https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7532

In re Estate of the Late Samson Mwangi Gaitho (Deceased) (Succession Cause 2174 of 2011) [2026] KEHC 7532 (KLR) (Family) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7532 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 2174 of 2011 HK Chemitei, J June 4, 2026 IN THE MATTER OF THE ESTATE OF THE LATE SAMSON MWANGI GAITHO (DECEASED) Between Bertha Nyambura Mwangi Applicant and Rebecca Wangari Mwangi Respondent Ruling 1.This ruling relates to the application dated 4th March, 2025 filed by the Applicant, Bertha Nyambura Mwangi, seeking for orders that:1.Spent.2.The Grant of Probate of Written Will of the estate of Samson Mwangi Gaitho (deceased) Made To John Irungu Chege And Stephen Kimani Kahunyo (both deceased) on 7th February, 2012 be revoked.3.The Honorable Court do issue Grant of Letters of Administration De Bonis Non with the Will Annexed to Bertha Nyambura Mwangi.4.The Honorable Court do thereafter Confirm the said Grant of Letters of Administration De Bonis non with Will and the estate to be distributed in accordance with the last Will & testament of Samson Mwangi Gaitho (deceased). 2.The application is based on the grounds thereof and supported by affidavit sworn by Bertha Nyambura Mwangi on 4th March, 2025. 3.She avers inter alia that she is the deceased’s widow. She depones that the deceased died on 13th July, 2011 leaving a valid written Will dated 7th February, 2012, pursuant to which a grant of probate was issued to John Irungu Chege and Stephen Kimani Kahunyo as the Executors of the estate. She annexes copies of the Will and the grant of probate to demonstrate that the administration of the estate had lawfully commenced under the authority of the two Executors. 4.She further states that disputes concerning the estate gave rise to prolonged litigation, which ultimately culminated in the withdrawal of a previous summons for revocation of grant on 4th May, 2022. She explains that subsequent events have created a vacuum in the administration of the estate because both appointed Executors have since died. 5.According to her, John Irungu Chege died on 25th August, 2019, while Stephen Kimani Kahunyo died on 10th September, 2023, leaving part of the estate unadministered. In support of these assertions, she annexes copies of the obituary and death certificate of the respective Executors. 6.She avers that, as a result of the demise of both Executors, the unadministered portion of the estate is exposed to the risk of waste and dissipation. She contends that immediate intervention by the Court is necessary to safeguard the estate and ensure that the deceased’s testamentary wishes are implemented. She therefore seeks the revocation of the existing grant, not on account of any misconduct by the Executors, but because the grant has become inoperative and incapable of further execution owing to their deaths. 7.She further states that she is the surviving spouse of the deceased and consequently ranks first in priority for appointment as Administrator under Section 66 of the Law of Succession Act. She asserts that, as the widow of the deceased, she is best placed to assume responsibility for the administration of the remaining estate and to protect the interests of all beneficiaries. 8.She therefore prays that the Court appoint her as Administrator de bonis non with the will annexed so that the remaining assets can be administered and distributed in accordance with the deceased’s last will and testament. The annexures attached to the affidavit include a copy of the grant of probate issued on 7th February, 2012, a copy of the deceased’s Will, an obituary confirming the death of John Irungu Chege and the death certificate of Stephen Kimani Kahunyo. 9.These documents are relied upon to demonstrate the validity of the will, the authority originally vested in the Executors and the subsequent circumstances that have rendered the grant incapable of execution, thereby necessitating the appointment of a replacement Administrator. 10.The application is opposed vide notice of preliminary objection filed on 27th July, 2025. The preliminary objection is based on the grounds that the application is legally untenable, frivolous, vexatious and constitutes an abuse of the Court process. It is argued that the application has been brought in contravention of Section 82(d)(ii) of the Law of Succession Act, rendering it defective in law. Further, they maintain that the application is maliciously motivated and is intended to embarrass both the Court and the parties involved rather than to advance any legitimate legal claim. 11.In response to the preliminary objection aforementioned, the Applicant swore a replying affidavit on 10th March, 2026. She avers inter alia that the preliminary objection is misconceived and incapable of disposing of the application. Prof. Tom Ojienda, SC states that he has conduct of the matter on behalf of the Applicant and has reviewed the notice of preliminary objection. According to him, although the Respondents characterize the application as frivolous, vexatious and an abuse of the Court process, the objection does not raise a pure point of law as required of a valid preliminary objection. Instead, it is founded on factual allegations and conclusions that would require evidentiary proof and therefore cannot properly be determined as a preliminary point. 12.The deponent further challenges the Respondents’ reliance on Section 82(d)(ii) of the Law of Succession Act, arguing that the provision regulates the powers of personal representatives concerning the sale or disposal of immovable property. He maintains that the application before the Court does not seek authority to sell, transfer or otherwise dispose of any estate asset. Rather, its sole purpose is to revoke a grant of probate that has become ineffective following the deaths of the two Executors and to obtain a grant of letters of administration de bonis non with the will annexed. 