1. The Chamber Summons dated 18 September 2025 is brought under Sections 38, 56, 66, 82 and 83 of the Law of Succession Act and Rules 49, 59(1) and 73 of the Probate and Administration Rules. The Applicants seeks the following orders:
(a) Service of the application be dispensed with in the first instance.
(b) The Applicants be appointed as co-administrators of the estate of the deceased alongside Raymond Kipkoech Kuto.
(c) The Honourable Court be pleased to remove Danson Kipyator Kibet as an administrator of the estate of the deceased.
(d) Costs of this application be provided for.
2. The application is supported by the affidavit of Rose Kipkuto. The Applicants are daughters of the deceased and beneficiaries of his estate. They contend that, as surviving children of the deceased, they rank in priority over Danson Kibet, who is a grandson. They state that they did not consent to his appointment and accuse him of causing conflict, fights and physical confrontations within the family.
3. Raymond Kipkoech Kuto supports the application. He maintains that the deceased’s surviving children should administer the estate in preference to grandchildren and alleges that Danson Kibet has disregarded the beneficiaries’ interests.
4. Danson Kibet opposes his removal through a Replying Affidavit sworn on 22nd October 2025. He states that he is a son of the late Clement Kibet Kutoh, who was a son of the deceased and the original administrator of the estate who died on 24 October 2022 before completing the administration.
5. Danson maintains that he represents his late father’s branch and denied causing conflict or mismanaging the estate. He asserted that he has acted to preserve the estate and secure compliance with previous court orders. He attributed the delay to disputes concerning estate property and the failure of some beneficiaries to participate in mediation.
6. Significantly, Danson does not oppose the appointment of the Applicants as additional co-administrators. He submits that Section 56(1)(b) of the Act permits a maximum of four administrators and proposes that the Applicants be appointed alongside him and Raymond.
Submissions
7. In their submissions the Applicants relied on Section 66 of the Act and submitted that children of the deceased rank in priority over grandchildren. They cited In re Estate of Stephen Chege Kimari (Deceased) [2016] eKLR and In re Estate of Gurdial Kaur Sihra (Deceased) [2018] eKLR. They argued that their consent ought to have been obtained before Danson was appointed.
8. Danson submitted that the Applicants had not established any ground under Section 76 of the Act. He relied on Christine Wangari Gachigi v Elizabeth Wanjira Evans & 11 others [2014] eKLR and argued that he represents the branch of his deceased father.
9. Raymond Kuto submitted that Danson Kibet had withheld information, failed to account, mismanaged the estate and caused hostility. He also invoked Keiyo customary law, under which he contended that surviving children take priority over grandchildren.
10. However, Raymond Kuto’s affidavit did not particularise any act of misappropriation, failure to account or unlawful dealing with estate property. Submissions cannot fill evidential gaps. As the Court of Appeal observed in Daniel Toroitich arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR, submissions do not constitute evidence.
Analysis and determination
12. The issues for determination are whether the Applicants should be appointed additional administrators, whether Danson Kuto should be removed, and who should bear the costs.
13. Section 66 of the Act gives the Court final discretion regarding the persons to whom a grant should be made. The prescribed order of preference is a general guide, and the dominant consideration is the best interests of all concerned.
14. In Wangari Kimari & another v Samuel Gitere Kimari [1988] eKLR, the Court of Appeal held that the preference under Section 66 is not necessarily final and that the Court retains discretion to determine the persons best suited to administer an estate.
15. The Applicants are daughters and beneficiaries of the deceased. Their capacity and willingness to serve are not disputed. Raymond supports their appointment, while Danson expressly consents to their inclusion.
16. Section 56(1)(b) permits a grant to be made to not more than four persons in respect of the same property. Appointing the two Applicants alongside the existing administrators would therefore be lawful.
17. Considering the prolonged family dispute, their appointment would promote representation, transparency and confidence in the administration. That prayer is merited.
18. The remaining question is whether Danson should be removed. Such removal is a serious intervention and must be supported by grounds falling within Section 76 of the Act or otherwise sufficient to invoke the Court’s powers under Section 47 of the Act and Rule 73 of the Probate and Administration Rules.
