https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12497

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **HCFP&A NO.11 OF 2013** **IN THE MATTER OF THE ESTATE OF ERNEST KIMANI MBUGUA (DECEASED)** **RULING** **Introduction;** 1. Before this Court is the Summons dated 20th January 2026 brought by the applicant, Rita Wanja Kimani, a beneficiary of the estate of the deceased, pursuant to Sections 45 and 83 of the Law of Succession Act and Rule 49 of the Probate and Administration Rules. 2. The applicant principally seeks preservatory orders restraining the administrator from further dealing with the assets of the estate, an order compelling the administrator to render a full inventory and account of the estate, punishment of the administrator for alleged intermeddling, appointment of the applicant as administrator in place of the respondent, and costs. 3. The application is premised on the grounds set out on its face and is supported by the affidavit sworn by the applicant on 20th January 2026. 1. The applicant contends that although the grant of letters of administration was confirmed on 7th April 2014, the respondent has failed to complete the administration of the estate for over a decade, failed to account to the beneficiaries as required by law, and has unlawfully dealt with estate property to the detriment of the beneficiaries. It is specifically alleged that the respondent transferred Land Parcel No. NGERIA/KESSES BLOCK 5 (BAYETE)/28 to one Meshack Kipkemei Sabaki, notwithstanding that the confirmed grant required the property to be held in trust for the beneficiaries. 1. The record further shows that the respondent, Veronicah Wangare, was personally served with the application on 22nd January 2026, as evidenced by the Affidavit of Service sworn on 23rd February 2026. Despite such service, the respondent neither filed a replying affidavit, grounds of opposition nor written submissions. The application therefore proceeded unopposed. 2. The Court nevertheless bears the duty of independently evaluating the evidence before it. The mere fact that an application is unopposed does not automatically entitle an applicant to the orders sought. The applicant must still satisfy the Court that the reliefs sought are supported by the facts and the law. **Issues for Determination** 1. Having considered the application, the supporting affidavit, the annexures thereto and the submissions filed by the applicant, the issues falling for determination are: 2. Whether the respondent has failed to discharge the statutory duties imposed upon an administrator under the Law of Succession Act. 3. Whether the applicant has established a basis for preservatory orders. 1. Whether the respondent should be compelled to render inventories and accounts. 2. Whether sufficient grounds have been established for the removal or substitution of the administrator. 5. Whether the prayer seeking punishment for alleged intermeddling is merited. **Analysis and Determination;** 1. The office of a personal representative is a fiduciary office created by statute. Upon the issuance of a grant, the estate of the deceased vests in the personal representative by virtue of section 79 of the Law of Succession Act, not for the administrator's personal benefit, but for the purpose of administering the estate for the benefit of those lawfully entitled to it. The powers conferred by section 82 are therefore accompanied by the duties imposed under section 83, which collectively ensure transparency, accountability and the orderly administration of estates. 2. Of particular relevance in the present application are sections 83(g), (h) and (i) of the Act, which require a personal representative to complete administration within six months of confirmation of the grant, unless the Court otherwise directs, and, where called upon by the Court or by an interested party, to produce a full and accurate inventory of the assets and liabilities of the estate together with a complete account of all dealings therewith and of the completed administration. 3. These duties are mandatory. They are not left to the discretion of the administrator. 4. The legal position was succinctly stated in **In Re Estate of Julius Mimano (Deceased) [2019] KEHC 10103 (KLR)**where the Court observed that personal representatives derive their authority from the grant issued by the probate court and are accountable for every act undertaken in the administration of the estate. The Court emphasized that administrators exercise statutory powers on behalf of the estate and are therefore under a continuing obligation to account for every dealing with estate property. 5. Similarly, in **Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR**, the Court of Appeal affirmed that a personal representative derives authority solely from the grant of representation and must exercise that authority strictly in accordance with the Law of Succession Act. 6. In the present case, the grant was confirmed on 7th April 2014. More than twelve years have elapsed since confirmation of the grant. The respondent has not placed before the Court any evidence demonstrating that the administration has been completed, that distribution has been undertaken in accordance with the confirmed grant, or that inventories and accounts have ever been rendered. 7. Instead, the uncontroverted evidence before the Court is that one of the estate properties, namely **Land Parcel No. NGERIA/KESSES BLOCK 5 (BAYETE)/28**, was allegedly transferred to a third party. The respondent, despite having been duly served, has offered no explanation regarding that transaction, the prolonged delay in administration, or the failure to account. 