STEPHEN MWANGI WAITHAKA &
PETER KIHURANI WAITHAKA .......................................... APPLICANTS
VERSUS
ANGELICA WANGUI WAITHAKA (Sued as the Executrix of the Estate of the Late John Hosea Githuki Waithaka) .......................... 1 ST RESPONDENT
AND
SUSAN WANJIKU NDUNG’U (Sued as the Court-Appointed Guardian of Angelica Wangui Waithaka pursuant to the Mental Health Act) ......................................................................................... 2 ND RESPONDENT
1. The deceased, John Hosea Githuki Waithaka , died testate having executed a Will dated 25 ᵗʰ December, 2011. Probate proceedings were subsequently instituted, culminating in the issuance of a Grant and a Certificate of Confirmation of Grant on 6 ᵗʰ November, 2013, appointing Angelica Wangui Waithaka as the Executrix of the Estate and confirming the mode of distribution set out in the Will.
2. On 31 ˢᵗ July, 2025, Stephen Mwangi Waithaka and Peter Kihurani Waithaka, being beneficiaries of the Estate, filed a Chamber Summons under certificate of urgency seeking the following orders:
a) THAT the Honourable Court do compel the Executrix to furnish the Court and beneficiaries with an account of the Estate from the day she was issued the Certificate of Confirmation of Grant to date.
b) THAT the Honourable Court grant the beneficiaries orders to effect transfer of the allotted properties onto themselves as dictated in the Will.
c) THAT in the alternative, the Honourable Court appoint a new executor of the aforementioned Estate.
d) THAT the Honourable Court grant the orders above as sought.
e) THAT the costs of the application be in the cause.
3. The application is supported by the affidavit of Stephen Mwangi Waithaka and Peter Kihurani Waithaka sworn on 31 ˢᵗ July, 2025. The Applicants contend that despite the issuance of the Certificate of Confirmation of Grant on 6 ᵗʰ November, 2013, the Estate has not been fully administered and they have not received the properties bequeathed to them under the Will. They aver that there has been no contest to the Will, yet the Executrix has failed to complete distribution of the Estate.
4. They further contend that despite engaging both the Executrix and her advocates over the years, including through their previous and current advocates, and despite their willingness to execute documents and facilitate subdivision of the remaining property through the assistance of a surveyor, the administration has remained incomplete. They further express concern that some beneficiaries have since died before receiving their respective bequests and that portions of the Estate have allegedly been encroached upon by squatters.
5. The Chamber Summons was opposed through a Replying Affidavit sworn on 10 ᵗʰ March, 2026 by Susan Wanjiku Ndung’u in her capacity as the court-appointed guardian of Angelica Wangui Waithaka. She depones that the application is founded on misrepresentation and material non-disclosure and contends that, save for Land Reference No. 7968/2, the Estate has substantially been distributed in accordance with the Will. She avers that completion of the administration has been delayed by the Applicants’ own conduct, particularly the failure of Stephen Mwangi Waithaka, in his capacity as administrator of the Estate of Lydia Wanjiru Waithaka, to execute the documents necessary to facilitate the transmission of L.R. No. 7968/2.
6. She further states that meetings were held with the beneficiaries during which it was resolved that part of the Estate be sold to meet outstanding rates, land rent, survey and registration expenses; that a purchaser was identified but the sale could not be completed due to the Applicants’ failure to facilitate transmission of the property; that transfer documents were forwarded to the Applicants’ former advocates in 2018 but were not promptly executed and returned; that the Executrix and the guardian have continued to meet estate expenses including rates and security costs; and that the Applicants have colluded with third parties who have instituted Environment and Land Court proceedings asserting purchaser’s interests over portions of the Estate.
7. The Applicants thereafter filed a Further Affidavit sworn by Stephen Mwangi Waithaka on 29 ᵗʰ April, 2026. They deny frustrating the administration of the Estate and contend that the allegations of collusion with third parties are unfounded. They maintain that they executed all documents necessary to facilitate the transmission of L.R. No. 7968/2 after obtaining representation for the Estate of Lydia Wanjiru Waithaka, and that correspondence exchanged between the parties demonstrates repeated efforts by both their previous and current advocates to facilitate the completion of the administration.
8. They further contend that the Respondent’s advocates consistently failed to provide updates on the progress of the administration, declined to render an inventory or account of the Estate, and frustrated efforts to involve a surveyor familiar with the deceased’s properties in order to expedite implementation of the Will. They consequently reiterate their prayer that the Court compel the rendering of accounts and completion of the administration or, in the alternative, appoint a new administrator to conclude the administration of the Estate.
9. While the foregoing application was pending determination, Susan Wanjiku Ndung’u filed a Notice of Motion dated 8 ᵗʰ October, 2025 seeking the following orders:
a) THAT this application be certified urgent, service be dispensed with and the same be heard ex parte in the first instance.
b) THAT this Honourable Court be pleased to substitute Angelica Wangui Ndung’u, the Respondent/Executrix herein, with Susan Wanjiku Ndung’u as the Respondent in these proceedings.
c) THAT the beneficiaries amend their summons to include Susan Wanjiku Ndung’u, the Applicant herein, as the Respondent.
d) THAT the proceedings herein be stayed pending the hearing and determination of this application.
e) THAT the Applicant herein be allowed to file and serve the response to the Chamber Summons dated 31 ˢᵗ July, 2025.
f) THAT the costs of the application be costs in the cause.
10. The application is supported by the affidavit of Susan Wanjiku Ndung’u sworn on 8 ᵗʰ October, 2025. She depones that Angelica Wangui Waithaka was declared by the High Court in HCF Miscellaneous No. E268 of 2025 to be suffering from a mental disorder under Section 26 of the Mental Health Act and was consequently incapable of protecting her interests in legal proceedings.
