https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12060

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI** **FAMILY DIVISION** **SUCCESSION CAUSE NO. 2300 OF 2002** ***IN THE MATTER OF THE ESTATE OF HEZEKIAH KARANJA MBUTHIA (DECEASED)*** **KARANJA WANGOMBE MBUTHIA ……….…… APPLICANT** **-VERSUS-** **REUBEN WANJAU KARANJA …............... RESPONDENT** **RULING** 1. Before this Court is a Summons dated 13 May 2025, in which the Applicant seeks orders to compel the Respondent to produce an account and status of the estate of the Deceased. Specifically, the Applicant prays for an account of dividends from listed shares and rent collected from properties Umoja 1 House No. A 82 and Lanet Hill LR No. 12249/125 since 15 January 2023. He further seeks the appointment of a rent collection agency, an equal distribution of the collected rent, and a proposal for the absolute distribution of land parcel Trans-Nzoia/Sinyereri/330. 2. The Applicant also filed a Supplementary Supporting Affidavit on 19 August 2025, bringing to the Court's attention a previously unlisted parcel of land, LR No. 209/8536/2, located in Nairobi, seeking to have the Respondent account for it and admit it as part of the estate. **Background** 1. The Deceased died and a Certificate of Confirmation of Grant was issued by this Court on 1 February 2006. The Court appointed three joint administrators: Virginia Wangui Mbuthia (the widow), Kenneth Paul Mbuthia Karanja (son), and Dr. Reuben Wanjau Karanja Mbuthia (son). 2. Virginia Wangui Mbuthia died on 15 January 2023. Kenneth Paul Mbuthia Karanja died shortly thereafter on 1 March 2023. This left the Respondent as the sole surviving Administrator of the estate. 3. The Applicant is the son of the late Kenneth Paul Mbuthia and brings this Application on his own behalf and that of his siblings, Gacigi Wangui Mbuthia and Blessings Kerren Happach. 4. The Certificate of Confirmation of Grant placed several properties, including Umoja 1 House No. A 82, Lanet Hill LR No. 12249/125, Trans-Nzoia/Sinyereri/330, and various company shares, in trust for the beneficiaries. 5. The Respondent opposes the Application. He states that by mutual agreement, formalized in a Power of Attorney dated 11 July 2007, the late Virginia Wangui Mbuthia exclusively managed the trust properties until her death. He asserts he has not collected any rent or dividends since her demise. He further relies on Section 81 of the Law of Succession Act to argue that as a sole surviving Administrator of an estate involving a continuing trust, he lacks the power to unilaterally act without the appointment of a co-Administrator. **Analysis and Determination** *Locus Standi* 1. The Respondent contends that the Applicant's application is premature because the Applicant must first initiate succession proceedings for the estates of Virginia Wangui Mbuthia and Kenneth Paul Mbuthia Karanja to establish his legal entitlement. 2. It is a well-settled principle that for a party to participate in probate proceedings, they must possess a recognizable interest in the estate. As correctly cited by the Applicant and held by this Court in ***In re Estate of Johana Murage (Deceased) [2025] KEHC 3076 (KLR)*,** grandchildren step into the shoes of their deceased parents to inherit indirectly, taking the share that ought to have gone to their parent. The Applicant, as the son of a deceased beneficiary, holds a recognizable stake in the preservation of the estate. 3. In this instance, the Applicant's father survived the Deceased but died after the Grant had been confirmed. Consequently, Kenneth Paul Mbuthia Karanja's beneficial interest in the trust had already vested in him and now devolves to his estate. The Applicant, as a beneficiary of his late father who has already taken steps to pursue this interest, qualifies as an interested party. He holds a recognizable legal stake to ensure the primary estate is not dissipated. Therefore, the preliminary objection on *locus standi* fails. Delegation via Power of Attorney and Duty to Account 1. The Respondent attempts to shield himself from accountability by invoking a Power of Attorney dated 11 July 2007, through which he and his late brother delegated the management of the trust properties to their late mother. 