19. Section 76 permits revocation where the proceedings to obtain the grant were defective; the grant was obtained fraudulently or through concealment or an untrue allegation; the administrator has failed to seek confirmation, proceed diligently or render accounts; or the grant has become useless and inoperative.
20. In Matheka and another v Matheka [2005] eKLR, the Court of Appeal affirmed that the power of revocation may be exercised on application or by the Court on its own motion. The evidence must nevertheless establish one or more of the statutory grounds.
21. The Applicants have not proved that Danson obtained his appointment through fraud, concealment or an untrue allegation. His relationship to the deceased and the late Clement Kibet Kutoh was disclosed and is undisputed.
22. There is also no evidence that Danson misappropriated estate property, refused to account after being required to do so, unlawfully disposed of an asset, disobeyed a court order or became incapable of acting.
23. The allegations of conflict and physical confrontation were not particularised or supported by witness affidavits, complaints, medical evidence or other independent material. The record instead reveals longstanding and reciprocal disputes concerning occupation of estate land, surrender of titles and distribution.
24. A family disagreement may justify broader representation in the administration, but it does not, without proof of misconduct, incapacity or failure to perform statutory duties, justify removal.
25. Danson cannot be removed merely because he is a grandson. Section 66 provides a general order of preference, not an absolute disqualification against grandchildren.
26. Danson is a son of Clement Kibet Kutoh, who was a son of the deceased, survived him and became the original administrator. Clement’s subsequent death did not extinguish the beneficial interest of his Estate or family branch.
27. In Christine Wangari Gachigi v Elizabeth Wanjira Evans & 11 others [2014] eKLR, the Court of Appeal recognised the principle of representation, which protects the share of a deceased child for the benefit of that child’s descendants. The principle prevents the exclusion of a family branch merely because the relevant child of the intestate is deceased.
28. The authorities relied upon by the Applicants were determined on their particular facts and do not establish an inflexible rule that a grandchild cannot serve as an administrator whenever a child of the deceased survives.
29. Keiyo customary practices promoting consultation and family harmony may be considered, but they cannot override the Law of Succession Act or justify discrimination between beneficiaries. Under Articles 2(4) and 27 of the Constitution, any Customary Law inconsistent with the Constitution or written law is invalid to the extent of that inconsistency.
30. The Applicants’ lack of consent to Danson’s appointment is relevant but not decisive. They have now been heard, and their interests can be adequately protected through their appointment as additional administrators.
31. The Court therefore finds no sufficient basis for the issuance of orders removing Danson. Retaining him safeguards representation of Clement’s family branch, while appointing the Applicants ensures direct participation by the deceased’s surviving daughters.
32. All administrators are fiduciaries of the estate. Their appointment does not confer a superior beneficial interest. They must act jointly and comply with Sections 82 and 83 of the Act by collecting, preserving, accounting for and distributing the estate without further unreasonable delay.
Costs
33. The application has partially succeeded and involves members of the
same family. An award of costs may aggravate the existing divisions and diminish the estate. Each party shall therefore bear their own costs.
Orders:
a) Rose Kipkuto and Regina Jerop Kuto are appointed additional co-administrators of the estate of Michael Kipkuto Chebii alongside Danson Kipyator Kibet and Raymond Kipkoech Kuto.
b) The prayer seeking the removal of Danson Kipyator Kibet as an administrator is declined.
c) The grant shall be amended and reissued jointly in the names of:
i. Danson Kipyator Kibet;
ii. Raymond Kipkoech Kuto;
iii. Rose Kipkuto; and
iv. Regina Jerop Kuto.
d) The four administrators shall, within ninety (90) days, jointly file and prosecute a summons for confirmation of grant, if none is presently pending, accompanied by:
i. A complete inventory of the estate’s assets and liabilities;
ii. A comprehensive list of beneficiaries and their respective family branches;
iii. An account of all income received and expenditure incurred on behalf of the estate; and
iv. A proposed mode of distribution.
e) If the administrators cannot agree on distribution, each proposal shall be placed before the Court, and the beneficiaries shall be afforded an opportunity to file affidavits of protest.
f) Pending confirmation, no administrator or beneficiary shall independently sell, transfer, charge, lease, subdivide, waste or otherwise dispose of any estate asset.
g) Each party shall bear their own costs.
