This ruling disposes of two applications pending in this cause: (I) the Summons dated 5th December 2024 by Phanice Khalili Nandwa and Roselinda Akiso Omukoto for revocation of the 2017 grant, and (II) the Summons dated 17th December 2024 by Musa Opati Omukoto for “substitution and rectification” of the same grant. The two are determined separately herein below:
As regards the application dated 5th december 2024 filed by Phanice Khalili Nandwa & Roselinda Akiso Omukoto
1. The Letters of Administration Intestate to the estate of MUKOTO MUHONJA (deceased) were issued on 3rd May 2017 to JOSEPH TOM OMUKOTO and WYCLIFFE OMUKOTO, and the grant was thereafter confirmed and amended the same day, with distribution commenced through Emmaland Geo Surveyors Ltd. Both administrators have since died; Wycliffe Omukoto died on 4th August 2020, while Joseph Tom Omukoto died on 22nd September 2020 leaving the grant without any surviving holder and the estate, on the Applicants’ account, substantially unadministered.
2. By the Summons dated 5th December 2024, brought under Section 76(e) of the Law of Succession Act (Cap. 160) and Rules 26 and 44 of the Probate and Administration Rules, the 1st and 2nd Applicants seek for the revocation of the grant issued on 3 rd May, 2017 an order in prayer (ii) loosely styled as “substituting” the deceased administrators with themselves, a fresh grant de bonis non to themselves, and costs.
3. The application is opposed by MUSA OPATI OMUKOTO through a Replying Affidavit sworn 20th February 2025 (in which he is styled “Moses Obati Omukoto”).
4. The Applicants’ own submissions, filed in response to the opposition, do not in fact press “substitution.” They accept, citing Re Estate of Mwangi Mugwe alias Elieza Ngware (Deceased), Nairobi HCSC No. 2018 of 2001 (Khamoni J.); and Re Estate of George Ragui Karanja (Deceased) [2016] eKLR (Musyoka J.); and Florence Okutu Nandwa & Another v John Atemba Kojwa, Kisumu CA No. 306 of 1998 , that a grant held by administrators who have since died becomes useless and inoperative, is not transferable, and exists only to be revoked under Section 76(e), whereafter a fresh grant may issue. They do not object to the Respondent being included as a co-administrator.
5. The Respondent contends the application is self-contradictory in seeking simultaneously to revoke the grant and to be “substituted” into it, and that the Applicants being widows of the deceased administrators who have not taken out letters to their husbands’ individual estates lack locus standi, relying on the case of Trouistik Union International & Another v Jane Mbeyu & Another [1993] KECA 89 (KLR).
6. Section 76(e) empowers revocation of a grant that “has become useless and inoperative through subsequent circumstances.” There is no mechanism in the Act for “substituting” new holders into an existing grant once every holder has died. The authorities cited by both sides converge on this point.
Read as a whole, the Summons discloses a single coherent remedy of revocation followed by issuance of a fresh grant, notwithstanding the loose drafting of prayer (ii), which is unnecessary once prayers (i) and (iii) are granted and is struck out as surplusage rather than treated as fatal to the application.
7. The Respondent’s objection, resting on Trouistik , case supra is misplaced in this context. Trouistik is concerned with the standing of widows to sue on behalf of the estate under the Law Reform Act, a right confined by Section 82 of the Act to a “personal representative.” An application for revocation under Section 76, by contrast, does not require the applicant to be a personal representative at all. It may be brought by any person interested in the estate.
The Applicants depose to being beneficiaries of MUKOTO MUHONJA’s estate, and the record bears this out. The 2018 subdivision/distribution list for Title No. Miti Mingi/Mbaruk Block 3/7047 bears handwritten annotations naming “Roselinda” against the share of the late Joseph Tom Omukoto and “Phanice” against the share of the late Wycliffe Omutere Omukoto, consistent with their position as intended transmittees of their late husbands’ shares. On that footing they are “interested parties” for purposes of Section 76 in their own right, independently of any grant to their husbands’ individual estates, and Trouistik does not assist the Respondent.