11. She further depones that she was appointed guardian under Section 27 and manager of Angelica Wangui Waithaka’s estate under Section 28 of the Act, and therefore seeks to be substituted in these proceedings to enable her to respond to the Chamber Summons. She further avers that there are pending suits filed against Angelica Wangui Waithaka by persons claiming purchaser’s interests over portions of the Estate and reiterates her belief that those proceedings were instituted in collusion with the Applicants.
12. The application was opposed by Stephen Mwangi Waithaka through a Replying Affidavit sworn on 18 ᵗʰ November, 2025. He states that the Applicants do not oppose the appointment of Susan Wanjiku Ndung’u as guardian of Angelica Wangui Waithaka in respect of her personal affairs. They, however, oppose her assuming responsibility for the administration of the Estate of the deceased. The Applicants contend that neither the Respondent nor Susan Wanjiku Ndung’u disclosed the Respondent’s medical condition to the beneficiaries despite the lapse of several years without communication regarding the administration of the Estate.
13. They further deny the allegations of collusion with third parties and contend that the existence of the Environment and Land Court suits heightens their concerns regarding the manner in which the Estate has been administered. They further aver that the proposed substitution would perpetuate the same lack of communication and transparency which, according to them, has characterized the administration of the Estate for over twelve years, and urge the Court instead to appoint the first Applicant as administrator of the Estate.
14. In response, Susan Wanjiku Ndung’u filed a Further Affidavit sworn on 19 ᵗʰ November, 2025 by Manyara Mainye Michael, Advocate. The affidavit principally exhibits the Judgment delivered on 26 ᵗʰ September, 2025 and the resultant Decree issued in HCF Miscellaneous No. E268 of 2025 confirming that Angelica Wangui Waithaka was declared to be suffering from a mental disorder under Section 26 of the Mental Health Act, and that Susan Wanjiku Ndung’u was appointed as her guardian under Section 27 and manager of her estate under Section 28 of the Act.
Submissions:
15. The Applicants filed written submissions dated 6 ᵗʰ May, 2026 in support of the Summons dated 31 ˢᵗ July, 2025. Counsel identifies three issues for determination, namely whether the Respondent breached her statutory duties as Executrix under the Law of Succession Act, whether the Respondent’s prolonged delay, lack of transparency and failure to account warrant revocation of the Grant, and whether the first Applicant ought to be appointed as executor in place of the Respondent.
16. On the first issue, counsel submits that the Respondent has failed to discharge the statutory obligations imposed upon a personal representative under Section 83 of the Law of Succession Act. It is argued that although the Grant was confirmed in 2013, the Estate remains undistributed more than twelve years later notwithstanding that the Will is uncontested. Counsel contends that the Respondent has failed to collect, preserve and distribute the Estate diligently, and has equally failed to render a full inventory and account of the administration of the Estate as required by law. It is further submitted that the explanation offered by the Respondent, attributing the delay to the Ardhi Sasa platform and the Executrix’s subsequent incapacity, is untenable and does not excuse the prolonged delay in the administration of the Estate.
17. Counsel further submits that the Respondent expressly declined to render an inventory or account of the Estate in her Replying Affidavit despite the mandatory duty imposed under Section 83 (g) of the Act. It is argued that the Respondent has also alleged the existence of liabilities requiring the disposal of estate assets without disclosing the nature of those liabilities or furnishing any supporting documentation. According to counsel, the Respondent’s failure to account, coupled with the alleged lack of transparency regarding estate transactions, raises legitimate concerns as to the manner in which the Estate has been administered and constitutes a statutory ground for revocation of the Grant under Section 76 (d) of the Law of Succession Act.
18. On the question whether the Grant ought to be revoked, counsel submits that the Executrix has failed to proceed diligently with the administration of the Estate and that her subsequent incapacity renders her unable to continue discharging the duties of an executrix. It is further argued that the office of an executrix is personal in nature and does not automatically devolve upon a guardian appointed under the Mental Health Act . Counsel also contends that despite efforts by both previous and current advocates to facilitate implementation of the Will, including engaging a surveyor familiar with the Estate, the Respondent and her advocates consistently frustrated progress, thereby occasioning prejudice to the beneficiaries.
19. Counsel therefore urges the Court to find that the Respondent has failed to comply with the mandatory duties imposed under Sections 76 and 83 of the Law of Succession Act, to revoke the existing Grant, compel the filing of a full inventory and account of the Estate, remove the current Executrix and appoint the first Applicant, Stephen Mwangi Waithaka, as executor to complete the administration of the Estate.
20. In support of those submissions, counsel relied on Sections 76 and 83 of the Law of Succession Act and cited In re Estate of Julius Mimano (Deceased) [2019] KEHC 10103 (KLR) and In re Estate of Jane Wanjiru Muthee (Deceased) [2014] eKLR .
21. The Respondent filed written submissions dated 28 ᵗʰ May, 2026 opposing the Chamber Summons dated 31 ˢᵗ July, 2025. Counsel submits that the application is founded on misrepresentation and is intended to defeat the wishes of the testator as expressed in his Will. It is argued that, contrary to the Applicants’ assertions, the Estate has substantially been administered and all the bequests under the Will have been effected save for L.R. No. 7968/2 (L.R. No. 15413/2), whose transmission has been delayed by circumstances attributable to the Applicants themselves.
22. Counsel submits that L.R. No. 7968/2 was previously jointly owned by the deceased and Lydia Wanjiru Waithaka, the Applicants’ mother, and that following their divorce, the property was subdivided pursuant to a Court order, with Lydia Wanjiru Waithaka receiving her share during her lifetime. It is contended that upon her demise, the Applicants delayed obtaining letters of administration to her Estate and thereafter failed to execute documents necessary to facilitate transmission of the remaining portion to the Estate of the deceased. Counsel argues that despite the Executrix meeting the costs associated with petitioning for the Grant relating to Lydia Wanjiru Waithaka’s Estate and despite several requests by her advocates for execution of transfer documents, the Applicants failed to cooperate, thereby frustrating completion of the administration of the Estate.