It is so ordered.
(a) Service of the application be dispensed with in the first instance.
(b) The Applicants be appointed as co-administrators of the estate of the deceased alongside Raymond Kipkoech Kuto.
(c) The Honourable Court be pleased to remove Danson Kipyator Kibet as an administrator of the estate of the deceased.
(d) Costs of this application be provided for.
2. The application is supported by the affidavit of Rose Kipkuto. The Applicants are daughters of the deceased and beneficiaries of his estate. They contend that, as surviving children of the deceased, they rank in priority over Danson Kibet, who is a grandson. They state that they did not consent to his appointment and accuse him of causing conflict, fights and physical confrontations within the family.
3. Raymond Kipkoech Kuto supports the application. He maintains that the deceased’s surviving children should administer the estate in preference to grandchildren and alleges that Danson Kibet has disregarded the beneficiaries’ interests.
4. Danson Kibet opposes his removal through a Replying Affidavit sworn on 22nd October 2025. He states that he is a son of the late Clement Kibet Kutoh, who was a son of the deceased and the original administrator of the estate who died on 24 October 2022 before completing the administration.
5. Danson maintains that he represents his late father’s branch and denied causing conflict or mismanaging the estate. He asserted that he has acted to preserve the estate and secure compliance with previous court orders. He attributed the delay to disputes concerning estate property and the failure of some beneficiaries to participate in mediation.
6. Significantly, Danson does not oppose the appointment of the Applicants as additional co-administrators. He submits that Section 56(1)(b) of the Act permits a maximum of four administrators and proposes that the Applicants be appointed alongside him and Raymond.
Submissions
7. In their submissions the Applicants relied on Section 66 of the Act and submitted that children of the deceased rank in priority over grandchildren. They cited In re Estate of Stephen Chege Kimari (Deceased) [2016] eKLR and In re Estate of Gurdial Kaur Sihra (Deceased) [2018] eKLR. They argued that their consent ought to have been obtained before Danson was appointed.
8. Danson submitted that the Applicants had not established any ground under Section 76 of the Act. He relied on Christine Wangari Gachigi v Elizabeth Wanjira Evans & 11 others [2014] eKLR and argued that he represents the branch of his deceased father.
9. Raymond Kuto submitted that Danson Kibet had withheld information, failed to account, mismanaged the estate and caused hostility. He also invoked Keiyo customary law, under which he contended that surviving children take priority over grandchildren.
10. However, Raymond Kuto’s affidavit did not particularise any act of misappropriation, failure to account or unlawful dealing with estate property. Submissions cannot fill evidential gaps. As the Court of Appeal observed in Daniel Toroitich arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR, submissions do not constitute evidence.
Analysis and determination
12. The issues for determination are whether the Applicants should be appointed additional administrators, whether Danson Kuto should be removed, and who should bear the costs.
13. Section 66 of the Act gives the Court final discretion regarding the persons to whom a grant should be made. The prescribed order of preference is a general guide, and the dominant consideration is the best interests of all concerned.
14. In Wangari Kimari & another v Samuel Gitere Kimari [1988] eKLR, the Court of Appeal held that the preference under Section 66 is not necessarily final and that the Court retains discretion to determine the persons best suited to administer an estate.
15. The Applicants are daughters and beneficiaries of the deceased. Their capacity and willingness to serve are not disputed. Raymond supports their appointment, while Danson expressly consents to their inclusion.
16. Section 56(1)(b) permits a grant to be made to not more than four persons in respect of the same property. Appointing the two Applicants alongside the existing administrators would therefore be lawful.
17. Considering the prolonged family dispute, their appointment would promote representation, transparency and confidence in the administration. That prayer is merited.
18. The remaining question is whether Danson should be removed. Such removal is a serious intervention and must be supported by grounds falling within Section 76 of the Act or otherwise sufficient to invoke the Court’s powers under Section 47 of the Act and Rule 73 of the Probate and Administration Rules.
19. Section 76 permits revocation where the proceedings to obtain the grant were defective; the grant was obtained fraudulently or through concealment or an untrue allegation; the administrator has failed to seek confirmation, proceed diligently or render accounts; or the grant has become useless and inoperative.
