https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12156

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **SUCCESSION CAUSE NUMBER 7 OF 1992** **IN THE MATTER OF THE ESTATE OF THE WILSON KIMANI GAKAU (DECEASED)** **DANIEL NDUNG’U KIMANI ---------------------------- APPLICANT** **VERSUS** **JAMES KAIGWARA KIMANI --------------------------RESPONDENT** **RULING** 1. By Chamber Summons dated 8/8/2025, the Applicant craves the following orders: 2. **Spent** 3. **THAT the Grant of letters of Administration intestate issued on 20th July 1998 and confirmed vide Certificate of Confirmation of Grant issued to DANIEL NDUNGU KIMANI and MIRIAM NJOKI KIMANI on the 31st day of January 2000 be rectified, altered and/or amended accordingly to remove the deceased administrator MIRIAM NJOKI KIMANI.** 4. **THAT consequently, the honourable court be pleased to appoint the applicant herein DANIEL NDUNGU KIMANI as to the sole surviving Administrator of the Estate of the late WILSON GAKAU KIMANI.** 5. **THAT consequential to prayer (2) and (3) above, the honourable court be pleased to have the certificate of confirmation of grant issued on the 31st day of January 2000 rectified, altered and/or amended accordingly to have that which was to devolve to the said MIRIAN NJOKI KIMANI (deceased) and LILIAN NJERI KIMANI be distributed as per the schedule of distribution described in the applicant’s supporting affidavit.** 6. **THAT costs of this application be in the cause.** 7. The Applicant swears by affidavit in support of the Summons that Grant of Letters of Administration Intestate in respect of the Estate of the deceased herein was on 20/7/1998 issued to him and Miriam Njoki Kimani. The Grant was subsequently confirmed on 31/1/2000 and Certificate of Confirmation of Grant was issued on 15/2/2000. 8. The Applicant further avers that the said Miriam Njoki Kimani unfortunately died on 29/4/2023 before the deceased's Estate was fully transmitted to beneficiaries, hence the need to amend or rectify the Grant to remove the deceased Administratrix. 9. The court is further told that a beneficiary of the Estate named Lilian Njeri Kimani has also died. It is proposed that her share of the Estate does devolve to her children who include the Applicant. With respect to the deceased Miriam Njoki Kimani's share, the Applicant wants it to go to her only child known as Francis Ndung'u Kimani. The Applicant proceeds to state his proposals as to distribution of the Estate as per Schedule set out at paragraph 9 of his affidavit. According to the Applicant, only the Respondent is opposed to his mode of distribution of the deceased's properties. 10. The Respondent opposes the application *vide* his affidavit in reply sworn on 31/10/2025. He dismisses the Application as wholly misconceived and an abuse of the court process. In his opinion, the shares of the deceased Miriam Njoki Kimani and Lilian Njeri Kimani had crystallized by the time of their demise. Their shares are therefore unavailable for distribution under this Estate and instead form part of their respective Estates, contends the Respondent. 11. The Respondent further avers that the Applicant's intention is to redistribute the Estate and disinherit other lawful beneficiaries who have not been consulted. For instance, the Respondent complains that the share belonging to his deceased mother (Lilian Njeri Kimani) is proposed to be given exclusively to his sister Mary Waheti Kimani. 12. The Respondent continues to contend that the applicant dishonestly omits to tell the court that he has been unilaterally utilizing a portion of land known as Njoro / Ngata Block 2 / Kirobon A 291 that had devolved to the deceased Lilian Njeri Kimani. He asserts that he is entitled to an equal share of the Estate of his mother as his sister Mary Kaheti Kimani. 13. In the premises, the Respondent opposes appointment of the Applicant as the sole Administrator of the Estate herein. 14. Learned Counsel for the parties filed written submissions. **The** Applicant’s Advocates submit that **Section 81 of the Law of Succession Act** does not envisage substitution of a deceased Administrator. It provides: "**upon 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 administrator shall become vested in the survivors or survivor of them…"** 1. As the Applicant is the only surviving Administrator, he remains the sole administrator in law, according to Counsel. This position is reinforced in **Re Estate of George Rugui Karanja (deceased) and Changal vs Maritim & Another (Succession Cause 196 of 2015)** referred to by the Applicant’s Counsel**.** 2. Regarding distribution of the Estate, the Applicant's advocates refer to **sections 35, 38 and 40 of the Law of Succession Act,** the aggregate effect of which is that the Estate of a deceased person not survived by a spouse is shared equally among the children. 