23. It is further submitted that the Applicants have sought to misrepresent the true cause of the delay by attributing it to the Executrix, whereas they have themselves engaged in conduct intended to defeat the deceased’s Will. Counsel contends that the Applicants improperly sought orders in Succession Cause No. 1397 of 2016 with the effect of introducing a claim by the Estate of Lydia Wanjiru Waithaka to a half share of L.R. No. 7968/2, contrary to the terms of the Will and the earlier matrimonial property proceedings. It is argued that the Applicants’ conduct demonstrates an intention to alter the distribution intended by the testator.
24. Counsel further submits that the documentary evidence annexed to the Replying Affidavit demonstrates that the Executrix consistently took steps to facilitate completion of the administration, including payment of land rates and land rent, forwarding transfer documents to the Applicants’ advocates for execution, and engaging the Applicants with a view to completing the outstanding transfers. It is argued that the Applicants repeatedly failed to execute and return the requisite documents despite several reminders and instead changed advocates before engaging a surveyor without the knowledge or authority of the Executrix or her advocates, thereby disrupting efforts already underway to conclude the administration.
25. With regard to the Environment and Land Court suits filed by third parties claiming interests over portions of L.R. No. 7968/2, counsel submits that the timing of those proceedings, filed shortly before the present application, demonstrates collusion between the Applicants and the third parties with the intention of defeating the Estate. Counsel further argues that until those proceedings are determined, the outstanding transfers relating to the Estate cannot prudently be completed. It is also submitted that the proposed sale of part of L.R. No. 7968/2, which had been agreed upon to meet estate liabilities and administration expenses, was frustrated by the Applicants’ refusal to execute the requisite documents vesting the property in the Estate.
26. Counsel finally submits that the Applicants do not approach the Court with clean hands and should not benefit from their own conduct. It is argued that the Will has never been challenged and that the Court should uphold the wishes of the testator by declining the invitation to remove the Executrix or appoint the first Applicant as executor. Accordingly, the Court is urged to dismiss the Chamber Summons dated 31 ˢᵗ July, 2025 with costs.
Analysis & determination:
27. Having considered the pleadings, affidavits and submissions by the parties, the issues that arise for determination in my view are:
a) Whether Susan Wanjiku Ndung’u should be substituted in these proceedings in place of Angelica Wangui Waithaka
b) Whether sufficient grounds have been established to warrant the removal or substitution of the Executrix of the Estate of John Hosea Githuki Waithaka
c) Whether the Applicants are entitled to the orders sought in the Chamber Summons dated 31 ˢᵗ July, 2025
d) Who should bear the costs of the applications
Whether Susan Wanjiku Ndung’u should be substituted in these proceedings in place of Angelica Wangui Waithaka
28. The first issue for determination is whether Susan Wanjiku Ndung’u should be substituted in these proceedings in place of Angelica Wangui Waithaka, the Respondent/Executrix, following the latter’s declaration as a person suffering from a mental disorder.
29. The application is founded upon Sections 26, 27 and 28 of the Mental Health Act , Cap. 248 Laws of Kenya , and Order 32 Rule 15 of the Civil Procedure Rules.
30. Section 27 of the Mental Health Act provides as follows:
“Where a person is suffering from mental disorder, the court may make orders—
(a) for the management of the estate of any person suffering from mental disorder; and
(b) for the guardianship of any person suffering from mental disorder by any near relative or by any other suitable person.”
31. Section 28 of the Act further provides that:
“Where the court has made an order under section 26, it may appoint a manager of the estate of the person suffering from mental disorder and such manager shall, subject to the directions of the court, have power to do all such things as appear necessary or expedient for the maintenance or benefit of the person suffering from mental disorder or of his estate.”
32. Similarly, Order 32 Rule 15 of the Civil Procedure Rules provides:
“Rules 1 to 14 (except rule 2A) shall, so far as applicable, extend to persons adjudged to be of unsound mind and to persons who, though not so adjudged, are found by the court on inquiry, by reason of mental disorder within the meaning of the Mental Health Act, or by reason of being persons with intellectual disability, to be incapable of protecting their interests when suing or being sued.”
33. The effect of the foregoing provisions is that where a party has been adjudged to be suffering from a mental disorder and is incapable of protecting his or her interests in litigation, the law permits such party to participate in proceedings through a duly appointed guardian or manager. The purpose of the provisions is to ensure that an incapacitated litigant is not denied access to justice or left without representation merely because of the disability.
34. The record before me shows that in HCF Miscellaneous No. E268 of 2025 , Angelica Wangui Waithaka was declared to be suffering from a mental disorder under Section 26 of the Mental Health Act. The Court further appointed Susan Wanjiku Ndung’u as her guardian under Section 27 of the Act and manager of her estate under Section 28 . The Judgment was delivered on 26 ᵗʰ September, 2025, and a Decree was subsequently issued embodying those orders. Those documents have been exhibited before this Court and there is no suggestion that the Judgment or Decree has been appealed, reviewed or otherwise set aside.
35. Indeed, the Applicants do not challenge the validity of those orders. On the contrary, in his Replying Affidavit sworn on 18 ᵗʰ November, 2025, Stephen Mwangi Waithaka expressly states that the Applicants do not object to Susan Wanjiku Ndung’u being appointed guardian to Angelica Wangui Waithaka. Their objection is limited to the proposition that Susan Wanjiku Ndung’u should not assume responsibility for the administration of the Estate of the late John Hosea Githuki Waithaka.
36. I find that the Applicants’ objection conflates two distinct legal capacities. The appointment made in HCF Miscellaneous No. E268 of 2025 did not appoint Susan Wanjiku Ndung’u as the Executrix of the Estate of John Hosea Githuki Waithaka. Neither did it transfer to her the office of Executrix. The appointment authorized her to act on behalf of Angelica Wangui Waithaka, who had been found incapable of managing her affairs and protecting her interests. Consequently, Susan Wanjiku Ndung’u does not come before this Court in her own right as Executrix, but in a representative capacity on behalf of the incapacitated Executrix.
