Confirmation of Grant: Overcoming a Protest and Finally Distributing the Estate

Obtaining a grant of letters of administration is only the halfway point in succession. The administrator cannot distribute the estate, and beneficiaries cannot register land in their names, until the grant is confirmed. Confirmation is also the stage at which disputes most often surface, usually through a protest.

What confirmation involves. Under section 71 of the Law of Succession Act, the administrator applies to confirm the grant, generally after six months from its issue. The application sets out the proposed distribution. The court must be satisfied that all dependants and beneficiaries are identified, that their shares are properly worked out, and that the administrator has properly administered the estate.

Protests. A person who objects to the proposed distribution may file an affidavit of protest. Typical grounds are that a beneficiary has been left out, that a share is unfair, or that a particular asset is not estate property. The court then hears the protest, usually through affidavit evidence and sometimes oral evidence, before ruling.

How protests are defeated. A protest succeeds or fails on evidence. Petitioners who prepare well usually show:

• a complete list of beneficiaries, with consents where obtainable;
• documentary proof of the estate's assets and their ownership;
• a distribution that follows the Act, or the deceased's wishes where there is a valid will; and
• answers to each specific allegation in the protest.

After confirmation. Once the grant is confirmed, the administrator extracts the certificate of confirmation. This is the document land registries, banks and other institutions require before transferring assets to beneficiaries. The administrator must then complete distribution and account for the estate.

Takeaways. Disclose all beneficiaries from the start, because hidden heirs are the commonest cause of protests and later revocation applications. Keep the paperwork on every asset in order. After confirmation, move promptly to transmit assets, since delay invites fresh disputes.

When a Customer Sues Your Business for Defamation, and the Case Moves to the High Court

 Businesses deal with difficult customers every day. Occasionally a dispute over a sale, a repair or an unpaid bill escalates into a defamation claim. The customer alleges that something said about them by staff, on a notice board or online damaged their reputation. These cases can run for years, through the trial court and then the High Court.

What a claimant must prove. A claimant must show that the words were defamatory, that they referred to the claimant, and that they were published to at least one third party. Words spoken between the business and the customer alone are not "published".

Defences available to businesses.

• Truth (justification): if the statement is substantially true, the claim fails.
• Qualified privilege: statements made in good faith to someone with a legitimate interest in receiving them, such as a report to the police or an insurer, are protected unless made with malice.
• Honest opinion (fair comment): a genuine opinion on a matter of public interest, based on true facts.
• No publication or no identification: often the simplest point, and one that is frequently overlooked.

The appeal stage. After judgment in the Magistrates' Court, the dissatisfied party has thirty days under section 79G of the Civil Procedure Act to appeal to the High Court. The High Court may extend time, but only on good reasons. Parties also commonly apply for a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. The applicant must show substantial loss, apply without unreasonable delay and offer security. Many High Court battles are fought over these applications before the appeal itself is heard.

How we defend businesses. We test whether there was publication and identification at all. We marshal the evidence supporting truth or privilege. At the appeal stage, we hold the other side strictly to the timelines and to the conditions for extension or stay.

Takeaways. Train staff to handle disputes with customers privately and factually. Avoid naming customers on notices or social media. Keep records of what was said and to whom. If a claim arrives, take advice early, because defences depend heavily on evidence gathered at the start.

Your Contractor Took the Money and Walked Away: What Now?

 Small business owners regularly pay contractors to fit out a shop, salon, restaurant or office, only for the work to stall half-done. The deposit is spent, opening day keeps slipping, and the contractor stops answering calls. The law offers practical remedies, and the earlier they are used, the better.

The legal basis. A fit-out arrangement is a contract, whether written, sent by WhatsApp or agreed orally and backed by payments. A contractor who takes payment and fails to complete the agreed works within a reasonable time, or to the agreed standard, is in breach. The client may claim a refund of money paid for undone work, the extra cost of hiring someone else to finish, and losses that flow naturally from the delay.

Building your evidence. The strongest claims are built on records:

• the quotation, agreement or messages setting out the scope and price;
• receipts, bank transfers and M-Pesa statements showing payments;
• dated photographs and videos of the site at each stage;
• an independent assessment of the work done and the cost to complete; and
• messages in which the contractor promised to return or admitted delay.

The demand letter. A formal demand from an advocate sets out the breach and the sum due, and gives a deadline to pay or complete. Many disputes end here, because contractors realise the client is serious. The demand also matters later, since courts look at whether the defendant was given a fair chance before suit.

If the demand is ignored. Claims of up to KES 1 million can go to the Small Claims Court, which must decide within sixty days. Larger claims go to the Magistrates' Court. The court can award a refund, damages, interest and costs.

Takeaways. Before work starts, insist on a written scope, a timeline and payment in stages tied to progress. Never pay most of the price upfront. If work stalls, document everything immediately and seek advice early. A demand letter costs far less than months of a closed business.

"We've Refunded You, So Why Pay Costs?" Why Late Payment Doesn't Erase Legal Costs

 A familiar pattern: a consumer pays for a product or service, the supplier fails to deliver, a demand letter is ignored, and suit is filed. Only then does the supplier offer a refund, but it refuses to pay the costs the customer incurred to get there.

The general rule. Section 27 of the Civil Procedure Act gives courts discretion over costs. The settled principle is that costs follow the event: the successful party is ordinarily entitled to them unless there is good reason to order otherwise. A defendant who pays only after being sued has, in substance, conceded the claim.

Why costs matter. Without costs, a wronged customer ends up out of pocket for legal fees, filing fees and the time spent chasing a refund that was owed from the start. Courts recognise that a party should not be penalised for enforcing a right the other side ignored. Where a valid demand was ignored and suit became necessary, a later refund does not by itself justify denying costs.

