[2022] KEHC 11655 (KLR)

In re Estate of M'mwirichia M'kiao alias Mwirichia Kiao (Miscellaneous Succession Cause E013 of 2022) [2022] KEHC 11655 (KLR) (16 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11655 (KLR)

Republic of Kenya

In the High Court at Chuka

Miscellaneous Succession Cause E013 of 2022

LW Gitari, J

May 16, 2022

IN THE MATTER OF THE ESTATE OF M’MWIRICHIA M’KIAO ALIAS MWIRICHIA KIAO MURUNGI MWIRICHIA ................1ST APPLICANT WILFRED NJAGI MWIRICHIA .... 2ND APPLICANT NTWIGA MWIRICHIA ..................3RD APPLICANT

Ruling

1. Before this court is the summons application dated 31st March 2022. It is expressed to be brought under the provisions of Section 76(e) and 71 of the Law of Succession Act, Cap 160 of the Laws of Kenya (hereinafter referred to as the “Act”), Rule 44 of the Probate and Administration Rules (hereinafter referred to as the “Rules”) and Article 159(d) of the Constitution of Kenya 2010.

2. The application seeks for the following orders:a.Spent.b.That the grant of letters of administration issued to one Tyson Kithinji Mwririchia on the 9th March 2020 be revoked.c.That a fresh grant be issued to Murungi Mwirichia, Wilfred Njagi Mwirichia and Ntwiga Mwririchia jointly.d.That the grant of letter of administration made to Murungi Mwirichia, Wilfred Njagi Mwirichia and Ntwiga Mwririchia jointly be confirmed.e.That the estate of the deceased be distributed as per paragraph 11 of the supporting affidavit.f.That costs be in the cause.

3. The application is premised on the grounds on the face of it and is supported by the affidavit sworn by the 1st Applicant on 31st March 2022.

4. The Applicants have stated that one Tyson Kithinji Mwririchia, their brother, was the administrator of the subject but died on 24th Deccember 2021. The Applicants thus contend that the grant issued by this court to the late Tyson Kithinji Mwririchia has since become useless and inoperative following the death of the said administrator. They thus pray for the revocation and/or annulment of the grant issued to late Tyson Kithinji Mwririchia, substitution of the administrator by issuance of a fresh grant to the Applicants herein jointly, and confirmation of the fresh grant.

5. The application is not opposed and the same was heard on 22nd April 2022. Counsel for the Applicant, Ms. Nyaga, reiterated the grounds of the application. She relied on the case of Mwangi Mugwe alias Eliezer Ngware [2003] eKLR and prayed for the application to be allowed as prayed.

Issues for determination 6. Having considered the application dated 31st March 2022, the affidavit in support thereof and annexures thereto, it is my view that the main issues for determination are:a.Whether the grant issued to the late Tyson Kithinji Mwririchia should be revoked.b.Whether a fresh grant should be issued to the Applicants; and if so,c.Whether the fresh grant should be confirmed as proposed in the supporting affidavit of the 1st Applicant sworn on 31st March 2022.

7. Hereunder is an analysis of the above issues.

Analysis a. Revocation of grant 8. Revocation of grants is governed by Section 76 of the Act. The applicable provision in this case is Section 76(e) of the Act which states:“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)…e)that the grant has become useless and inoperative through subsequent circumstances.”

9. As per the attached copy of grant of letter of administration intestate, Tyson Kithinji Mwriricha was appointed as an administrator of the estate of M’Mwirichia M’Kiao alias Mwirichia Kiao. The applicants herein have indicated that the said Tyson Kithinji Mwriricha died on 24th December 2021. A copy of his death certificate has been attached to the application. In the circumstances therefore, the grant of Letters of Administration made to the said Tyson Kithinji Mwriricha is ripe for revocation for it has become useless and inoperative due to subsequent circumstances, namely his demise.

b.Substitution 10. In the case of John Karumwa Maina v Susan Wanjiru Mwangi [2015] eKLR, the court held as follows:“In the case of Florence Okutu Nandwa And Another vs John Atemba Kojwa, Court of Appeal Civil Appeal in Civil Appeal No. 306 of 1998 at Kisumu where it was held that a court should not issue a grant to a person who has not sought for it. The judge stated as follows:-“A grant of representation is made in personam. It is specific to the person appointed. It is not transferable to another person. It cannot therefore be transferred from one person to another.The issue of substitution of an administrator with another person should not arise. Where the holder of a grant dies, the grant made to him becomes useless and inoperative, and the grant exists for the purpose only of being revoked. Such grant is revocable under section 76 of the Law of Succession Act. Upon its revocation, a fresh application for grant should be made in the usual way, following procedures laid down in the Law of Succession Act and the Probate and Administration (Rules). I agree with the respondent that there cannot be a substitution of the dead administrator by his wife in the manner proposed by the applicant.”

11. Further in the case of Julia Mutune M’mboroki v John Mugambi M’mboroki & 3 others [2016] eKLR, the court held:“There is absolutely no room of substitution of the deceased administrator under the Law of Succession Act. In my view, therefore, where the sole administrator is a natural person, and he or she dies, the grant becomes useless or inoperative by reason of subsequent event of his demise…..Accordingly, in such case, the proper procedure is to apply for revocation of grant of letters of administration under section 76(e) of the Law of Succession Act on the reason that the grant has become useless and inoperative through subsequent circumstances and a grant to be made to another person named in the application.”

12. Guided by the above authorities, it follows that where a grant is revoked on account of it being useless and inoperative through subsequent death of an administrator, Section 76(e) of the Act, there can be no substitution of an administrator. The Applicants ought to have followed the process under the Act and Rules for them to be appointed as administrators.

13. The applicant has relied on In the Matter of the Estate of Mwangi Mugwe alias Elieza Ngware (deceased) (2003) eKLR, Justice Khamoni. This persuasive decision which is not binding on this court. I am not persuaded by the decision. The procedure in that decision would see the court overlooking the procedures and processes of appointing an administrator and the confirmation of the grant.I find that the decision of the Court of Appeal in Okutu Nandwa & Another –v- John Atemba is binding on this court. For one to be appointed an administrator he/she must follow the procedure laid down under the Law of Succession Act and the Probate and Administration Rules. Short of that the grant would only be good for revocation as the proceedings would be defective in substance. I believe that what the court of Appeal was saying is that once a grant is revoked, due to the death of an administrator, the intended administrator should move the court as provided under Section 51 of the Law of Succession Act and Rule 7 of the Probate and Administration Rules. The applicant has not complied with the provisions and the rules under the Law of Succession Act for his appointment as an administrator of the estate of the deceased.For these reasons I order as follows: -1)The prayer No.2 of the application is allowed and the grant of letters of administration issued to Tyson Kithinji Mwirichia and confirmed on 19/11/2020 is revoked.2)Prayer 3, 4 and 5 are not properly before the court and are dismissed.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 16TH DAY OF MAY 2022. L.W. GITARIJUDGE16/5/2022The ruling has been read out in open court.L.W. GITARIJUDGE16/5/2022