37. That said, the prayer as framed seeks substitution, and substitution is not, strictly, what the law contemplates in these circumstances. Substitution presupposes that the outgoing party ceases to be a party to the proceedings altogether. That is not the position here. Angelica Wangui Waithaka remains the Executrix of the Estate and the party against whom the Chamber Summons dated 31 ˢᵗ July, 2025 is directed. Her incapacity does not remove her from the proceedings; it requires that she defend them through her guardian. The proper order, therefore, is not to substitute her but to recognize Susan Wanjiku Ndung’u as the guardian through whom she shall defend these proceedings, and to amend the record accordingly.
38. It follows that the remaining prayers in the Notice of Motion resolve themselves. The prayer for leave to respond to the Chamber Summons has been overtaken by events, the guardian having sworn a Replying Affidavit on 10 ᵗʰ March, 2026, which I deem properly on record. The prayer for a stay of proceedings pending determination of the application is equally spent, both applications having been canvassed together.
39. Accordingly, I find that Susan Wanjiku Ndung’u is properly before this Court as the duly appointed guardian and manager of the estate of Angelica Wangui Waithaka, and that she shall defend these proceedings on behalf of the Executrix in that capacity. The heading of the cause shall be amended to reflect that the Respondent defends through her said guardian. I must, however clarify that such representation does not amount to her appointment as the Executrix of the Estate of John Hosea Githuki Waithaka. The office of Executrix remains vested in Angelica Wangui Waithaka, while Susan Wanjiku Ndung’u merely conducts these proceedings on her behalf pursuant to the orders issued by the High Court under the Mental Health Act.
Whether sufficient cause has been shown for removal of the Executrix of the Estate
40. The duties of a personal representative are prescribed under Section 83 of the Law of Succession Act. The provisions material to the present application provide as follows:
“Personal representatives shall have the following duties—
...
(e) subject to section 55, to complete the administration of the estate in respect of all matters other than continuing trusts, and, if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration;
...
(g) to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;
(h) to complete the administration of the estate in respect of all matters other than continuing trusts within six months of the date of confirmation of the grant, or such longer period as the court may allow.”
41. The consequences attendant upon a failure to discharge those duties are set out under Section 76 (d) of the Act, which provides that:
“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
...
(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either—
(i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
(ii) to proceed diligently with the administration of the estate; or
(iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular...”
42. The office of an executor or administrator is a fiduciary office. A personal representative acquires no beneficial interest in the estate by virtue of appointment but holds the estate in trust for those beneficially entitled thereto. It is for that reason that the Act imposes strict duties of diligence, transparency and accountability while, at the same time, empowering the Court under Section 76 to intervene where those duties are not discharged.
43. On the importance of the duty to account, the Court in In re Estate of Julius Mimano (Deceased) [2019] KEHC 10103 (KLR) observed as follows:
“The matter of the duty to render accounts is so critical that default to do so is listed in Section 76 (d) (iii) of the Act as one of the grounds upon which the Court may consider revoking a grant… The personal representative does not have to wait for a court order… they must render accounts as a matter of course.”
44. Measured against that statutory framework, the position emerging from the record is this. The Grant was confirmed on 6 ᵗʰ November, 2013. Pursuant to Section 83 (h) of the Act , the administration ought to have been completed within six months of the confirmation of the Grant or within such further period as the Court might allow. There is no evidence that an enlargement of time was ever sought or granted. It is equally common ground that, more than twelve years after confirmation of the Grant, the administration of the Estate remains incomplete, at the very least in respect of L.R. No. 7968/2.
45. The Applicants complain that throughout this period no inventory or account of the Estate has ever been rendered. The guardian’s answer is that an account of an estate, unless it is a going concern or running business, can only be rendered upon completion of the distribution.
46. With respect, that contention is inconsistent with Section 83 (g) of the Act. The duty imposed by that provision is to produce, when required by the Court or upon the application of an interested party, a full and accurate inventory of the assets and liabilities of the deceased together with an account of all dealings therewith up to the date of the account . The obligation is therefore not contingent upon completion of the administration. Indeed, as was observed in In re Estate of Julius Mimano (Deceased) (supra), the duty to account subsists throughout the administration of an estate and is not dependent upon the issuance of a specific court order. A personal representative cannot resist accounting by pointing to the very incompleteness of the administration which the account is intended to illuminate.
47. I therefore find that the Respondent’s position that no account could be rendered until completion of the administration is unsupported by Section 83 (g) of the Act . The duty to account remained extant notwithstanding the unresolved issues affecting the Estate and, on the material before the Court, that duty was never discharged.
48. I take a different view, however, regarding the allegation that the Executrix failed to proceed diligently with the administration of the Estate within the meaning of Section 76 (d )(ii) of the Act.
49. The Applicants portray the administration as one characterised by prolonged inaction and neglect. The Respondent, on the other hand, attributes the delay principally to disputes surrounding the transmission of L.R. No. 7968/2, the administration of the Estate of Lydia Wanjiru Waithaka, the execution of transfer documents and the subsequent institution of suits by third parties claiming purchaser’s interests over portions of that property.
50. Having considered the affidavits and the annexed correspondence, I am unable to conclude that the delay is attributable exclusively to the Executrix. The documentary record demonstrates that over the years there were engagements between the parties through their respective advocates concerning the transmission of L.R. No. 7968/2, execution of transfer documents and completion of the administration.
51. The Respondent exhibited correspondence showing that her advocates forwarded transfer documents to the Applicants’ former advocates and thereafter issued several reminders before the executed documents were eventually returned. The Applicants, for their part, maintain that once they executed the requisite documents, the administration stalled for reasons never explained to them, and that their own efforts, including engaging a surveyor familiar with the Estate, were frustrated by the Respondent and her advocates.