How we handle a late refund.

• Accept the principal refund without prejudice to the claim for costs and interest.
• Show the timeline: the payment, the failed delivery, the demand letter, the silence, the suit, and only then the refund.
• Ask the court to enter judgment for costs, and interest where appropriate, or to record a settlement that includes them.
• Resist attempts to treat the refund as full and final settlement unless costs are agreed.

Lessons for consumers. Keep receipts, contracts and every message with the supplier. Send a clear written demand before suing, since it is strong evidence when costs are argued. Do not sign a "full and final settlement" note that is silent on costs.

Lessons for businesses. If a refund is owed, pay it when the demand letter arrives. Waiting for a lawsuit nearly always costs more than the refund itself.

Criminal Revision: Not a Second Appeal, and the Complainant Still Has a Voice

An accused person sometimes asks the High Court to "revise" a magistrate's decision before the trial has ended. For the complainant, often the person who reported the crime, this can feel like the case is being derailed. Understanding what revision is, and is not, helps victims protect their interests.

What revision is. Article 165(6) and (7) of the Constitution gives the High Court supervisory jurisdiction over subordinate courts. Sections 362 to 364 of the Criminal Procedure Code allow the High Court to call for a lower court's record. It checks whether any finding, sentence or order is correct, legal and proper, and whether the proceedings were regular.

What revision is not. Revision is not an appeal by another name. It is meant to correct clear errors of law, illegality or impropriety. It is not a vehicle to re-argue evidence, delay a trial, or obtain a ruling that should await the end of the case. Courts have repeatedly declined revision applications that are, in substance, appeals against interlocutory rulings.

The complainant's place. The prosecution is conducted by the State, but complainants are not spectators. Article 50(9) of the Constitution and the Victim Protection Act, 2014 recognise victims' rights to be informed and to have their views and concerns heard where their personal interests are affected. Through an advocate, a complainant may seek to be heard and place relevant material before the court.

How we approach opposing a revision.

• Show that the order complained of is lawful and within the trial court's discretion.

• Point out where the application is really an appeal in disguise, or an attempt to stall the trial.

• Highlight any related civil or succession proceedings the applicant may be using the criminal process to influence.

• Ask the court to return the file promptly so the trial continues.

Takeaways. If you are a complainant and the accused files a revision, do not assume the matter is out of your hands. Engage an advocate to watch brief and, where appropriate, be heard. Timely participation can prevent unnecessary delay and keep the trial on course.

When Family Members Disagree: Who Can Collect Rent from an Inherited Property?

 When a parent dies leaving a rented building, the rent keeps coming in. Who has the right to collect it is often contested. A common flashpoint is one family member acting alone, for example by instructing auctioneers to levy distress against a tenant.

The estate comes first. Under the Law of Succession Act, a deceased person's property is managed by the personal representatives appointed by the court. Until there is a grant, nobody is entitled to deal with estate property on their own account. A person who takes, collects or disposes of estate assets without authority may be intermeddling, which section 45 of the Act makes an offence.

Co-landlords must act together. Where several people jointly hold the landlord's interest, the general rule is that they act jointly. One co-owner cannot, without the others' authority, terminate the tenancy, change the rent or seize a tenant's goods for arrears. Distress for rent under the Distress for Rent Act is a powerful remedy. It must be levied by the person entitled to the rent, through a licensed auctioneer and in strict compliance with the law.

The tenant's position. A tenant caught between feuding landlords risks paying twice. Business tenants in controlled tenancies can seek protection from the Business Premises Rent Tribunal, which can restrain an unlawful distress and give directions on who should receive rent.

How we approach these disputes.

• Establish who holds the grant and the authority to act for the estate.
• Challenge any unilateral distress before the Tribunal and seek preservation of the rent.
• Push for a transparent arrangement, such as an estate account, so rent is not lost to infighting.
• Coordinate the tenancy dispute with the succession proceedings so the two forums do not issue conflicting orders.

Takeaways. If you inherit rental property with siblings, obtain a grant early and agree in writing how rent will be collected and accounted for. If you are a tenant, ask for proof of authority before paying anyone new. Rent collected outside the estate's control is a frequent cause of years of litigation.

Sued in the Small Claims Court? A Business Owner's Guide to Responding

 

The Small Claims Court is fast, and that speed cuts both ways. A business served with a claim has little time to respond, and a weak response can mean judgment within weeks.

What the court is. The Small Claims Court was set up under the Small Claims Court Act, 2016. It hears civil claims of up to KES 1 million, including disputes over contracts for goods and services, money owed, and compensation for personal injury or damage to property. Its procedure is simple, and it is required to decide matters within sixty days of filing.

Why respondents get caught out. Many businesses assume a small claim is not worth serious attention. Because hearings are quick, there is rarely a second chance to fix a poor response. Documents not filed early may never be considered.

How we approach a defence.

• Check jurisdiction first. Is the claim within the monetary limit? Is it the type of dispute the court can hear? Was the right party sued? A claim filed in the wrong forum, or against the wrong entity, can be disposed of early.
• File a clear response on time. The response should answer each allegation and set out the business's version briefly, backed by documents.
• Gather the paper trail. Invoices, delivery notes, hire agreements, M-Pesa and bank records, emails and WhatsApp messages often decide these cases.
• Consider a counterclaim. If the claimant owes the business money, it may be raised in the same proceedings.
• Keep settlement open. The Act encourages amicable resolution, and a fair settlement can save time and reputation.

Takeaways for businesses. Treat every small claim as a real lawsuit. Keep your contracts and records organised, because in a sixty-day process the side with better documents usually wins. Get advice as soon as you are served, not on the eve of the hearing. Although parties may appear in person, an advocate can quickly spot jurisdictional and procedural points that end a weak claim early.