Peter Kebati Omambia v Vitalis Nyachiro Omambia & 2 others

without an administrator as the surviving Administrator had died. He states that he is the deceased’s son and is therefore qualified to be appointed as an administrator in place of his mother Martha Bwari Omambia (deceased), having been appointed as her legal representative. He avers that the Estate remains undistributed as all the beneficiaries are now deceased. 3. The Respondents opposed the application through the 2nd Respondent’s replying affidavit dated 3rd July 2025 wherein he states that he was appointed as the representative of the deceased’s second household to administer the Estate alongside a representative from the 1st household who eventually nominated the Applicant herein as a co-administrator. He avers that they are opposed the appointment of the Applicant as an administrator because of his previous hostile conduct of threatening and interfering with former administrators including Wilson Ogero, his own biological brother. who resigned as an administrator, citing threats and intimidation. 4. The 2nd Respondent avers that the Applicant’s past conduct and temperament are incompatible with the impartial role of an administrator and impedes the integrity and neutrality of the administration process. It was the Respondents’ case that the Applicant had continually sown discord and rifts within the family and that his nomination was meant to advance his selfish interests and escalate conflicts. They stated that the Estate remains partially un-administered and is vulnerable to abuse and delay in the final administration. 5. The 2nd Respondent further avers that the Applicant previously lodged a caution over land parcel No. Ikonge/146 as an Interested Party thus frustrating the distribution of the said Estate in accordance with the confirmed Grant of July 2009. He adds that the Applicant’s conduct was reflective of a person intent on interfering with the lawful administration of the Estate in order to advance vendetta and supremacy battles within the family. 6. In a rejoinder, the Applicant filed a Supplementary Affidavit dated 15th July 2025 wherein he averred that he had been duly appointed as the legal representative of the Estate of Martha Bwari Omambia who died before completion of the distribution of his late father’s Estate. He contends that he is not aware of any orders appointing the 2nd Respondent as the representative of the 2nd household and that the previous administrator had since been discharged. He further avers that if indeed the Respondents were opposed to his appointment as an administrator, they ought to have moved the court for revocation of the Grant of Letters of Administration that he now hols over his late mother’s Estate. 7. The Application was canvassed by way of written submissions which I have considered. I find that the main for determination is whether the Court can substitute the deceased administrator with the Applicant herein who now holds a Limited Grant over her Estate. Analysis and Determination 8. I have considered the Applicant’s claim that the 2nd Respondent is not a representative of the 2nd household and I note that the court record shows that on 6th November 2023, parties recorded a partial consent as follows: a. 9. Evans Mong’are Omambia shall be added as a co-administrator of the Estate. When parties subsequently appeared before me on 18th September 2024, Counsel representing the beneficiaries of the second house informed the Court that pursuant to its Orders of 30th July 2024 directing each house to appoint an Administrator, the 2nd House had appointed Evans Mong’are Omambia as their administrator. I am therefore satisfied that the 2nd Respondent was properly and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19376/eng@2025-10-16 2

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duly nominated by the 2nd Household to represent their interests and is therefore duly recognized by the Court as such. 10. Turning to the crux of this Application which is the substitution of the deceased administrator, I am guided by Section 81 of the Law of Succession Act which provides 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. 11. In John Karumwa Maina vs. Susan Wanjiru Mwangi [2015] eKLR it was held thus: “ In the case of Florence Okutu Nandwa and Another vs. John Atembakojwa, Court of Appeal Civil Appeal in Civil Appeal No. 306 of 1998 held that a court should not issue a grant to a person who has not sought for it.” 12. Similarly, in Julia Mutune M’mboroki vs. John Mugambi M’mboroki & 3 others [2016] eKLR, the Court held thus: “ There is absolutely no room of substitution of the deceased administrator under the Law of Succession Act. In my view, therefore, where the sole administrator is a natural person, and he or she dies, the grant becomes useless or inoperative by reason of subsequent event of his demise….. Accordingly, in such case, the proper procedure is to apply for revocation of grant of letters of administration under section 76(e) of the Law of Succession Act on the reason that the grant has become useless and inoperative through subsequent circumstances and a grant to be made to another person named in the application.” 13. The import of the above precedents, is that a Grant of Representation is made in personam or in simpler terms, it is personal and specific to the person to whom it has been made or issued. This means that grant cannot be transferred to another person as proposed by the Applicant herein. 14. My take is that the moment the Applicant’s mother Martha Bwari Omambia died, the Grant that was issued to her became useless and inoperative. The fact that the Applicant now holds a Limited Grant over his mother’s Estate does not confer him with the right to continue carrying out her role of an administrator based on the confirmed Grant of July 2009. I find that the issue of substitution does arises in this case. 15. I also find that it is not legally tenable for the Applicant to seek a rectification of the said Grant as there is no error apparent on the face of the record to warrant the rectification. I therefore find that there can be no substitution of the dead administrator by the applicant in the manner that he has proposed. 16. In sum, I find no merit in the Application and hereby dismiss it. Each party shall bear their own costs in the Application. 17. Orders accordingly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19376/eng@2025-10-16 3

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RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NYAMIRA VIA MICROSOFT TEAMS THIS 16TH DAY OF OCTOBER 2025. W. A. OKWANY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19376/eng@2025-10-16 4

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