be required to produce the laws of
succession of Zimbabwe and turn the page to find the form for resealing. He will then copy that
form and attach the Kenyan sealed grant. The personal representative should then go to a
Zimbabwean Probate and Administration High Court registry for resealing. The personal
representatives will then proceed to Absa Bank in Zimbabwe and show the bank manager the
resealed grant. The name of the deceased will then be deleted and the name of the personal
representatives will replace the deceased’s name. She will then have the amount transferred it to
the Absa Bank Branch in Kenya and share it among Mr. Nyanke’s dependents. The funds
could be used to pay off any outstanding bills. The remainder was what would ultimately be
divided equally among the recipients.
ISSUE OF RITA’S ACCESS TO MONEY IN RICHMAN BANK TO USE FOR THE

FUNERAL.
To get Rita access to the funds at Richmond Bank for the funeral, she must submit an application
for a Special Limited Grant. This award is given under unique conditions, such as when the
urgency of the situation prevents the court from issuing a complete grant to cover the estate's
needs.
58
[2016] eKLR
59
[2019] eKLR
19
Section 49 of the Law of Succession Act provides that where the gross value of the deceased’s
estate does not exceed the financial thresholds outlined in section 7(1) of the Magistrate's Courts
Act, 2015, the Magistrate's Court in the deceased's region shall have the jurisdiction granted by
section 48 with respect to that estate of the decease based on his last known address, and
therefore every Magistrate's Court shall have the authority to provide a temporary grant of
representation limited to the collection of assets located in his region and the payment of debts in
circumstances of evident necessity.
This gift is also made possible by the Probate and Administration Rules, as amended by
Probate and Administration (Amendment of the Fifth Schedule) Rules, 2002, Legal Notice
39 of 2002. Rule 37 states that by the resident magistrate according to Section 49 of the Act, a
temporary grant; every petition in Form 97A submitted to a resident magistrate pursuant to
Section 49 of the Act for a temporary grant of representation limited to the collection of assets
and payment of debts must be accompanied by an affidavit containing the relevant facts and
demonstrating the application’s justification and the apparent urgency of the matter, as well as
copies of the two notices that have been p (Cap. 167), a grant made pursuant to this rule must be
made in Form 53, must be limited to the collection of the deceased's assets located within the
jurisdiction of the resident magistrate making the grant and the payment of the deceased's debts,
and must expire six months after it is made, unless the court directs otherwise.
The unique circumstances that need quick access to the dead person's finances for this award
must be expressly stated by the petitioner. This special limited grant will only be given if the
petitioner appears before the judge. The petition is submitted using Form P&A 85A and P&A
19. (Affidavit in support of the petition and contains the evidence). The petitioner must give the
following information: the petitioner's name and address, connection between the petitioner and
the dead, Original death certificate and a properly certified copy are both included, death date of
the deceased, first introduction Letter from the local chief explicitly stating that the dead was a
resident of their area, listing all the surviving, their link to the deceased, and their ages, address
of the Deceased, assets and obligations of the deceased. Consent-Form 38, properly filled out
and signed by all adult beneficiaries and other dependents' names and ages
20
Case law
The court ruled in Re Estate of Bhadrabala Amratlal Bhimji Davda60 that instances where it is
impossible to secure a complete grant for a specific activity within the lowest amount of time are
the only ones in which a special limited grant may be issued. Therefore, the court should only
make a special restricted grant, as the name implies, in extraordinary cases where a complete
grant cannot wait.
For access to the dead's accounts "for purposes of payment of school fees and maintenance for
the needs and welfare of the children of the deceased," the applicant in Re Estate of SMM61
requested a special limited grant. The court took into account the interests of the children who
were claimed by birth certificates to be the dead person's offspring and who were allegedly not
attending school due to a lack of funds. Their mother, the applicant, was instructed to get a
specific grant for the purpose of covering school-related expenditures.
In Re Estate of Patrick Mutisya Munyithya62, the learned judge cited section 54 of the Act,
which states that a court may limit any grant of representation that it has jurisdiction to make in
any of the forms described in the Fifth Schedule to this Act, taking into account the
circumstances of each case. The applicants requested a special grant of letters of administration
restricted to paying a medical bill and claimed that the aforementioned payments are urgent and
must be made immediately and without delay. They received the orders they requested, which
were to be used to pay the medical bill, rent, and school costs for the dead person’s two children
Conclusion
Rita must fill out Form 85A and submit it with Form 19 in order to apply for a Special Limited
Grant from Richmond Bank in order to obtain funds for the burial. It is necessary to fully
explain the necessity of this petition and provide justifications.
ISSUE OF CAR KEYS GIVEN TO JONA.

