KENYA SCHOOL OF LAW

ATP 102: PROBATE AND ADMINISTRATION

COURSE COORDINATOR: MS. ANASTASIA OTIENO

CLASS D FIRM 1

FIRM MEMBERS.

NAME REGISTRATION NUMBERS

1 NDEGE SONIA KOI 20230806
2 MUIRURI CHRISTOPHER MUCHIRI 20230875
3 SIFUNJO VENESSA AWUOR 20230393
4 HANIFA HABIB 20230217
5 ISSA MOHAMED 20231605
6 NJIULE M. WAKOLI 20230262
7 KITSAO MARGARET KADZO 20230223
8 MORARA SHIRLYNE KEMUNTO 20230657
9 MURITHI LEWIS MWENDA 20231404
 BRIEF FACTS.

It has been almost a year since Timon was buried. Kwality has not filed the case yet she has all
the documents that may be required to file the case. Urembo and Imani do not want to file the
case but need your advice and action.

ISSUES FOR DETERMINATION

i. What is the appropriate action for them to take.

ii. What happens when a citation is filed and overtaken by events
iii. What are the appropriate procedures.

i. WHAT IS THE APPROPRIATE ACTION FOR THEM TO TAKE.

1) Section 66 of the law of succession act provides for; preference of certain persons to administer
where deceased died intestate. It states that;
When a deceased has died intestate, the court shall, save as otherwise expressly provided, have
a final discretion as to the person or persons to whom a grant of letters of administration shall,
in the best interests of all concerned, be made, but shall, without prejudice to that discretion,
accept as a general guide the following order of preference -

(a) surviving spouse or spouses, with or without association of other beneficiaries;

(b) other beneficiaries entitled on intestacy, with priority according to their respective
beneficial interests,

(c) the Public Trustee; and

(d) creditors:

Provided that, where there is partial intestacy, letters of administration in respect of the
intestate estate shall be granted to any executor or executors who prove the will.

2) In The Matter Of The Estate Of Zacheaus Sumani Kadagale Also Known As Simani
Kadagala- Deceased (2021)Eklr, Judge W. Musyoka in his ruling stated as follows at
paragraph 11;
The courts have variously addressed the purport of section 66.
3) In In re Estate of Gamaliel Otieno Onyiego (Deceased) [2018] eKLR (J. Makau J), the court
stated at paragraph 18:
  Under Part V referred under Section 66(b), the persons given priority over an intestate are
the surviving spouse and children.” 
4) In paragraph 13 of the ruling he further stated that;
In this case, the second applicant has not provided the names of all the beneficiaries of the
estate or the immediate survivors of the deceased whether alive or dead. The letter from the
area Chief should have included these names, and so should have the affidavit in support of the
petition. This should be brought out clearly for ascertainment of all the beneficiaries. The court
cannot directly grant the second applicant representation to the estate until it ascertains that
there is no other person above him in the order of priority provided in section 66 of the Act.’ 

5) In The Matter Of The Estate Of Magangi Obuki (Deceased). Patrick Arasa Magangi V
Johns Gati Boke, succession cause no. 41 of 2016, Lady Justice R. Wendoh in her
judgement highlighted similar provisions regarding section 66 of the law of succession act.
She stated;
The first question I need to consider is whether the Respondent had the right to apply for
Letters of Administration.  Section 66 of the Laws of Succession Act provides that preference
has to be given to certain persons to administer a deceased’s estate where the deceased died
intestate. The final discretion as to the persons and person to whom a grant of letters of
administration shall, in the best interests of all parties concerned, be made.”
She further added on the relevance of Rule 26 (1) of the Probate and Administration
Rules  that provide for grants of letters of administration. She stated;
Rule 26 (1) of the probate and administration rules provide that; letters of Administration
shall not be  granted to any applicant without notice to any other person entitled in the same
degree as or in priority of the applicant.
6) Drawing from the case, both Kwality, Urembo and Imani are considered spouses and
therefore have equal interests in having the estate of Timon administered and can apply for a
grant. However, Kwality has all the relevant documents to apply for the grant but has failed
to do so.
 CITATION
7) In cases where no grant for representation in respect of a deceased person’s estate has been
applied for, the law requires for a citation to be applied for by interested persons. What then is a
citation? Rule 21 of the Probate and Administration Rules defines citation as a document
issued by the probate registry whereby the person issuing the document, known as the citor,
calls upon the person cited, known as the citee, to provide a reason why a particular step
should not be taken.
8) Citation is in both contentious and non-contentious probate. Contentious probate is where there
is a dispute relating to the administration of a deceased person’s estate while a non-contentious
probate is where there is no dispute as to the right to obtain probate or administration of a
deceased person’s estate. In non-contentious probate, a citation’s purpose is to fast track the
issue of a grant by calling upon a person who has a superior right to a grant to take the grant.
9) The purpose of a citation is to trigger the process of applying for letters of administration
intestate in circumstances where the persons entitled to apply are not willing or are slow in
moving the court on their behalf. This was highlighted in Josiah Muli Wambua (deceased),
Nairobi Succession Cause NO. 2557 of 2012 [2014] eKLR where W. Musyoka – J stated the
following at paragraph 9 of his ruling:
In intestacy, citation issue only in cases where no petition has been lodged in court. Citations
are intended to trigger the process of applying for letters of administration intestate in
circumstances where the persons entitled to apply are not willing or are slow in moving the
court in that behalf.  The citor should not be a person who has himself already applied for the
grant, for the citor should only apply for grant after the citee fails to so apply
10) Also in the Matter of the estate of Priscila J. Malel (Deceased) 2021, it was held that;
“Rule 22(1) of the Probate and Administration Rules, as well as the case of Re Estate of
Josiah MuliWambua (Deceased) [2014] eKLR to support her argument that the Court has
jurisdiction, in the circumstances presented herein, to issue a limited grant of representation to
the citee for the purposes of representation in the pending suit.”
It was further added that; the position that the filing of this citation is intended to secure the
interests of the deceased’s estate and to expedite the finalization of the pending suit.
 TYPES OF CITATION
11) The types of grant are provided for in Rules 22, 23 and 24 of the Probate and Administration
rules. There are three types of citations, namely: a citation to accept or refuse a grant of probate
or administration, a citation to take out probate and a citation to propound the will.These types
of citations were affirmed In The Matter Of The Estate Of Anthony George Kimanthi
(Deceased) Rose Wathiegeni (Citator). Judge D.K.Kemei in his ruling stated in paragraph 9 as
follows;
The law on citations is set out in part VI of the Probate and Administration Rules (P&A Rules)
where three types of citations are set out.  The first citation is to accept or refuse a grant, while
the second is to take probate on a will.  The third one is intestacy and in this third category a
person who is entitled to administer the estate of the deceased may be cited by the court to
accept or refuse a grant of letters of administration.

