https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11998

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **SUCCESSION CAUSE NO. 38 OF 2013** **IN THE MATTER OF THE ESTATE OF MAINA NJONGO (DECEASED)** JACKSON WANJOHI MWANGI & ERIC MWANGI WANJIRA (suing as legal representatives of the estate of BEATRICE WANJIRA GITHINJI ............ 1ST APPLICANT PURITY NYAMBURA GITHINJI ............................................................. 2ND APPLICANT ANNROSE WANJIKU GITHINJI .............................................................. 3RD APPUCANT VERSUS ROSE NJERI MAINA ...............................................................................1ST RESPONDENT JOYCE NJOKI MAINA .......................................................................... 2ND RESPONDENT **RULING** 1. Before the Court is an application by Summons dated 16/11/2025 where an administrator for an order that the Deputy Registrar of the Court do execute transfer documents on behalf of deceased co-administrator in specific terms as follows: *“1. THAT the court be pleased to authorize the Deputy Registrar to sign all the relevant documents on behalf of the 1st Respondent.* *2. THAT the court be pleased to direct/order the land Registrar Kirinyaga to dispense with the original title deed Kiine/Nyangio/156 and the 1st Respondent documents required for transmission i.e. Pin Certificate, Identity cards and passport photographs to facilitate registration of Form LRA-39 & 42 at the Nyeri Lands office.* *3. THAT the Kirinyaga West Assistant County Commissioner or the OCS Baricho Police Station be ordered to provide security during the Sub-division exercise to mark the boundaries as per the distribution in P& A 54.* *4. THAT the costs of this application be in the cause.”* 1. The application was based on grounds set out in the application as follows: *“1. THAT the estate herein Is comprised In L.R. no. Kiine/Nyangio/156.* *2. That the Grant of letters of Administration were issued on 4th February 2025 to the 1st Respondent and 1st Applicant.* *3. That the 1st respondent passed on before effecting of the grant.* ***4.*** *That no prejudice will be occasioned to the parties if the orders sought are granted since the suit land will be registered as per the confirmed grant.”* 1. The Application is supported by an affidavit of the applicant sworn on 16/11/2025 setting out the facts relied on as follows: *“****SUPPORTING AFFIDAVIT*** *I, JACKSON WANJOHI MWANGI of P.O. Box 70-10302 Baricno in the Republic of Kenya do hereby make oath and state as follows:* *1. THAT I am the Applicant herein and therefore competent to swear this affidavit.* *2. THAT the estate herein is comprised in L.R. no. Kiine/Nyangiu/156.* *3. THAT I and Rose Njeri Maina were issued with Grant of letters of administration on 11/11/2024 and confirmed on 15th May 2025* *4. THAT unfortunately and unknown to the court Rose Njeri Maina passed on before effecting of the grant.* *5. THAT her children have not taken any steps to substitute their late mother.* *6. THAT it is only fair that the court do authorize it's administrative officer to sign the transmission documents on behalf of the late 1st Respondent/administrator herein to allow transmission to go on to effect the grant and also order the lands office to dispense with her documents and the original title deeds.* *7. THAT the 1st respondent's portion should be transmitted to her name and then her children will pursue her succession at their conveniences to avoid holding the process herein from fully affecting the grant.* *8. THAT no prejudice will be occasioned to the parties if the orders sought are granted since the suit land will be registered as per the Grant as follows:* *i) Rose Njeri Maina* *ii) Purity Nyambura Muraguri* *iii) Annrose Wanjiku Githinji* *iv) Geoffrey MwangiMuthoni* *v) Jackson Wanjohi Mwangi & Eric Mwangi Wanjira –* ***To be shared equally.”*** 1. The 2nd Respondent, daughter of the Deceased administrator, has filed a Replying Affidavit indicating that she has and considers the application as premature as follows: ***“REPLYING AFFIDAVIT*** *I, Joyce Njoki Main do hereby make oath an hereby tat as follov ;* *1, THAT 1am adult citizen of sound mind and disposition hence competent to swear this affidavit.* *2. THAT I have read and understood the Summons dated 16th November 2025 plus the affidavit in support thereto and I would respond to it as follows.* *3. THAT r am the 2nd respondents whereas the 1st respondent is my mother who is deceased.* *4. THAT the 1st respondent passed away on the 11th of July 2025 and no substitution has been done for her yet in this matter.