52. On the material presently before the Court, it is not possible to conclusively determine which party bears responsibility for the ultimate failure to complete the transmission of L.R. No. 7968/2. Equally, I am unable to make definitive findings regarding the allegations of collusion, fraud, greed, conspiracy or deliberate mismanagement levelled by each side again
[...truncated]
PETER KIHURANI WAITHAKA .......................................... APPLICANTS
VERSUS
ANGELICA WANGUI WAITHAKA (Sued as the Executrix of the Estate of the Late John Hosea Githuki Waithaka) .......................... 1 ST RESPONDENT
AND
SUSAN WANJIKU NDUNG’U (Sued as the Court-Appointed Guardian of Angelica Wangui Waithaka pursuant to the Mental Health Act) ......................................................................................... 2 ND RESPONDENT
1. The deceased, John Hosea Githuki Waithaka , died testate having executed a Will dated 25 ᵗʰ December, 2011. Probate proceedings were subsequently instituted, culminating in the issuance of a Grant and a Certificate of Confirmation of Grant on 6 ᵗʰ November, 2013, appointing Angelica Wangui Waithaka as the Executrix of the Estate and confirming the mode of distribution set out in the Will.
2. On 31 ˢᵗ July, 2025, Stephen Mwangi Waithaka and Peter Kihurani Waithaka, being beneficiaries of the Estate, filed a Chamber Summons under certificate of urgency seeking the following orders:
a) THAT the Honourable Court do compel the Executrix to furnish the Court and beneficiaries with an account of the Estate from the day she was issued the Certificate of Confirmation of Grant to date.
b) THAT the Honourable Court grant the beneficiaries orders to effect transfer of the allotted properties onto themselves as dictated in the Will.
c) THAT in the alternative, the Honourable Court appoint a new executor of the aforementioned Estate.
d) THAT the Honourable Court grant the orders above as sought.
e) THAT the costs of the application be in the cause.
3. The application is supported by the affidavit of Stephen Mwangi Waithaka and Peter Kihurani Waithaka sworn on 31 ˢᵗ July, 2025. The Applicants contend that despite the issuance of the Certificate of Confirmation of Grant on 6 ᵗʰ November, 2013, the Estate has not been fully administered and they have not received the properties bequeathed to them under the Will. They aver that there has been no contest to the Will, yet the Executrix has failed to complete distribution of the Estate.
4. They further contend that despite engaging both the Executrix and her advocates over the years, including through their previous and current advocates, and despite their willingness to execute documents and facilitate subdivision of the remaining property through the assistance of a surveyor, the administration has remained incomplete. They further express concern that some beneficiaries have since died before receiving their respective bequests and that portions of the Estate have allegedly been encroached upon by squatters.
5. The Chamber Summons was opposed through a Replying Affidavit sworn on 10 ᵗʰ March, 2026 by Susan Wanjiku Ndung’u in her capacity as the court-appointed guardian of Angelica Wangui Waithaka. She depones that the application is founded on misrepresentation and material non-disclosure and contends that, save for Land Reference No. 7968/2, the Estate has substantially been distributed in accordance with the Will. She avers that completion of the administration has been delayed by the Applicants’ own conduct, particularly the failure of Stephen Mwangi Waithaka, in his capacity as administrator of the Estate of Lydia Wanjiru Waithaka, to execute the documents necessary to facilitate the transmission of L.R. No. 7968/2.
6. She further states that meetings were held with the beneficiaries during which it was resolved that part of the Estate be sold to meet outstanding rates, land rent, survey and registration expenses; that a purchaser was identified but the sale could not be completed due to the Applicants’ failure to facilitate transmission of the property; that transfer documents were forwarded to the Applicants’ former advocates in 2018 but were not promptly executed and returned; that the Executrix and the guardian have continued to meet estate expenses including rates and security costs; and that the Applicants have colluded with third parties who have instituted Environment and Land Court proceedings asserting purchaser’s interests over portions of the Estate.
7. The Applicants thereafter filed a Further Affidavit sworn by Stephen Mwangi Waithaka on 29 ᵗʰ April, 2026. They deny frustrating the administration of the Estate and contend that the allegations of collusion with third parties are unfounded. They maintain that they executed all documents necessary to facilitate the transmission of L.R. No. 7968/2 after obtaining representation for the Estate of Lydia Wanjiru Waithaka, and that correspondence exchanged between the parties demonstrates repeated efforts by both their previous and current advocates to facilitate the completion of the administration.
8. They further contend that the Respondent’s advocates consistently failed to provide updates on the progress of the administration, declined to render an inventory or account of the Estate, and frustrated efforts to involve a surveyor familiar with the deceased’s properties in order to expedite implementation of the Will. They consequently reiterate their prayer that the Court compel the rendering of accounts and completion of the administration or, in the alternative, appoint a new administrator to conclude the administration of the Estate.
9. While the foregoing application was pending determination, Susan Wanjiku Ndung’u filed a Notice of Motion dated 8 ᵗʰ October, 2025 seeking the following orders:
a) THAT this application be certified urgent, service be dispensed with and the same be heard ex parte in the first instance.
b) THAT this Honourable Court be pleased to substitute Angelica Wangui Ndung’u, the Respondent/Executrix herein, with Susan Wanjiku Ndung’u as the Respondent in these proceedings.
c) THAT the beneficiaries amend their summons to include Susan Wanjiku Ndung’u, the Applicant herein, as the Respondent.
d) THAT the proceedings herein be stayed pending the hearing and determination of this application.
e) THAT the Applicant herein be allowed to file and serve the response to the Chamber Summons dated 31 ˢᵗ July, 2025.
f) THAT the costs of the application be costs in the cause.
10. The application is supported by the affidavit of Susan Wanjiku Ndung’u sworn on 8 ᵗʰ October, 2025. She depones that Angelica Wangui Waithaka was declared by the High Court in HCF Miscellaneous No. E268 of 2025 to be suffering from a mental disorder under Section 26 of the Mental Health Act and was consequently incapable of protecting her interests in legal proceedings.
11. She further depones that she was appointed guardian under Section 27 and manager of Angelica Wangui Waithaka’s estate under Section 28 of the Act, and therefore seeks to be substituted in these proceedings to enable her to respond to the Chamber Summons. She further avers that there are pending suits filed against Angelica Wangui Waithaka by persons claiming purchaser’s interests over portions of the Estate and reiterates her belief that those proceedings were instituted in collusion with the Applicants.