A. CITATION TO ACCEPT OR REFUSE A GRANT OF PROBATE OR

ADMINISTRATION.
12) The first citation is to accept or refuse a grant of probate or administration. It is provided for in
Rule 22 of the probate and administration rules. This type of citation is used where a person
who has an entitlement to a grant prior to that of the citor, delays or declines to take a grant, but
at the same time fails to renounce their right to a grant so as to enable persons with inferior right
to take out a grant in his or her place. As such, they may be cited to accept or refuse grant.
13) In The Matter Of The Estate Of James Okach Otieno – Deceased (2016) Eklr George
Oduor Obadha (Citor) Citation To Accept Or Refuse Letters Of Administration Intestate
Judge J.A.Makau in his ruling highlighted the importance of rule 22 of the probate and
administration rules. He stated at paragraph 10 and 11;
I have carefully considered the citor's affidavit, and rival submissions on behalf of the Citor
and that by the 2nd citee.  The issue for consideration is whether the citor has met the
conditions required to warrant him being allowed to petition for grant of letters of
administration intestate over the deceased estate?
Under Rule 22(1), of the probate and Administration Rules  a citation can be issued at the
instance of any person who would himself be entitled to a grant in the event of the other
person cited, and who I believe, must be entitled renounces his right thereto. The people who
 are entitled are mainly the “dependants” of the deceased as defined under Section 29 of the
Law of Succession Act.  The others who are entitled are described under Section 66 of the
Law of Succession Act.  That Section expands the list of the people entitled to be considered
and by court in its determinations to who should petition for grant of letters of
administration intestate.

B. CITATION TO TAKE PROBATE.

14) This occurs where an executor, as opposed to an administrator, has intermeddled with a
deceased person’s estate, and has not taken out a grant. Any person interested in the estate
may cite the executor to provide reasons as to why he should not be compelled to take out a
grant. The citation should be made at any time after the expiration of three months from the
death of the deceased. It should, however, not be issued while proceedings as to the validity
of the will are pending. This type of citation is provided for under Rule 22(3) of the Probate
and Administration Rules which states that:

A citation in Form 35 (Citation against an executor who has intermeddled) calling on an

executor who has intermeddled in the estate of the deceased to show cause why he should not be
ordered to take a grant may be issued at the instance of any person interested in the estate at any
time after the expiration of three months from the death of the deceased, provided that no
citation to take a grant shall issue while proceedings as to the validity of the will are pending.”

15) If the executor is cited and is willing to accept or take a grant, he may petition the court for a
grant on filing an affidavit showing that he has entered an appearance and that he has not
been served by the citor with notice of any application for a grant to himself. If the time
limited for appearance lapses, and the person cited has not entered an appearance in either the
principal registry or the Mombasa registry, the citormay apply to the court by summons on
notice to the person cited for an order requiring them to take a grant within a specified time
or for a grant to himself or to some other person specified in the application.

Rule 22 (4) and (5) provides that;

“A person cited who is willing to accept or take a grant may petition the court for a grant on
filing an affidavit showing that he has entered an appearance and that he has not been served by
the citor with notice of any application for a grant to himself.

