In a significant ruling, the High Court has reaffirmed that creditors are not barred from executing against the movable assets of an unconfirmed estate. The decision in Patricks Law Associates v Joyce Wangechi Ruga (Sued as the Co-Administrator of the Estate of Ruga Gituku) clarifies the extent to which estate property may be used to satisfy lawful debts before confirmation of grant.
The most significant aspect of the
decision concerns execution against an unconfirmed estate. Rejecting the
argument that execution would amount to unlawful intermeddling, the Court held
that Section 86 of the Law of Succession Act requires the debts of a deceased
person to be settled before distribution to beneficiaries. The Court emphasized
that while Section 82(b)(ii) prohibits the sale of immovable property before confirmation of the grant, the
restriction does not extend to movable
assets. Consequently, a decree-holder may lawfully execute against
movable property belonging to the estate even where the grant has not been
confirmed.
In reaching this conclusion, the Court
relied on Moi & another v Joshua Kipkemoi Mutai [2023] KEHC 1265
(KLR), which similarly permitted execution against movable estate assets,
including motor vehicles and livestock, notwithstanding pending succession
proceedings. The Court also observed that execution carried out pursuant to a
court order under the Civil Procedure Act is an act authorized by law and
therefore does not amount to intermeddling with the estate.
The Court ultimately authorized
execution against the movable assets of the Estate of Ruga Gituku while
staying execution against immovable assets pending confirmation of the
grant.
Prepared
by:
PATRICKS LAW ASSOCIATES
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article is provided free of charge for information purposes only; it does not
constitute legal advice and should be relied on as such. No responsibility for
the accuracy and/or correctness of the information and commentary as set in the
article should be held without seeking specific legal advice on the subject
matter. If you have any query regarding the same, please do not hesitate to
contact on info@plasslaw.com or 0700 753 748
Written
by Bridget Inyanje
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