12. The application was opposed by Stephen Mwangi Waithaka through a Replying Affidavit sworn on 18 ᵗʰ November, 2025. He states that the Applicants do not oppose the appointment of Susan Wanjiku Ndung’u as guardian of Angelica Wangui Waithaka in respect of her personal affairs. They, however, oppose her assuming responsibility for the administration of the Estate of the deceased. The Applicants contend that neither the Respondent nor Susan Wanjiku Ndung’u disclosed the Respondent’s medical condition to the beneficiaries despite the lapse of several years without communication regarding the administration of the Estate.
13. They further deny the allegations of collusion with third parties and contend that the existence of the Environment and Land Court suits heightens their concerns regarding the manner in which the Estate has been administered. They further aver that the proposed substitution would perpetuate the same lack of communication and transparency which, according to them, has characterized the administration of the Estate for over twelve years, and urge the Court instead to appoint the first Applicant as administrator of the Estate.
14. In response, Susan Wanjiku Ndung’u filed a Further Affidavit sworn on 19 ᵗʰ November, 2025 by Manyara Mainye Michael, Advocate. The affidavit principally exhibits the Judgment delivered on 26 ᵗʰ September, 2025 and the resultant Decree issued in HCF Miscellaneous No. E268 of 2025 confirming that Angelica Wangui Waithaka was declared to be suffering from a mental disorder under Section 26 of the Mental Health Act, and that Susan Wanjiku Ndung’u was appointed as her guardian under Section 27 and manager of her estate under Section 28 of the Act.
Submissions:
15. The Applicants filed written submissions dated 6 ᵗʰ May, 2026 in support of the Summons dated 31 ˢᵗ July, 2025. Counsel identifies three issues for determination, namely whether the Respondent breached her statutory duties as Executrix under the Law of Succession Act, whether the Respondent’s prolonged delay, lack of transparency and failure to account warrant revocation of the Grant, and whether the first Applicant ought to be appointed as executor in place of the Respondent.
16. On the first issue, counsel submits that the Respondent has failed to discharge the statutory obligations imposed upon a personal representative under Section 83 of the Law of Succession Act. It is argued that although the Grant was confirmed in 2013, the Estate remains undistributed more than twelve years later notwithstanding that the Will is uncontested. Counsel contends that the Respondent has failed to collect, preserve and distribute the Estate diligently, and has equally failed to render a full inventory and account of the administration of the Estate as required by law. It is further submitted that the explanation offered by the Respondent, attributing the delay to the Ardhi Sasa platform and the Executrix’s subsequent incapacity, is untenable and does not excuse the prolonged delay in the administration of the Estate.
17. Counsel further submits that the Respondent expressly declined to render an inventory or account of the Estate in her Replying Affidavit despite the mandatory duty imposed under Section 83 (g) of the Act. It is argued that the Respondent has also alleged the existence of liabilities requiring the disposal of estate assets without disclosing the nature of those liabilities or furnishing any supporting documentation. According to counsel, the Respondent’s failure to account, coupled with the alleged lack of transparency regarding estate transactions, raises legitimate concerns as to the manner in which the Estate has been administered and constitutes a statutory ground for revocation of the Grant under Section 76 (d) of the Law of Succession Act.
18. On the question whether the Grant ought to be revoked, counsel submits that the Executrix has failed to proceed diligently with the administration of the Estate and that her subsequent incapacity renders her unable to continue discharging the duties of an executrix. It is further argued that the office of an executrix is personal in nature and does not automatically devolve upon a guardian appointed under the Mental Health Act . Counsel also contends that despite efforts by both previous and current advocates to facilitate implementation of the Will, including engaging a surveyor familiar with the Estate, the Respondent and her advocates consistently frustrated progress, thereby occasioning prejudice to the beneficiaries.
19. Counsel therefore urges the Court to find that the Respondent has failed to comply with the mandatory duties imposed under Sections 76 and 83 of the Law of Succession Act, to revoke the existing Grant, compel the filing of a full inventory and account of the Estate, remove the current Executrix and appoint the first Applicant, Stephen Mwangi Waithaka, as executor to complete the administration of the Estate.
20. In support of those submissions, counsel relied on Sections 76 and 83 of the Law of Succession Act and cited In re Estate of Julius Mimano (Deceased) [2019] KEHC 10103 (KLR) and In re Estate of Jane Wanjiru Muthee (Deceased) [2014] eKLR .
21. The Respondent filed written submissions dated 28 ᵗʰ May, 2026 opposing the Chamber Summons dated 31 ˢᵗ July, 2025. Counsel submits that the application is founded on misrepresentation and is intended to defeat the wishes of the testator as expressed in his Will. It is argued that, contrary to the Applicants’ assertions, the Estate has substantially been administered and all the bequests under the Will have been effected save for L.R. No. 7968/2 (L.R. No. 15413/2), whose transmission has been delayed by circumstances attributable to the Applicants themselves.
22. Counsel submits that L.R. No. 7968/2 was previously jointly owned by the deceased and Lydia Wanjiru Waithaka, the Applicants’ mother, and that following their divorce, the property was subdivided pursuant to a Court order, with Lydia Wanjiru Waithaka receiving her share during her lifetime. It is contended that upon her demise, the Applicants delayed obtaining letters of administration to her Estate and thereafter failed to execute documents necessary to facilitate transmission of the remaining portion to the Estate of the deceased. Counsel argues that despite the Executrix meeting the costs associated with petitioning for the Grant relating to Lydia Wanjiru Waithaka’s Estate and despite several requests by her advocates for execution of transfer documents, the Applicants failed to cooperate, thereby frustrating completion of the administration of the Estate.
