In e Estate of the Late Kipkoske Arap Maina alias Kipkosgei Maina (Deceased) [2024] KEHC 7388 (KLR)

In e Estate of the Late Kipkoske Arap Maina alias Kipkosgei Maina (Deceased) (Succession Cause 41 of 2000) [2024] KEHC 7388 (KLR) (20 June 2024) (Ruling)

Neutral citation: [2024] KEHC 7388 (KLR)

Republic of Kenya

In the High Court at Kericho

Succession Cause 41 of 2000

JK Sergon, J

June 20, 2024

In the matter of

David Kipngeno Rutto

Petitioner

Ruling

1. The application coming up for determination is a petition for grant of letters of administration de bonis non in respect of the estate of the deceased who died on 18th June, 1978 limited to that part of the said estate remaining unadministered by the administrator who died before he could complete the distribution of the estate.

2. The application is supported by grounds on the face of it and the supporting affidavit of David Kingeno Rutto the applicant herein.

3. The applicant avers that the grant of letters of administration intestate was made to Kipruto A. Kosgei, who is now deceased on 21st December, 2015 and confirmed on 8th September, 2016. The applicant avers that the administrator passed away before he could complete the distribution of the estate.

4. The applicant avers that the said petitioner, Kipruto A. Kosgei (now deceased) was his father and the son of Kipkoske Arap Maina the deceased herein.

5. The applicant avers that in light of the foregoing, the dependants of the estate of the deceased have proposed him as an administrator for purposes of obtaining grant de bonis for purposes of completion of the administration of the estate of the deceased.

6. The applicant avers that the deceased left behind the following assets: L.R NO. KERICHO/KABIANGA/808 which ought to be distributed as per the attached certificate of confirmation of grant dated 8th September, 2016.

7. The application is unopposed. I have considered the application and the sole issue for determination is whether to issue grant de bonis for purposes of completion of the administration of the estate of the deceased, that is limited to the part of the said estate remaining unadministered. The answer is in the negative.

8. There is no specific provision in succession law which provides for substitution of a single deceased administrator/executor. Upon the demise of a single administrator/executor, the grant becomes useless and inoperative through subsequent circumstances and therefore section 76 (e) of the Law of Succession Act CAP 160 comes to play and subsequently a fresh grant of letters of administration de bonis non is issued.

9. This position was aptly considered in the matter of the estate of Mary Wairimu Ngware (deceased) in Nairobi High Court Succession Cause No. 2018 of 2001 where Justice Khamoni dismissed an application seeking substitution of a deceased single administrator without revoking the grant first under Section 76 (e) of the Law of Succession.

10. In the case of the Estate of Ngaigwo M’Shomba (Deceased) [2019] eKLR Muchemi J. found that an application made under similar circumstances was incompetent and therefore proceeded to strike it out. The Learned Judge observed as follows; “... For the above reasons stated, the application before me and the prayers seeking to directly substitute the deceased administrator is not legally and procedurally correct. The applicant advised to make an 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.”

11. In light of the foregoing, the application dated 2nd June, 2023 seeking for grant of letters of administration de bonis non in respect of the estate of the deceased is hereby dismissed.

Delivered, signed and dated at Kericho this 20th day of June, 2024. ………………………..J.K. SERGONJUDGEIn the Presence of:C/Assistant – RutohNo Appearance for the PartiesPage 2