https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10685

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **FAMILY DIVISION** **MILIMANI LAW COURTS** **SUCCESSION CAUSE NO. 238 OF 1990** **IN THE MATTER OF THE ESTATE OF STEPHEN** **NDINGU`RI (DECEASED)** **BEATRICE WAITHIRA GACHAGWA &** **2 OTHERS ………………………………………………… APPLICANTS** **AND** **MARYANNE MUMBI GICHUKI ………………………….. OBJECTOR** **RULING** 1. Before me is an Application for summons for substitution dated **16th June 2023** brought under section 47 of Laws of Succession Act and Rule 73 of the Probate and Administration Rules. 2. **The applicant prays for orders that:** * 1. **Grant of letter of Administration Intestate was issued by this Honourable Court to Charles Njuguna on 7th May 1990 and confirmed on 22nd November 1990;** 2. **The said Charles Njuguna died before distributing the Estate of Stephen Ndingu`Ri (Deceased herein).** 3. **This Honourable Court be pleased to substitute Charles Njuguna (the Deceased Administrator) with the Applicants herein, namely Beatrice Waithira Gachagwa, James Michael Chege and Lilian Muteithia as the new administrators of the Estate of Stephen Ndingu`Ri (Deceased herein).** 3. The summons was accompanied by the supporting affidavit of Beatrice Waithira Gachagwa, James Michael Chege and Lilian Muteithia, for reasons that they are among the grandchildren and beneficiaries Estate of **Stephen Ndingu`Ri (Deceased herein).** 4. That the immediate previous administrator, Charles Njuguna (the Deceased Administrator), was a biological brother to their father, Samuel Gathuri Ndingu’ri (also deceased) and therefore their uncle. 5. They deponed thattheir father, Samuel Gathuri Ndingu'ri (deceased), passed away on 23rd July 1986, while their mother, Hilda Nyambura (also deceased), passed away on 20th September 2012. 6. Prior to her death Hilda Nyambura filed an application dated 11th September 1991 before this Honourable Court seeking the revocation of the Grant of Letters of Administration issued to her brother-in-law, Charles Njuguna (the Deceased Administrator), on the grounds of fraud and concealment of material facts. 7. The deaths of the immediate previous administrator, who died before the distribution of the Estate of Stephen Ndingu'ri (deceased herein), and of their mother, who was the objector to the Grant issued to the said immediate previous administrator, have necessitated the filing of the present application for substitution in this cause. 8. They also depose that the late Stephen Ndingu'ri (deceased herein) died on 10th September 1977 and to date his estate has not been distributed to its rightful heirs.The surviving beneficiaries of the Estate of Stephen Ndingu'ri (deceased herein), are listed below as:- * + 1. Ann Wanjiku Samuel – ID No. 3072058 – Granddaughter. 2. Frederick Maina Gathuri – ID No. 0461660 – Grandson. 3. Catherine Wangui Kuria – ID No. 0732770 – Granddaughter. 4. Susan Wanjiku Samuel – ID No. 244826 – Granddaughter. 5. Lucy Wangari Gathuri – ID No. 2887644 – Granddaughter. 6. Grace Wairimu Samuel – ID No. 7339381 – Granddaughter. 7. Irene Nyambura Samuel – ID No. 22665960 – Granddaughter. 9. That further, in compliance with the Orders of this Honourable Court dated 27th January 2020, they cited their cousins, being the surviving children of their late uncle, Charles Njuguna (the Deceased Administrator), requiring them to join them in this application to substitute their late father as the administrator of the Estate of their common grandfather, Stephen Ndingu'ri (deceased herein). They, however, declined and/or refused to join in the application. 10. That this Honourable Court should further note that the wife of their late uncle, Charles Njuguna (the Deceased Administrator), namely Nyagithua Njuguna (also deceased), was already deceased when the necessity for the present application arose. 11. Accordingly, they pray that the orders sought be granted in the interest of justice and fair play. 12. In responding to the Application herein, Maryanne Mumbi Gichuki (hereinafter "**the Protestor**") filed a Replying Affidavit dated 4th October 2024, opposing the Summons for Substitution. The Protestor deposed that she is the registered proprietor of land parcel No. **LOC.2/Kinyona/217**(hereinafter referred to as “**the suit property**”) having acquired the same through transmission from the estate of her late husband. She contended that the said parcel does not form part of the Estate of Stephen Ndingu'ri (deceased). 