https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11391

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **FAMILY DIVISION** **SUCESSION CAUSE NO. 704 OF 2019** **IN THE MATTER OF THE ESTATE OF JAMES KASYULA MUTUA (DECEASED)** **MOSES WAMBUA MUTUA …………… BENEFICIARY/APPLICANT** **VERSUS** **JOHN KIOKO MUTUA ………… ADMINISTRATOR/RESPONDENT** **ADMINISTRATORS OF THE** **ESTATE OF SERAH NZEMBI** **NZYOKA (DECEASED) ……………. BENEFICIARY/ RESPONDENT** **ADMINISTRATORS OF THE** **ESTATE OF SIMON MUTUKU** **MUTUA (DECEASED) ……............ BENEFICIARY/ RESPONDENT** **PETER MWEU MUTUA …….………. BENEFICIARY/RESPONDENT** **JESSE KASYULA MUTUA …….…… BENEFICIARY/RESPONDENT** **RULING** 1. Before this Court for determination is Summons for appointment of administrator in the eventuality of removal of incumbent dated **7th May 2026** and brought pursuant to Sections 51 and 66 of the Law of Succession Act and Rule 49 of the Probate and Administration Rules, in which the Applicant seeks the following orders: * 1. **Spent;** 2. **In the Event that the Grant of Letters of Administration issued to John Kioko Mutua in respect of Deceased Estate on 22nd October 2019 and confirmed on 5th February 2020 be revoked and/or annulled with the result that the said Administrator is removed, this Honourable Court be pleased to appoint Moses Wambua Mutua as administrator of the Estate.** 3. **That the costs of this application be in cause.** 2. The Applicant, Moses Wambua Mutua, through his Affidavit dated **7th May 2026**, contends that the current administrator, John Kioko Mutua, who is his elder brother, is facing applications for removal as an administrator of the estate. He asserts that, as a surviving son of the deceased, he enjoys priority for appointment as an administrator under **Section 66** of the Law of Succession Act, ranking ahead of the other applicants, namely **Jesse Kasyula Mutua**, **Tracy Timaye Masinde**, and **Ruby Mwikali Mutuku**, who are grandchildren of the deceased. 3. The Applicant therefore urges the Court that, should it remove the current administrator, he ought to be appointed as his replacement in view of his superior statutory priority. 4. The application is unopposed, the only response initially filed by Tracy Timaye Masinde and Ruby Mwikali Mutuku having been withdrawn through a **Notice of Withdrawal** dated 3rd July 2026, leaving the application uncontested. **ISSUES FOR DETERMINATION** 5. I have considered the application, the affidavit in support thereof. In my view, the only issue that falls for determination is whether the Applicant, Moses Wambua Mutua, has demonstrated that he is entitled, by virtue of Section 66 of the Law of Succession Act, to be appointed as administrator of the estate in priority to the other proposed administrators, should the current administrator be removed. **ANALYSIS AND DETERMINATION** 6. **Section 66** of the Law of Succession Act sets out the Order of priority to be applied in issuing letters of Administration to an estate as follows; - ***“When a deceased has died intestate the court shall serve 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 interest of all concerned be made but shall, without prejudice to that discretion, accept as a general guide, the following order of preference: -*** 1. ***Surviving spouse or spouses, with or without association of other beneficiaries.*** 2. ***Other beneficiaries entitled on intestacy with priority according to their respective beneficial interests as provided by Part V.*** ***(c) the Public Trustee; and*** 1. ***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.”*** 7. From a clear reading Section 66 provides that in cases where a Deceased dies intestate, priority in granting letters of Administration will go to the surviving spouse or spouses and the children of the Deceased. 8. In view of the foregoing, I find that the Applicant, as a surviving child of the deceased, ranks in priority under Section 66 of the Law of Succession Act and has the requisite locus standi to seek appointment as an administrator. There being no opposition to the Application, I find it meritorious and accordingly allow prayer 2 of the Application. 9. The Applicant acknowledges that similar applications seeking the removal of the current administrator and the appointment of new administrators were previously filed by Jesse Kasyula Mutua vide the application dated 20th January 2026, and by Tracy Timaye Masinde and Ruby Mwikali Mutuku vide the application dated 16th March 2026. 10. Elsewhere vide the ruling in the application dated 20th January 2026 this court revoked the grant issued to the respondent John Kioko Mutua. 11. In order to avoid the issuance of conflicting or duplicative orders arising from the applications dated **20th January 2026, 16th March 2026,** and the present application, this Court directs that, **with effect from the date of this ruling**, John Kioko Mutua shall cease to be an administrator of the Estate of James Kasyula Mutua (Deceased), his appointment having been revoked. 12. **Consequently, it is directed that:** **(a) Jesse Kasyula Mutua, Tracy Timaye Masinde, and Moses Wambua Mutua are hereby appointed as the administrators of the estate and shall jointly undertake the administration thereof in accordance with the provisions of the Law of Succession Act and the Probate and Administration Rules.** **(b) The grant issued to John Kioko Mutua dated 22nd October 2019 is hereby revoked and fresh one issued as per (a) above.** **(c)** **This being a family matter each side will bear its own costs.** **Dated signed and delivered via video link at Nairobi this** **23rd day of July, 2026.** **H.K. CHEMITEI** **JUDGE, FCIArb.**