https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12539

In re Estate Ruithibu (Deceased) (Succession Cause 171 of 2007) [2026] KEHC 12539 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEHC 12539 (KLR) Republic of Kenya In the High Court at Nyeri Succession Cause 171 of 2007 MA Odero, J July 31, 2026 IN THE MATTER OF THE ESTATE OF LUKA KANYIRI RUITHIBU (DECEASED) Between Henry Kanyiri Mbugu Applicant and Nancy Wamuyu Wachiuri Ruithibu Respondent Ruling 1.Before this Court for determination is the Notice of Motion application dated 9th February 2024 filed by the Applicant Henry Kanyiri Mbugu seeking the following orders:-“ 1.That this Honourable Court be pleased to substitute Henry Kanyiri Mbugu to proceed with the cause in place of Teresia Njoki Mbugu (deceased) 2.That the costs of this application be provided for.” 2.The application which was premised upon Order 24 Rule (1) and (4) of the Civil Procedure Rules 2010 was supported by the affidavit of even date sworn by the applicant. 3.The Respondent Nancy Wamuyu Wachiuri Ruithibu opposed the application through her Replying Affidavit dated 25th November 2025. The application was canvassed by way of written submissions. 4.The Applicant filed the written submissions dated 3rd February 2026, whilst the Respondents relied upon their submissions dated 5th February 2026. Background 5.This succession cause relates to the estate of the late Luka Kanyiri Ruithibu (hereinafter the Deceased) who died intestate on 9th September 1975. A copy of the Death Certificate Serial No. 55763 was filed in Court on 13th April 2007. 6.Following the demise of the Deceased letters of Administration Intestate were on 9th October 2009 issued to the Respondent Teresia Njoki Mbugu. The said administrator unfortunately passed away on 7th December 2021. The Applicant who is the son of the Administrator now seeks to substitute her as the administrator of the estate. 7.The Respondent in opposing the grant argues that the late Teresia Njoki Mbugu was not in fact the administrator of the estate and as such the question of her being substituted does not arise. Analysis and Determination 8.I have carefully considered the application before this court, the reply filed thereto as well as the written submissions filed by both parties. The only question for determination is whether this application for substitution of the administrator has merit. 9.From the record can be gleaned that on 30th January 2009 Grant of letters of Administration Intestate was made jointly to Teresia Njoki Mbugu and Andrea Ruithibu Kanyiri. That grant was duly confirmed on 9th October 2009. 10.Unfortunately one of the Administrator of the estate Andrea Ruithibu Kanyiri passed away on 11th July 2009. A copy of the Death Certificate Serial Number 296829 is annexed to the Affidavit of Francis Wachiuri Ruithubu dated 23rd May 2011. Following the demise of her co-administrator Teresia Njoki Mbugu by operation of Section 81 of the Law of Succession Act, Cap 160 Laws of Kenya remained the sole administrator of the estate. 11.The Respondents in their reply have averred that the said Teresia Njoki Mbugu was not an administrator of the estate. This is an erroneous assertion. The Respondents did not refer to any ruling or order revoking the grant which had been issued to this administrator. Two applications seeking revocation of the Grant were filed by Teresia Njoki Mbugu. The first was the application dated 9th November 2021 seeking to set aside the Certificate of confirmed grant. Vide a ruling delivered on 25th July 2016 Hon. Justice John Mativo (as he then was) dismissed the application. 12.Undeterred Teresia Njoki Mbugu filed a summons for revocation of Grant dated 1st December 2016. The same was also dismissed vide the judgment delivered by Hon. Lady Justice F. Muchemi on 19th June 2020. 13.Therefore as has been demonstrated above Teresia Njoki Mbugu remained the sole administrator of the estate. However as it transpired Teresia Njoki Mbugu who was then the sole administrator of the estate also passed away on 7th December 2021. A copy of the Death Certificate Serial No. 1303483 is annexed to the Applicants supporting affidavit dated 9th February 2024 (Annexture “HKM” 1”). Her demise left the estate without an administrator. 14.Having established that Teresia Njoki Mbugu was the sole administrator of the estate of the deceased and given the fact of her demise is the application by the applicant to substitute (replace) this sole administrator merited. 15.Section 76 of the Law of Succession Act provides for the circumstances under which a grant of representation may be revoked. Section 76 e provides that:-“76A 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 on its own motion -a.………………………………..b.………...…………………….c.……………………………….d.………………………………..e.that the grant has become useless and inoperative through subsequent circumstances. [Own emphasis] 16.The demise of a sole administrator of an estate is one such ‘subsequent circumstances’ that would render a grant useless as inoperative since the death of the sole administrator leaves the estate without an administrator. This is distinct from the position referred to in Section 81 where only one or more of several joint administrators pass away leaving other administrators in place. 17.In Re Estate of George Ragui Karanja (Deceased) [2016] eKLR:, Hon. Justice Musyoka held as follows:-“The Law of Succession Act 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, to pave way for appointment of new administrators. [Own emphasis] 18.In the premises I find that this application seeking to replace Teresia Njoki Mbugu as administrator of the estate is misplaced. Once all the Administrators of an estate pass away then that grant is for revocation under Section 76 (e) of the Law of Succession Act. The confirmed Grant dated 9th October 2009 is hereby revoked. The family to discuss and present the name (s) of one or more alternate administrators. This being a family matter I make no orders on costs. DATED IN NYERI THIS 31ST DAY OF JULY 2026.……………………..MAUREEN A. ODEROJUDGE