(5) If the time limited for appearance has expired and the person cited has not entered an
appearance in either the principal registry or the Mombasa registry, the citor may; (c) n the
case of a citation under subrule (3), apply to the court by summonson notice to the person cited
for an order requiring such person to take a grant within a specified time or for a grant to
himself or to some other personspecified in the application.
16) In re the estate of RiyazTadjinRahemtullaDhanji (Deceased) [2017] eKLR, the Court
reiterated this position by holding that;

“The procedure for dealing with citations is set out in Rule 22 of the Probate and Administration
Rules. Upon service of the citation, the executor may straight away petition for grant of
representation without waiting for any directions from the court, or, if so minded, renounce
probate. Where there is no appearance, the citor may proceed to petition for grant to himself or
apply to court for the court to direct the citee to apply for probate within the stipulated period of
time. The same procedure applies where the citee appears but fails to either renounce probate or
to petition for representation within the time allowed. In the instant case, the citor did not file an
affidavit of service which would have enabled the court determine whether or not the citee had
failed to enter appearance within the prescribed period. The citor proceeded to petition for
limited representation. One citee appeared to the citation, and as well as responded to the
petition for limited presentation. It would appear that she was served with the citation together
with the petition for limited grant. In my opinion there was no compliance with Rule 22 of the
Probate and Administration Rules. The citor ought not to have petitioned for representation
before first exhausting the provisions of Rule 22. She should have applied for limited probate
only after the citee had renounced probate or failed to appear or file for probate within the
stipulated time. Furthermore, the executrix had come forward and expressed her willingness to
apply for probate by filing an objection, answer to the petition and a cross-application.”

17) Rule 22(7) further provides that;

“If the person cited has entered an appearance but has not within 30 days after his appearance
applied for a grant under subrule (4), or has in the case of a citation under subrule (3), apply by
summons to the court for an order requiring the person cited to take a grant within a specified
time or petition the court for a grant to himself or to some other person specified in the petition,
and the application shall in each case be served on the person cited."

18) In The Matter Of The Estate Of M’ngiti M’njiru(Deceased)James Marete v Samson

Murega M’ngiti ,[2014] eKLR, the deceased had left behind a valid will and the citee was
appointed by the deceased as the executor of his last will. However the citee had not taken
out probate of the last will of the deceased. The court noted that;

“The citor in his application did not apply for citee to take a grant within a specified time or
petition the court for a grant to himself or to some other person specified in the petition but
seeks that the purported executor of the will of the deceased be deemed to have renounced his
right as an executor and that he be allowed to petition for a grant of representation and/or be
appointed legal representative of the estate of M’NgitiM’Njiru and that the last will of the
deceased be admitted as valid will.In citation to propound a document of a will, rule 23(1) and
(2) of the Probate and Administration provides:-
 “23. (1) A citation to propound a document as a will shall be supported by an affidavit in Form
23 and be directed to the executors named therein (if any) and still living and to all persons
interested thereunder, and may be issued at the instance of any citor having an interest contrary
to that of the executors or such other persons.

(2) If the time limited for appearance has expired and no person cited has entered an
appearance in either the principal registry or the Mombasa registry, or if no person who has
appeared proceeds with reasonable diligence to propound the document, the citor may petition
the court for a grant as if the document were not a valid will and the court before making a
grant may direct such inquiries and make such orders as it thinks fit”.

In the instant application it is worthy noting that the citor did not file an affidavit in Form 23
directing it to the executor named therein and to all persons interested. In of compliance with
Rule 23(1) of the Probate and Administration Rules no one has appeared hence it is premature
for the citor to petition the court for a grant as if the documents were not valid will. Further the
court before making a grant may direct for such inquiries and make such orders as it thinks fit.”

The court concluded by holding that the application was premature and not proved.

19) It is also important to note that the law provides that no grant of letters of administration shall
be issued to any other person other than the executor without a citation being issued on the
executor, in instances where the executor fails to renounce his executorship or apply for grant
of letters of administration. Section 62 of the Law of Succession Act 1981 provides that;

“When a person who has been appointed by a will is an executor thereof has not renounced the
executorship, letters of administration shall not be granted to any other person until a citation
has been issued, calling upon the executor to renounce his executorship or apply for a grant of
probate of the will.”

C. CITATION TO PROPOUND A WILL.

20) A citation to propound a will is used where a person becomes aware that there may be a
later will that reduces their entitlement under an earlier will or under an intestacy, but
they believe that the later will may be invalid.

CAP 160 (23.) Citation to propound a document as a will

(1) A citation to propound a document as a will shall be supported by an affidavit in Form 23 and be
directed to the executors named therein (if any) and still living and to all persons interested
thereunder, and may be issued at the instance of any citor having an interest contrary to that of the
executors or such other persons.
 (2) If the time limited for appearance has expired and no person cited has entered an appearance in
either the principal registry or the Mombasa registry, or if no person who has appeared proceeds with
reasonable diligence to propound the document, the citor may petition the court for a grant as if the
document were not a valid will and the court before making a grant may direct such inquires and make
such orders as it thinks fit.

21) In our case, Kwality has the all the documents that may be required to file the case. She has
however not filed the case and both Urembo and Imani want Kwality to do so. Our advice to
Urembo is to apply for a citation as the citor citing Kwality as the citee, pursuant to rule 22 (1)
of the probate and administration rules that states:

A citation may be issued at the instance of any person who would himself be entitled to a grant
in the event of the person cited renouncing his right thereto.

