Introduction
1. Before this court is the Summons for Revocation of Grant dated 2nd November 2023. The said Summons is supported by the joint affidavit of 1st,4th and 6th Applicants sworn on even date.
2. The Applicants seek the revocation of the grant issued to the Respondent on the the16th day of February 2018 on the grounds that, as an administrator, he had failed to apply for the confirmation of the grant since it was issued, that he has failed to diligently administer the estate of the deceased, to produce an inventory of the assets of the estate and to produce the accounts of the estate as required by law. Further, he had locked out the beneficiaries from benefiting from the estate.
The Summons For the Revocation of Grant
3. In their affidavit, the Applicants averred that the grant was supposed to have been confirmed within six months of its issuance. The passage of time notwithstanding, that hadn’t happened due to failure on the part of the Respondent. They further averred that the Respondent has been collecting rental income from the estate’s properties, which he has failed to distribute to the other beneficiaries. The Respondent had also failed to account for the said proceeds thus failing in his duties as an administrator.
4. They stated that the Respondent, in his capacity as the Administrator of the Estate, had mismanaged the estate assets by not carrying out repairs, renovations, and maintenance of the rental houses, thus causing huge losses to the estate. He had also locked some of the beneficiaries from occupying the rental houses and even demanded that they pay rent, whereas they had equal rights.
5. The Applicants contended that the Respondent had left out some properties in his Petition for Grant, including, but not limited to, a 4-acre parcel of land at Kimachia where the deceased is buried, Lee Njoka Farm located in Meru, a 13-room Swahili house located in Soweto, Likoni, Mombasa County, and a 12-room Swahili house in Kisauni, Mombasa County.
6. Further, they stated that the estate risks being totally wasted if the grant is not revoked and a fresh grant is issued. They thus urged the court to revoke the subject grant.
Responses by the Respondent in Opposition to the Summons
7. In response, the Respondent filed Grounds of Opposition. In the said Grounds, he averred that on 27th March 2017, the Applicants gave their consent to the making of the grant of representation. Further, the grant sought to be revoked was obtained lawfully and regularly, and the proceedings in which it was obtained were not defective in substance. The Respondent stated he did not make any false statement in the Petition and that after the limited grant was issued to him, he immediately filed a suit against Wambu Wainaina & Evans M. Maabi T/A Murphy Merchants Auctioneers in Environment & Land Court Case No.108 of 2017; Gitonga Daniel Mbaabu (Suing as the Administrator of the Estate of Julius Mbaabu M’Mwiti (Deceased) versus Wambu Wainana & Evans M Maabi T/A Murphy Merchants Auctioneers, which is pending determination by the said Court. The case was filed upon the strength of the grant sought to be revoked. Therefore, if the orders sought are granted, the estate of the deceased would suffer great loss and prejudice in that the case shall collapse because the plaintiff shall be divested of the legal capacity to prosecute it to its logical conclusion. He urged that he had demonstrated that the deceased‘s bar, guest house and rental houses were being operated and occupied by the Applicants and other beneficiaries and that the outcome of the pending case in the Environment and Land Court would be crucial to the confirmation of grant because the business was part of the deceased’s assets. Prior to the filing of the instant summons, none of the Applicants gave him any notice and/or required him to apply for confirmation of grant. He argued that the summons for revocation of the grant had no merit and was driven by malice on the part of the Applicants.
8. The Respondent also filed a Replying Affidavit in which he reiterated what he had averred in the Grounds of Opposition and stated that the 1st and 6th Applicants had been solely operating and benefitting from the proceeds of Ganjoni Club, which information they had withheld from the court. He deposed that the 2nd Applicant occupies a double room in the eight-roomed house in Soweto, Likoni and also leases some properties and collects rent for her own use. The Respondent averred that he has been using rental income from the residential houses in Kongowea and Kisauni to pay advocates' fees for litigation in Mombasa ELC Case No.108 of 2017. He also uses the said rental income to cater for the tuition fees and upkeep for 3rd and 4th Applicants at Mount Kenya University, Nairobi.
