https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11918

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **FAMILY DIVISION** **SUCESSION CAUSE NO. 1972 OF 2008** **IN THE MATTER OF THE ESTATE OF MOHAN SINGH** **KALSI (DECEASED)** **DADINDER SINGH KALSI ……………………………. APPLICANT** **VESRSUS** **GURMEET KAUR KALSI ……………………………. RESPONDENT** **RUPINDER KAUR KALSI ………………. 1ST INTERESTED PARTY** **INDERPAL SINGH KALSI ……………... 2ND INTERESTED PARTY** **RULING** 1. The chamber summons application dated **25th April 2025** brought pursuant to section 76 of Laws of Succession Act and Rule 44 of the Probate and Administration Rules prays for orders that: * 1. **Spent;** 2. **This Honourable Court be pleased to set aside its orders of 24th July 2024 marking the matter as closed and the cause herein be re-opened and/or reinstated for hearing on a date to be issued by the Court;** 3. **Upon granting prayer 2 above, this Honourable Court be pleased to revoke the Grant of Probate with written Will issued to the Respondent herein on 9th December 2008;** 4. **Upon revocation of the said grant, the Applicant and interested parties be appointed as the executors of the estate of the deceased and the Honourable Court do issue them with fresh grant of probate with written Will.** 5. **This Court be pleased to issue such other orders and directions to meet the ends of Justice.** 6. **The Costs be provided for.** 2. The Application is supported by the affidavit of **Dadinder Singh Kalsi**, who deposes that the deceased, Mohan Singh Kalsi, died on 26th July 2008 leaving a written Will in which he appointed the Respondent as the sole executrix, with a provision that should she fail to prove the will within three months, the Applicant and his siblings would assume that role. Although the Respondent obtained a Grant of Probate on 9th December 2008, she allegedly failed to apply for its confirmation or diligently administer the estate despite being under a statutory duty to do so. 3. The Applicant states that the Court issued a notice in 2018 requiring action, but the Respondent remained inactive, leading the succession cause to be struck out and marked as closed on 24th July 2024 after more than sixteen years of inaction. 4. The Applicant further contends that the Respondent has failed to account for the estate, particularly rental income from the deceased's property in Parklands, unilaterally redirected rent into a different bank account, neglected maintenance of the property, and failed to meet essential expenses, resulting in deterioration of the estate. 5. He asserts that, although the Respondent resides permanently in the United Kingdom and has shown little interest in managing the estate, he has personally maintained the property and attended to tenants' concerns. 6. Consequently, he seeks the reopening of the succession cause, revocation of the Grant of Probate issued to the Respondent for failure to confirm the grant, diligently administer the estate, and render accounts, and prays that he and the Interested Parties be appointed administrators to complete the administration and distribution of the estate in accordance with the deceased's Will. 7. The Respondent opposed the Application through a Replying Affidavit dated 1st August 2025. She depones that she is ready and willing to file the summons for confirmation of the Grant of Probate with Written Will, and attributes the delay to the Applicant's refusal to execute the requisite documents. She further avers that the advocate previously instructed to handle the succession cause passed away, a fact she only became aware of much later, thereby occasioning further delay. 8. The Respondent maintains that she has diligently administered the estate by utilizing the rental income to meet the estate's expenses and also cater for her medical treatment. She further states that she has since instructed new advocates to file the necessary summons and therefore urges the Court to dismiss the Application. **Issues for determination** 9. I have carefully considered the application, the supporting affidavit, the Replying Affidavit, and the submissions filed thereto. The issues for determination are whether the Applicant has established sufficient grounds to justify the reopening of the succession cause, the revocation of the Grant of Probate issued to the Respondent on 9th December 2008, and the removal of the Respondent as executor of the deceased's estate. **Analysis and determination** 10. On the issue of whether the Applicant has established sufficient grounds to justify the reopening of the succession cause, the Court notes that neither the Law of Succession Act nor the Probate and Administration Rules expressly provides for the reopening or reinstatement of a succession cause that has been marked as closed. Nevertheless, this Court derives jurisdiction to make such orders from **section 47 of the Law of Succession Act** and **Rule 73 of the Probate and Administration Rules**, which preserve the Court's inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. 11. The Applicant has relied on the provisions of the deceased's Will, which stipulated that should the Respondent fail or be unwilling to prove the Will within three (3) months, the deceased's daughter and sons would assume the role of executors and trustees. It is evident that the Applicant was aware of this provision from the outset. Despite such knowledge, he took no steps to invoke the Court's jurisdiction or seek appropriate orders for approximately sixteen (16) years. 