In re Estate of Makhaya (Deceased) (Succession Cause E009 of 2024) [2026] KEHC 7219 (KLR) (28 May 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **SUCESSION CAUSE NO E009 OF 2024** **IN THE MATTER OF THE ESTATE OF THE LATE JIMMY MWANJE MAKHAYA (DECEASED)** **Coram: Before Justice R. Nyakundi** **M/s TTM Aswai Advocate** **RULING** 1. What is pending before this Honourable Court for determination is Summons for Substitution dated 16th September 2025 in which the Applicant is seeking the following orders: - 2. *That the Grant of Letters of Administration of the Estate of Jimmy Makhaya issued to Fwebe Mmboga Makhaya and Benson Ngoye Makhaya on 22nd July 2014, be amended by deleting the name of Fwebe Mmboga Makhaya therefrom and substituting it with the names of Hilda Imbwaga Makhaya and Barbara Khavugwi Makhaya due to the demise of the said Fwebe Mmboga Makhaya on 18th day of June 2025.* 3. *That the costs of this Application be provided for.* 4. The Application is supported by the annexed Affidavit dated 19th September 2025 sworn by Chisholm Khavosa Makhaya who deponed as follows: - 5. *That I am one of the daughters of the deceased, Jimmy Makhaya who died on the 13th day of June 2009 and was survived by the following: Fwebe Mmboga Makhaya, Florence Shirishia Makhaya, Benson Ngoye Makhaya, Josephine Mugaditsi, Barbara Khavungwi Makhaya, Hilda Imwaga Makhaya, Jackson Makhaya and Timothy Khavaji Makhaya.* 6. *That Fwebe Mmboga Makhaya* and *Benson Ngoye Makhaya applied for the Grant of Letters of Administration on the 29th day of November 2013.* 7. *That thereafter the Grant of Letters was issued to Fwebe Mmboga Makhaya and Benson Ngoye Makhaya on the 22nd day of July 2014.* 8. *That while the said Fwebe Mmboga Makhaya and Benson Ngoye Makhaya were still in the process of agreeing on finalizing the distribution of the assets of the Estate of the Deceased by filing a Summons for Confirmation of Grant Fwebe Mmboga Makhaya passed on the 18th day of June 2025.* 9. *That as a result of the demise of the said Fwebe Mmboga Makhaya, the following surviving children of the late Jimmy Makhaya and the late Fwebe Mmboga Makhaya namely: Florence Shirishia Makhaya, Benson Ngoye Makhaya, Josephine Mugaditsi, Barbara Khavungwi Makhaya, Hilda Imwaga Makhaya, Jackson Makhaya and Timothy Khavaji Makhaya together with me met and consented and nominated Hilda Imbwaga Makhaya and Barbara Khavungwi Makhaya to be substituted to be Co-Administrators of the Estate of Jimmy Makhaya together with Benson Ngoye Makhaya so as to enable them to file a Summons for Conformation of the Grant to enable a smooth and effective distribution of the estate of the deceased.* 10. The Summons for substitution was not opposed. **Analysis and Determination** 1. I have read and considered the Summons for substitution. There is only one issue manifest for determination by this Honourable Court: - **Whether the Summons for Substitution is merited?** 1. The [Law of Succession Act](https://new.kenyalaw.org/akn/ke/act/1972/14) did not envisage the issue on substitution of a deceased administrator. What is contemplated under Section 81 of the Law of Succession Act is that, in the event of the death of one or more of joint administrators, where there are several administrators, the surviving administrator or administrators would then have the mandate to continue with their duties to completion without the need to replace the deceased ones. That Section provides thus: - *“Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executor or administrators shall become vested in the survivors or survivor of them…”* 1. In the case **of Re Estate of Mwangi Mugwe alias Elieza Ngware (deceased) [2003] eKLR**, the court held the view that: - ***“…the operative word is “substitution”.*** *The*[*Law of Succession Act*](https://new.kenyalaw.org/akn/ke/act/1972/14)*has no provisions talking about substitution of a deceased single administrator…In the circumstances therefore, it is my considered view that the proper provisions of the law to apply is section 76(e) of the*[*Law of Succession Act*](https://new.kenyalaw.org/akn/ke/act/1972/14)*and Rule 44 of the Probate and Administration Rules whereby the Applicant would apply for revocation or annulment of a grant on the ground “that the grant has become useless and inoperative through subsequent circumstances.” The Applicant would proceed to put a prayer in the same application that a new grant be made to him and could as well add a further prayer, if need be, for confirmation of the new grant. The application, should, of course, be supported by consent from adult beneficiaries in the estate of the first deceased person, the second deceased person being the deceased administrator.”* 1. Similarly, Musyoka J. held as follows in **Re Estate of George Ragui Karanja (Deceased) [2016] eKLR**: - *“The*[*Law of Succession Act*](https://new.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… It would appear to me that once all the holders of a grant die, section 81 of the Act would be of no application. Indeed, the said grant becomes useless and inoperative, and liable to revocation under section 76(e) of the*[*Law of Succession Act*](https://new.kenyalaw.org/akn/ke/act/1972/14)*, to pave way for appointment of new administrators. The appointment of fresh administrators to take the place of the previous ones following their death is subject to the provisions of sections 51 through to section 66 of the Act.”* 1. This Court notes that the Applicants seek to substitute the deceased Administrator, namely Fwebe Mmboga Makhaya, with Hilda Imbwaga Makhaya and Barbara Khavugwi Makhaya. Ordinarily, where one Administrator dies and the remaining Administrator is willing and capable of continuing with administration of the estate, the Court may invoke its discretionary powers under Rule 73 of the Probate and Administration Rules. However, the peculiar circumstances of the present matter do not favour mere substitution. The surviving Administrator, Benson Ngoye Makhaya, despite being duly summoned through the area Chief, failed to appear before Court and has demonstrated unwillingness to proceed with the administration of the estate. Further, the material placed before Court reveals that the administration process has stalled due to disagreements touching on distribution of the estate, particularly regarding the entitlement of the daughters of the deceased. 