9. He further stated that Maria Wanjiku Ngae gave her consent voluntarily and that all assets to the estate of the deceased were listed in the assets schedule in the Petition. Further, he had not wasted any part of the deceased’s estate.
10. He averred that they have not been able to agree on the distribution of the deceased's estate. He also stated that prior to the filing of the Summons herein, none of the Applicants gave him any notice to apply for confirmation of the grant as required by the law.
Submissions by the Parties
11. The Summons was canvassed by way of written submissions.
Written Submissions of the Applicants
12. The Applicants, through their advocates Gitahi Gathu & Co. Advocates, filed their written submissions dated 5th February 2024. The said counsels identified two issues as coming up for determination by the Court, namely whether the grant was obtained regularly and whether the same should be revoked.
13. Counsel submitted that the grant was obtained irregularly as the beneficiaries did not consent to the appointment of the Respondent as the sole Administrator. It was averred that the consent they gave on 27th March 2017 was for the purposes of seeking a limited grant ad litem so that the suit pending before the Environment and Land Court could be filed. Further, the deceased left behind two houses and a total of ten children, and thus, it’s not fair to have only one child as the administrator to the exclusion of all other beneficiaries. It was thus urged that the grant should be revoked for material non-disclosure and also for failure to obtain the consent of all beneficiaries.
14. On the second issue, counsel relied on Section 76 of the Law of Succession Act and submitted that the Respondent failed to apply for confirmation of grant within the stipulated period, to manage the assets of the estate of the deceased and to account for the proceeds collected from the assets of the estate. He also failed to give full disclosure of the deceased’s properties by leaving out several properties. Lastly, it was urged that the Respondent breached his fiduciary duty to the other beneficiaries. The Applicants thus urged the court to revoke the grant.
Written Submissions of the Respondents
15. The Respondent, on the other hand, through his advocates Mogaka Omwenga & Mabeya Advocates, filed written submissions dated 12th February 2024. Counsel submitted that the Applicants consented to the Petition for Letters of Administration Intestate and that the delay to have the grant confirmed is not a ground for revocation.
16. Counsel submitted that the issue of irregularity in obtaining the grant was not pleaded, and therefore, the Applicants cannot introduce it at the submissions stage as parties are bound by their pleadings.
17. Counsel for the Respondent therefore urged the court to dismiss the Summons with costs.
Analysis and Determination
18. I have considered the Summons, the responses thereto and the rival submissions of the parties’ counsels. In my view I am called upon to determine one issue, to wit, whether the grant issued to the Respondent should be revoked.
19. Grounds upon which a grant may be revoked are listed in Section 76 of the Law of Succession Act. The said section states as follows:-
“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—
(a) That the proceedings to obtain the grant were defective in substance;
(b) That the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
(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; or
(e) That the grant has become useless and inoperative through subsequent circumstances.”
20. The court in the case of In re Estate of Magangi Obuki (Deceased) [2020] eKLR, in dealing with the issue of revocation, stated:-
“In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 OF 2000, Mwita J. made remarks on the guiding principles for the revocation of a grant. He stated:-
“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrongdoing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account the interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”
21. The applicants herein have sought the revocation of the grant issued to the respondent on 16th February 2018 on the grounds, inter alia, that he has failed to apply for confirmation of the grant for about five years since the issuance of the grant.
22. Section 83 of the Law of Succession Act lists the duties of a personal representative as being:-
“Personal representatives shall have the following duties—
(a) to provide and pay out of the estate of the deceased the expenses of a reasonable funeral for him;
(b) to get in all free property of the deceased, including debts owing to him and moneys payable to his personal representatives by reason of his death;
(c) to pay, out of the estate of the deceased, all expenses of obtaining their grant of representation and all other reasonable expenses of administration (including estate duty, if any);
(d) to ascertain and pay, out of the estate of the deceased, all his debts;
(e) within six months from the date of the grant, to produce to the court 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;
(f) subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be;
(g) within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts and to produce to the court a full and accurate account of the completed administration;
(h) 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;
(i) 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.
