https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13003

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **SUCCESSION CAUSE NO. 563 OF 2013** **IN THE MATTER OF THE ESTATE OF WANGITHI MWANIKI GATUMUTA Alias ANNE WANGITHI GATUMUTA (DECEASED)** **PETER KARIUKI MWANIKI…………...……...........…………..1ST ADMINISTRATOR** **DOLLY WAWIRA MURIUKI……...........………2ND ADMINISTRATOR (DECEASED)** **VERSUS** **ROSEMARIE MICERE MWANIKI….…………................………………...APPLICANT** **AND** **BENSON MUREITHI KINYUA…………….…...........…………..INTERESTED PARTY** **RULING** 1. By Summons dated 25/3/2025 under Sections 76 and 81 of the Succession Act and Rule 73 of the Probate and Administration Rules and all enabling provisions of law, the Applicant seeks that: 1. *This Honourable Court be pleased to appoint ROSEMARIE MICERE MWANIKI as a co-administrator of the Estate of Wangithi Mwaniki Gatumuta Alias Anne Wangithi Gatumuta (Deceased).* 2. *The costs of this application be in the cause.* 2. The application is premised on the grounds on the face of it and supporting affidavit of Rosemarie Micere Mwaniki, the Applicant herein sworn on even date. She avers that the family has chosen her to be a co-administrator, following the death of Dolly Wawira Muriuki on 9/11/2024, as the 1st Administrator cannot be trusted to solely administer the estate. 3. The 1st Administrator did not file any response to the application. 4. The Interested Party opposed the application vide grounds of opposition dated 27/3/2025 that: 1. *It is not legally possible to replace DOLLY WAWIRA MURIUKI before revocation of the grant issued to her under Section 76 of the Law of Succession Act Cap 160.* 2. *Legally the powers and duties of the personal representative of the deceased herein now vest in the surviving administrator, PETER KARIUKI MWANIKI, under Section 81 of the Law of Succession Act, Cap 160.* **Submissions** 1. The Applicant urges that the other beneficiaries have appointed her as a co-administrator to safeguard their interests, and the Interested Party has no role in the appointment of personal representatives, as he is not a beneficiary of the estate. She urges that in appointing Dolly Muriuki as a co-administrator, this court read the mischief, fraud and concealment of facts by the 1st Administrator, and cites ***In the Estate of Clement Gichuhi Ndirangu (Deceased) (Succession Cause E051 of 2020) [2025] KEHC 3555 (KLR)***. 2. The 1st Administrator did not file any submissions. 3. The Interested Party urges that the application has no merit and should be dismissed with costs, as the provisions of Section 81 of the Law of Succession Act are very clear on what happens once one executor or administrator of the estate of the deceased dies. He urges that upon the death of Dolly Wawira Muriuki, her powers and duties vest in the surviving administrator being Peter Kariuki Mwaniki. He urges that Peter Kariuki has the mandate to continue with the duties to completion without the need to replace Dolly Wawira Muriuki, and cites ***In******Re******Estate******of******Kandie******Chemirmir (Deceased) [2025] eKLR, Kandie******&******2******Others******(all******suing******as******Administrators of the Estate of Aaron Kimosop Kandie) v******Kanziwa Limited; Kandie (Applicant) [2025] eKLR and In Re Estate of Elijah Oktah Mikah Tsimbwele (Deceased) [2021] eKLR***.He urges that instead of substituting a deceased administrator, the proper process would be to apply for revocation or annulment of grant under Section 76 (e) of the Law of Succession Act and Rule 44 of the Probate and Administration Rulesonthegroundthat the grant has become useless and inoperative through subsequent circumstances, and cites ***Florence Okutu Nandwa &Another v John Atemba Kojwa, Kisumu Civil Appeal No. 306 of 1998, Re Estate of Chemwok Chemitei (Deceased) (2021) eKLR, Re Estate of Mwangi Mugwe alias Elieza Ngware (deceased) [2003] eKLR and Re Estate of George Ragui Karanja (Deceased) [2016] eKLR*** in praying for the dismissal of the application. **Determination** 1. After careful consideration of the summons, the grounds of opposition, the submissions on record and the authorities relied upon, the singular issue for determination is whether the orders sought therein ought to be granted. 2. The Applicant’s quest for appointment as a co-administrator is predicated on the 1st Administrator’s past propensity to act to the detriment of the other beneficiaries, which precipitated the revocation of the grant issued to him and the appointment of the 2nd Administrator as a co-administrator. 3. Whilst Section 81 of the Law of Succession Act is a self-executing provision which empowers a surviving administrator to complete administration of an estate, this court is minded that where the conduct of that administrator falls short of the standards expected of a fiduciary, the appointment of a co-administrator is warranted to safeguard the administration of the estate. The Applicant’s apprehension that the 1st Administrator may be unable to faithfully discharge his duties under section 83 of the Law of Succession Act are neither unfounded nor speculative, taking into account the 1st Administrator’s previous conduct, particularly his concealment of the existence of the other beneficiaries. 4. I respectfully agree with ***re Estate of Tuaruchiu Marete Marete alias M’turuchiu M’marete alias Turuchiu S/O Marete (Deceased) [2019] KEHC 10486 (KLR)***, where the court *(F. Gikonyo J)* observed that: ***“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 administrator 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. Also, I note that two administrators had been appointed earlier after the initial grant was revoked. One of them died. And despite section 81 of the Act the appointment of the 1st administrator has not been shown not to have been for good reason and in the best interest of the parties concerned.”*** 1. This court finds the appointment of the Applicant as a co-administrator is justified, to ensure transparency and equitable administration of the estate. The Court has wide powers under section 47 of the Law of Succession Act and nothing may be faulted when done in pursuit of the due administration and distribution of the estate of the Deceased and no prejudice is shown to be done to the respondent’s interest therein. **ORDERS** 1. Accordingly, for the reasons set out above, this court finds the Summons dated 25/3/2025 to be merited in the circumstances of the case, and is allowed as prayed. 2. There shall be no orders as to costs. *Order accordingly.* **DATED AND DELIVERED THIS 20TH DAY OF AUGUST 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES**: Mr. Ombachi for the Applicant. Ms. Muturi for Mr. Magee for the Respondent.