2. Statutory fiduciary duties imposed on personal representatives under Section 83 of the Law of Succession Act cannot be wholly abdicated via a general Power of Attorney to the extent of permanently absolving a co-Administrator of their legal obligations. Furthermore, it is a basic tenet of agency law that a Power of Attorney terminates upon the death of either the principal or the agent. The authority granted to Virginia Wangui Mbuthia, therefore, lapsed by operation of law upon her demise on 15 January 2023. 3. From that date forward, the Respondent, as the sole surviving Administrator, resumed the undivided burden of the estate. As enunciated in ***In re Estate of John Muraya Githinji (Deceased) [2025] KEHC 3351 (KLR)*,** the duty to account purely lies on the personal representatives and is a strict statutory obligation under Section 83 (e) and (g) of the Act. Consequently, the Respondent cannot evade the duty to account for the estate's status from 15 January 2023. If the properties are currently being held or managed by Virginia's estate, the Respondent has a legal duty to trace them and render a proper account to the Court. Section 81 and Continuing Trusts 1. The Applicant asks this Court to order the Respondent to appoint a rent collection agency and to propose an absolute distribution of the Trans-Nzoia land. 2. The properties in question were expressly vested in trust by the Certificate of Confirmation of Grant. This constitutes a continuing trust. Section 81 of the Act is unambiguous: where a Grant involves a continuing trust, a sole surviving administrator who is not a trust corporation shall have *no power to do any act or thing* in respect of such trust until the Court has made a further Grant to one or more persons jointly with him. 3. As rightly submitted by the Respondent and affirmed in ***Changal v Maritim & another [2025] KEHC 8667 (KLR)*** and ***In re Estate of Tuaruchiu Marete (Deceased) [2019] KEHC 10486 (KLR)*,** a continuing trust legally incapacitates a sole surviving individual administrator from acting unilaterally. Therefore, granting the Applicant's prayers to compel the Respondent to distribute the land or unilaterally appoint a collection agency would mean issuing orders that compel the Respondent to commit a statutory illegality. The current paralysis in the estate can only be cured by an application to revoke the current Grant and issuance of a fresh one. The Court possesses the inherent jurisdiction to compel the regularization of this representation to ensure the estate is preserved. The Unlisted Property 1. The Applicant's Supplementary Affidavit introduces LR No. 209/8536/2, an asset omitted from the original Confirmation of Grant. It is trite law that an Administrator cannot deal with, and the Court cannot distribute, a property that is not legally part of the confirmed Grant. Because this property was not listed in the Certificate of Confirmation of Grant, it constitutes an unadministered estate. The Respondent bears a continuous statutory duty to gather all free property of the Deceased. An application for the rectification of the Grant to include this newly discovered asset must be initiated. 2. In conclusion, the Application dated 13 May 2025 is partially merited but faces rigid statutory impediments. The Applicant has successfully demonstrated that the Respondent has failed in his fiduciary duty to account for the estate following the demise of his co-administrators. The Respondent’s reliance on a lapsed Power of Attorney and a selective reading of Section 81 to justify his inaction is without merit. 3. Accordingly, I make the following orders: 4. The Respondent shall within 30 days from the date of this Ruling, file and serve a full and accurate account of the trust properties of the estate, specifically detailing all rent and dividends accrued from 15 January 2023 to date. 5. The Respondent shall, within 30 days from the date of this Ruling, file an appropriate application under Section 75A of the Law of Succession Act for the appointment of at least one co-administrator to act jointly with him in managing the continuing trust. 6. The Respondent is directed to formally ascertain the status of LR No. 209/8536/2 and apply for the rectification of the Grant to include it as part of the Deceased's estate. 7. Mention before the Deputy Registrar on 10 September 2026 to confirm compliance with the orders herein. 8. The costs of this Application shall be in the cause. **DATED AND DELIVERED AT NAIROBI THIS 30 DAY OF JULY 2026** **HELENE R. NAMISI** **JUDGE OF THE HIGH COURT** Delivered on virtual platform in the presence of: For the Applicant: Ms Karanja h/b Kinuthia For the Respondent: Ms Nyanchoka h/b Mr. Kanga Court Assistant: Lucy Mwangi