https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8918

In re Estate of Kiguta (Deceased) (Succession Cause 518 of 2013) [2026] KEHC 8918 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8918 (KLR) Republic of Kenya In the High Court at Murang'a Succession Cause 518 of 2013 DO Chepkwony, J June 11, 2026 In The Matter Of The Estate Of Joseph Mwangi Philip Kiguta Alias Mwangi Philip Kiguta Alias Mwangi Philip Alias J. Mwangi Filipho Alias Joseph Mwangi Filipho Kiguta (deceased) Ruling 1.Before the Court for Consideration is a Summons for Substitution of the sole Administrator of the Estate of the late Joseph Mwangi Philip Kiguta Alias Mwangi Philip Kiguta Alias Mwangi Philip Alias J. Mwangi Filipho Alias Joseph Mwangi Filipho Kiguta dated 16th February, 2026. The instant application is expressed to be founded under the provisions of Rules 49, 59 and 73 of the Probate and Administration Rules wherein the Applicant Kiguta Mwangi is seeking the following reliefs:a.That the Applicant herein Kiguta Mwangi Be Substituted In Place Of Waithira Mwangi now deceased.b.That the costs of this application be in the cause.” 2.The application is supported by the even-dated Affidavit sworn by the Applicant wherein he has deposed that the Petitioner herein namely, Waithira Mwangi is his mother who died on 10th June, 2021 as indicated in the annexed death certificate dated 30th June, 2021 marked as “KM1”. The Applicant has stated that he is the first-born child of the Deceased’s family and urged the Court to substitute the Petitioner and appoint him as the legal Administrator of the Deceased’s Estate. 3.The application before the Court is not opposed. Nevertheless, this court is legally obligated to determine the same on the legal threshold and merit. Analysis & Determination 4.Having gone through the record, I find that the Applicant anchored his application, inter alia, on the provisions of Section 49 of the Probate and Administration Rules which provides as follows:“A person desiring to make an application to the court relating to the estate of a deceased person for which no provision is made elsewhere in these Rules shall file a summons supported if necessary by affidavit.” 5.The Applicant has further relied on the provisions of Section 59 of the Probate and Administration Rules which stipulates as hereunder:“(1)Save where otherwise provided in these Rules every application to the court or to a registry shall be brought in the form of a petition, caveat or summons as may be appropriate. 2) In the case of a pending proceeding the court or a registrar may of its or his own motion or at the request of any party, but without a formal application, cause the matter to be set down for mention before the court or registrar upon notice to such persons (if any) as the court or registrar may direct.(3)Unless otherwise directed by the court every application shall be heard in chambers in the presence only of the parties, their advocates and such other persons as the court or registrar may permit.(4)Every petition and cross-application for a grant shall be signed by the petitioner in the presence of his advocate or not less than two other adult witnesses who must sign giving their names, addresses and descriptions.(5)A summons shall be in one of Forms 104 to 110 as appropriate and be signed by the applicant or his advocate.(6)Save where it is otherwise provided in these Rules there shall be filed with every application such affidavits (if any) setting out such material facts and exhibiting such documents as the applicant may think necessary.” 6.Moreover, the subject Summons is further premised under the provisions of Section 73 of the Probate and Administration Rules which 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.” 7.The essence of the instant application is a prayer for substitution of the Petitioner (Deceased) with the Applicant as the Legal Administrator of the Deceased’s Estate. 8.In these proceedings, the demise of the Petitioner is not the subject of contestation. However, the Court is persuaded and satisfied that the reliefs sought by the Applicant herein have not been fashioned in the appropriate manner. 9.For clarity, in the case ofIN The Matter Of The Estate Of Mwangi Mugwe Alias Elieza Ngware (deceased) [2003] KEHC 872 (KLR), the Court reasoned as follows;“The Law of Succession Act has no provisions talking about substitution of a deceased single administrator… I do not think Rules 49 and 73 of the Probate and Administration Rules come in to assist the Applicant beyond enabling the Applicant bring this application by way of summons. In the circumstances therefore, it is my considered view that the proper provisions of the law to apply is section 76(e) of the Law of Succession Act and Rule 44 of the Probate and Administration Rules whereby the Applicant would apply for revocation or annulment of a grant on the ground “that the grant has become useless and inoperative through subsequent circumstances” The Applicant would proceed to put a prayer in the same application that a new grant be made to him and could as well add a further prayer, if need be, for confirmation of the new grant. The Application, should, of course, be supported by consent from adult beneficiaries in the estate of the first deceased person, the second deceased person being the deceased administrator.” 10.Similarly, in the case ofIn re Estate of Ngaigwo M’Shomba (Deceased) [2019] KEHC 2362 (KLR), the Court held that:“Where a single administrator or executor dies, before completion of the succession proceedings, the appropriate direction to take is for the applicant to apply for a grant of letters of administration de bonis non. This can only be done by revoking the grant under Section 76 (e) and rule 44 of the Probate and Administration rules and paragraph 16 of the 5th schedule. Technically or legally, the grant has become useless and inoperative.” 11.The preceding position was affirmed by the Court in the earlier case of Peris Wanjiku Nduati (deceased) Nairobi High Court Succession Cause No. 2349/2001, where it ruled that:“where an administrator dies before completion of administration, the right course of action should be to seek his replacement through an application for grant of administration de bonis non”. 12.Informed by the foregoing jurisprudence emanating from the superior Courts, this Court finds and holds the Applicant’s application dated 16th February 2026 and the prayers seeking to directly substitute the deceased administrator with the Applicant is not legally and procedurally correct as the grant became useless and inoperative upon the demise of the deceased Administrators. 13.In view of this, the applicant is advised and or directed to make appropriate application for revocation of the grant and then seek issuance of a fresh grant of letters of administration de bonis non and subsequent confirmation of the grant as provided for under section 76 (c) of the Succession Act, Rule 44 of the Probate and Administration Rules and paragraph 6 of the 5th Schedule. 14.In the resultant, the following orders issue:a.The summons dated 16th February,2026 is found incompetent, hence not properly before the Court and is accordingly struck out.b.There shall be not orders as to costs,It is hereby so Ordered. RULING DATED THIS 11TH DAY OF JUNE, 2026 IS UPLOADED AND FOR DELIVERY VIA EMAIL.HON. D.O CHEPKWONY (JUDGE)