22) In Maamun bin Rashid bin Salim El-Rumhy v Haider Mohamed bin Rashid El-Basamy
[1963] EA 438, Pelly Murphy J stated that;

Where a person applies for representation, citations should not be issued to other heirs having
equal rights to the grant, except where the court sees it fit to make such an order. The object of
non-contentious citations is to call upon a person who has a superior right to a grant to take
the grant. Any person who has an interest in having an estate administered may apply for a
grant of representation, but if there are persons who have a superior right to obtain the grant,
the applicant must cite them calling upon them to apply for the grant. If the person cited fails to
apply for a grant or renounce his right to it, the grant may be given to the citor.

23) Kwality would then have 15 days to enter appearance. This is in accordance to Rule 22(4) of
the probate and administration rules. If Kwality, being the person cited and is willing to
accept or take a grant may petition the court for a grant on filling an affidavit showing that he
has entered an appearance.
24) If the time limited for appearance has expired and the person cited has not entered
appearance at the registry, the citor may rely on Rule 22(5), (a) of the Probate and
Administartion rules that states; the citor may petition the court for a grant to himself.
25) In The Matter of The Estate of Wambua Kamani (Deceased), Wayua wambua (citor)
versus Muinde. The Judge, D.K.Kemei in his ruling stated;
“I have considered the Citor’s Application plus the affidavit in support thereof. It is noted
that the citee herein upon being served with the citation has failed to enter an appearance
and respond to the citor’s application. Herein it would appear that the citor is unopposed.
Under the provisions of Rule 22 of the Probate and Administration Rules, a citation may be
issued at the instance of any person who would himself be entitled to a grant (as per section
66 of the law of succession act) in the event of the person cited renounces his right thereto.”
26) If Kwality is to fail to enter appearance to accept or refuse to take a grant, Urembo as the
citor is unopposed and can apply for grant. This is pursuant to Rule 22(5), (a) of the Probate
and Administartion rules.

27) What we draw from the case above is that; in intestacy, a person entitled to administer the
estate of the deceased may be cited by the Court to accept or refuse a grant of letters of
administration, and if the person cited fails to appear upon being cited, the citor may proceed
to petition the court for grant. In this case, the citee responded to the citation and told the
Court that he was ready to petition the Court for grant of letters of administration intestate.
As such, the Court ordered the citee to petition the Court for grant of letters of administration
intestate to the deceased’s estate, and failure to do so would grant the citor the liberty to
petition for the said grant upon the expiry of the 60 days.
28) In this case, since there is no dispute as to who should apply for grants of representation, we
therefore advise Urembo, Imani or any other beneficiary to apply for a citation and serve it
on Kwality to either accept or refuse grant so that the process of administration of Timon’s
estate may begin.
29) Every citation shall be drawn by the applicant in one of the Forms 31 to 36 as appropriate
and settled by the registrar of the registry from which, upon payment of the prescribed fee, it
is to be issued.Every averment in a citation, and such other information as the registrar may
require, shall be verified by an affidavit in one of the Forms 20 to 24 as appropriate sworn by
the citor or, if there are two or more citors, by one of them; Provided that the registrar may in
special circumstances, for reasons to be recorded, accept an affidavit sworn by the citor’s
 advocate.( rule 21(1) and (2) of the probate and administration rules) The relevant forms to
be filled will be discussed later in this paper

II) WHAT HAPPENS WHEN A CITATION IS FILED AND OVERTAKEN BY

EVENTS
30) Where a citation is filled an taken over by events can be seen in In Re Estate of Priscila J.
Malel (Deceased) [2021] Eklr. In the above matter, Danny Sang who in this case can act as a
creditor filed for a citation whereby he cited Kennedy Malel. Judge Olga Sawe stated;

On whether this Citation has been overtaken by events, Rule 22(1) of the Probate and
administration Rules is explicit that: “A citation may be issued at the instance of any person who
would himself be entitled to a grant in the event of the person cited renouncing his right
thereto.”

[11] The citor has approached this Court in his capacity as a purchaser for value; and therefore
a creditor to the estate of the late Priscila J. Malel…. He is therefore not a dependant for
purposes of Section 29 of the Law of Succession Act. Moreover, as a creditor, he is not ranked in
parity with the citee or with any of the surviving children of the deceased; for Section 66 of the
Law of Succession Act provides that….

The citor made it clear that he took out the citation to compel the cite to petition for grant, Rule
22 aforementioned is clear as to who is entitled to file a citation; that person must be of equal or
the next in priority to the person cited. A creditor would therefore only fall in line after all the
other beneficiaries of the deceased and the Public Trustee have failed to take out a grant; and
even then, would in effect be offering himself and not a third party, as the administrator.

