https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11331

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **FAMILY DIVISION** **SUCESSION CAUSE NO. 923 OF 2012** **IN THE MATTER OF THE ESTATE OF RACHEL WAMBUI CHEGE (DECEASED)** **MARY WAITHERA CHEGE .……...………………..... 1ST APPLICANT** **PERIS NJERI KIARIE …..……..…….……….......... 2ND APPLICANT** **IRENE NGUHI CHEGE .……….…….….…………… 3RD APPLICANT** **JOHN KIBARA CHEGE .……..………..…….……..... 4TH APPLICANT** **HANNAH WANJIRU GIKONYO .……..……………. 5TH APPLICANT** **VERSUS** **EVANS MUTHEMBA CHEGE ….….…………………. RESPONDENT** **RULING** 1. Before this Court for determination is the Chamber Summons dated **1st April 2025,** brought pursuant to Sections 47 of the Law of Succession Act, in which the Applicant seeks the following orders: * 1. **That the Court be pleased to make an order substituting Mary Waithera Chege with John Kibara Chege as one of the administrators in this matter;** 2. **That the Respondent be ordered by this Honourable Court to sign and/or execute all the requisite documents for the transmission of the Applicants share, within 7 days from receipt of the documents. In default, this Honourable Court should authorize the Deputy Registrar to sign and/or execute the necessary documents for the transmission of the Applicants share, pursuant to the certificate of confirmation of grant issued on 24th January 2017.** 3. **THAT the costs of this application be in cause.** 2. The Application is supported by the Affidavit of **John Kibara Chege**, who deposes that the 1st Applicant's advanced age and deteriorating health have rendered her unable to effectively discharge her duties as a co-administrator of the estate. Consequently, the Applicants seek orders discharging the 1st Applicant as a co-administrator and appointing the 4th Applicant, John Kibara Chege, in her place to facilitate the expeditious completion of the administration and distribution of the estate. 3. The deponent further avers that the Respondent has persistently refused to execute the transfer and transmission documents necessary to implement the confirmed grant, thereby frustrating the distribution of the estate. He therefore prays that the Respondent be directed to execute the requisite documents within seven (7) days, failing which the Deputy Registrar be authorized to execute the documents necessary to give effect to the confirmed grant on the Respondent's behalf. 4. The Application is opposed by the replying affidavit of the Respondent Evans Muthemba Chege sworn on 10th July 2025. The said affidavit does not oppose the prayer for replacing Mary Waithera Chege. 5. The Respondent however has contentions on the manner in which land parcel number Kabete/lower Kabete/2007 is to be distributed. He said that the same ought to be shared out in the manner directed in the decree and or grant. **ISSUES FOR DETERMINATION** 6. I have considered the application, the supporting affidavit, the Replying Affidavit, the parties' respective written submissions, and the authorities relied upon. 7. In my view, the following issues arise for determination: a. Whether sufficient grounds have been established for the substitution of the 1st Applicant as a co-administrator of the estate. 1. Whether the Court should invoke its powers to facilitate the implementation of the confirmed grant by compelling the Respondent to execute the requisite documents, or in default authorize the Deputy Registrar to do so on his behalf. **ANALYSIS AND DETERMINATION** 8. The evidence before this Court demonstrates that following the 1st Applicant and the Respondent were appointed as joint administrators of the estate, and a certificate of confirmation of grant was subsequently issued on **24th January 2017**. However, the estate has remained undistributed for several years. The delay was initially occasioned by the Respondent's decision to lodge an appeal against the Judgment, which he failed to prosecute and eventually withdrew on **15th April 2024**. 9. Notwithstanding the withdrawal of the appeal, the estate still remains undistributed and the Applicants attributes this failure to the Respondent, who according to the Applicants has persistently failed and/or refused to execute the transfer and transmission documents required to implement the confirmed grant. 10. The primary mandate of administrators is to distribute the estate of the deceased as per the provisions of **section 83(g) of the Law of Succession Act** which provides as follows; ***“Personal representatives shall have the following duties;*** ***(g). 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.”