23. The court in the case of In re Estate of Julius Mimano (Deceased) in dealing with Section 83 of the Law of Succession Act, stated:-
“Section 83 of the Act imposes duties on personal representatives to pay for the expense of the disposal of the remains of the deceased, to get in or gather or collect the assets of the estate, to pay for the expenses of the administration of the estate, to ascertain and pay out all debts and liabilities, and eventually to distribute the assets amongst the persons beneficially entitled.”
24. Further, the court in the case of In re Estate of Joseph Odinde Odongo (Deceased) [2021] eKLR stated:-
“Indeed, failure to distribute a deceased’s estate is a ground for revocation of a grant for letters of administration as provided under Section 76 (d) of the Law of Succession. However, such revocation is not automatic. It is conditional. It is dependent on the applicant demonstrating that notice has been issued to the person who has applied for the grant and that person has failed:-
a. To apply for confirmation of the grant within a year from the date of such notice or such time fixed and/or prescribed by the court; or
b. To administer the deceased’s estate; or
c. To produce an inventory or account of administration as required by the law within a time prescribed by the court.
25. The grant in question was issued on 16th February 2018. The same has not been confirmed to date, and neither is there a pending application for confirmation. The Respondent states that the reason for the failure on his part to move the Court for confirmation of the grant is the pendency of the ELC Court Case No.108 of 2017 in respect of Paradise Lodge, a business that belonged to the deceased and that the outcome of the said case will affect the confirmation of the grant. The said business is listed as No.1 in the List of Assets in the affidavit in support of the petition for letters of administration. He has also argued that no one served him with a notice to apply for confirmation.
26. It is clear from the record that the Respondent has not been diligent in his duties as an Administrator. The grant was issued in 2018. A period of more than 5 years has lapsed. An administrator has the duty to act diligently and with due dispatch. His position is not, in the manner of speaking, a permanent and pensionable one; his responsibility is to have the grant confirmed after the effluxion of a 6 month period and thereafter distribute the estate of the deceased and to account to the Court. The Legislature, in its wisdom, legislated that a Summons for Confirmation of Grant could be filed upon expiry of 6 months. The said period is, in my view, sufficient for an administrator to procure consensus on how the properties of a deceased may be devolved to the beneficiaries.
27. In my opinion the Respondent failed in his responsibilities. The reasons given by him for his failure are not sufficient. In the circumstances I would have revoked the grant under Section 76(d) of the Law of Succession Act. However, I have also noted that he was not served with any notice prior to the filing of this application.
28. The Applicants have also argued they did not consent to the Respondent applying for a grant of Letters of Administration as a sole administrator and that the consent they signed was for a limited grant ad litem for purposes of filing the ELC case.
29. My reading of the consent dated 27th March 2017 does not support the Applicants’ assertion. It is evident to me that the same was filed in respect of the application for letters of administration to be issued to the Respondent and not for the limited grant. None of the applicants has disputed the signatures therein. It is, therefore, my finding that they all gave their consent voluntarily.
Disposition
30. Although the Respondent failed in his duties, it would not be in the interest of justice to revoke the grant issued on 16th February 2018. Revoking the grant at this point may prejudice the prosecution of the case pending before the Environment and Land Court to the detriment of the estate and the beneficiaries.
31. To safeguard the interests of the parties I do hereby direct the Respondent to file 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, within 30 days of the date hereof.
32. The Respondent is further ordered to move the court for confirmation of grant within 30 days of the date hereof. In the event that he fails to do so the grant issued to him will be revoked.
33. This being a family matter, the parties shall bear their own costs.
34. Orders accordingly.
Dated and signed at Mombasa this 20th day of March 2024.