23. It is further submitted that the Applicants have sought to misrepresent the true cause of the delay by attributing it to the Executrix, whereas they have themselves engaged in conduct intended to defeat the deceased’s Will. Counsel contends that the Applicants improperly sought orders in Succession Cause No. 1397 of 2016 with the effect of introducing a claim by the Estate of Lydia Wanjiru Waithaka to a half share of L.R. No. 7968/2, contrary to the terms of the Will and the earlier matrimonial property proceedings. It is argued that the Applicants’ conduct demonstrates an intention to alter the distribution intended by the testator.
24. Counsel further submits that the documentary evidence annexed to the Replying Affidavit demonstrates that the Executrix consistently took steps to facilitate completion of the administration, including payment of land rates and land rent, forwarding transfer documents to the Applicants’ advocates for execution, and engaging the Applicants with a view to completing the outstanding transfers. It is argued that the Applicants repeatedly failed to execute and return the requisite documents despite several reminders and instead changed advocates before engaging a surveyor without the knowledge or authority of the Executrix or her advocates, thereby disrupting efforts already underway to conclude the administration.
25. With regard to the Environment and Land Court suits filed by third parties claiming interests over portions of L.R. No. 7968/2, counsel submits that the timing of those proceedings, filed shortly before the present application, demonstrates collusion between the Applicants and the third parties with the intention of defeating the Estate. Counsel further argues that until those proceedings are determined, the outstanding transfers relating to the Estate cannot prudently be completed. It is also submitted that the proposed sale of part of L.R. No. 7968/2, which had been agreed upon to meet estate liabilities and administration expenses, was frustrated by the Applicants’ refusal to execute the requisite documents vesting the property in the Estate.
26. Counsel finally submits that the Applicants do not approach the Court with clean hands and should not benefit from their own conduct. It is argued that the Will has never been challenged and that the Court should uphold the wishes of the testator by declining the invitation to remove the Executrix or appoint the first Applicant as executor. Accordingly, the Court is urged to dismiss the Chamber Summons dated 31 ˢᵗ July, 2025 with costs.
Analysis & determination:
27. Having considered the pleadings, affidavits and submissions by the parties, the issues that arise for determination in my view are:
a) Whether Susan Wanjiku Ndung’u should be substituted in these proceedings in place of Angelica Wangui Waithaka
b) Whether sufficient grounds have been established to warrant the removal or substitution of the Executrix of the Estate of John Hosea Githuki Waithaka
c) Whether the Applicants are entitled to the orders sought in the Chamber Summons dated 31 ˢᵗ July, 2025
d) Who should bear the costs of the applications
Whether Susan Wanjiku Ndung’u should be substituted in these proceedings in place of Angelica Wangui Waithaka
28. The first issue for determination is whether Susan Wanjiku Ndung’u should be substituted in these proceedings in place of Angelica Wangui Waithaka, the Respondent/Executrix, following the latter’s declaration as a person suffering from a mental disorder.
29. The application is founded upon Sections 26, 27 and 28 of the Mental Health Act , Cap. 248 Laws of Kenya , and Order 32 Rule 15 of the Civil Procedure Rules.
30. Section 27 of the Mental Health Act provides as follows:
“Where a person is suffering from mental disorder, the court may make orders—
(a) for the management of the estate of any person suffering from mental disorder; and
(b) for the guardianship of any person suffering from mental disorder by any near relative or by any other suitable person.”
31. Section 28 of the Act further provides that:
“Where the court has made an order under section 26, it may appoint a manager of the estate of the person suffering from mental disorder and such manager shall, subject to the directions of the court, have power to do all such things as appear necessary or expedient for the maintenance or benefit of the person suffering from mental disorder or of his estate.”
32. Similarly, Order 32 Rule 15 of the Civil Procedure Rules provides:
“Rules 1 to 14 (except rule 2A) shall, so far as applicable, extend to persons adjudged to be of unsound mind and to persons who, though not so adjudged, are found by the court on inquiry, by reason of mental disorder within the meaning of the Mental Health Act, or by reason of being persons with intellectual disability, to be incapable of protecting their interests when suing or being sued.”
33. The effect of the foregoing provisions is that where a party has been adjudged to be suffering from a mental disorder and is incapable of protecting his or her interests in litigation, the law permits such party to participate in proceedings through a duly appointed guardian or manager. The purpose of the provisions is to ensure that an incapacitated litigant is not denied access to justice or left without representation merely because of the disability.
34. The record before me shows that in HCF Miscellaneous No. E268 of 2025 , Angelica Wangui Waithaka was declared to be suffering from a mental disorder under Section 26 of the Mental Health Act. The Court further appointed Susan Wanjiku Ndung’u as her guardian under Section 27 of the Act and manager of her estate under Section 28 . The Judgment was delivered on 26 ᵗʰ September, 2025, and a Decree was subsequently issued embodying those orders. Those documents have been exhibited before this Court and there is no suggestion that the Judgment or Decree has been appealed, reviewed or otherwise set aside.
35. Indeed, the Applicants do not challenge the validity of those orders. On the contrary, in his Replying Affidavit sworn on 18 ᵗʰ November, 2025, Stephen Mwangi Waithaka expressly states that the Applicants do not object to Susan Wanjiku Ndung’u being appointed guardian to Angelica Wangui Waithaka. Their objection is limited to the proposition that Susan Wanjiku Ndung’u should not assume responsibility for the administration of the Estate of the late John Hosea Githuki Waithaka.
36. I find that the Applicants’ objection conflates two distinct legal capacities. The appointment made in HCF Miscellaneous No. E268 of 2025 did not appoint Susan Wanjiku Ndung’u as the Executrix of the Estate of John Hosea Githuki Waithaka. Neither did it transfer to her the office of Executrix. The appointment authorized her to act on behalf of Angelica Wangui Waithaka, who had been found incapable of managing her affairs and protecting her interests. Consequently, Susan Wanjiku Ndung’u does not come before this Court in her own right as Executrix, but in a representative capacity on behalf of the incapacitated Executrix.