Facts;
Before he completed giving his advocate instructions his old best friend, Jona arrived and sat
next to him. At that juncture Mr. Nyanke produced a car key of his best car V8 BMW; KEZ 130
U and gave to him, to keep in case he does not recover from his sickness……………Mr. Nyanke
60
Re Estate of Bhadrabala Amratlal Bhimji Davda (Deceased) [2021] eKLR
61
Re Estate of SMM (Deceased) [2021] eKLR
62
Re Estate of Patrick Mutisya Munyithya (Deceased) [2018] eKLR
21
jumped through the window of the hospital…………. To compound Rita`s problems, she found
that her husband had committed suicide.
Issues;
1. Was this a gift?
2. Does it amount to donatio mortis causa?
3. What is the position of the Law of Succession Act and case law on donatio mortis causa?
A Donatio Mortis Causa is a gift made by a person during their lifetime that is conditional upon
their death. It is neither an inter vivos gift nor a testamentary gift. A donatio mortis causa is
similar to a lifetime gift in that the subject matter of the gift is delivered to the donee during the
donor`s lifetime, but the gift takes place upon the death of the donor. It cannot be revoked by a
subsequent will. It cannot be given away as a gift under a will to someone else.63
Section 31 of the Law of succession provides for gifts in contemplation of death. The section
states the instances in which a gift made in contemplation of death shall be valid even without
complete transfer of the legal title. These six ways are:
The person making the gift is at the time contemplating the possibility of death, whether or not
expecting death, as the result of a present illness or present or imminent danger, a person gives
movable property which he could otherwise dispose of by will, there is delivery to the intended
beneficiary of possession or the means of possession of the property or of the documents or other
evidence of title, a person makes a gift in such circumstances as to show that he intended it to
revert to him should he survive that illness or danger, the person making that gift dies from any
cause without having survived that same illness or danger, 64 the intended beneficiary survives the
person who made the gift to him provided that no gift made in contemplation of death shall be
valid if the death is caused by suicide.
The person making the gift may, at any time before his death, lawfully request its return. Agnew
v Belfast Banking Company (1896),65 the court held that it was against public policy to uphold
a gift which was intended to take effect by means of suicide. Re: Dudman (1925), the donor
63
Musyoka Law of succession, page 39,2010
64
Section 31 Law of succession Act
65
Agnew v Belfast Banking Company
22
committed suicide, as he could not cope with his terminal illness. The court held that the
donation failed on the ground of public policy.66
The conditions which need to be satisfied for a valid donatio mortis causa were set down in the
case of Cain v Moon (1896). The facts of the case are that the donor originally delivered a
deposit note to her mother for safe custody. She later became very ill and at a time when it was
likely that she was going to die she told her mother that the deposit note along with other
property was to be the mother`s should she die. It was held that there was effective delivery of
the property. Lord Russel set down the conditions which need to be satisfied for a valid donatio
mortis causa:67
(a) The gift must be made by the donor in the contemplation of death. In Lillington
(1952)2 ALL E.R 184, the donor expressed opinion that she was ``done for`` and the
68
court inferred that the gift was made in contemplation of her death. In re Estate of
Kabue Ole Lepate (2018),69 the court held that the guiding principle for purposes of
making gifts in contemplation of death in immovable property is to affect the transfer
by registering the gift or in any way delivery. The fact that the deceased died of old
age and not disease meant that he had not contemplated death when giving out the
gift. So donatio mortis causa failed.
(b) The gift must be conditional on the donor`s death. In Sen vs Headley (1991) 2 ALL
E.R 636, the gift would not be effective where the donee predeceases the donor.70
(c) The subject matter of the gift must be declared to the donee. In Woodward v
Woodward (1992), 71a father handed over keys to his car to his son at a time when he
was seriously ill, but the father kept a duplicate set. It was held that the father had
effectively parted with dominion over the car because in the circumstances he was so
ill only the son had access to his car.
66
Re Dudman (1925)
67
Cain v Moon (1896)
68
Lillingston (1952)
69
Re Estate of Kabue Ole Lepate (2018)
70
Sen v Headley (1991)
71
Woodward v Woodward (1992)
23
(d) The property must be capable of forming the subject matter of a donatio mortis causa.
In Duffield vs Elwes (1827), the court held that land could not form the subject
matter of a donatio mortis causa.72
Analysis;
The facts of the case as compared to what the law of succession Act provides for, states that a
donee should satisfy six conditions for a gift to qualify as donation mortis causa. Further
conditions were established in the case of Cain v Moon. Mr. Nyanke gave Jona a car key as he
was contemplating his death. The key is a movable property which was delivered to Jona by way
of handing the key to him, the Succession Act and the case of Cain v Moon provides that the
property should be movable. The facts indicate he gave Jona the key in case he did not recover
from his illness, this means in case he survived he would get the key back. The other condition in
the succession Act is that the donor must die without surviving from the illness, indeed Mr.
Nyanke died. The last condition in the Law of succession Act is that a gift will not be valid if the
death was caused by suicide. The facts of the case clearly say that Mr. Nyanke jumped through
the hospital window and his wife Rita confirmed the suicide.
Conclusion;
The car keys given to Jona will not qualify as donatio mortis causa. This is because although all
the other conditions provided for in the Act and the case of Cain v Moon are present, one
condition of the cause of death did not qualify as donatio mortis causa. He died of suicide which
the Succession Act invalidates gifts made by donors who commit suicide and therefore the
property in suit is subject to intestate provisions.
THE APPROPRIATE PETITIONS THAT WOULD BE MADE FOR THE WILL IF