1. Before this court is the Summons for Revocation of Grant dated 2nd November 2023. The said Summons is supported by the joint affidavit of 1st,4th and 6th Applicants sworn on even date.
2. The Applicants seek the revocation of the grant issued to the Respondent on the the16th day of February 2018 on the grounds that, as an administrator, he had failed to apply for the confirmation of the grant since it was issued, that he has failed to diligently administer the estate of the deceased, to produce an inventory of the assets of the estate and to produce the accounts of the estate as required by law. Further, he had locked out the beneficiaries from benefiting from the estate.
The Summons For the Revocation of Grant
3. In their affidavit, the Applicants averred that the grant was supposed to have been confirmed within six months of its issuance. The passage of time notwithstanding, that hadn’t happened due to failure on the part of the Respondent. They further averred that the Respondent has been collecting rental income from the estate’s properties, which he has failed to distribute to the other beneficiaries. The Respondent had also failed to account for the said proceeds thus failing in his duties as an administrator.
4. They stated that the Respondent, in his capacity as the Administrator of the Estate, had mismanaged the estate assets by not carrying out repairs, renovations, and maintenance of the rental houses, thus causing huge losses to the estate. He had also locked some of the beneficiaries from occupying the rental houses and even demanded that they pay rent, whereas they had equal rights.
5. The Applicants contended that the Respondent had left out some properties in his Petition for Grant, including, but not limited to, a 4-acre parcel of land at Kimachia where the deceased is buried, Lee Njoka Farm located in Meru, a 13-room Swahili house located in Soweto, Likoni, Mombasa County, and a 12-room Swahili house in Kisauni, Mombasa County.
6. Further, they stated that the estate risks being totally wasted if the grant is not revoked and a fresh grant is issued. They thus urged the court to revoke the subject grant.
Responses by the Respondent in Opposition to the Summons
7. In response, the Respondent filed Grounds of Opposition. In the said Grounds, he averred that on 27th March 2017, the Applicants gave their consent to the making of the grant of representation. Further, the grant sought to be revoked was obtained lawfully and regularly, and the proceedings in which it was obtained were not defective in substance. The Respondent stated he did not make any false statement in the Petition and that after the limited grant was issued to him, he immediately filed a suit against Wambu Wainaina & Evans M. Maabi T/A Murphy Merchants Auctioneers in Environment & Land Court Case No.108 of 2017; Gitonga Daniel Mbaabu (Suing as the Administrator of the Estate of Julius Mbaabu M’Mwiti (Deceased) versus Wambu Wainana & Evans M Maabi T/A Murphy Merchants Auctioneers, which is pending determination by the said Court. The case was filed upon the strength of the grant sought to be revoked. Therefore, if the orders sought are granted, the estate of the deceased would suffer great loss and prejudice in that the case shall collapse because the plaintiff shall be divested of the legal capacity to prosecute it to its logical conclusion. He urged that he had demonstrated that the deceased‘s bar, guest house and rental houses were being operated and occupied by the Applicants and other beneficiaries and that the outcome of the pending case in the Environment and Land Court would be crucial to the confirmation of grant because the business was part of the deceased’s assets. Prior to the filing of the instant summons, none of the Applicants gave him any notice and/or required him to apply for confirmation of grant. He argued that the summons for revocation of the grant had no merit and was driven by malice on the part of the Applicants.
8. The Respondent also filed a Replying Affidavit in which he reiterated what he had averred in the Grounds of Opposition and stated that the 1st and 6th Applicants had been solely operating and benefitting from the proceeds of Ganjoni Club, which information they had withheld from the court. He deposed that the 2nd Applicant occupies a double room in the eight-roomed house in Soweto, Likoni and also leases some properties and collects rent for her own use. The Respondent averred that he has been using rental income from the residential houses in Kongowea and Kisauni to pay advocates' fees for litigation in Mombasa ELC Case No.108 of 2017. He also uses the said rental income to cater for the tuition fees and upkeep for 3rd and 4th Applicants at Mount Kenya University, Nairobi.