3. Further reference is made to Case Law in **Re Estate of Wanjala Namaswa Kasikasi (Deceased) eKLR** inwhich factors to be considered in distribution of an Estate were stated to include: 1. **practical realities on the ground;** 2. **fairness among beneficiaries;** **And** * 1. **circumstances prevailing at the time of confirmation of the Grant.** 1. Learned Counsel for the Respondent cite **Section 74 of the Law of Succession Act** which provides for rectification of a Grant for clerical errors in description, names, or other minor inaccuracies. According to the Respondent, the provision does not permit fundamental alteration of the mode of distribution of the Estate. As the Applicant seeks redistribution of the Estate, it is argued that the Application is not within the scope of rectification of a Grant, (**see case law in Re Estate of Mahihiu Kioi (Deceased) (2010) eKLR & Re Estate of Gitau (Deceased) (2017) eKLR** relied upon by Counsel). 2. It us reiterated that shares of the deceased **Miriam Njoki Kimani & Lilian Njeri Kimani** vested upon confirmation of the Grant herein. In **Trouistik Union International & Another vs Jane Mbeyu & Another (1993) KLR** alluded to by Counsel, the Court of Appeal is said to have held that the Estate of a deceased person can only be represented in any legal proceedings by a person with Grant of Letters of Administration. Equally, it was observed in **Re Estate of Mwaura Mutungi alias Mwaura Gichimu (Deceased) (2019) eKLR,** that where a beneficiary dies after confirmation of the Grant, his or her share devolves to his or her Estate and not directly to surviving beneficiaries. 3. The Applicant is also alleged to have wrongly allocates the entire Estate of Lilian Njeri Kimani to her daughter, excluding the Respondent who is her son. In **Rono vs Rono & Another (2005) eKLR**, relied upon by the Respondent, it is postulated that the law does not discriminate between sons and daughters of a deceased person in inheritance and distribution must be guided by fairness and equality. 4. The Respondent underscores that Grant of legal representation and certificates of confirmation of Grant are personal to Administrators to whom they are issued. They are not transferrable to or capable of automatically vesting upon a surviving administrator. Such grants become useless and inoperative and liable for revocation pursuant to **section 76 of the Law of Succession Act** to pave way for appointment of new Administrators, (**see Re Estate of M'ngarithi M'miriti (Deceased) (2017) eKLR** among other cited cases**).** 5. According to the Respondent, the Estate herein involves a continuing trust and an uncompleted distribution process relating to the Estates of the deceased beneficiaries. **Section 81 Law of Succession Act** does not therefore apply in light of its *proviso* on continuing trusts. 6. The issues for determination are; * 1. **Whether the Grant herein can be rectified, amended and/or altered as prayed by the Applicant.** 2. **Whether the Estate should be re-distributed as proposed in this Application.** 7. It is common ground that the Grant herein was confirmed on 31/1/2000 after which one of the Administrators (Miriam Njoki Kimani) passed on. Another beneficiary called Lilian Njeri Kimani has also since died. It is not shown that the shares of the deceased beneficiaries had been transmitted to them as at the time of their demise. Their shares, however, crystallized upon confirmation of the Grant. 8. I agree with the Respondent that the circumstances give rise to a continuing trust in the interest of the Estates of the deceased beneficiaries. Pursuant to the proviso to **Section 81 of the Law of Succession Act,** an additional administrator/administratrix needs to be appointed to represent the interests of the 2nd House of the deceased since the current Administrator is a member of the 1st House. I note that Francis Ndung’u Kimani is the only member of the 2nd House. 9. Re-distribution of the Estate cannot be done in light of the fact that the Grant has already been confirmed. The shares of the deceased beneficiaries will go to those holding Grant of representation to their respective Estates. The Administrators need to move with speed to complete transmission of the Estate in this long pending Cause. 10. The Application is substantially dismissed and following orders issue; 1. **Grant of Letters of Administration dated 20/7/1998 and confirmed on 15/2/2000 is revoked.** 2. **The Applicant, Daniel Ndung'u Kimani, and Francis Ndung'u Kimani are hereby appointed as the new Administrators of the Estate.** 3. **The Administrators are given 90 days to complete the long outstanding transmission of the Estate.** 4. **No order is made as to the costs of the Application.** **J. M. NANG’EA, JUDGE.** **Ruling, dated, signed and delivered virtually this 27th day of July, 2026.** **In the presence of:** Applicant’s Advocate, Mr. Alusa. Respondent’s Advocate, Absent. Respondent, Absent. Court Assistant (Jeniffer). **J. M. NANG’EA, JUDGE.**