VALID AND WHERE THERE IS NO WILL RESPECTIVELY.
P & A 79
REPUBLIC OF KENYA
72
Duffield v Elwes (1827)
24
IN THE HIGH COURT OF KENYA AT NAKURU
SUCCESSION CAUSE NO H.C…E200…………OF. 2022
IN THE MATTER OF THE ESTATE OF …MR NYANKE ……. (DECEASED)
PETITION FOR LETTERS OF ADMINISTRATION WITH WRITTEN WILL

ANNEXED
I, RITA , of .....P.O.BOX 199-00200......... HEREBY PETITION this Honourable Court

for a grant of letters of administration with will annexed of the estate of the above-named MR
NYANKE who died domiciled in KENYA on the ..15th day of ......May.....,2022.
AND SAY as follows*:-
1. The document hereto annexed contains the true and original last will (and codicil(s)) of
the deceased (or an authenticated copy, etc.)
2. The executor named in the said will is CHARLENE of P.O.BOX 234-00200.
3. The said executor is dead (or has consented hereto or has renounced his executorship or
has been issued with a citation to renounce his executorship or apply for a grant of probate
and has not done so).
4. I present this petition in my capacity as .....WIFE.
5. I will faithfully administer according to law all the estate which by law devolves upon and
vests in the personal representative of the deceased and I will render a just and true account of
such estate whenever required by law so to do and I will when required by this court deliver up
thereto the said grant.
Signed by the above named RITA …………………………….
In presence of KYALO JONES………………………….
Advocate of FIRM 22 CLASSC & COMPANY ADVOCATES
Commissioner for Oaths (or other swearing officer)