8. For the foregoing reasons, I find that:
(a) the grant of 3rd May 2017 became useless and inoperative on the death of both its holders, and is liable to revocation under Section 76(e) of the Law of Succession Act;
(b) the Applicants, as interested beneficiaries, have locus standi to bring this application; and
(c) prayer (ii) is struck out as unnecessary surplusage. It does not affect the competency of the rest of the application.
9. In the end the application dated 5 th December, 2024 is allowed giving rise to issuance of the following orders:
(i) The Grant of Letters of Administration Intestate issued on 3rd May 2017 to Joseph Tom Omukoto and Wycliffe Omukoto be and is hereby REVOKED under Section 76(e) of the Law of Succession Act. A fresh grant of letters of administration de bonis non to the estate of MUKOTO MUHONJA (deceased) do issue jointly to PHANICE KHALILI NANDWA, ROSELINDA AKISO OMUKOTO and MUSA OPATI OMUKOTO.
(iii) The incoming administrators shall, within sixty (60) days of the fresh grant, file a status report on the pending mutation and distribution of Title No. Miti Mingi/Mbaruk Block 3/7047 and any other unresolved estate assets.
(iv) Costs of this application shall be in the cause.
As regards the Application dated 17th December 2024 filed by Musa Opati Omukoto, by Summons dated 17 th December 2024, brought under Section 47 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules, MUSA OPATI OMUKOTO seeks an order that the 2017 grant “be further amended by substituting the applicant... as administrator in place of Joseph Tom Omukoto and Wycliffe Omukoto both deceased,” that the amended grant be “rectified and confirmed,” that the estate be distributed within six months, and costs. It is supported by his affidavit sworn on 17th December 2024 and a Supplementary Affidavit sworn 20th March 2025.
11. The application is opposed by a Replying Affidavit sworn on 7th February 2025 by Phanice Khalili Nandwa and Roselinda Akiso Omukoto, who contend it is incompetent for want of a statutory basis for “substitution,” though they do not oppose the Applicant’s inclusion as a co-administrator.
12. The Applicant’s Supplementary Affidavit takes the point that this Replying Affidavit is defective for referring, at paragraph 1, to “the application dated 11th December 2024” rather than his application of 17th December 2024, and should be struck out on that account; he further renews the objection that the Respondents lack locus, not having taken out letters to their own husbands’ estates.
13. The application, properly read, raises one central question dispositive of the whole. Whether Sections 47 and Rule 43 confer power on this Court to “substitute” a living person as administrator in place of holders of a grant who have since died. Two subsidiary matters, the date discrepancy in the Replying Affidavit, and the Applicant’s own locus objection, are addressed first as they bear on whether the opposition is properly before the Court at all, but the central question governs the outcome regardless of how they are resolved.
14. I will first address the date discrepancy. The Replying Affidavit is, on its face, sworn by the same deponents, in the same cause, responding point-for-point to the substance of the 17th December 2024 application (it addresses “substitution,” locus, and the propriety of the orders sought). The reference to “11th December 2024” is patently a clerical slip carried over from the parties’ related earlier exchange in this file.
Article 159(2)(d) of the Constitution and the guidance of the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others, SC Application No. 16 of 2014, caution against allowing substantive justice to be defeated by a technical, non-prejudicial slip of this kind. On this basis, the affidavit cannot thus be struck out.
14. On the issue touching on the locus of the Respondents. This is answered by the finding hereinabove. An “interested party” need not hold a grant to their own late husband’s estate to participate in these proceedings as beneficiaries of MUKOTO MUHONJA’s estate. The objection fails.
15. The central question for determination is the availability of “substitution.” Section 47 is a general jurisdictional provision that “vests” the Court with authority to entertain succession disputes but does not itself create a specific power of substitution. Rule 43(1) permits rectification of “an error... as to the names or descriptions of any person or thing or as to the time or place of the death of the deceased”, on its terms, this addresses clerical errors concerning the deceased or the estate’s subject matter, not the wholesale replacement of an administrator who has since died.
