https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11338

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **FAMILY DIVISION** **SUCESSION CAUSE NO. 704 OF 2019** **IN THE MATTER OF THE ESTATE OF JAMES KASYULA MUTUA (DECEASED)** **JESSE KASYULA MUTUA.…………..…………….……….APPLICANT** **VERSUS** **JOHN KIOKO MUTUA ….……. ADMINISTRATOR/RESPONDENT** **RULING** 1. Before this Court for determination is the Originating Summons dated **20th January 2026**, brought pursuant to Sections 47, 66 and 76 of the Law of Succession Act and Rules 44, 49 and 73 of the Probate and Administration Rules, in which the Applicant seeks the following orders: * 1. **That the Applicant Jesse Kasyula Mutua be appointed as an administrator of the Estate;** 2. **The Grant of Letters of Administration be amended, rectified and/or substituted to include the Applicant;** 3. **The Applicant be authorized to take all necessary steps to administer and distribute the Estate in accordance with the law;** 4. **That in the alternative, the Applicant be granted ownership of properties LR 209/7571 Nairobi Riverside, Sunshine Beach Hotels Ltd 5 acres, Galu Beach 8 acres, Athi River Machakos/Mavoko 1000 acres, Cr 8508/466 Nyali property in Moyne Drive which the Applicant has a share in as part of his late father’s estate, 1/6 of Uathimo farm and the part of the ancestral home in Muthetheni which all amounts to 1/6 of the entire estate the applicant is entitled to as per the confirmation of grant dated February 2020;** 5. **That the Administrator John Kioko Mutua be held in contempt of this Court and be committed to civil jail for failure to pay the Applicant Kshs. 5,000,000/= as duly directed by this Honourable Court in its ruling of 3rd October 2024.** 6. **THAT the costs of this application be in cause.** 2. The application is based on the grounds thereof and the Applicant’s affidavit sworn on the same date. 3. The Applicant contends that the current administrator, **John Kioko Mutua**, has failed to diligently administer the estate by neglecting to account for and distribute the estate despite express directions issued by the Court. He further alleges that the administrator is in contempt of Court for failing to comply with an order directing payment of **Kshs. 5,000,000/=** to the Applicant. 4. Consequently, the Applicant asserts that he is willing, capable and suitable to be appointed as an administrator to ensure the proper administration of the estate in accordance with the Law of Succession Act. 5. It is his case also that he be allowed to administer the estate and or he be given his share of the estate which amounted to 1/6 thereof. 6. He also seeks that this Court finds the Respondent in contempt and he be punished. 7. The Application is opposed. By **John Kioko Mutua** who maintains that the Applicant, being a grandchild of the deceased, ranks lower in priority than him under Section 66 of the Law of Succession Act and is unsuitable for appointment as he resides in Botswana. 8. While acknowledging that the administration of the estate remains incomplete, he attributes the delay to pending litigation involving several estate properties, outstanding land rates and rent, and other practical challenges rather than any neglect or refusal on his part. 9. He further denies being in contempt of Court or having unlawfully disposed of any estate assets. He explains that the delay in paying the Applicant the sum of **Kshs. 5,000,000/=** arose from an agreement among the other beneficiaries, to the exclusion of the Applicant, that the amount would be settled from the proceeds of the sale of an estate property. 10. Although he acknowledges that **L.R. No. 3734/340 Nairobi** was sold for **Kshs. 170,000,000/=**, he maintains that the Applicant's entitlement has not been settled due to practical challenges encountered in the administration of the estate. 11. Despite acknowledging that the Applicants share of the estate is as described in prayer 3 of the Application, he contended that the specified properties can only be administered through the lawful transmission process prescribed under the Law of Succession Act. 12. Similarly, in opposition of the Application herein, **William Nzyoka Kivindi** a beneficiary herein through a Replying Affidavit dated **21st May 2026** deposes that, having regard to the family dynamics and the nature of the estate, John Kioko Mutua and Moses Wambua Mutua are best suited to administer the estate and opposes the Applicant's appointment as an administrator. 13. The application is also opposed by **Peter Mutua**, a beneficiary of the estate, through Grounds of Opposition dated **17th April 2026**. He contends that the application is legally untenable, raises issues that are *res judicata*, and seeks to accord the Applicant preferential treatment over the other beneficiaries. He accordingly urges the Court to dismiss the application for lack of merit. **ISSUES FOR DETERMINATION** 14. I have considered the application, the affidavit in support thereof, the Replying Affidavits, and the Grounds of Opposition. 15. In my view, the following issues arise for determination: a) Whether the Applicant has established sufficient grounds for the revocation of the existing Grant of Letters of Administration and his appointment as an Administrator of the Estate. b) Whether the alternative reliefs sought, namely the allocation of the specified properties can issue at this stage. c) Whether John Kioko Mutua should be cited for contempt of Court. **ANALYSIS AND DETERMINATION** 16. The jurisdiction of this Court is derived from **Section 47** of the Law of Succession Act, which confers upon the High Court jurisdiction to entertain any application and determine any dispute arising under the Act, and to pronounce such decrees and make such orders as may be expedient. The provision states as follows: ***"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."*** 17. Accordingly, this Court is properly seized of the jurisdiction to determine the present application. 