There is a second and more important reason why this Citation is misconceived, and it is this.
The parties are in agreement that Grant of Letters of Administration Intestate was indeed
applied for in respect of the estate of the deceased Priscila J. Malel. The petition was made in
Eldoret High Court Succession Cause No. 97 of 2006 by a daughter to the deceased, Esther
Chebet Malel who has since dieden then, would in effect be offering himself and not a third
party, as the administrator

31) The learned judge was also in support of Hon Gikonyo in Estate of Juma Yussuf (Deceased)
[2019] eKLR where the learned judge had stated;

…a citation is issued to take up or refuse grant of probate or letters of administration of the

estate. Once a cause has been filed in respect of the deceased, a citation is no longer necessary.
In this case, a cause was filed at Isiolo in which the rightful heirs and estate of the deceased
were identified and the estate distributed. Therefore, this citation became otiose. I so declare.
In the above scenario since a grant had already been issued and the estate fully administred, the
citation was no longer necessary.

III) WHAT ARE THE APPROPRIATE PROCEDURES.

a) PROCEDURE TO BE FOLLOWED.

What happens if the person entitled to apply for the grant fails to do so?

32) The relevant citation to apply for in our case would be a citation to accept or refuse or take a
grant. Found in rule 22(1) of the P&A rules.

A citation may be issued at the instance of any person who would himself be entitled to a
grant in the event of the person cited renouncing his right thereto.

33) As previously established above Urembo being a spouse will also be entitled to apply for a
grant of administration letters just as much as Kwality. It is likely that Urembo has the
capacity to apply for a citation to prompt Kwality to either accept or refuse or take a grant.
Any applicant may apply for the grant. This is done by drawing of a citation signed by the
registrar and supported by an affidavit. As per rule 21(1) (2)

1)Every citation shall be drawn by the applicant in one of the Forms 31 to 36 as appropriate
and settled by the registrar of the registry from which, upon payment of the prescribed fee, it is
to be issued.
 2)Every averment in a citation, and such other information as the registrar may require, shall
be verified by an affidavit in one of the Forms 20 to 24 as appropriate sworn by the citor or, if
there are two or more citors, by one of them:Provided that the registrar may in special
circumstances, for reasons to be recorded, accept an affidavit sworn by the citor’s advocate

34) In our case at hand as established the will is not valid making the deceased intestate. The
relevant forms to fill where the deceased died intestate is form 32(citation to accept or
refuse letters of administration intestate) and the supporting affidavit can be found in form
20 (affidavit in verification of proposed citation to accept or refuse letters of
administration intestate). In order to initiate the process of citation UREMBO will need to
fill in these relevant forms and submit them to the registrar. Upon receiving these forms the
registrar will sign and seal the documents and the citor is to be served with copies of the
documents that have been signed and sealed by the registrar. This means that Urembo will
have to serve Kwality personally or as per the instructions of the registrar as seen in rule
21(3) ofthe P&A rules

Every citation shall be served on the person cited either personally or by acknowledged
registered post unless the registrar directs some other mode of service, which may
include notice by advertisement.

35) In the case of Estate of Sukhlal s/o madhulal (deceased) 1949 (23)(2) KLR 56 it was held
that whenever a party is entitled to be cited the citation must be directed to the citee and
served upon him personally.
36) Once served with the forms, Kwality will have 15 days to enter an appearance either at the
principal registry or the Mombasa registry as seen in rule 21(5) of the P&A

A person who has been cited to appear may, within fifteen days of service of the citation
upon him, inclusive of the day of such service, or at any time thereafter if no application
has been made by the citor under rule 22(5) or rule 23(2), enter an appearance either in
the principal registry or in the Mombasa registry by filing Form 27 and shall forthwith
thereafter serve on the citor a copy of that Form sealed with the seal of the registry:
 Provided that the registrar may in any case at the time of issue of the citation increase
the period of fifteen days to such period as he thinks fit.

37) This is clearly illustrated in In Maamun bin Rashid bin Salim El-Rumhy v Haider Mohamed
bin Rashid El-Basamy [1963] EA 438, Pelly Murphy J stated that;

……Any person who has an interest in having an estate administered may apply for a grant of
representation, but if there are persons who have a superior right to obtain the grant, the
applicant must cite them calling upon them to apply for the grant. If the person cited fails to
apply for a grant or renounce his right to it, the grant may be given to the citor.

38) Failure to make or enter an appearance by the citee (Kwality) and the time allocated expires
then the citor (Urembo) may petition the court that the grant be made to her. Alternatively,
summons can be taken out or notices to the person cited (Kwality) be made or orders
requiring Kwality to take out the grant. This is as seen in rule 22(5)(a)

If the time limited for appearance has expired and the person cited has not entered an
appearance in either the principal registry or the Mombasa registry, the citor may—(a)in
the case of a citation under subrule (1), petition the court (if he has not already done so)
for a grant to himself;

39) Kwality could also be cited had she intermeddled with the estate before application of grant
letters. This is when she makes a disposition before applying for letters of administration. As
per rule 22(3)
A citation in Form 35 calling on an executor who has intermeddled in the estate of the
deceased to show cause why he should not be ordered to take a grant may be issued at the
instance of any person interested in the estate at any time after the expiration of three
months from the death of the deceased:Provided that no citation to take a grant shall issue
while proceedings as to the validity of the will are pending.
40) This was clearly explain by Musyoka, J in the case of In the matter of the estate of Veronica
Njoki Wakagoto (Deceased) [2013] eKLR stated that:

The property of a dead person cannot be lawfully dealt with by anybody unless such
person is authorized to do so by the law. Such authority emanates from a grant of
 representation, and any person who handles estate property without authority is guilty of
intermeddling. The law takes a very serious view of intermeddling and makes it a
criminal offence

NOTE

If there was a valid will the procedure of citation will be the same and the only change will be
the forms filled by the citor. The relevant forms for the process of citation in testate succession is
form 31(citation to accept or refuse probate) with a supporting affidavit to be filled which can
be found as form 21(affidavit in verification of proposed citation to accept or refuse probate.