13.Consequently, he asserts that Section 82(d)(ii) has no application to the circumstances of the case. He further deposes that both Executors named in the Will, John Irungu Chege and Stephen Kimani Kahunyo, are deceased, having died on 25th August, 2019 and 10th September, 2023 respectively. Their deaths, he argues, have left part of the estate unadministered and have rendered the grant of probate incapable of further execution. He therefore contends that the Court is properly seized of jurisdiction under Sections 76 and 81 of the Law of Succession Act to revoke a grant that has become useless or inoperative and to appoint a new Administrator through a grant of letters of administration de bonis non with the will annexed. 14.He also emphasizes that the Applicant is the surviving spouse of the deceased and a beneficiary of the estate. By virtue of Section 66 of the Law of Succession Act, she ranks first in priority for appointment as Administrator. He maintains that the application is bona fide, urgent and necessary to safeguard the estate from waste, mismanagement or dissipation. 15.In his view, the allegations that the application is vexatious or constitutes an abuse of process are unsupported and do not disclose any valid basis for a preliminary objection. He therefore urges the Court to dismiss the preliminary objection with costs and allow the application dated 4th March, 2025 in the interests of justice. urged to dismiss the application for being incompetent and lacking merit. 16.The Applicant has filed written submissions dated 10th March 2026. She explains that the application seeks the revocation of the grant of probate issued on 7th February, 2012 to John Irungu Chege and Stephen Kimani Kahunyo, together with the issuance of a grant of Letters of Administration De Bonis Non with the Will Annexed to Bertha Nyambura Mwangi, the widow of the deceased. She contends that the Respondents’ preliminary objection is misconceived and incapable of disposing of the application and therefore ought to be dismissed. 17.The submissions set out the background of the matter, noting that Samson Mwangi Gaitho died on 13th July, 2011 leaving a valid written Will in which he appointed John Irungu Chege and Stephen Kimani Kahunyo as Executors. Pursuant to the will, the Court issued a grant of probate to the two Executors on 7th February, 2012, thereby conferring upon them authority to administer the estate in accordance with the deceased’s testamentary wishes. The Executors initially assumed responsibility for administering the estate under the terms of the Will. 18.The Applicant submits that circumstances subsequently changed when the first Executor, John Irungu Chege, died on 25th August, 2019, leaving the administration of the estate in the hands of the surviving Executor, Stephen Kimani Kahunyo. However, the second Executor also passed away on 10th September, 2023, leaving part of the estate unadministered. As a result, the estate has been left without a lawful personal representative capable of completing the administration process, thereby creating a legal vacuum that necessitates the intervention of the Court. 19.The Applicant argues that, being the surviving spouse and a beneficiary of the estate, she has approached the Court seeking revocation of the now ineffective grant and her appointment as Administrator de bonis non with the Will annexed to facilitate completion of the administration of the estate. 20.The submissions identify the key issues for determination as whether the application is properly before the Court, whether the deaths of the Executors have rendered the grant inoperative, whether the Applicant is entitled to appointment as Administrator de bonis non, whether the preliminary objection raises a valid point of law and whether the application is urgent. 21.Addressing the first issue, the Applicant submits that the application is firmly grounded in Sections 76 and 81 of the Law of Succession Act and Rules 44 and 49 of the Probate and Administration Rules. It is argued that Section 76 empowers the Court to revoke a grant that has become useless or inoperative through subsequent events. Since both Executors appointed under the Will have died, the grant issued to them can no longer be implemented, thereby justifying revocation and the appointment of a replacement Administrator . 22.The Applicant further relies on judicial authority affirming that where an Executor dies before completing administration, the proper remedy is the issuance of a grant of letters of administration de bonis non to enable completion of the administration process. Accordingly, the Applicant maintains that the application is properly before the Court, is supported by the applicable statutory provisions, and seeks only to ensure that the deceased’s estate is lawfully administered and ultimately distributed in accordance with the terms of the deceased’s Will. 23.The respondent has not filed written submissions. Analyisis And Determination 24.I have gone through the application, the responses thereto and the filed submissions. 