20. In Matheka and another v Matheka [2005] eKLR, the Court of Appeal affirmed that the power of revocation may be exercised on application or by the Court on its own motion. The evidence must nevertheless establish one or more of the statutory grounds.
21. The Applicants have not proved that Danson obtained his appointment through fraud, concealment or an untrue allegation. His relationship to the deceased and the late Clement Kibet Kutoh was disclosed and is undisputed.
22. There is also no evidence that Danson misappropriated estate property, refused to account after being required to do so, unlawfully disposed of an asset, disobeyed a court order or became incapable of acting.
23. The allegations of conflict and physical confrontation were not particularised or supported by witness affidavits, complaints, medical evidence or other independent material. The record instead reveals longstanding and reciprocal disputes concerning occupation of estate land, surrender of titles and distribution.
24. A family disagreement may justify broader representation in the administration, but it does not, without proof of misconduct, incapacity or failure to perform statutory duties, justify removal.
25. Danson cannot be removed merely because he is a grandson. Section 66 provides a general order of preference, not an absolute disqualification against grandchildren.
26. Danson is a son of Clement Kibet Kutoh, who was a son of the deceased, survived him and became the original administrator. Clement’s subsequent death did not extinguish the beneficial interest of his Estate or family branch.
27. In Christine Wangari Gachigi v Elizabeth Wanjira Evans & 11 others [2014] eKLR, the Court of Appeal recognised the principle of representation, which protects the share of a deceased child for the benefit of that child’s descendants. The principle prevents the exclusion of a family branch merely because the relevant child of the intestate is deceased.
28. The authorities relied upon by the Applicants were determined on their particular facts and do not establish an inflexible rule that a grandchild cannot serve as an administrator whenever a child of the deceased survives.
29. Keiyo customary practices promoting consultation and family harmony may be considered, but they cannot override the Law of Succession Act or justify discrimination between beneficiaries. Under Articles 2(4) and 27 of the Constitution, any Customary Law inconsistent with the Constitution or written law is invalid to the extent of that inconsistency.
30. The Applicants’ lack of consent to Danson’s appointment is relevant but not decisive. They have now been heard, and their interests can be adequately protected through their appointment as additional administrators.
31. The Court therefore finds no sufficient basis for the issuance of orders removing Danson. Retaining him safeguards representation of Clement’s family branch, while appointing the Applicants ensures direct participation by the deceased’s surviving daughters.
32. All administrators are fiduciaries of the estate. Their appointment does not confer a superior beneficial interest. They must act jointly and comply with Sections 82 and 83 of the Act by collecting, preserving, accounting for and distributing the estate without further unreasonable delay.
Costs
33. The application has partially succeeded and involves members of the
same family. An award of costs may aggravate the existing divisions and diminish the estate. Each party shall therefore bear their own costs.
Orders:
a) Rose Kipkuto and Regina Jerop Kuto are appointed additional co-administrators of the estate of Michael Kipkuto Chebii alongside Danson Kipyator Kibet and Raymond Kipkoech Kuto.
b) The prayer seeking the removal of Danson Kipyator Kibet as an administrator is declined.
c) The grant shall be amended and reissued jointly in the names of:
i. Danson Kipyator Kibet;
ii. Raymond Kipkoech Kuto;
iii. Rose Kipkuto; and
iv. Regina Jerop Kuto.
d) The four administrators shall, within ninety (90) days, jointly file and prosecute a summons for confirmation of grant, if none is presently pending, accompanied by:
i. A complete inventory of the estate’s assets and liabilities;
ii. A comprehensive list of beneficiaries and their respective family branches;
iii. An account of all income received and expenditure incurred on behalf of the estate; and
iv. A proposed mode of distribution.
e) If the administrators cannot agree on distribution, each proposal shall be placed before the Court, and the beneficiaries shall be afforded an opportunity to file affidavits of protest.
f) Pending confirmation, no administrator or beneficiary shall independently sell, transfer, charge, lease, subdivide, waste or otherwise dispose of any estate asset.
g) Each party shall bear their own costs.
It is so ordered.