Rosebell Njeri Muriuki v Paul Gachahi Gachonde

the written submissions dated 4th February 2026 whilst the Respondent relied upon his written submissions dated 21st February 2026. Background 4. This succession cause relates to the estate of the late Daudi Gachonde (hereinafter ‘the Deceased’) who passed away on 23rd July 1998. Following the demise of the Deceased Grant of Letters of Administration Intestate was originally issued to her sons Vincent Daudi, Wanjohi and Eutychus Daudi Muriuki. However following the demise of Eutychus Daudi a fresh Grant was issued to Vincent Daudi Wanjohi and Rosebell Njeri Muriuki, the wife of the deceased administrator. On 22nd October 2009 the Grant was duly confirmed and a mode of distribution of the estate was agreed upon. 5. Much later on 5th July 2016 the Respondent Paul Gachahi filed a summons for revocation of Grant. The same was heard but was later dismissed vide the judgment delivered Hon. Justice Ngaah on 24th July 2020. 6. The Administrators have now filed this application before the Court seeking substitution of the Grant as well as redistribution of the estate on account of the demise of some of the beneficiaries. 7. The Respondent opposes this application largely on the grounds that having been recognised as a child of the deceased in the judgment dated 24th July 2020, no provision has been made for him out of the estate. Analysis and Determination 8. I have carefully considered this application, the reply filed thereto as well as the written submissions filed by both parties. The Applicant has sought substitution of one of the Administrators Vincent Wanjohi Gachonde who passed away on 1st January 2018. A copy of the Death Certificate Serial No. 047xxxx appears as Annexture RNM ‘1’ to the summons dated 14th December 2020. It is sought to have Salome Muthoni Wanjohi the widow of this deceased administrator replace him. 9. In the same application the applicant seeks to have the share of the estate allocated to one Shelmith Wanja Gachonde (also said to be deceased) redistributed to the other beneficiaries. 10. Lastly by way of the Supplementary affidavit dated 22nd May 2025 the applicant in Paragraph 9 sets out a new mode of distribution of the estate and also indicates that she has by way of a Power of Attorney donated her powers as Administrator to her son Alexander Wanjau Muriuki. 11. The Respondent does not oppose the substitution of the Administrator. The Respondents main bone of contention is that notwithstanding a finding by the High Court that he was a child of the Deceased, no allocation has been made to him out of the estate. 12. The law relating to the substitution of administrators is to be found in Section 81 of the Law of Succession Act which provide, that “ 81 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………” 13. Therefore what is envisaged by Section 81 is that in the event of the death of one or more of joint administrators the surviving administrator (s) have the mandate to continue with their duties to completion. There is no legal requirements that a deceased administrator be replaced except where there is only one administrator of the estate. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6676/eng@2026-05-15 2

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14. In this case there were two administrators. One of the joint administrators Vincent Wanjohi Gachonde passed away on 1st January 2018. The remaining administrator feels incapable of proceeding to administer the estate on her own (more on this later). 15. Notwithstanding the provisions of Section 81 parties in a succession cause are at liberty to replace a deceased administrator even where one or more of the appointed administrators is still surviving. The parties herein are all agreed that one Salome Muthoni Wanjohi replace the deceased administrator. They have all signed a consent dated 22nd May 2025. The Respondent has no objection to this substitution. Accordingly the application for substitution of the administrator is allowed. 16. The remaining prayers contained in this summons for substitution include a prayer that the share of the estate due to Shelmith Wanja Gachonde (now deceased) be redistributed to her children. The Applicant has also indicated that her duties as administrator will be taken over by her son Alexander Wanjau Muriuki through a power of Attorney signed by herself on grounds that she is unable to proceed with the administration of the estate due to ill-health. 17. An application to have the shares of one beneficiary re-allocated to another cannot be brought under Summons for rectification of Grant. In the Supplementary affidavit dated 22nd May 2025, the applicant has in paragraph 7 set out a mode of distribution of the part of the estate due to the deceased beneficiaries. 18. In other words the applicant is proposing an entirely new mode of distribution of the estate. This can only be done through an application to revoke the confirmed Grant and to have the same re-issued to accommodate the new mode of distribution of the estate. 19. The second reason why the application fails is because it seeks to redistribute the estate by reason of the supplementary affidavit dated 22nd May 2025. In re estate of Charles Kibe Karanja (deceased) [2015] eKLR it was stated:“ If a party wishes to have the assets of the estate redistributed or there is discovery of new assets that were not available or had not been discovered at the time of distribution, among others; ……. Such changes are fundamental, not superficial. They go to the core of the distribution. They cannot be affected without touching the orders made by the Court at the distribution of the estate…..The proper approach ought to be an application for review of the orders made at the confirmation of the grant. (mine emphasis) 20. In the issue of the applicant transferring her powers as administrator to her son through a Power of Attorney this is not an action provided for in the law of succession Act. Where an administrator feels unable or is unwilling to continue as administrator they must exit and a new administrator be appointed. The duties and role of an administrator cannot be so casually donated to another person as the appointment is made ‘in personam’ and related to a specific named person or persons. The grant cannot be transferred. 21. In the case of Florence Okutu Nandwa & Another -vs- John Atemba Kojwa Kisumu Civil Appeal No. 306 of 1998 the Court of Appeal stated that:“ A grant of representation is made in personam. It is specific to the person appointed. It is not transferable to another person. It cannot therefore be transferred from one person to another. The issue of substitution of an administrator with another person should not arise……….” [Own emphasis] https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6676/eng@2026-05-15 3

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22. The extent to which personal representatives can delegate their duties was addressed in re Estate of Haji Mohamed (Deceased) Succession cause No. 380 of 2008 where the learned Hon Justice Thande found that a personal representative could not on his part delegate the powers granted to him by the court to someone else to administer the estate (in the case where the deceased died intestate) or to execute the will (in the case where the deceased left behind a written will) on his behalf. In Estate of Haji Mohamed (supra) the court found that the extent to which personal representatives could delegate their duties was the same as for trustees and was governed by the Trustee Act. Under the said Act, personal representatives could employ an agent to transact any business or do any act in the administration of the estate and could remunerate such agent out of the estate. 23. However the court found that Under Section 24 of the Trustee Act, the personal representatives have no power to delegate matters relating to the administration of the estate to a third party. Therefore the applicants action in purporting to transfer the administration of the estate to her son through a power of Attorney has no legal backing and is null and void. 24. In his replying affidavit the Respondent Paul Gachonde has made certain claims regarding his right to a share of the estate. However since there is no application before this court filed by the Respondent I will not address those claims. Finally and in conclusion this court now makes the following orders:(1) The confirmed Grant issued to Rosebell Njeri Muriuki and Vincent Wanjohi Gachonde on 18th September 2009 be and is hereby rectified. (2) Salome Muthoni Wanjohi is appointed as Administrator to replace Vincent Wanjohi Gachonde (now Deceased) (3) Prayer (2) of the Notice of Motion dated 14th December 2020 is declined. (4) Each party to meet their own costs. DATED IN NYERI THIS 15TH DAY OF MAY 2026. MAUREEN A. ODERO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6676/eng@2026-05-15 4

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