25.The issues arising for determination are: Whether the Notice of Preliminary Objection dated 27th July, 2025 raises a valid preliminary objection in law; Whether the grant of probate issued on 7th February, 2012 has become useless and inoperative by reason of subsequent events; Whether the Applicant is entitled to the issuance of a Grant of Letters of Administration De Bonis Non with the Will annexed; and Who should bear the costs of the application. Whether the Preliminary Objection is Competent: 26.The law on notices of preliminary objection and grounds of opposition was well discussed In The East African Court Of Justice At Arusha First Instance Division: Reference No. 8 Of 2017: Pontrilas Investments Limited Versus Central Bank Of Kenya & The Attorney General Of The Republic Of Kenya where it was stated as follows: “23. Having carefully considered the parties’ submissions, it is the considered view of the Court that prior to a substantive consideration of the said submissions at this stage, it is imperative that the Court confirms that what is before it, is indeed a preliminary objection point of law that would be properly determined as a preliminary objection. 24. whereas the matter under consideration was raised and argued by all the parties as a preliminary objection, the Court is alive to the importance of proper procedure in the judicial process. 25. In Attorney General of the Republic of Kenya vs Independent Medical Legal Unit (supra), the Appellate Division of this Court held: “The improper raising of points by way of preliminary objections does nothing on occasion confuse the issues. The Court must therefore, insist on the adoption of the proper procedure for entertaining applications for Preliminary Objections. In that way, it will avoid treating, as preliminary objections, those points that are only disguised as such; and will instead, treat as preliminary objections, only those points that are pure law; which are unstained by facts or evidence, especially disputed points of facts or evidence or such like.” 26. This point was underscored in The Secretary General of the East African Community vs. Rt. Hon. Margaret Zziwa, Appeal No. 7 of 2015 where the Court cited with approval the following exposition in Mukisa Biscuit Manufacturing Company Limited vs. West End Distributors Limited (1969) EA 696 (per Newbold), P): “A Preliminary Objection is in the nature of what used to be demurer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion.” 27. The question of what would constitute a proper preliminary objection was further addressed in Attorney General of Tanzania vs African Network for Animal Welfare (ANAW) EACJ Appeal No. 3 of 2011, where the Appellate Division of this Court held that a Preliminary Objection could only be properly taken where what was involved was a pure point of law, but that where there was any issue involving the clash of facts, the production of evidence and facts, the production of evidence and assessment of testimony it ‘should not be treated as a Preliminary Point. Rather, it becomes a matter of substantive adjudication of the litigation on merits with evidence adduced, facts shifted, testimony weighed, witnesses called, examined and cross – examined, and a finding of fact then made by the Court.” 27.The Respondents contend that the application is frivolous, vexatious, an abuse of process and in breach of Section 82(d)(ii) of the Law of Succession Act. However, the law on preliminary objections is settled. A preliminary objection must raise a pure point of law capable of disposing of the matter without the need for the Court to ascertain facts or exercise judicial discretion. This principle was authoritatively stated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and has been reaffirmed in numerous decisions, including the authorities cited by the Applicant. 28.The allegations that the application is vexatious, frivolous, malicious or intended to embarrass the Court are not pure points of law. They are matters requiring evidentiary proof and factual interrogation. Equally, the assertion that the application constitutes an abuse of process cannot be determined without examining the circumstances giving rise to the application. Such matters fall outside the scope of a preliminary objection. 29.Further, Section 82 (d) (ii) of the Law of Succession Act concerns the powers of personal representatives in dealing with immovable property of an estate. The present application neither seeks authority to sell nor dispose of estate assets. Rather, it seeks revocation of a grant that has allegedly become inoperative and the appointment of a replacement Administrator. The provision is therefore inapplicable to the issues before the Court. 30.Accordingly, I find that the Notice of Preliminary Objection does not disclose a pure point of law and is therefore incompetent. Whether the Grant has become Useless and Inoperative and Whether the Applicant is Entitled to a Grant of Letters of Administration De Bonis Non: 31.In re Estate of Joshua Githiari Kibui (Deceased) [2021] eKLR the Court stated as follows: “18. For avoidance of doubt, Section 76 of the Law of Succession Act states as follows: a. “76. Revocation or annulment of Grant: b. A Grant of representation, whether or not confirmed, may at any time be revoked or annulled if the Court decides, either on application by any interested party or of its own motion— (a) that the proceedings to obtain the Grant were defective in substance; (b) that the Grant was obtained fraudulently by the making of a false statement or by the concealment from the Court of something material to the case; (c) that the Grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the Grant notwithstanding that the allegation was made in ignorance or inadvertently; (d) that the person to whom the Grant was made has failed, after due notice and without reasonable cause either— 20. Further, In the Matter of the Estate of L A K – (Deceased) [2014] eKLR the Court held that; (a) Revocation of grants in governed by Section 76 of the Law of Succession Act. The relevant portions of Section 76 are paragraphs (a), (b) and (c) since the issues raised relate to the process of the making of a grant. A grant may be revoked where the proceedings leading up to its making were defective, or were attended by fraud and concealment of important matter, or was obtained by an untrue allegation of a fact essential to the point…. 