37. That said, the prayer as framed seeks substitution, and substitution is not, strictly, what the law contemplates in these circumstances. Substitution presupposes that the outgoing party ceases to be a party to the proceedings altogether. That is not the position here. Angelica Wangui Waithaka remains the Executrix of the Estate and the party against whom the Chamber Summons dated 31 ˢᵗ July, 2025 is directed. Her incapacity does not remove her from the proceedings; it requires that she defend them through her guardian. The proper order, therefore, is not to substitute her but to recognize Susan Wanjiku Ndung’u as the guardian through whom she shall defend these proceedings, and to amend the record accordingly.
38. It follows that the remaining prayers in the Notice of Motion resolve themselves. The prayer for leave to respond to the Chamber Summons has been overtaken by events, the guardian having sworn a Replying Affidavit on 10 ᵗʰ March, 2026, which I deem properly on record. The prayer for a stay of proceedings pending determination of the application is equally spent, both applications having been canvassed together.
39. Accordingly, I find that Susan Wanjiku Ndung’u is properly before this Court as the duly appointed guardian and manager of the estate of Angelica Wangui Waithaka, and that she shall defend these proceedings on behalf of the Executrix in that capacity. The heading of the cause shall be amended to reflect that the Respondent defends through her said guardian. I must, however clarify that such representation does not amount to her appointment as the Executrix of the Estate of John Hosea Githuki Waithaka. The office of Executrix remains vested in Angelica Wangui Waithaka, while Susan Wanjiku Ndung’u merely conducts these proceedings on her behalf pursuant to the orders issued by the High Court under the Mental Health Act.
Whether sufficient cause has been shown for removal of the Executrix of the Estate
40. The duties of a personal representative are prescribed under Section 83 of the Law of Succession Act. The provisions material to the present application provide as follows:
“Personal representatives shall have the following duties—
...
(e) subject to section 55, to complete the administration of the estate in respect of all matters other than continuing trusts, and, if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration;
...
(g) to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;
(h) to complete the administration of the estate in respect of all matters other than continuing trusts within six months of the date of confirmation of the grant, or such longer period as the court may allow.”
41. The consequences attendant upon a failure to discharge those duties are set out under Section 76 (d) of the Act, which provides that:
“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
...
(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either—
(i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
(ii) to proceed diligently with the administration of the estate; or
(iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular...”
42. The office of an executor or administrator is a fiduciary office. A personal representative acquires no beneficial interest in the estate by virtue of appointment but holds the estate in trust for those beneficially entitled thereto. It is for that reason that the Act imposes strict duties of diligence, transparency and accountability while, at the same time, empowering the Court under Section 76 to intervene where those duties are not discharged.
43. On the importance of the duty to account, the Court in In re Estate of Julius Mimano (Deceased) [2019] KEHC 10103 (KLR) observed as follows:
“The matter of the duty to render accounts is so critical that default to do so is listed in Section 76 (d) (iii) of the Act as one of the grounds upon which the Court may consider revoking a grant… The personal representative does not have to wait for a court order… they must render accounts as a matter of course.”
44. Measured against that statutory framework, the position emerging from the record is this. The Grant was confirmed on 6 ᵗʰ November, 2013. Pursuant to Section 83 (h) of the Act , the administration ought to have been completed within six months of the confirmation of the Grant or within such further period as the Court might allow. There is no evidence that an enlargement of time was ever sought or granted. It is equally common ground that, more than twelve years after confirmation of the Grant, the administration of the Estate remains incomplete, at the very least in respect of L.R. No. 7968/2.
45. The Applicants complain that throughout this period no inventory or account of the Estate has ever been rendered. The guardian’s answer is that an account of an estate, unless it is a going concern or running business, can only be rendered upon completion of the distribution.
46. With respect, that contention is inconsistent with Section 83 (g) of the Act. The duty imposed by that provision is to produce, when required by the Court or upon the application of an interested party, a full and accurate inventory of the assets and liabilities of the deceased together with an account of all dealings therewith up to the date of the account . The obligation is therefore not contingent upon completion of the administration. Indeed, as was observed in In re Estate of Julius Mimano (Deceased) (supra), the duty to account subsists throughout the administration of an estate and is not dependent upon the issuance of a specific court order. A personal representative cannot resist accounting by pointing to the very incompleteness of the administration which the account is intended to illuminate.
47. I therefore find that the Respondent’s position that no account could be rendered until completion of the administration is unsupported by Section 83 (g) of the Act . The duty to account remained extant notwithstanding the unresolved issues affecting the Estate and, on the material before the Court, that duty was never discharged.
48. I take a different view, however, regarding the allegation that the Executrix failed to proceed diligently with the administration of the Estate within the meaning of Section 76 (d )(ii) of the Act.
49. The Applicants portray the administration as one characterised by prolonged inaction and neglect. The Respondent, on the other hand, attributes the delay principally to disputes surrounding the transmission of L.R. No. 7968/2, the administration of the Estate of Lydia Wanjiru Waithaka, the execution of transfer documents and the subsequent institution of suits by third parties claiming purchaser’s interests over portions of that property.
50. Having considered the affidavits and the annexed correspondence, I am unable to conclude that the delay is attributable exclusively to the Executrix. The documentary record demonstrates that over the years there were engagements between the parties through their respective advocates concerning the transmission of L.R. No. 7968/2, execution of transfer documents and completion of the administration.
51. The Respondent exhibited correspondence showing that her advocates forwarded transfer documents to the Applicants’ former advocates and thereafter issued several reminders before the executed documents were eventually returned. The Applicants, for their part, maintain that once they executed the requisite documents, the administration stalled for reasons never explained to them, and that their own efforts, including engaging a surveyor familiar with the Estate, were frustrated by the Respondent and her advocates.
52. On the material presently before the Court, it is not possible to conclusively determine which party bears responsibility for the ultimate failure to complete the transmission of L.R. No. 7968/2. Equally, I am unable to make definitive findings regarding the allegations of collusion, fraud, greed, conspiracy or deliberate mismanagement levelled by each side again
[...truncated]