9. He further stated that Maria Wanjiku Ngae gave her consent voluntarily and that all assets to the estate of the deceased were listed in the assets schedule in the Petition. Further, he had not wasted any part of the deceased’s estate.
10. He averred that they have not been able to agree on the distribution of the deceased's estate. He also stated that prior to the filing of the Summons herein, none of the Applicants gave him any notice to apply for confirmation of the grant as required by the law.
Submissions by the Parties
11. The Summons was canvassed by way of written submissions.
Written Submissions of the Applicants
12. The Applicants, through their advocates Gitahi Gathu & Co. Advocates, filed their written submissions dated 5th February 2024. The said counsels identified two issues as coming up for determination by the Court, namely whether the grant was obtained regularly and whether the same should be revoked.
13. Counsel submitted that the grant was obtained irregularly as the beneficiaries did not consent to the appointment of the Respondent as the sole Administrator. It was averred that the consent they gave on 27th March 2017 was for the purposes of seeking a limited grant ad litem so that the suit pending before the Environment and Land Court could be filed. Further, the deceased left behind two houses and a total of ten children, and thus, it’s not fair to have only one child as the administrator to the exclusion of all other beneficiaries. It was thus urged that the grant should be revoked for material non-disclosure and also for failure to obtain the consent of all beneficiaries.
14. On the second issue, counsel relied on Section 76 of the Law of Succession Act and submitted that the Respondent failed to apply for confirmation of grant within the stipulated period, to manage the assets of the estate of the deceased and to account for the proceeds collected from the assets of the estate. He also failed to give full disclosure of the deceased’s properties by leaving out several properties. Lastly, it was urged that the Respondent breached his fiduciary duty to the other beneficiaries. The Applicants thus urged the court to revoke the grant.
Written Submissions of the Respondents
15. The Respondent, on the other hand, through his advocates Mogaka Omwenga & Mabeya Advocates, filed written submissions dated 12th February 2024. Counsel submitted that the Applicants consented to the Petition for Letters of Administration Intestate and that the delay to have the grant confirmed is not a ground for revocation.
16. Counsel submitted that the issue of irregularity in obtaining the grant was not pleaded, and therefore, the Applicants cannot introduce it at the submissions stage as parties are bound by their pleadings.
17. Counsel for the Respondent therefore urged the court to dismiss the Summons with costs.
Analysis and Determination
18. I have considered the Summons, the responses thereto and the rival submissions of the parties’ counsels. In my view I am called upon to determine one issue, to wit, whether the grant issued to the Respondent should be revoked.
19. Grounds upon which a grant may be revoked are listed in Section 76 of the Law of Succession Act. The said section states as follows:-
“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—
(a) That the proceedings to obtain the grant were defective in substance;
(b) That the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
(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; or
(e) That the grant has become useless and inoperative through subsequent circumstances.”
20. The court in the case of In re Estate of Magangi Obuki (Deceased) [2020] eKLR, in dealing with the issue of revocation, stated:-
“In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 OF 2000, Mwita J. made remarks on the guiding principles for the revocation of a grant. He stated:-
“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrongdoing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account the interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”
21. The applicants herein have sought the revocation of the grant issued to the respondent on 16th February 2018 on the grounds, inter alia, that he has failed to apply for confirmation of the grant for about five years since the issuance of the grant.
22. Section 83 of the Law of Succession Act lists the duties of a personal representative as being:-
“Personal representatives shall have the following duties—
(a) to provide and pay out of the estate of the deceased the expenses of a reasonable funeral for him;
(b) to get in all free property of the deceased, including debts owing to him and moneys payable to his personal representatives by reason of his death;
(c) to pay, out of the estate of the deceased, all expenses of obtaining their grant of representation and all other reasonable expenses of administration (including estate duty, if any);
(d) to ascertain and pay, out of the estate of the deceased, all his debts;
(e) within six months from the date of the grant, to produce to the court 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;
(f) subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be;
(g) within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts and to produce to the court a full and accurate account of the completed administration;
(h) 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;
(i) 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.