2. This Court finds that substitution alone would not cure the paralysis affecting administration of the estate. The death of one Administrator coupled with the inaction and non-cooperation of the surviving Administrator has rendered the existing Grant ineffective and incapable of achieving the intended purpose under the Law of Succession Act. In the premises, the Court finds that the proper course is not substitution but revocation of the Grant issued on 22nd July 2014 pursuant to Section 76(e) of the Law of Succession Act on account that the same has become useless and inoperative through subsequent circumstances. 3. The law relating to Revocation or annulment of a Grant is stipulated in section 76 of the Law of Succession Act which provides as follows: - ***76. Revocation or annulment of grant*** *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 –* * + - 1. *that the proceedings to obtain the grant were defective in substance;* 2. *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;* 3. *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;* 4. *that the person to whom the grant was made has failed, after due notice and without reasonable cause either-* 1. *to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or* *(ii) to proceed diligently with the administration of the estate; or* *(iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of*[*section 83*](https://new.kenyalaw.org/akn/ke/act/1972/14/eng%402022-12-31#section%2083)*or has produced any such inventory or account which is false in any material particular; or* * + - 1. *that the grant has become useless and inoperative through subsequent circumstances.* 1. In the case of **Albert Imbuga Kisigwa Vs Recho Kavai Kisigwa [2016] KEHC 1528 (KLR)**, the Court made pertinent remarks on principles for the revocation of a grant as follows: - *“(13) Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”* 1. The record reveals that this Court caused Summons to issue to Benson Ngoye Makhaya through the area Chief requiring him to attend Court and explain the status of administration of the estate. However, despite service, the said Benson Ngoye Makhaya failed and/or neglected to attend Court.Most importantly, the material before Court demonstrates that the administration process has completely stalled due to internal disagreements touching on the distribution of the estate, particularly regarding the entitlement of the daughters of the deceased.The office of an Administrator is fiduciary in nature. An Administrator is expected to act diligently, fairly and in the best interests of all beneficiaries of the estate. Under Section 83 of the Law of Succession Act, personal representatives are under a duty to complete administration of the estate diligently and without unreasonable delay. 2. It is now over eleven (11) years since the Grant herein was issued on 22nd July 2014. To date, no Summons for Confirmation of Grant has been successfully prosecuted and the estate remains undistributed.The continued existence of the current Grant under the prevailing circumstances serves no useful purpose. The death of one Administrator coupled with the apparent unwillingness of the surviving Administrator to proceed with administration has rendered the Grant ineffective and incapable of achieving the intended purpose under the Law of Succession Act.In the circumstances, this Court is satisfied that the Grant issued on 22nd July 2014 has become useless and inoperative through subsequent circumstances within the meaning of Section 76(e) of the Law of Succession Act and ought to be revoked. 3. This Court is further alive to the provisions of Section 66 of the Law of Succession Act which grants the Court final discretion in determining the persons best suited to administer an estate.Given the disputes presently obtaining within the family and considering that fresh consensus is necessary regarding suitable Administrators, this Court finds it prudent that the family of the deceased be accorded an opportunity to convene and nominate appropriate persons to petition afresh for Grant of Letters of Administration Intestate. 4. In the interest of justice and to ensure transparency and inclusivity in the administration process, the fresh petition shall involve all beneficiaries of the estate including the daughters of the deceased in accordance with Articles 27 and 60 of the Constitution of Kenya and the non-discrimination principles under the Law of Succession Act. 5. In view of the foregoing, the following orders of this Honourable Court shall abide: - 6. *That the Grant of Letters of Administration Intestate issued to Fwebe Mmboga Makhaya and Benson Ngoye Makhaya on 22nd July 2014 be and is hereby revoked pursuant to Section 76(e) of the Law of Succession Act.* 7. *That the said Grant is hereby declared useless and inoperative through subsequent circumstances occasioned by the demise of one Administrator and failure by the surviving Administrator to diligently proceed with administration of the estate.* 8. *That the family of the deceased shall convene and nominate suitable persons to act as Administrators of the Estate of Jimmy Makhaya (Deceased).* 9. *That thereafter, fresh succession proceedings shall be commenced by way of Petition for Grant of Letters of Administration Intestate in accordance with the Law of Succession Act and the Probate and Administration Rules.* 10. *That the fresh Petition shall include all the lawful beneficiaries of the estate and shall disclose their respective consents and/or renunciations where applicable.* 11. *That pending the filing and determination of the fresh succession proceedings, no beneficiary shall alienate, dispose of, transfer, subdivide or otherwise interfere with the estate properties of the deceased.* 12. *That this matter shall be mentioned on* ***29th June 2026*** *for a status conference.* 13. *There shall be no orders as to the costs this being a family matter.* 14. Orders accordingly. **DATED, SIGNED AND DELIVERED VIA EMAIL AND CTS AT VIHIGA THIS 28TH DAY OF MAY 2026** **………………………………………….** **R. NYAKUNDI** **JUDGE**