25
Dated………………….13th………day of……………………….August…………………2022
DRAWN & FILED BY:-

FIRM 22 CLASSC & COMPANY
ADVOCATES,
KSL BUILDING
MUTULA ROAD,
P.O. BOX 456-20100
NAKURU.
[email protected]
P.105/11066/22
LSK/ 2022/00816
P&A 3
REPUBLIC OF KENYA
SUCCESSION CAUSE NO. HC…E200…OF.. 2022
IN THE MATTER OF THE ESTATE OF ……MR NYANKE ………… (DECEASED)
AFFIDAVIT IN SUPPORT OF PETITION FOR PROBATE OR FOR LETTERS OF
ADMINISTRATION WITH WRITTEN WILL ANNEXED.
26
I…………RITA staying at Nyarika , NAKURU…….of P.O.BOX …199-00200…aged over
18 years make oath and say as follows-
1. The full name of the deceased to whose estate the proceedings herein relate is
………………MR NYANKE………….. (also known as …) and I am the petitioner
named in the petition herein dated the ………13 th …… day of …August…….2022..
upon which I/we have endorsed my/our name(s) at the time of swearing this affidavit.
2. The deceased died on …………15th May 2022……. at ……NAKURU………. as

appears from the attached certificate (or photocopy of the certificate) of death (or other
document) marked ‘NYK’ upon which i have written my name at the time of swearing
hereof .
3. The deceased was at the date of his death domiciled in ……KENYA………………and

his last known place of residence was at ………NAKURU .
4. The deceased died leaving a valid written dated the ………15 th May 2022…………….
(and a codicil(s) there to dated the………………..)
5. I am seeking a grant of representation to the deceased on the grounds that I am ….WIFE

TO THE DECEASED.
6. The following is a full inventory of all the assets and liabilities of the deceased at the
date of his death (including such assets (if any ) as have arisen or become known since
that date.)
ASSETS:
27
a) ………… two hundred acres in Molo, ,.…………
b) …………, two houses in Milimani, Nakuru, …
c) ………… seven top of the range motor vehicles ……………………..
d) ………… Bank Account in Absa Bank – Zimbabwe.. ……
e) ……………..Nakuru County money in several banks………………..
Total estimated value Sh………200,000,000… TWO HUNDRED MILLION KENYA

SHILLINGS.
Liabilities:
a)…………………………………………………
b)…………………………………………………
c)……………………………………………….
d)………………………………………………..
e)………………………………………………..
f)…………………………………………………
g)……………………………………………….
Total estimated value Sh…………………………..
7. The deceased was survived by the following other dependants;
a)……Rita - Wife………………………….
b)………Charlene – Daughter, paying maintenance

28
c)………….Chris -Son(deceased)
d)……………Tommy-Son (deceased)………………………..
e)……………One Child called June ………..
f)……………Thirty Year Old Man claiming to be son ……………………….
g) ………….Aunt paying maintenance…………..
8. The facts here in deponed to are known to me of my personal knowledge save that (set
out any matters falling within the proviso to O. XVIII Rule 3(10 of the Civil Procedure
Rules).
SWORN at NAKURU this………………13th …. day of ……………August…………….
2022
BEFORE ME: )
…………… … )……… ………………
Commissioner for Oaths/Magistrate ) DEPONENT(S)
DRAWN & FILED BY:-

ADVOCATES,
KSL BUILDING
MUTULA ROAD,
P.O. BOX 456-20100
29
NAKURU.
[email protected]
P.105/11066/22
LSK/ 2022/00816
FORM 43
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
IN THE MATTER OF THE ESTATE OF ……MR NYANKE………… (DECEASED)
30
BE IT KNOWN that on the ......................25th of November ............., 20 22..................
letters of administration with will (and codicil(s)) annexed of all the estate of MR NYANKE
(deceased ) who died domiciled in ............KENYA..................
on the .........16th day of April........ , 2021.........., at .........NAKURU.................... which by law

devolves to and vests in his (her) personal representative, a copy of which will (and codicil(s)) is
hereto annexed, were granted by this court to ................RITA ..................
of ........... .....P.O.BOX 199-00200.. (she) having undertaken faithfully to administer such estate
according to law and to render a just and true account thereof whenever required by law so to do.
Issued by the High Court through the registry at 25 th day .