Where a citee has intermeddled with the estate of deceased before grant of administration letter
the relevant forms to fill include Form 35 (citation against executor who has intermeddled)
and a supporting affidavit as form 22(affidavit in verification of proposed citation to an
intermeddling executor to accept probate)

Where a citation is to be issued for propounding a document as a will the relevant forms to fill is
form 33(citation to propound document as a will) together with a supporting affidavit found in
form 23(affidavit in verification of proposed citation to propound a document as a will)

If the citer is a secured creditor trying to enforce his/her right against the deceased estate then the
relevant forms to fill include a supporting affidavit found as form 24(affidavit of creditor in
verification of proposed citation where no known kin of intestate)together with form
36(citation by creditor where deceased had no known relatives)
 b) Relevant Citation Forms.
I. Intestate.

FORM 32(r. 21)

CITATION TO ACCEPT OR REFUSE LETTERS OF ADMINISTRATION INTESTATE

In the Matter of the Estate of Timon (Deceased).

To: KWALITY,
P.O BOX 167
MANDERA.

WHEREAS it appears by the affidavit of Urembo sworn on the 11th day of March, 2023, that the
above-named Timon (deceased) of P.O BOX 358, Langata died on the 10th day of February,
2022, intestate leaving you the said Kwality his wife and one of the persons entitled to share in
his estate:
AND WHEREAS it further appears by the said affidavit that the said Urembo is also a wife to
the deceased and also one of the persons entitled to share in his estate:
NOW this is to direct that you the said Kwality do within fifteen days after service hereof on you
(inclusive of the date of such service) cause an appearance to be entered for you either in the
principal registry or in the Mombasa registry and accept or refuse letters of administration of all
the estate which by law devolves to and vests in the personal representative of the deceased or
show cause why the same should not be granted to the said Urembo.
AND TAKE NOTICE that in default of your so appearing and accepting and extracting letters of
administration this Court may proceed to grant letters of administration of the said estate to the
said Urembo your absence notwithstanding.
Dated the 11th day March, 2023.
.................................
District Registrar
Extracted by –
Melvin Ndirangu
c/o Tenacity & Company Advocates,
P.O BOX 427,
Langata.
FORM 20(r. 21(2))

AFFIDAVIT IN VERIFICATION OF PROPOSED CITATION TO ACCEPT OR

REFUSE LETTERS OF ADMINISTRATION INTESTATE

In the Matter of the Estate of Timon (Deceased).

I, Urembo of Langata P.O BOX 358 aged over 18 years make oath and say as follows: -
1. Timon, the above-named deceased, died on the 11oth day of February intestate leaving
Kwality of P.O BOX 167, Mandera and wife of the deceased surviving him but no person
entitled by virtue of any enactment in priority to the said Kwality to share with him his estate.
2. The said Kwality has not taken out letters of administration of the estate of the deceased.
3. I am also a wife of the deceased and I am desirous of obtaining letters of administration of the
deceased.
4. The facts herein deposed to are known to me of my personal knowledge.
.................................................................................................
.................................................................................................
Jurat and address for service -
Sworn by the said Urembo at Langata on this 11th day of March, 2023, before me.
............................................
Commissioner for Oaths
(or other swearing officer)

Filed by 
Melvin Ndirangu
c/o Tenacity and Company Advocates,
P.O BOX 427,
Langata.
For:
Urembo,
P.O BOX 358,
Langata.

II. Testate.

If this were testste succession, the relevant forms to be cited are;

FORM 31(r.21)

CITATION TO ACCEPT OR REFUSE PROBATE

In the Matter of the Estate of Timon (Deceased).

To: KWALITY,
P.O BOX 167
MANDERA
WHEREAS it appears by the affidavit of Urembo of P.O BOX 358 Langata sworn the 13th day of
March, 2023, that the above-named Timon of P.O BOX 358 Langata died on the 10th day of
February, 2022, having made and duly executed his last will dated the , 2nd of January, 2022,
wherein he appointed you the said Kwality to be sole executor thereof but did not name therein
any residuary legatee.
AND WHEREAS it further appears by the said affidavit that the said Urembo is the lawful wife
of the deceased and one of the persons entitled to share in his undisposed of estate:
Now this is to direct that you the said Kwality within fifteen days after service hereof on you
(inclusive of the day of such service) do cause an appearance to be entered for you either in the
principal registry or in the Mombasa registry and accept or refuse probate of the said will (and
codicil) or show cause why letters of administration with the said will (and codicil) annexed of
all the estate which by law devolves to and vests in the personal representative of the deceased
should not be granted to the said Urembo.
AND TAKE NOTICE that in default of your so appearing and accepting and extracting probate
of the said will (and codicil) this court may proceed to grant letters of administration with the
said will (and codicil) annexed of the said estate to the said Urembo, your absence
notwithstanding.
Dated the 11th day of March, 2023.
.......................................
District Registrar
Extracted by
Melvin Ndirangu,
c/o Tenacity and Company Advocates,
P.O BOX 427,
Langata.