* *5. THAT there is no authority given to me by the 1st respondent to sign documents on her behalf.* *6. THAT it is imperative that the 1st respondent be substituted as an administrator since she is also a direct beneficiary and also meant to inherit and hold in trust part of the estate for other beneficiaries.* *7. THAT in the circumstances there is a continuous trust arising which means the powers of administration cannot be automatically be exercised by the surviving administrator.* *8. THAT 1 have sought and obtain d letters of administration AD- LITEM to enable me apply to substitute the 1st respondent for the remaining distribution of the estate. Annexed hereto and marked "JNM-l" is a copy of the grant.* *9. THAT I believe that the instant application is pre-mature as the substitution of the 1st respondent has not been done.* *10. THAT substitution cannot be overlooked as it is both a legal and procedural requirement contrary to the notion that it is meant to delay the conclusion of administration of the estate.* *11. THAT I make this Affidavit in opposition to the Summons dated 16th November 2025 as the same lacks merit and hence should be dismissed with cost s.”* 1. The Counsel for the parties agreed to rely on the application and affidavits filed without making any submissions on the matter, and ruling was reserved. **Determination** 1. The 1st Respondent and the applicant were on 11/11/2024 appointed joint administrators by the order of the Court (Mwongo, J) on as follows: *“****Court:*** *Grant to be issued to Jackson Wanjohi Mwangi and Rose Njeri Maina, and thereafter an application for confirmation of Grant be filed within 14 days.”* 1. The court order followed a Ruling (judgment) of the court dated 19/10/2023 on an application for revocation of an earlier Grant delivered where the Court (Mwongo. J.) found upon disclosure of the applicants’ interest in the estate of the Deceased as follows: *“****Disposition*** *45. On the first issue, I found and held that the land was held by the deceased for himself and also as trustee for the claimants.* *46. On the second issue, I hereby make the finding and do hold that the respondents failed to disclose to the court the existence of the rights of the applicants to the land; and that such non-disclosure whether neqliqent or inadvertent, leads to the result that the applicants were deprived of a beneficial equitable interest in the deceased's land. In the result, the grant cannot stand, and is hereby revoked.* *47. A fresh grant shall be issued in the names of the 1st respondent and one representative selected by the applicants from amongst themselves.* *48. The parties are directed to agree on the mode of distribution of the deceased's land and should they fail to do so, the 1st respondent shall file a summons for confirmation of grant to which any opposing party may file a protest.* *49. As this is a family matter, each party shall bear its own costs.* *50. Orders accordingly.* ***Dated at Kerugoya this*** *19th* ***day of October 2023*** ***R. Mwongo*** ***JUDGE****”* 1. There was no appeal from the ruling on the revocation of Grant and the 1st Respondent is said to have passed on 1/7/2025. 2. Upon Summons for Confirmation of Grant dated 25/11/2024 the hearing thereof was fixed for 15/5/2025 in the presence of counsel for both parties as follows on the record as follows: *“****20/3/2025*** *Hon. E M. Muriithi* *C/A Florence /Muchuku* *Mrs Wahome for Applicants* *Mr. Wamahiu for the Respondents* ***Court:*** 1. *Hearing of Summons dated 25/2024 on 15/5/2025.* 2. *Respondent to file within 14 days Affidavit of Protest.”* 3. At the hearing the 1st Respondent who was represented by Counsel did not file any Protest or attend court despite having been aware of the hearing date which was given in Counsel’s presence on 20/3/2025, this court confirmed the grant with consent of all beneficiaries present and named as follows: *“****Court:*** *Upon hearing Counsel for applicant and noting he Concurrence of the beneficiaries present whose indentities have been recorded and countersigned by the Court, the application for confirmation of Grant dated 25/11/2024 is granted for the distribution of the estate in terms of paragraph 5 (a) (1) of the Affidavit of 25/11/2024.”* 1. The beneficiaries present and who consented to the proposed distribution were listed: “1. Purity Nyambura Muraguri ID No. XXXXXXX. 2. Annrose Wanjiku Githinji ID No. XXXXXXX. 3. Geoffrey Mwangi Muthoni ID No. XXXXXXX. 4. Jackson Wanjohi Mwangi ID No. XXXXXXX. 5. Eric Mwangi Wanjira ID No. XXXXXXX.” 