13. The Protestor further deposed that her late husband purchased the suit property from the former administrator of the estate, Charles Njuguna (the Deceased Administrator), following the confirmation of the Grant. 14. She relied on the Judgment in **Murang'a Environment and Land Court Case No. 20 of 2017** (formerly Kerugoya ELC Case No. 824 of 2013), wherein the Court declared her late husband to be the lawful proprietor of the suit property. 15. The Protestor further deposed that, following the death of her husband, she obtained a Grant of Letters of Administration in respect of his estate, pursuant to which land parcel No. **LOC.2/Kinyona/217** was transmitted to her. She opposed the present application on the ground that it may adversely affect her proprietary interest in the said parcel of land. **ISSUES FOR DETERMINATION** 16. I have considered the Application, the Affidavit in support thereof, the Further Affidavit in Support thereof dated 25th November 2024, and the Affidavit in Protest. 17. In my view, the following issues arise for determination: a. Whether the Applicants have established sufficient grounds for the substitution of the deceased administrator, Charles Njuguna (the Deceased Administrator). 1. Whether the Protestor's claim to land parcel No. **LOC.2/Kinyona/217** constitutes a valid ground for opposing the application for substitution. 2. Who should bear the costs of the application. **ANALYSIS AND DETERMINATION** 18. The Application is premised on **section 47 of the Law of Succession Act.** Section 47 of the Actprovides as follows: ***“47. Jurisdiction of High Court*** ***The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient: Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.”*** 19. Section 29 of the Actprovides as follows: “29***. Meaning of dependant*** ***For the purposes of this Part, “dependant” means—*** 1. ***the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;*** 2. ***such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and*** 3. ***where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”*** 20. Based of Section 29 above, it is clear that the Applicants herein are dependents of the Estate of Stephen Ndingu'ri (deceased) by virtue of being grandchildren. 21. From the evidence on record, there is no doubt that a Grant of Letters of Administration Intestate was issued to Charles Njuguna (the deceased administrator) on 7th May 1990 and was subsequently confirmed on 22nd November 1990. 22. The record further shows that, by a Ruling delivered on 29th July 2011, this Court granted Hilda Nyambura (deceased objector) leave to prosecute her application for revocation of the Grant issued to Charles Njuguna. 23. The evidence further shows that Charles Njuguna (the deceased administrator) died on 26th February 2003. It also shows that his surviving children, namely Njiri Kihonge Njuguna, Stephen Maina Njuguna, Samuel Gathee Njuguna and Hannah Wanjiku Njuguna, were cited through the Office of the Deputy Commissioner, Naivasha, by Citations dated 21st December 2021. There is no evidence on record to show that any of them accepted or responded to the Citations. 24. In **Re Estate of George Ragui Karanja (Deceased) [2016] eKLR**, the court (W. Musyoka J.) restated that: ***“The***[***Law of Succession Act***](https://kenyalaw.org/akn/ke/act/1972/14)***does not expressly provide for substitution of personal representatives who die in office, particularly in cases where the estate is left without one. The closest provision is section 81 of the Act, which provides for vesting of the powers and duties of personal representatives in the survivor or survivors of a dead personal representative.”*** 25. This court therefore finds that the Law of Succession Act does not permit the substitution of the deceased administrator. That the death of the administrator leaves no valid grant in existence capable of confirmation or further administration. 