The Lawyer's Guide: The court’s duty to prevent estates from stagnation due to procedural errors (substitution of deceased administrators): The Case of In re Estate of Joel Rukwaro Thuku (Deceased) [2018] KEHC 6638 (KLR)

1. Brief Facts

Joel Rukwaro Thuku died intestate on 21 February 2003.
On 19 September 2011, letters of administration intestate were granted to Rhoda Rukwaro, Rebecca Waguthi Rukwaro, and Hosea Kanyogoro Rukwaro as joint administrators; a corresponding certificate of confirmation was issued.
Before estate administration was completed, all three administrators died (between 2014–2017).
On 19 March 2018, Monica Rukwaro, a beneficiary and heir, filed a summons under P&A Rules rule 49, seeking substitution as sole administrator. She attached: the grant/certificate, death certificates, and beneficiary consents. (Full case Available here)

2. Issues

1. Can three deceased joint administrators be substituted by a beneficiary?

2. If not, what legal remedy applies?

3. What rules or statutes guide such succession scenarios?

3. Applicable Law

P&A Rule 49: Summons procedure for applications not elsewhere provided.
Section 81, Law of Succession Act: Upon death of one/more executors/administrators, powers vest in surviving ones.
Section 76(e), Law of Succession Act + Schedule 5, para 16: Grant becomes inoperative if all administrators die; new grant de bonis non needed.
Section 66, Law of Succession Act: Court may suo motu appoint an administrator.

4. Decision

Rule 49 misapplied: Not a substitution application.
Section 81 inapplicable: All original administrators dead—no survivor.
Proper remedy: Grant letters of administration de bonis non under Section 76(e), subject to beneficiary consent.
Court action:

⚖️ Legal Analysis

1. Misconception of "Substitution"

The applicants mistakenly treated the application as substitution of administrators.
Substitution is available if at least one surviving administrator remains (e.g., when additional appointment to a continuing trust is needed), which was not the case here.
By contrast, when all administrators die, Section 81 does not apply; the grant lapses and a new grant process is required.

2. Operation of Law and Continuation of Grant

The court correctly noted that a grant intestate becomes inoperative when administrators die.
Section 76(e) activates, necessitating a de bonis non grant limited to completing administration—supported by precedent such as Hannah Njuki (1997) .

3. Role of Section 66 (Suo Motu Appointment)

Even though the summons misreferenced rule 49, the court relied on its constitutional duty (Article 159) to ensure justice and use its inherent authority under Section 66 to appoint an administrator.
This demonstrates judicial flexibility to correct procedural missteps in the interest of substantive justice.

4. Precedential Value

Complete lapse of administration occurs when all administrators/executors die.
Misfiling under substitution provisions doesn't prevent courts from using appropriate succession mechanisms.
Courts will trigger de bonis non grants and may correct proceedings suo motu to facilitate estate administration.

🧩 Conclusion

Core outcome: Grant to deceased administrators revoked; new grant issued de bonis non to Monica Rukwaro.
Substantive justice prioritized over procedural formalities.
Judicial discretion under Article 159 and Section 66 was key in ensuring resolution despite misfiled summons.
Important precedent for succession law: highlights distinction between substitution and de bonis non grants and emphasizes the court’s duty to prevent estates from stagnation due to procedural errors.

The Lawyer's Guide