16. This reading is fortified by a consistent and unbroken line of authority, to which this court is bound to give effect. In Re Estate of Mwangi Mugwe alias Elieza Ngware (Deceased), Nairobi HCSC No. 2018 of 2001 (Khamoni J.) established that the Act “has no provisions talking about substitution of a deceased single administrator”. The only proper course is revocation under Section 76(e). In Re Estate of George Ragui Karanja (Deceased) [2016] eKLR (Musyoka J.) it was held that once all holders of a grant die, Section 81 has no application. The grant “becomes useless and inoperative, and liable to revocation under section 76(e)... to pave way for the appointment of new administrators,” under Sections 51–66.
The Court of Appeal’s characterisation of a grant as made in personam, non-transferable, and revocable only under Section 76 once its holder dies (as reflected in Florence Okutu Nandwa & Another v John Atemba Kojwa, Kisumu CA No. 306 of 1998) is consistent with this line and, on the authorities located, has not been departed from at the Court of Appeal or the Supreme Court level.
17. The two authorities relied upon in the Applicant’s written submissions do not assist him. In Re Estate of Alice Mumbua Mutua (Deceased) [2017] KEHC 8289 (KLR) is concerned with the scope of a probate court’s jurisdiction over trust assets and an order for security for costs. It says nothing about substitution of a deceased administrator and does not support the proposition for which it is cited.
18. It follows that the orders sought in prayers (ii) and (iii) of the application dated 17th December 2024 for substitution of the Applicant into the existing grant, and its “rectification and confirmation” on that footing, are not available in law and must fail. This is not, however, fatal to the Applicant’s underlying interest. He is, in any event, being brought onto a fresh grant de bonis non as a joint administrator in the ruling on the application dated 5/12/2024.
19. Consequently, the application dated 17th December 2024, insofar as it seeks substitution of the Applicant into the grant issued on 3rd May 2017 and rectification/confirmation of that grant on that basis, is DISMISSED , the orders sought not being available under Section 47 of the Law of Succession Act or Rule 43 of the Probate and Administration Rules.
(ii) Each party to bear their own costs.
20. In sum, the application dated 5 th December, 2024 is allowed while the application dated 17 th December, 2024 is dismissed with each party bearing their own costs.
Dated and delivered at Nakuru this 22 nd day of September, 2026.
J. K. SERGON
JUDGE
In the presence of :
Jamleck/Rutoh: C/A
Rubia holding brief for Wambeyi for Petitioner
N/A for the Respondents
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As regards the application dated 5th december 2024 filed by Phanice Khalili Nandwa & Roselinda Akiso Omukoto
1. The Letters of Administration Intestate to the estate of MUKOTO MUHONJA (deceased) were issued on 3rd May 2017 to JOSEPH TOM OMUKOTO and WYCLIFFE OMUKOTO, and the grant was thereafter confirmed and amended the same day, with distribution commenced through Emmaland Geo Surveyors Ltd. Both administrators have since died; Wycliffe Omukoto died on 4th August 2020, while Joseph Tom Omukoto died on 22nd September 2020 leaving the grant without any surviving holder and the estate, on the Applicants’ account, substantially unadministered.
2. By the Summons dated 5th December 2024, brought under Section 76(e) of the Law of Succession Act (Cap. 160) and Rules 26 and 44 of the Probate and Administration Rules, the 1st and 2nd Applicants seek for the revocation of the grant issued on 3 rd May, 2017 an order in prayer (ii) loosely styled as “substituting” the deceased administrators with themselves, a fresh grant de bonis non to themselves, and costs.
3. The application is opposed by MUSA OPATI OMUKOTO through a Replying Affidavit sworn 20th February 2025 (in which he is styled “Moses Obati Omukoto”).
4. The Applicants’ own submissions, filed in response to the opposition, do not in fact press “substitution.” They accept, citing Re Estate of Mwangi Mugwe alias Elieza Ngware (Deceased), Nairobi HCSC No. 2018 of 2001 (Khamoni J.); and Re Estate of George Ragui Karanja (Deceased) [2016] eKLR (Musyoka J.); and Florence Okutu Nandwa & Another v John Atemba Kojwa, Kisumu CA No. 306 of 1998 , that a grant held by administrators who have since died becomes useless and inoperative, is not transferable, and exists only to be revoked under Section 76(e), whereafter a fresh grant may issue. They do not object to the Respondent being included as a co-administrator.