26. In **re Estate of Shadrack Githinji Njaruiri (Deceased) [2021] KEHC 1017 (KLR)** the court stated as follows: ***“12. As such, I agree with the respondents that there cannot be a substitution of the dead administrator (Joyce Kanini) by her daughter in the manner proposed by the applicant.”*** 27. **In re Estate of Seif (Deceased) [2026] KEHC 4226 (KLR),** the Court reiterated as follows: ***“26.I agree with counsel for the applicant that what the respondent did was to apply to substitute a deceased trustee/administrator. This is not permissible. I agree with the holding in Julia Mutune M’mboroki v John Mugambi M’mboroki, [Gikundi M’mboroki, Linet Nthiori Ndingu & Naomi Gatimba](https://kenyalaw.org/akn/ke/judgment/kehc/2016/7023%22%20%5Ct%20%22_blank) [2016] KEHC 7023 (KLR) that: ‘I also think it is worth mentioning that the***[***Law of Succession Act***](https://kenyalaw.org/akn/ke/judgment/keca/1989/48)***does not talk of substitution of administrator; it provides for making of a grant to another person or persons after revocation of grant or on the death of the administrator or on renunciation of right to apply or executorship, etc. A classic example is section 81 of the Law of Succession Act, where there is a continuing trust, a further grant to one or more persons has to be made by the court. There is absolutely no room of substitution of the deceased administrator under the***[***Law of Succession Act***](https://kenyalaw.org/akn/ke/judgment/keca/1989/48)***. In my view, therefore, where the sole administrator is a natural person, and he or she dies, the grant becomes useless or inoperative by reason of subsequent event of his demise. I am aware that the Law of Succession Act does not define or say what constitutes ‘’the grant has become useless and inoperative through subsequent circumstances’’. But, in my opinion, death of an Administrator would be a sufficient reason to revoke a Grant for having become useless and inoperative due to subsequent demise of its holder. Accordingly, in such case, the proper procedure is to apply for revocation of grant of letters of administration under section 76(e) of the***[***Law of Succession Act***](https://kenyalaw.org/akn/ke/judgment/keca/1989/48)***, on the reason that the grant has become useless and inoperative through subsequent circumstances, and a grant to be made to another person named in the application.”*** 28. Consequently, the proper course in this case is to revoke the existing grant under section 76 (e) of the Law of Succession Act and appoint fresh administrators through a process that involves all the beneficiaries, ensuring fair representation of all the existing beneficiaries. 29. On the issue as to whether the Protestor's claim to land parcel No. **LOC.2/Kinyona/217** constitutes a valid ground for opposing the application for substitution the court in the case of **Kibiwott v Bartocho & another [2025] KEHC 4725 (KLR)**, (Nyakundi, J,) stated as follows: ***“In succession causes, persons who would be outright interested parties are beneficiaries, spouses, children, creditors and any other person who has a legal claim to an estate. From the application, the proposed interested party, Daniel Cheruiyot, claims to have purchased 2 Acres of land from the petitioner/respondent who is a beneficiary of the estate of the late Chebos Ruto. The purchase was made vide an agreement dated 11th May, 2010, with final payment completed on or about 28th June, 2016. This establishes that he has an identifiable stake in the proceedings as a person with a legal claim to part of the estate. Therefore, the proposed interested party has demonstrated a direct, substantial, and legally protectable interest in the subject matter of this litigation.”*** 30. Accordingly, for the avoidance of doubt, and guided by the above decision, I find that Maryanne Mumbi Gichuki is properly before the Court and has the requisite *locus standi* to oppose the Summons for Substitution. In my view, these proceedings have a direct bearing on her use and occupation of the property. Her interest is real, identifiable, and proximate, rather than remote or speculative. 31. **Based on the above reasoning I do not find merit in the application and the same is hereby disallowed.** 32. **There shall be no order as to costs.** **Dated signed and delivered via video link at Nairobi this 16th day of July 2026.** **H K CHEMITEI.** **JUDGE, FCIArb**