32. The Court in the case of Jamleck Maina Njoroge v Mary Wanjiru Mwangi (2015) eKLR at paragraph 11 of its ruling in revoking a grant reiterated the grounds upon which a grant can be revoked. It stated as follows:- a. “11. The circumstances that can lead to the revocation of grant have been set out in Section 76 Law of Succession. For a grant to be revoked either on the Application of an interested party or on the Court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.” 33. In the case of Matheka and Another vs Matheka [2005] 2KLR 455 the Court of Appeal laid down the following guiding principles as to revocation of grants. (a) “i. A grant may be revoked either by application by an interested party or by the Court on its own motion. (b) ii. Even when revocation is by the Court upon its own motion, there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by the making of a false statement or by concealment of something material to the case or that the grant was obtained by means of untrue allegation of facts essential in point of law or that the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the estate.” 32.The material placed before the Court demonstrates that the deceased, Samson Mwangi Gaitho, left a valid written Will appointing John Irungu Chege and Stephen Kimani Kahunyo as Executors. A Grant of Probate of Written Will was issued to them on 7th February, 2012. It is not disputed that John Irungu Chege died on 25th August, 2019 and that Stephen Kimani Kahunyo subsequently died on 10th September, 2023. The evidence annexed to the supporting affidavit confirms these deaths. 33.A grant of probate vests authority in the Executors named therein to administer the estate. Where all Executors die before completing administration, the grant can no longer be implemented. The estate is left without a lawful personal representative capable of carrying out the duties of administration. 34.Section 76 (e) of the Law of Succession Act empowers the Court to revoke a grant that has become useless and inoperative through subsequent circumstances. The deaths of both Executors constitute precisely the type of subsequent event contemplated under that provision. The grant issued in 2012 can no longer serve its intended purpose because there is no surviving Executor capable of acting under it. 35.I, therefore, find that the Grant of Probate issued on 7th February, 2012 has become useless and inoperative through subsequent circumstances within the meaning of Section 76 (e) of the Law of Succession Act. 36.The Applicant is the widow of the deceased and a beneficiary of the estate. Section 66 of the Law of Succession Act accords the surviving spouse priority in appointment as Administrator, subject to the discretion of the Court and the interests of justice. 37.The purpose of a grant de bonis non administratis is to enable completion of administration where a previous grant has become incapable of execution before the estate is fully administered. The Applicant seeks such a grant solely to complete the administration of the estate in accordance with the deceased's will. There is no evidence before the Court challenging her suitability, competence or entitlement to undertake that role. Neither have the Respondents proposed any alternative person with a superior claim to appointment. 38.The Court's primary obligation in succession proceedings is to ensure that estates are administered efficiently and in accordance with the wishes of the deceased and the law. Leaving the estate without a lawful Administrator would expose it to waste, stagnation and possible prejudice to beneficiaries. I am therefore satisfied that the Applicant has established sufficient grounds for the issuance of a Grant of Letters of Administration De Bonis Non with the Will annexed. 39.I have on the other hand perused the entire file and found on record series of applications by the Respondents challenging the Will herein. 40.There is an application dated 10th April 2012 which for some reasons was not concluded. 41.There is also an application dated 2nd May 2023 seeking revocation orders as well as that dated 24th November 2014 all in one way or another seeking that the grant be revoked. The fundamental reason by the Respondents/Objectors is that they are the deceased second family who were left out of the impugned will. 42.There are also directions by GBM Kariuki J and Muchelule J (as they were) directing that the objection be determined by way of oral evidence. 43.I think to be fair to both sides and despite the demise of the two Executors and despite appointing the Applicant herein as an Executor to complete the remaining part of the estate, it is logical that the Respondents/Objectors be granted their day in Court. There is absolutely no prejudice the Applicant and by extension the estate stands to suffer in the event that the objection proceedings are allowed to proceed. The only prejudice is time. 44.The parties at some point went for mediation and it appears it bore no fruits and that is why the objection proceedings are still on record. 45.Consequently, and to fastrack the process I shall proceed to direct as hereunder:(a)The application dated 4th March, 2025 is allowed in terms of prayer 2 and 3.(b)The objection proceedings herein based on the applications on record by the Respondents shall be determined by way of oral evidence.(c)Status quo in the estate as at the time of this ruling be maintained pending the determination of the objection proceedings.(d)Each party to bear its own costs. DATED SIGNED AND DELIVERED NAIROBI VIA VIDEO LINK THIS 4TH DAY OF JUNE 2026.H K CHEMITEIJUDGE, FCIArb.