Kibunya v Kariuki & another (Civil Appeal 308 of 2019) [2024] KECA 1274 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot substitute a deceased estate administrator once the estate is fully distributed and sold to third parties.
What this practically means
#Executive summary
#Key legal issues
#Whether substitution of a deceased administrator is available where the estate has been fully administered
No. Once the estate is wound up and nothing remains to be administered, appointing new administrators serves no purpose; the application is overtaken by events.
The grant issued to the 2nd deceased stood revoked under section 76(e) of the Law of Succession Act upon his death, being useless and inoperative. The sole asset had been transferred to third parties and the succession process completed. Appointing new administrators would amount to managing a shell estate, and reopening proceedings would produce fruitless litigation. Substantive justice cannot assist a party who comes to court too late.
Whether the ends-of-justice jurisdiction under Article 159 of the Constitution and section 47 of the Law of Succession Act could rescue the application
No. The inherent jurisdiction cannot be used to create an administration where there is no estate left to protect or preserve.
The jurisdiction donated to the deceased administrator had lapsed with the completion of administration. Substituting him, even with revocation of the grant, would be futile since the disputed asset was beyond reach and third-party purchasers' titles were protected by section 93 of the Law of Succession Act. Reopening the cause would only add pain to the appellant by way of costs.
First appellate court's duty on re-appraisal of evidence
A first appellate court must re-evaluate, re-assess and re-analyse the evidence and draw its own conclusions before deciding whether the trial judge's conclusions stand.
Under rule 31(1)(a) of the Court of Appeal Rules, 2022, the court's mandate on a first appeal is to subject the whole evidence to a fresh evaluation and give reasons either way, as explained in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR. Having done so, the court found no reason to fault the learned Judge.
Costs where the parties are relatives
Although costs ordinarily follow the event, the court retained discretion and directed that each party bear their own costs given the family relationship.
The parties in the appeal are relatives; the appellant's brother had taken the entirety of their father's estate to her sisters' exclusion. While the appellant's unceasing litigation might ordinarily attract costs, the court was convinced this was a case where costs should not follow the event.
Legal principles established
#- A grant of letters of administration that has become useless and inoperative through subsequent circumstances may be revoked under section 76(e) of the Law of Succession Act; death of the sole administrator revokes the grant by operation of law
- New administrators may only be appointed where administration of the estate was not concluded at the time of the administrator's death; there is no substitution where nothing remains to be administered
- Section 93 of the Law of Succession Act protects the titles of purchasers from an administrator even where the underlying grant is later challenged, where no defect in the grant is alleged against the purchasers
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear their own costs of the appeal
- On appeal from
- High Court at Eldoret
- Succession Cause (number not stated)
- Jurisdiction invoked
- First appeal under rule 31(1)(a) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibunya v Kariuki & another (Civil Appeal 308 of 2019) [2024] KECA 1274 (KLR)", Case Analysis (2024). Not stated in judgment (appeal against ruling in Succession Cause, High Court at Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1274/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.