FORM 21(r. 21(2))

AFFIDAVIT IN VERIFICATION OF PROPOSED CITATION TO ACCEPT OR

REFUSE PROBATE

In the Matter of the Estate of Timon (Deceased).

I, Urembo, of Langata P.O BOX 358 aged above 18 years make oath and say as follows:-
1. Timon the above-named deceased, died on the 10th day of February, 2022 at Langata having
on 2nd day of January made and duly executed his last will and testament and thereof
appointed (names and addresses) KWALITY to be the sole executor (or executors).
3. Neither probate of the said will nor a grant of letters of administration with the said will
annexed has been taken out by any person.
3. The deceased did not in his said will appoint any residuary legatee and I am a wife of the
deceased and entitled to share in his estate and I desire to obtain letters of administration with
the said will annexed to the estate of the deceased.
4. . The facts herein deposed to are known to me of my personal knowledge.
Jurat and address for service -
Sworn by the said Urembo at Langata on this 11th day of March, 2023, before me.
............................................
Commissioner for Oaths
(or other swearing officer)

Filed by
 Melvin Ndirangu
c/o Tenacity and Company Advocates,
P.O BOX 427,
Langata.
For:
Urembo,
P.O BOX 358,
Langata.
OTHER FORMS.

FORM 22
(r. 21(2))
AFFIDAVIT IN VERIFICATION OF PROPOSED CITATION TO AN
INTERMEDDLING EXECUTOR TO ACCEPT PROBATE
(Heading as in Form 1)
I, CD, of (as in Form 2) make oath and say as follows: -
1. AB the above-named deceased, died on (date and place) ............................... having made
and duly executed his last will and testament bearing the date the .......................... , 20 ........ ,
whereof he appointed EF sole executor and this deponent residuary legatee (or as the case
may be).
2. More than six calendar months have elapsed since the date of the death of the deceased and
no proceedings concerning the validity of his said will are pending.
3. The said EF has neglected to prove the said will but has intermeddled in the estate of the
deceased by collecting rents owing to the deceased (or as the case may be, specific instances
being set out):
.................................................................................................
................................................................................................
4. I am desirous of compelling the said EF to take probate of the said will.

5. The facts herein deposed (continue as in Form 2).

Sworn, etc. (as in Form 2).
 FORM 23
(rr. 21(2), 23(1))
AFFIDAVIT IN VERIFICATION OF PROPOSED CITATION TO
PROPOUND A DOCUMENT AS A WILL
(Heading as in Form 1)
I, CD, of (as in Form 2) make oath and say as follows: -
1. AB the above-named deceased, died on (date and place) ............having left a certain
document dated the ........................................ , 20 .............. , purporting to be a will wherein
he appointed EF of ............................ sole executor (or as the case may be).
2. I am desirous of issuing a citation against the said EF to propound the said will or document
should he think it in his interest so to do and that in default letters of administration of the
estate of the deceased as having died intestate be granted to me (or that in default letters of
administration with the said will annexed be granted to me).
3. The facts herein deposed (continue as in Form 2).
Sworn, etc. (as in Form 2).
FORM 24
(r. 21(2))
AFFIDAVIT OF CREDITOR IN VERIFICATION OF PROPOSED
CITATION WHERE NO KNOWN KIN OF INTESTATE
(Heading as in Form 1)
I, CD, of (as in Form 2) make oath and say as follows:-
1. AB the above-named deceased, died on (date and place).............. intestate without any
known spouse, issue, parent, grandparent, brother, sister, uncle or aunt of the whole or
half blood or their issue or any other person entitled in priority to share in his estate by
virtue of any enactment.
2. (Set out in detail the nature of the inquiries which have been made to trace the next of kin
of the deceased):
........................................................................................................
........................................................................................................
3. The deceased was at the time of his death justly and truly indebted to me in the sum of
Sh. ............... for (state nature of debt) .................................................. and no part of the
said sum has been since received by me or any person on my behalf but the whole thereof
still remains justly due and owing to me, and I hold no security whatever for the said sum
 or any part thereof (or as the case may be):
......................................................................................................
......................................................................................................
....................................................................................................
4. I believe that the gross value of the estate of the deceased is not less than
Sh. ......................
............................................................................................................
5. The facts herein deposed (continue as in Form 2).
Sworn, etc. (as in Form 2).