12. Even after the Court issued a notice requiring the parties to take steps to prosecute the succession cause, the Applicant remained inactive. It was only after the Respondent allegedly changed the account into which rental income from the estate was being deposited, thereby excluding the Applicant from the management of the estate's finances, that he moved the Court. 13. It is a well-established equitable principle that *equity aids the vigilant and not the indolent.* The Applicant's prolonged inaction has not been satisfactorily explained and would ordinarily militate against the exercise of the Court's discretion in his favour. 14. However, succession proceedings concern the proper administration of a deceased person's estate and the protection of the interests of all beneficiaries. In the circumstances of this case, and bearing in mind the Court's inherent jurisdiction under section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules, I am satisfied that the interests of justice would be better served by reinstating the succession cause to facilitate the due administration and final distribution of the estate in accordance with the law and the wishes of the deceased. 15. On the issue of whether the revocation of the Grant of Probate issued to the Respondent on 9th December 2008 should be revoked. Section 76 of the [Law of Succession Act](https://kenyalaw.org/akn/ke/act/1972/14) lays down the threshold for revocation of grant. It 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—*** ***a) …;*** ***b) …;*** ***c) …;*** ***d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—*** ***i…;*** ***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 or has produced any such inventory or account which is false in any material particular; or*** ***e) …;”*** 16. The Applicant seeks the revocation of the Grant of Probate with Written Will issued to the Respondent on 9th December 2008. Under section 76(d) of the Law of Succession Act, a grant may be revoked where the holder thereof has, after due notice and without reasonable cause, failed to proceed diligently with the administration of the estate or failed to produce such inventory or account of administration as is required under section 83 of the Act. 17. Section 83 of the Law of Succession Act provides as follows: - “**83. Duties of personal representatives** ***Personal representatives shall have the following duties—*** 1. ***to provide and pay out of the estate of the deceased, the expenses of a reasonable funeral for him;*** 2. ***to get in all free property of the deceased, including debts owing to him and moneys payable to his personal representatives by reason of his death;*** 3. ***to pay, out of the estate of the deceased, all expenses of obtaining their grant of representation, and all other reasonable expenses of administration (including estate duty, if any);*** 4. ***to ascertain and pay, out of the estate of the deceased, all his debts; (*** 5. ***within six months from the date of the grant, to produce to the Court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;*** 6. ***subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be;*** 7. ***within six months from the date of confirmation of the grant, or such longer period as the Court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the Court a full and accurate account of the completed administration;*** 8. ***to produce to the Court, if required by the Court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;*** 9. ***to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the Court, either of its own motion or on the application of any interested party in the estate, to produce to the Court a full and accurate account of the completed administration.”*** 18. The record shows that the Respondent was issued with a Grant of Probate with Written Will on 9th December 2008. Thereafter, little, if any, progress was made towards the administration of the estate. Owing to the prolonged inactivity, the Court issued a notice requiring the parties to take appropriate steps in the matter, failing which the cause would be closed. Despite that notice, the Respondent did not demonstrate that she had taken any meaningful steps to progress or conclude the administration of the estate. Consequently, on 24th July 2024, the succession cause was marked as closed for want of prosecution. 19. The Respondent has explained that the delay in administering the estate was occasioned by the Applicant's refusal to execute the requisite documents and by the demise of the advocate whom she had instructed to act on her behalf. She further avers that she has continued to utilise the estate's rental income to meet estate expenses and her own medical expenses, and that she has since instructed new advocates to progress the matter. 20. While the Court has carefully considered these explanations, they do not satisfactorily account for the prolonged delay of over sixteen (16) years. The office of an executrix is fiduciary in nature and carries with it a continuing duty to administer the estate diligently, preserve the estate assets, and, where obstacles arise, promptly seek the Court's directions or take such other lawful steps as may be necessary to ensure that the administration is not brought to a standstill. 