this ...................November ..............................., 2022...........
..........................................................
Judge of the High Cour
P & A. 80
P & A. 80
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAKURU
SUCCESSION CAUSE NO. H.C. …………E200………………..OF 2022

IN THE MATTER OF THE ESTATE OF MR NYANKE - (DECEASED)
31
PETITIION FOR LETTERS OF ADMINISTRATION INTESTATE
I, RITA and of P.O. BOX 199-00200 HEREBY PETITION this Honourable court for a grant
of Letters of Administration intestate of the above named MR NYANKE who died in 15th
May 2022 .
AND SAY as follows:
1. The deceased died intestate domiciled in KENYA.

2. I present this petition in our capacity as WIFE.
3. Every person having an equal or prior to a grant of representation herein have consented
hereto for has renounced such right or has been issued with a citation to renounce such
right and apply for a grant of representation and have not done so.
4. I will faithfully administrator according to law all the estate which by law devolves upon
and vests in his personal representative of the deceased and we will render a just and true
account of such estate whenever required by law so to do and we will when required by
this Court deliver up thereto the said grant.
In presence of KYALO JONES ……………………….
Dated………………….13th………day of………………………. August…………………2022.
DRAWN & FILED BY:-
32
ADVOCATES,
KSL BUILDING
MUTULA ROAD,
P.O. BOX 456-20100
NAKURU.
[email protected]
P.105/11066/22
LSK/ 2022/00816
FORM 12 P&A 12
REPUBLIC OF KENYA
SUCCESSION CAUSE NO H.C.……E200……OF 2022
IN THE MATTER OF THE ESTATE OF MR NYANKE- (DECEASED)

AFFIDAVIT OF JUSTIFICATION OF PROPOSED ADMINISTRATOR
I, RITA of P.O.BOX 199-00200 having petitioned this Honorable Court for a grant of letters
of administration intestate (or with the will land codicil annexed) of the estate of the above-
named MR NYANKE (also known as)…..who died on 15th May 2022 make oath and say as
follows:-
33
1. I after payment of all the just debts and having taken into account all liabilities well and
truly worth net of such debts and liabilities in immovable and movable assets in Kenya at
least the sum of Kenya Shillings TWO HUNDRED MILLION (KSHS
200,000,000/=).
Rules).
SWORN at NAIROBI this………………13th …. day of ……………August………. 2022
BEFORE ME: )
…………… … )……… ………………
DRAWN & FILED BY:-

ADVOCATES,
KSL BUILDING
MUTULA ROAD,
34
P.O. BOX 456-20100
NAKURU.
[email protected]
P.105/11066/22
LSK/ 2022/00816
FORM 5 P & A. 5
REPUBLIC OF KENYA

SUCCESSION CAUSE NO……E200………OF 2022
IN THE MATTER OF THE ESTATE OF MR NYANKE alias DADDY- (DECEASED)
AFFIDAVIT IN SUPPORT OF PETITION FOR LETTERS OF
ADMINISTRATION INTESTATE
I RITA of Post Office Box Number 456-00200 make oath and say as follows:
35
I HEREBY PETITION this Honorable court for a grant of Letters of Administration intestate
of the above named MR NYANKE who died on 15th May 2022. .
1. The full name of the deceased to whose estate the proceedings herein relate is MR
NYANKE and I am the petitioner named in the petition herein dated the day of
upon which I have endorsed my names at the time of swearing this affidavit.
2. The deceased died on 15th May 2022 at Nyarika Village, Sub Location in
Nakuru Sub- county within Nakuru County.
3. The deceased was at the date of his death domiciled in Kenya and his last known place of
residence was Nyarika Village, Sub Location in Nakuru Sub- county
within Nakuru County.
4. The deceased died intestate and left the following surviving him:
a)……Rita - Wife………………………….
b)………Charlene – Daughter, paying maintenance
c)………….Chris -Son(deceased)
d)……………Tommy-Son (deceased)………………………..
e)……………One Child called June ………..
f)……………Thirty Year Old Man claiming to be son ……………………….
g) ………….Aunt paying maintenance…………..
5. I am related to the deceased by reason of being his WIFE .