FORM 27
(r. 21(5))
ENTRY OF APPEARANCE TO CITATION
(Heading as in Form 1)
WHEREAS a citation dated the ............................., 20 .............., was served personally (or by
post) on EF of ..................in this matter on the ..............., 20 ...........
Now an appearance to such citation is hereby entered for the said EF whose address for
service is (state):
..................................................................................................
..................................................................................................
Dated the ............................., 20 ........
.......................................
EF (or advocate)
Filed by (as in Form 2).
FORM 33
(r. 21)
CITATION TO PROPOUND A DOCUMENT AS A WILL
(Heading as in Form 1)
To: EF of (address and description)
............................................
............................................
............................................
............................................
WHEREAS it appears by the affidavit of CD sworn the ................................, 20 ..........., that
the above-named AB of (address) ........................ died on the ................................., 20 .......,
leaving him surviving (set out names of persons entitled to his estate) ....................................
...............................................................................................................
.............................................................................................................
AND WHEREAS it further appears by the said affidavit that the said deceased left a certain
document purporting to be a will whereby he appointed you the said EF sole executor and
residuary legatee:
Now this is to direct you the said EF that within fifteen days after service hereof (inclusive of
the date of such service) you do cause an appearance to be entered for you either in the
principal registry or in the Mombasa registry and propound the said document as a will should
you think it is in your interest to do so, or show cause why letters of administration of all the
estate which by law devolves to and vests in the personal representative of the deceased
should not be granted to the said CD.
AND TAKE NOTICE that in default of your so doing this court may proceed to grant letters
of administration of the said estate to the said CD your absence notwithstanding.
Dated the .................................. 20 ..................
......................................
District Registrar
Extracted by-
CD (or his advocate)(address)

FORM 34
(r. 21)
CITATION TO EXECUTOR TO WHOM POWER RESERVED
(Heading as in Form 1)
To: EF of (address and description)
............................................
............................................
............................................
............................................
WHEREAS it appears by the affidavit of GH sworn the ............ day of ..........., 20 ......., that
probate of the will (and codicil) of the above-named AB
of (address)...................................................................................................................................
.......................... deceased was on the ..........................................., 20 ............, granted by this
court to CD one of the executors thereof, power being reserved to make a like grant to you the
other executor thereof:
AND WHEREAS it further appears by the said affidavit that the said CD died on
the .............................., 20 ........, leaving part of the estate of the deceased unadministered (or
as the case may be):
AND WHEREAS it further appears by the said affidavit that the said GH is one of the
residuary beneficiaries appointed by the said will (and codicil)
Now this is to direct that you the said EF within fifteen days after service hereof on you
(inclusive of the date of such service) do cause an appearance to be entered for you either in
the principal registry or in the Mombasa registry and accept or refuse probate of the said will
(and codicil).
AND TAKE NOTICE that in default of your so appearing and accepting and extracting
probate of the said will (and codicil) your rights as executor will wholly cease and the
representation to the said AB will devolve as if you had not been appointed executor.
Dated the .................................... 20 ..........
.................................
District Registrar
Extracted by -
CD (or his advocate)(address)

FORM 35
(rr. 21, 22(3))
CITATION AGAINST EXECUTOR WHO HAS INTERMEDDLED
(Heading as in Form 1)
To: EF of (address and description)
............................................
............................................
............................................
............................................
WHEREAS it appears by the affidavit of CD sworn the ..................................., 20 .........., that
the above-named AB of (address) .................................. died on the .........................., 20.......,
having made and duly executed his last will on the .................. 20 .........., (and codicil dated
the ..................., 20 ...., wherein he appointed you the said EF to be sole executor and that the
said CD is interested in the estate of the said deceased under the said will (and codicil):
AND WHEREAS it is alleged in the said affidavit that you the said EF have intermeddled in
the estate of the said deceased:
Now this is to direct that you the said EF within fifteen days after service hereof on you
(inclusive of the date of such service) do cause an appearance to be entered for you either in
the principal registry or in the Mombasa registry and show cause why you should not be
ordered to take probate of the said will (and codicil) under pain of the law and contempt
thereof.
Dated the .................................... 20 ..........
.................................
District Registrar
Extracted by -
CD (or his advocate)(address)

FORM 36
(r. 21)
CITATION BY CREDITOR WHERE DECEASED HAD NO KNOWN
RELATIVES
(Heading as in Form 1)
To: The relatives (if any) who are entitled to share and all other persons having or claiming
any interest in the above estate:
WHEREAS it appears by the affidavit of CD sworn the ........................., 20 ................., that
the above-named AB died on the ......................................, 20 ................, intestate leaving him
surviving no spouse, issue, parent, brother or sister of the whole or half blood or any known
relative of remoter consanguinity and that the said CD is a creditor of the said deceased (or as
the case may be):
Now this is to direct that within ................................ *days after service hereof on you by
publication (inclusive of the day of such service) you do cause an appearance to be entered for
you either in the principal registry or in the Mombasa registry and accept or refuse letters of
administration of all the estate which by law devolves to and vests in the personal
representative of the said deceased or show cause why the same should not be granted to the
said CD.
AND TAKE NOTICE that in default of your so appearing and accepting and extracting letters
of administration as aforesaid this court may proceed to grant letters of administration of the
said estate to the said CD your absence notwithstanding.
Dated the ..................................., 20 ............
.................................
District Registrar
Extracted by-
CD (or his advocate) (address)
* Where the deceased had no known relatives the period fixed is normally not less than 42
days.