21. Neither the alleged lack of cooperation by the Applicant nor the demise of the Respondent's advocate can reasonably justify the prolonged inaction that culminated in the succession cause being marked as closed. 22. The Applicant has further alleged that the Respondent failed to account for rental income generated from the estate, altered the account into which rental income was deposited without involving the beneficiaries, and neglected the management and maintenance of the estate properties. 23. Although the Respondent disputes these allegations, she has not placed before the Court any inventory, statement of accounts, or other material demonstrating that she has discharged the statutory duties imposed upon a personal representative under section 83 of the Law of Succession Act. As an executrix, the Respondent occupies a fiduciary position and is under a continuing obligation to administer the estate diligently, preserve the estate assets, and account to both the beneficiaries and the Court. 24. I am alive to the fact that the Applicant himself remained inactive for a considerable period despite being aware of the terms of the deceased's Will and the Respondent's alleged failure to progress the administration of the estate. That delay is regrettable and cannot be ignored. 25. However, the Applicant's inaction does not relieve the Respondent of her statutory obligations as the holder of the grant. The duty to administer the estate rests upon the personal representative, and it is that representative who bears the primary responsibility for ensuring that the administration is completed diligently and in accordance with the law. 26. This Court has also considered the fact that, under the deceased's Will, the deceased vested the Respondent with the responsibility of administering his estate, provided she survived him by thirty (30) clear days. The Court further notes that the Respondent has not expressly renounced her office as executrix and has deponed that she has since instructed her advocates to take steps towards progressing the administration of the estate. 27. However, those steps were only taken after the present application had been filed and after the succession cause had already been marked as closed for want of prosecution. While the Respondent's willingness to proceed is a relevant consideration, it does not, in the circumstances of this case, adequately explain or excuse the prolonged period of inactivity spanning over sixteen (16) years, during which she failed to diligently discharge the statutory duties imposed upon her as executrix. 28. In the circumstances, I am satisfied that the Respondent failed to proceed diligently with the administration of the estate and failed to demonstrate proper accountability as required by law. Those failures bring the matter squarely within the ambit of **section 76(d)(ii) and (iii)** of the Law of Succession Act and constitute sufficient grounds for the Court to interfere with the grant. 29. In **re Estate of Prisca Ong'ayo Nande (Deceased) [2020] eKLR**, it was stated that: ***“8. Under section 76, a Court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds...The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required…”*** 30. Consequently, I find that although the Applicant has established that the Respondent failed to diligently administer the estate within the meaning of section 76(d)(ii) of the Law of Succession Act, the power to revoke a grant under that provision is discretionary and must be exercised judiciously, having regard to the circumstances of each case. 31. I have taken into account that the Respondent was expressly appointed by the deceased as the sole executrix of his Will, that she duly obtained the Grant of Probate with Written Will, and that she has expressed her willingness to complete the administration of the estate. I have also considered that the Applicant was aware of the Respondent's inaction for a considerable period but did not invoke the Court's jurisdiction until after the dispute relating to the management of the estate's rental income arose. 32. The Applicant's delay in seeking the Court's intervention is therefore a relevant consideration in the exercise of this Court's discretion. In those circumstances, and bearing in mind that the parties collectively allowed the administration of the estate to remain dormant for an inordinately long period, I am not persuaded that, at this juncture, it is in the interests of justice to revoke the Grant of Probate with Written Will. Instead, and in deference to the deceased's express intention that the Respondent should serve as the sole executrix of his estate, I consider it appropriate to afford her a final opportunity to complete the administration of the estate, subject to strict timelines and the supervision of this Court. 33. The Court takes note that the application dated 12th July 2024 for confirmation of grant was never prosecuted. I think it is only fair that the same be fixed for hearing forthwith and it will sort out all the pending issues herein. 34. **In the premises.** **(a) The application herein is disallowed and the Applicant directed to fix the application dated 12th July 2024 for hearing forthwith and not later than 30 days from the date herein.** **(b) Costs in the cause.** **Dated signed and delivered via video link at Nairobi this** **30th day of July, 2026.** **H.K. CHEMITEI** **JUDGE, FCIArb.**