23. The court in the case of In re Estate of Julius Mimano (Deceased) in dealing with Section 83 of the Law of Succession Act, stated:-
“Section 83 of the Act imposes duties on personal representatives to pay for the expense of the disposal of the remains of the deceased, to get in or gather or collect the assets of the estate, to pay for the expenses of the administration of the estate, to ascertain and pay out all debts and liabilities, and eventually to distribute the assets amongst the persons beneficially entitled.”
24. Further, the court in the case of In re Estate of Joseph Odinde Odongo (Deceased) [2021] eKLR stated:-
“Indeed, failure to distribute a deceased’s estate is a ground for revocation of a grant for letters of administration as provided under Section 76 (d) of the Law of Succession. However, such revocation is not automatic. It is conditional. It is dependent on the applicant demonstrating that notice has been issued to the person who has applied for the grant and that person has failed:-
a. To apply for confirmation of the grant within a year from the date of such notice or such time fixed and/or prescribed by the court; or
b. To administer the deceased’s estate; or
c. To produce an inventory or account of administration as required by the law within a time prescribed by the court.
25. The grant in question was issued on 16th February 2018. The same has not been confirmed to date, and neither is there a pending application for confirmation. The Respondent states that the reason for the failure on his part to move the Court for confirmation of the grant is the pendency of the ELC Court Case No.108 of 2017 in respect of Paradise Lodge, a business that belonged to the deceased and that the outcome of the said case will affect the confirmation of the grant. The said business is listed as No.1 in the List of Assets in the affidavit in support of the petition for letters of administration. He has also argued that no one served him with a notice to apply for confirmation.
26. It is clear from the record that the Respondent has not been diligent in his duties as an Administrator. The grant was issued in 2018. A period of more than 5 years has lapsed. An administrator has the duty to act diligently and with due dispatch. His position is not, in the manner of speaking, a permanent and pensionable one; his responsibility is to have the grant confirmed after the effluxion of a 6 month period and thereafter distribute the estate of the deceased and to account to the Court. The Legislature, in its wisdom, legislated that a Summons for Confirmation of Grant could be filed upon expiry of 6 months. The said period is, in my view, sufficient for an administrator to procure consensus on how the properties of a deceased may be devolved to the beneficiaries.
27. In my opinion the Respondent failed in his responsibilities. The reasons given by him for his failure are not sufficient. In the circumstances I would have revoked the grant under Section 76(d) of the Law of Succession Act. However, I have also noted that he was not served with any notice prior to the filing of this application.
28. The Applicants have also argued they did not consent to the Respondent applying for a grant of Letters of Administration as a sole administrator and that the consent they signed was for a limited grant ad litem for purposes of filing the ELC case.
29. My reading of the consent dated 27th March 2017 does not support the Applicants’ assertion. It is evident to me that the same was filed in respect of the application for letters of administration to be issued to the Respondent and not for the limited grant. None of the applicants has disputed the signatures therein. It is, therefore, my finding that they all gave their consent voluntarily.
Disposition
30. Although the Respondent failed in his duties, it would not be in the interest of justice to revoke the grant issued on 16th February 2018. Revoking the grant at this point may prejudice the prosecution of the case pending before the Environment and Land Court to the detriment of the estate and the beneficiaries.
31. To safeguard the interests of the parties I do hereby direct the Respondent to file 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, within 30 days of the date hereof.
32. The Respondent is further ordered to move the court for confirmation of grant within 30 days of the date hereof. In the event that he fails to do so the grant issued to him will be revoked.
33. This being a family matter, the parties shall bear their own costs.
34. Orders accordingly.
Dated and signed at Mombasa this 20th day of March 2024.