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; a) Surviving spouse or spouses, with or without association of other beneficiaries; b) Other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V; c) The Public Trustee; and d) Creditors: 19. In the case of **Re Estate of Tuaruchiu Marete *alias* Mturuchiu Mmarete *alias* Turuchiu SO Marete (Deceased) (Succession Cause 82 of 1989) 2019 KEHC 10486 (KLR)**, F. Gikonyo J, in his judgment observed: ***“There are however situations where an additional administrator should be appointed. For instance, where there is a resulting trust, a sole surviving administrator is required to apply for an additional administrator to be appointed which failing the Court will appoint on its own motion. Similarly, where the intestate is polygamous, death of one of the administrators may require a replacement for purposes of the house he represented. Or for a good cause and in the best interest of all persons concerned the Court may appoint an additional administrator of an estate. This is in discretion under section 66 of the Law of Succession Act. Therefore, there is no complete prohibition of appointing another administrator in addition to a surviving administrator or administrators. Nothing wrong in the appointment of the first administrator herein.”*** 20. Having considered the evidence on record, I find that the reasons proffered for the continued delay in the administration and distribution of the deceased's estate are neither sufficient nor satisfactory. While the current administrator acknowledges that the administration of the estate has not been concluded, the explanations offered amount to excuses that do not justify the prolonged delay in the discharge of his statutory duties as administrator. 21. The Court of Appeal in ***Matheka and Another vs. Matheka* (2005) 2 KLR** 455 laid down the following guiding principles revocation of grant either on application by an interested party or by the Court on its own motion. It was stated that even when the revocation is by the Court upon its own motion, there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by the making of a false statement or by concealment of something material to the case or that the grant was obtained by means of untrue allegation of facts essential in point of law or that the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the estate**.** 22. The Court of Appeal affirmed the position ***in Joyce Ngima Njeru & another vs. Ann Wambeti Njue [2012] eKLR*** where it held that: ***‘The central core of the ingredients required to be established under section 76 of the L.S.A. is that it is meant to be used as a vehicle to attack and fault the process of either obtaining the Grant or inactive use of the Grant after being lawfully obtained in circumstances where it has become useless. It is not meant to fault the decision on the merits.’*** 23. From the evidence on record, this Court believes that the current administrator John Kioko Mutua has failed to proceed diligently with the administration of the Estate. This Court on 3rd October 2024 gave the opportunity the Respondent to carry out the exercise of executing the grant within 90 days but it appears he never heeded. 24. Again, vide the directions of this Court on 16th October 2025 the Respondent among other directives was ordered to execute the grant within 45 days to no avail. 25. The Court has no other options but to deny him the privilege of being an administrator. As stated above the reasons for the delay including paying the applicant his kshs5 million are pedestrian to say the least. In short, he totally refused to pay and therefore contemptuous of the said orders. 26. The Court is left with no other option but to remove the said John Kioko Mutua as the administrator of the estate herein. 27. In the case of **Re Estate of Prisca Ong’aya Nande (Deceased) 2020 eKLR** the Court held as follows: - ***“A grant of letters of Administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise 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. The third general ground is where the grant has become useless and inoperative following subsequent circumstance, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore becomes unqualified to hold any office of trust”.*** 28. The Respondent’s oppose the Applicant's appointment as an administrator on the ground that he resides outside the territorial jurisdiction of this Court. I find that residence outside the jurisdiction is not, of itself, a statutory bar to appointment under the Law of Succession Act. While it may be a relevant practical consideration in assessing the efficient administration of an estate, it does not constitute a legal disqualification. In the absence of evidence demonstrating that the Applicant's residence would prejudice or impede the proper administration of the estate, I find no basis for declining his appointment on that ground alone. 29. In the circumstances, and in the exercise of this Court's discretion under **Section 66** of the Law of Succession Act, I am satisfied that sufficient grounds have been established to warrant the removal of John Kioko Mutua as an administrator of the estate and the appointment of the Applicant as one of the administrators of the estate. 30. Consequently, and pursuant to **Section 76** of the Law of Succession Act, the Grant of Letters of Administration Intestate issued to John Kioko Mutua on 28th October 2019 is hereby revoked. 31. In light of the Court's determination granting the substantive prayers for the revocation of the grant and the appointment of new administrators, the alternative prayer for the allocation of the specified estate properties is spent and calls for no further determination. 32. As regards the issue of whether John Kioko Mutua should be found in contempt of Court for disobeying the orders issued on **3rd October 2024** and **16th October 2025**, I note that he has admitted his non-compliance but attributes the same to circumstances beyond his control. 33. Nevertheless, and now that he has been removed as an administrator the prayers for contempt need not be pursued. 34. Having considered the explanations advanced, I am not satisfied that they constitute a reasonable or sufficient justification for his failure to comply with the Court's orders. I therefore find that John Kioko Mutua is in contempt of Court. His continued disregard of the Court's orders demonstrates a failure to faithfully discharge the duties of an administrator and, together with the other circumstances of this case, warrants his removal as an administrator of the estate. 35. **Consequently, this Court to make the following orders:-** **a) The Grant of letters of Administration Intestate issued to John Kioko Mutua on 28th October 2019 be and is hereby revoked;** **b) That Jesse Kasyula Mutua be and is hereby appointed as one of the Administrator of the Estate of the deceased herein.** **c) The Applicant shall be paid by the new administrators the amount of Kshs. 5 million forthwith from the estates account.** **d) This being a family matter each side will bear its own costs.** **Dated signed and delivered via video link at Nairobi this** **23rd day of July, 2026.** **H.K. CHEMITEI** **JUDGE, FCIArb.**