5. The Respondent contends the application is self-contradictory in seeking simultaneously to revoke the grant and to be “substituted” into it, and that the Applicants being widows of the deceased administrators who have not taken out letters to their husbands’ individual estates lack locus standi, relying on the case of Trouistik Union International & Another v Jane Mbeyu & Another [1993] KECA 89 (KLR).
6. Section 76(e) empowers revocation of a grant that “has become useless and inoperative through subsequent circumstances.” There is no mechanism in the Act for “substituting” new holders into an existing grant once every holder has died. The authorities cited by both sides converge on this point.
Read as a whole, the Summons discloses a single coherent remedy of revocation followed by issuance of a fresh grant, notwithstanding the loose drafting of prayer (ii), which is unnecessary once prayers (i) and (iii) are granted and is struck out as surplusage rather than treated as fatal to the application.
7. The Respondent’s objection, resting on Trouistik , case supra is misplaced in this context. Trouistik is concerned with the standing of widows to sue on behalf of the estate under the Law Reform Act, a right confined by Section 82 of the Act to a “personal representative.” An application for revocation under Section 76, by contrast, does not require the applicant to be a personal representative at all. It may be brought by any person interested in the estate.
The Applicants depose to being beneficiaries of MUKOTO MUHONJA’s estate, and the record bears this out. The 2018 subdivision/distribution list for Title No. Miti Mingi/Mbaruk Block 3/7047 bears handwritten annotations naming “Roselinda” against the share of the late Joseph Tom Omukoto and “Phanice” against the share of the late Wycliffe Omutere Omukoto, consistent with their position as intended transmittees of their late husbands’ shares. On that footing they are “interested parties” for purposes of Section 76 in their own right, independently of any grant to their husbands’ individual estates, and Trouistik does not assist the Respondent.
8. For the foregoing reasons, I find that:
(a) the grant of 3rd May 2017 became useless and inoperative on the death of both its holders, and is liable to revocation under Section 76(e) of the Law of Succession Act;
(b) the Applicants, as interested beneficiaries, have locus standi to bring this application; and
(c) prayer (ii) is struck out as unnecessary surplusage. It does not affect the competency of the rest of the application.
9. In the end the application dated 5 th December, 2024 is allowed giving rise to issuance of the following orders:
(i) The Grant of Letters of Administration Intestate issued on 3rd May 2017 to Joseph Tom Omukoto and Wycliffe Omukoto be and is hereby REVOKED under Section 76(e) of the Law of Succession Act. A fresh grant of letters of administration de bonis non to the estate of MUKOTO MUHONJA (deceased) do issue jointly to PHANICE KHALILI NANDWA, ROSELINDA AKISO OMUKOTO and MUSA OPATI OMUKOTO.
(iii) The incoming administrators shall, within sixty (60) days of the fresh grant, file a status report on the pending mutation and distribution of Title No. Miti Mingi/Mbaruk Block 3/7047 and any other unresolved estate assets.
(iv) Costs of this application shall be in the cause.
As regards the Application dated 17th December 2024 filed by Musa Opati Omukoto, by Summons dated 17 th December 2024, brought under Section 47 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules, MUSA OPATI OMUKOTO seeks an order that the 2017 grant “be further amended by substituting the applicant... as administrator in place of Joseph Tom Omukoto and Wycliffe Omukoto both deceased,” that the amended grant be “rectified and confirmed,” that the estate be distributed within six months, and costs. It is supported by his affidavit sworn on 17th December 2024 and a Supplementary Affidavit sworn 20th March 2025.
11. The application is opposed by a Replying Affidavit sworn on 7th February 2025 by Phanice Khalili Nandwa and Roselinda Akiso Omukoto, who contend it is incompetent for want of a statutory basis for “substitution,” though they do not oppose the Applicant’s inclusion as a co-administrator.
12. The Applicant’s Supplementary Affidavit takes the point that this Replying Affidavit is defective for referring, at paragraph 1, to “the application dated 11th December 2024” rather than his application of 17th December 2024, and should be struck out on that account; he further renews the objection that the Respondents lack locus, not having taken out letters to their own husbands’ estates.