8. While an unopposed application does not automatically succeed, uncontroverted evidence remains evidence upon which a court may properly act where it establishes a legal basis for the orders sought. In the absence of any rebuttal, I am satisfied that the applicant has established, on a balance of probabilities, that the respondent has failed to discharge the statutory obligations imposed under section 83 of the Law of Succession Act. 9. The Court's jurisdiction in succession matters does not end with the issuance or confirmation of a grant. The probate court retains a continuing supervisory jurisdiction over personal representatives to ensure that estates are preserved and administered faithfully, expeditiously and in accordance with the law. Where credible evidence is presented that estate assets are at risk of dissipation or that an administrator has failed to account, the Court not only has the power but also the duty to intervene for the protection of the estate and all beneficiaries. 10. I am therefore satisfied that the applicant has established sufficient grounds for preservatory orders restraining further dealings with the estate pending compliance with the statutory obligations imposed upon the respondent. 11. Likewise, the prayer seeking inventories and accounts is firmly grounded in section 83 of the Act. The obligation to account is one of the cardinal duties of a personal representative. It is intended to ensure openness in the administration of estates and to safeguard the interests of beneficiaries. Having found that no accounts have been rendered for more than twelve years after confirmation of the grant, I find that the applicant is entitled to orders compelling the respondent to render a full inventory and account of the estate and all dealings therewith. 12. The applicant further prays that she be appointed administrator in place of the respondent. Although the allegations against the respondent are serious, the removal or substitution of an administrator is a drastic remedy which ordinarily falls for consideration under section 76 of the Law of Succession Act, where the Court is invited to determine whether the grant ought to be revoked or annulled. In the present application, the Court considers that the interests of justice will be sufficiently served by preserving the estate and compelling the respondent to comply with her statutory obligations. Should she fail to comply with the orders issued herein, nothing shall prevent the applicant or any interested beneficiary from invoking section 76 of the Act and seeking appropriate consequential relief. 13. The applicant also seeks punishment of the respondent for alleged intermeddling. While the material before the Court raises legitimate concerns regarding the respondent's administration of the estate, it is important to distinguish between intermeddling as contemplated under section 45 of the Law of Succession Act and alleged misadministration by a duly appointed administrator. 14. The respondent derives authority from a valid grant. The complaint is therefore one of alleged breach of fiduciary duty and failure to discharge statutory obligations rather than unauthorized interference with the estate in the strict sense contemplated under section 45. In the circumstances, I am not persuaded that the evidence presently before the Court is sufficient to warrant punitive orders. **Disposition;** 1. The office of an administrator is one of trust and confidence. A personal representative is entrusted with extensive statutory powers, but those powers are inseparable from equally onerous duties. Estate property is not administered for the benefit of the administrator but for the benefit of all persons lawfully entitled thereto. 2. The Court will therefore not hesitate to intervene where an administrator fails to account, delays administration without lawful justification or conducts the administration of the estate in a manner inconsistent with the fiduciary obligations imposed by the Law of Succession Act. 3. In the result, I find that the application is merited only to the extent indicated above and I make the following orders: 4. A preservatory injunction is hereby issued restraining the respondent, Veronicah Wangare, whether by herself, her servants, agents or any person acting under her authority, from selling, transferring, charging, leasing, subdividing, wasting, alienating or in any other manner dealing with the assets comprising the estate of the deceased pending completion of the administration of the estate or until further orders of this Court. 1. Pursuant to section 83(h) and (i) of the Law of Succession Act, the respondent shall, within forty-five (45) days from the date hereof, file and serve: 2. a full and accurate inventory of all the assets and liabilities of the estate; 3. a full and accurate account of all dealings undertaken in respect of the estate from the date of confirmation of the grant; 4. a full and accurate account of the current status of the administration of the estate. 1. The respondent shall specifically account for the circumstances surrounding the transfer or other disposition of **Land Parcel No. NGERIA/KESSES BLOCK 5 (BAYETE)/28**, including all documents relating thereto. 2. The prayer seeking punishment of the respondent for alleged intermeddling is declined. 1. The prayer seeking appointment of the applicant as administrator in place of the respondent is declined, without prejudice to the applicant's right to institute appropriate proceedings under section 76 of the Law of Succession Act should the respondent fail to comply with the orders of this Court. 2. For the avoidance of doubt, failure by the respondent to comply with the foregoing orders within the stipulated period shall entitle any interested beneficiary to move this Court for such further or consequential orders as may be necessary for the due preservation and administration of the estate. 3. The respondent shall bear the costs of this application. It is so ordered. **Dated, Signed and Delivered Virtually at Eldoret this 29th day of July 2026.** **……………………………………** **J. CHIGITI (SC)** **JUDGE**