1. The Estate of the Deceased herein is to be distributed according to the confirmed Grant, as follows: *“KIINE/NYANGIO/156 to be shared equally between:* * + - * 1. *Rose Njeri Maina;* 2. *Purity Nyambura Muraguri;* 3. *Annrose Wanjiku Githinji;* 4. *Geoffrey Mwangi Muthoni;* 5. *Jackson Wanjohi Mwangi & Eric Mwangi Wanjira.”* 1. There being more than one administrator, the death of one administrator leave the other(s) to distribute the estate herein as provided in section 81 of the Law of Succession Act as follows: *“****81. Powers and duties of personal representatives to vest in survivor on death of one of them*** ***Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them:*** *Provided that, where there has been a grant of letters of administration which involve any 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.”* 1. The Grant herein was already confirmed on 15/5/2025 and all that remains is the distribution of the Estate which surviving administrator has the statutory authority to conclude, and there is no need to have the administrator substitute. Her share of the estate shall be distributed to her estate. 2. Should the personal representatives of the deceased administrator wish to take further proceedings in this cause by way rectification of the Confirmed Grant or otherwise, as they may be advised by their counsel, they must seek substitution of their deceased 1st respondent. No such application has been made and the Court cannot act in anticipation. 3. As regards the present application before the Court for orders to facilitate the implementation of the Confirmed Grant of 15/5/2025, there is no answer as the Confirmed grant is valid and ripe for implementation. The application for enforcement of the Grant will for that reason be granted. 4. Ther is no evidence of any continuing trusts as would require and given the history of this matter which called for a revocation of the Grant made to the 1st Respondent, the Court must find that the argument on need for substitution on he basis of an alleged continuing trust is merely a delaying tactic. 5. The undeniable position of the matter is that the Grant earlier issued to the 1st respondent was revoked by order of the Court of 19/10/2024; a fresh Grant of representation was issued to the 1st Applicant and the 1st Respondent on 11/11/2024 and that Grant was confirmed upon application by the 1st applicant without objection or protest by the 1st respondent who was then living; and the distribution under the confirmed grant has no provision that the 1st respondent was to hold her portion upon trust which may be said to be a continuing trust, within the meaning of the Law of Succession Act. Upon her passing, the 1st respondent’s her portion clearly passes to the beneficiaries of her estate without any connection to the other shares in this estate. 6. There is no evidence before the Court that any continuing trust has arisen since the confirmation of Grant on 15/5/2025. Section 75A of the Law of Succession Act provides as follows: ***“75A. Continuing trust arising*** 1. ***If, after confirmation of the grant of letters of administration at any time there is a continuing trust and only one surviving administrator, that administrator shall without delay apply to the court to appoint, subject to***[***section 66***](https://new.kenyalaw.org/akn/ke/act/1972/14/eng%402022-12-31#section%2066)***, as administrators jointly with him not less than one or more than three persons as proposed by him, which failing as chosen by the court of its own motion.(2)If a sole surviving administrator fails to apply to the court in accordance with subsection (1) within three months of there being a continuing trust and only one surviving administrator, on the application of any interested party in, or a creditor or debtor of the estate or of its own motion, the court may appoint additional administrators in accordance with subsection (1).*** ***[Act***[***No. 18 of 1986***](https://new.kenyalaw.org/akn/ke/act/1986/18)***, Sch.]”*** 1. **The court respectfully finds no basis for a continuing trust and the 2nd respondent’s argument on the Proviso to section 81 of the Law of Succession Act must fail.** **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds merit in the application and it is allowed as prayed. 2. The deponent of the Replying Affidavit, is at liberty to file an application for substitution and to purse such reliefs as she may be advised appropriate. 3. There shall be no orders as to costs. *Order accordingly.* **DATED AND DELIVERED THIS 30TH DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mrs Wahome for the Applicant. Mr. Wamahiu for the Respondent.