6. The following is a full inventory of all the assets and liabilities by the deceased at the
date of her death (including such assets, if any) as have arisen or become known since the
date.
ASSETS:
f) ………… two hundred acres in Molo, ,.…………

g) …………, two houses in Milimani, Nakuru, …
36
h) ………… seven top of the range motor vehicles ……………………..
i) ………… Bank Account in Absa Bank – Zimbabwe.. ……
j) ……………..Nakuru County money in several banks………………..
Total estimated value Shs200,000,000… TWO HUNDRED MILLION KENYA SHILLINGS.
Liabilities:
a)…………………………………………………
b)…………………………………………………
c)……………………………………………….
d)………………………………………………..
e)………………………………………………..
f)…………………………………………………
g)……………………………………………….
Total estimated value Shs…………………………..
Rules).
SWORN at NAKURU this………………13th …. day of ……………August……. 2022
BEFORE ME: )
…………… … )………
……………………………………………….
37
)
DRAWN & FILED BY:-

ADVOCATES,
KSL BUILDING
MUTULA ROAD,
P.O. BOX 456-20100
NAKURU.
[email protected]
P.105/11066/22
LSK/ 2022/00816
FORM 11 P & A 11
REPUBLIC OF KENYA
SUCCESSION CAUSE NO. H.C……E200….OF 2022
IN THE MATTER OF THE ESTATE OF MR NYANKE alias DADDY- (DECEASED)

AFFIDAVIT OF JUSTIFICATION OF PROPOSED
SURETIES
38
WE, REV GOOD MAN and YANO both of P. O. BOX NAKURU Jointly and
severally make oath and state as follows:-
1. We are proposed sureties on behalf of RITA the intended administrator (with will and
codicil) annexed of the estate of the above-named MR NYANKE in the sum of Kenya
Two Hundred Million Shillings only. (KShs 200,000,000/=).
2. I, REV GOODMAN, for myself say that I am, after payment of all my just debts and
having taken into account all my liabilities, well and truly worth net of such debts and
liabilities in immovable and movable assets in Kenya at least the sum of Kenya Shillings
Two Hundred Million. (KShs 200,000,000/=).
3. I, YANO , for myself say that I am, after payment of all my just debts and having taken
into account all my liabilities, well and truly worth net of such debts and liabilities in
immovable and movable assets in Kenya at least the sum of Kenya Shillings of Kenya
Shillings Two Hundred Million. (KShs 200,000,000/=).
4. The facts deposed to are known to us of our personal knowledge.
SWORN at NAKURU
This …13th……day of …August……………..2022
by 1 REV GOODMAN ………………………….
2. YANO …………..……………
DEPONENT(S)
BEFORE ME:
…………………………………
39
Commissioner for oaths/Magistrate
DRAWN & FILED BY:-

ADVOCATES,
KSL BUILDING
MUTULA ROAD,
P.O. BOX 456-20100
NAKURU.
[email protected]
P.105/11066/22
LSK/ 2022/00816
FORM 57 P. & A. 57
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAKURU

SUCCESSION CAUSE NO. H.C…E200….. OF 2022
IN THE MATTER OF THE ESTATE OF MR NYANKE alias DADDY- (DECEASED

GUARANTEE BY PERSONAL SURETIES
40
Whereas the above-named MR NYANKE alias ….. who died on 15th May 2022 and RITA
(hereinafter called “the administrator”) are the intended administrator of his estate:
Now, WE CHARLENE OF ID NO. 32451288 and of P.O. BOX 144-00200 NAKURU and
JONA of P.O. BOX 677-00200 NAKURU ID NO 23567418 hereby jointly and severally
guarantee and agree as follows:
1. We will when lawfully required to do so make good any loss which any person interested in
the administration of the estate of the deceased may suffer in consequence of the breach by the
administrator of his duty-
(a) to collect and get in the estate of the deceased and administrator it according to law:
(b) When required to do so by the Court to exhibit on oath in Court a full inventory of the
said estate and when so required to render an account of the estate, and
(c) When so required by the Court to deliver up the grant to the Court.
2. The giving of time to the administrator or any other forbearance or indulgence shall not in any
way affect our liability under this guarantee
3.The liability under this guarantee shall be continuing and shall before the whole amount of the
loss mentioned in paragraph one above that our aggregate total liability shall not in any event
exceed the sum of Kenya Shillings TWO HUNDRED MILLION (200,000,000/=) ONLY
Dated this………13TH …………….day of ………………August …………………2022
Signed, Sealed and Delivered by the within named
1. CHARLENE
2. JONA
In presence of ;
Commissioner for Oaths/Magistrate
41
DRAWN & FILED BY:-
ADVOCATES,
KSL BUILDING
MUTULA ROAD,
P.O. BOX 456-20100
NAKURU.
[email protected]
P.105/11066/22
LSK/ 2022/00816
Form 38 (r.26(2)
REPUBLIC OF KENYA
SUCCESSION CAUSE NO. H.C. E200 OF 2022
IN THE MATTER OF THE ESTATE OF MR NYANKE -(DECEASED)
CONSENT TO THE MAKING OF A GRANT OF ADMINISTRATION
INTESTATE TO PERSON OF EQUAL OR LESSER PRIORITY
42
WHEREAS the above named MR NYANKE of Post Office Box Number 779-00200 in
Kajiado County who died on the 15th of May 2022 , intestate and Representation has not been
raised to his Estate:
AND WHEREAS we the Beneficiaries herein below are entitled to apply for letters of
administration to the estate of the said MR NYANKE equality with or priority to the said
beneficiaries and nevertheless we are agreeable to the said RITA so applying:
NOW we the said below listed beneficiaries of MR NYANKE do hereby consent to letters of
administration to the estate of the said deceased being granted to the said RITA .
a. Charlene – Daughter, ………………….……………
b. Thirty Year Old Man claiming to be son ………………..………….
c. Aunt paying maintenance …………………….……
d. Mother representing one Child June………
Dated the ……………13th ………Day of …………August…………………2022.
In presence of KYALO JONES ………… …………….
DRAWN & FILED BY:-

ADVOCATES,
KSL BUILDING
MUTULA ROAD,
P.O. BOX 456-20100
43
NAKURU.
[email protected]
P.105/11066/22
LSK/ 2022/00816
FORM 41
REPUBLIC OF KENYA
IN THE MATTER OF THE ESTATE OF ……MR NYANKE………… (DECEASED)
BE IT KNOWN that on the ......................25th of November ............., 20 22..................
letters of administration with will (and codicil(s)) annexed of all the estate of MR NYANKE
(deceased ) who died domiciled in ............KENYA..................on the .........15th day of May........ ,
2022.........., at .........NAKURU.................... which by law devolves to and vests in his (her)
personal representative, a copy of which will (and codicil(s)) is hereto annexed, were granted by
this court to ................RITA ................. of ........... .....P.O.BOX 199-00200.. he (she) having
undertaken faithfully to administer such estate according to law and to render a just and true
account thereof whenever required by law so to do.
Issued by the High Court through the registry at 25 th day .