13. The application, properly read, raises one central question dispositive of the whole. Whether Sections 47 and Rule 43 confer power on this Court to “substitute” a living person as administrator in place of holders of a grant who have since died. Two subsidiary matters, the date discrepancy in the Replying Affidavit, and the Applicant’s own locus objection, are addressed first as they bear on whether the opposition is properly before the Court at all, but the central question governs the outcome regardless of how they are resolved.
14. I will first address the date discrepancy. The Replying Affidavit is, on its face, sworn by the same deponents, in the same cause, responding point-for-point to the substance of the 17th December 2024 application (it addresses “substitution,” locus, and the propriety of the orders sought). The reference to “11th December 2024” is patently a clerical slip carried over from the parties’ related earlier exchange in this file.
Article 159(2)(d) of the Constitution and the guidance of the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others, SC Application No. 16 of 2014, caution against allowing substantive justice to be defeated by a technical, non-prejudicial slip of this kind. On this basis, the affidavit cannot thus be struck out.
14. On the issue touching on the locus of the Respondents. This is answered by the finding hereinabove. An “interested party” need not hold a grant to their own late husband’s estate to participate in these proceedings as beneficiaries of MUKOTO MUHONJA’s estate. The objection fails.
15. The central question for determination is the availability of “substitution.” Section 47 is a general jurisdictional provision that “vests” the Court with authority to entertain succession disputes but does not itself create a specific power of substitution. Rule 43(1) permits rectification of “an error... as to the names or descriptions of any person or thing or as to the time or place of the death of the deceased”, on its terms, this addresses clerical errors concerning the deceased or the estate’s subject matter, not the wholesale replacement of an administrator who has since died.
16. This reading is fortified by a consistent and unbroken line of authority, to which this court is bound to give effect. In Re Estate of Mwangi Mugwe alias Elieza Ngware (Deceased), Nairobi HCSC No. 2018 of 2001 (Khamoni J.) established that the Act “has no provisions talking about substitution of a deceased single administrator”. The only proper course is revocation under Section 76(e). In Re Estate of George Ragui Karanja (Deceased) [2016] eKLR (Musyoka J.) it was held that once all holders of a grant die, Section 81 has no application. The grant “becomes useless and inoperative, and liable to revocation under section 76(e)... to pave way for the appointment of new administrators,” under Sections 51–66.
The Court of Appeal’s characterisation of a grant as made in personam, non-transferable, and revocable only under Section 76 once its holder dies (as reflected in Florence Okutu Nandwa & Another v John Atemba Kojwa, Kisumu CA No. 306 of 1998) is consistent with this line and, on the authorities located, has not been departed from at the Court of Appeal or the Supreme Court level.
17. The two authorities relied upon in the Applicant’s written submissions do not assist him. In Re Estate of Alice Mumbua Mutua (Deceased) [2017] KEHC 8289 (KLR) is concerned with the scope of a probate court’s jurisdiction over trust assets and an order for security for costs. It says nothing about substitution of a deceased administrator and does not support the proposition for which it is cited.
18. It follows that the orders sought in prayers (ii) and (iii) of the application dated 17th December 2024 for substitution of the Applicant into the existing grant, and its “rectification and confirmation” on that footing, are not available in law and must fail. This is not, however, fatal to the Applicant’s underlying interest. He is, in any event, being brought onto a fresh grant de bonis non as a joint administrator in the ruling on the application dated 5/12/2024.
19. Consequently, the application dated 17th December 2024, insofar as it seeks substitution of the Applicant into the grant issued on 3rd May 2017 and rectification/confirmation of that grant on that basis, is DISMISSED , the orders sought not being available under Section 47 of the Law of Succession Act or Rule 43 of the Probate and Administration Rules.
(ii) Each party to bear their own costs.
20. In sum, the application dated 5 th December, 2024 is allowed while the application dated 17 th December, 2024 is dismissed with each party bearing their own costs.
Dated and delivered at Nakuru this 22 nd day of September, 2026.
J. K. SERGON
JUDGE
In the presence of :
Jamleck/Rutoh: C/A
Rubia holding brief for Wambeyi for Petitioner
N/A for the Respondents
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