*** 11. The consequences of an administrator’s failure to sign completion documents were well elaborated in **Kerugoya Succession Cause No. 36 of 2013, Re Estate of Wilfred Munene Ngumi (deceased) eKLR** where the court stated: ***“Section 83(g) of the Act mandates administrators of an estate to, within six months of confirmation of grant or longer period as the court may allow, complete the administration of the estate, and to produce to the court a full and accurate account of the complete administration. This undertaking cannot be done unless the necessary documents are executed by the parties…”*** 12. In **Re Estate of the Late Kubuta Kamara alias Pharis Njegegu (Deceased) [2021] eKLR,** the Court held that a Deputy Registrar or other court officer cannot execute documents on behalf of an administrator merely because the administrator has refused to do so, as such an officer is neither an executor nor an administrator within the meaning of the Law of Succession Act. However, the Court affirmed that, pursuant to Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules, it possesses inherent jurisdiction to make appropriate orders to ensure the effective administration of an estate where an administrator has failed to discharge his statutory duties. The Court emphasized that the office of an administrator is founded on trust and good faith, and where an administrator's conduct frustrates the implementation of a confirmed grant to the prejudice of beneficiaries, the Court is entitled to intervene to ensure that justice is done. 13. The evidence before this Court demonstrates that the Respondent has failed to take the necessary steps to complete his duties as a co-administrator by refusing and/or delaying the execution of the transfer and transmission documents required to implement the confirmed grant. His conduct has occasioned an inordinate delay in the completion of the administration and distribution of the estate and has undermined the effective discharge of his statutory responsibilities as a personal representative. 14. In the absence of any credible explanation from the Respondent for his continued failure and/or refusal to execute the requisite transfer and transmission documents, this Court finds that the delay in the implementation of the confirmed grant is unjustified. 15. In any case the Respondent is not opposed to the replacement except in the manner in which land parcel number Kabete/Lower Kabete/2007 is to be shared out. 16. In my view the application before me has nothing to do with any changes in the confirmed grant except the replacement of one of the administrators. The rest of the grant and specifically distribution ought to remain unless of course the parties wishes to have any change which will necessitates them to seek the approval of the Court. 17. The administrators’ duty to complete the administration is inclusive of execution of documents necessary to conclude the administration. Section 47 of the Law of Succession Act provides that: ***“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.”*** 18. Section 66 of the Law of Succession Act bestows this court with the discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made. The court in exercise of the said discretion is mandated to accept as a general guide the following order of preference; * 1. ***Surviving spouse or spouses, with or without association of other beneficiaries;*** 2. ***Other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;*** 3. ***The Public Trustee; and*** 4. ***Creditors.*** 19. Section 73 of the Probate and Administration Rules**,** provides as follows: ***-*** ***“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”*** 20. With regard to the prayer for the substitution of the 1st Applicant, the Court notes that the evidence that she is of advanced age and is experiencing age-related health challenges has not been controverted. The Court is satisfied that her continued participation in the administration of the estate has been materially impaired. 21. **Accordingly, it is hereby directed that:** **a) That Mary Waithera Chege is hereby discharged as a co-administrator, and John Kibara Chege is hereby appointed as a co-administrator of the estate in her place, to serve jointly with the Respondent for the purpose of completing the administration of the estate in accordance with the Certificate of Confirmation of Grant dated 24th January 2017.** **b) The Respondent is hereby directed to execute all the transfer, transmission and other documents necessary to implement the Certificate of Confirmation of Grant dated 24th January 2017 within Fourteen (14) days from the date of this ruling.** **c) In default of compliance with order (b) above within the stipulated period, the Deputy Registrar of this Court is hereby authorized to execute all such transfer, transmission and ancillary documents as may be necessary to give effect to the Certificate of Confirmation of Grant dated 24th January 2017 on behalf of the Respondent.** **d) Each party shall bear his or her own costs.** **Dated signed and delivered via video link at Nairobi this** **23rd day of July, 2026.** **H.K. CHEMITEI** **JUDGE, FCIArb.**