this ...................November ..............................., 2022...........
..........................................................
Judge of the High Court
44
BIBLIOGRAPHY
Books
W M Musyoka, Law of Succession (1st Edition, Law Africa Publishing Ltd 2006).
Parry and Clark: The Law of Succession (11th Edition, Sweet & Maxwell Ltd, September 2002)
45
46

Firm 22 - Probate and Administration

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Firm 22 - Probate and Administration

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ADVOCATE TRAINING PROGRAMME

ATP 102: PROBATE AND ADMINISTRATION 2022 PROJECT WORK

NO. FIRM 22 MEMBERS STUDENT’S ID SIGNATURE

David Chokaa 20220495

Bill Khabongo 20220822

Kisese Jones Kyalo 20221960

Ann Wangui 20220883

Brillian Njoki 20220534

Rhema Sifuna 20220269

Ayoma Faith 20221114

Elizabeth Ombija 20220440

Leah Wanjiku 20220281

DATE: ……………………………………. DATE: ………………………………….

COURSE LECTURER: ........................................................

Marriage Act 2014

Marriage Act cap 150

Law of Succession Act, Cap 160 Laws of Kenya

Age of Majority Act, Cap 33 Laws of Kenya

Births and Deaths Registration act, Cap 149 Laws of Kenya

Land Act, No. 6 of 2012

Probate and Administration Subsidiary Rules

The Co-operative Societies Act of 1997

Banks v Goodfellow (1870) LR 5 QB 549

Battan Singh v Armichand (1948) AC 161

Re Estate of Park (1954)

Vaghella v Vaghella (1999) 2 EA 351

Re Estate of Lusila Wairu Waweru (Deceased) [2020] eKLR

Nairobi Court of Appeal Civil Appeal no. 63 of 1984

Dew v Clark 1826 ,Cain v Moon

Agnew v Belfast Banking Co (1896)

Re Estate of Faith Muita(deceased)2016

Keshavlal Bhoja v Tejalal Bhoja (1967) Ea. 217

John Ndung’u Mubea v Milka Nyambura Mubea

NSA v Cabinet Secretary of Interior and Coordination of National Government

In the Matter of the Estate of Bernard Mwaura Kariuki (Deceased),

re Estate of Simon Kiprop Cheruiyot (Deceased)Succession Cause No. 64 of 2010

In re Estate of Gamaliel Otieno Onyiego (Deceased) [2018] eKLR

In the matter of the Estate of Fatuma Binti Umri

In the matter of estate of Benson Joseph Omondi Awinyo (deceased)

In the matter of the estate of clement Albert Etyang (deceased)

Nicholas William Bentley-Buckle & another v. Custody Registrars Services Limited

Re Estate of Bhadrabala Amratlal Bhimji Davda

Re Estate of SMM (Deceased) [2021] eKLR

Re Estate of Patrick Mutisya Munyithya (Deceased) [2018] eKLR

Re Estate of Kabue Ole Lepate (2018)

Sen v Headley (1991)

Woodward v Woodward (1992)

re Estate of G N C (Deceased) [2017] eKLR

Importunity is defined as insistent begging by a person to the testator to leave them

Rev.Goodman bequest demonstrates an instance of undue influence, common in confidential

e) Money in Filla Sacco and retirement to daughter June though it is nominated to

Nomination is a direction given by a nominator to another person or entity who or which is

f) Bequest to all the money in Absa bank in Zimbabwe to daughter Charlene

Procedure to enforce will at the High Court.

HOW THE ESTATE SHALL DEVOLVE TO EACH OF THE ENTITLED PERSONS

3. Money in Absa Bank in Zimbabwe of account number 14310513

Who are the lawful dependants;

June and the 30-year-old man

Mr. Nyanke’s Aunt

Yano, Rev Goodman and Jona

Procedure for applying for grant of representation of Nyanke’s Estate;

How Property Will Devolve to Each Entitled Person;

ISSUE OF MONEY IN ABSA BANK ZIMBABWE.