Succession Law: The Principle of Lapse of a Grant (Grant Becomes Inoperative)

Legal Review of the Principle of Lapse of a Grant (Grant Becomes Inoperative)

• Law Applied: Section 76(e) of the Law of Succession Act.
• Explanation: When all administrators of an estate die before completing the distribution, the grant becomes “inoperative”.
• Implication: A new grant must be issued—not by substitution, but by issuing letters of administration de bonis non (Latin: “of the goods not yet administered”).

📌 Comparison: This principle mirrors decisions in other jurisdictions like England & Wales, where courts also issue administration de bonis non to fill in the gap when prior executors die.

 

Case Law Review and Applicability

📌 1. In re Estate of Waigwa Wachira (Deceased) [2017] KEHC 7917

• Facts: Original grant to widow and son; widow later died leaving unadministered estate.
• Holding: Son entitled to Letters de Bonis Non under Rule 20, Fifth Schedule, Law of Succession Act, to complete administration.
• Takeaway: Even for intestate estates, beneficiaries may apply for de bonis non grants to finish distribution.

 

📌 2. In re Estate of Goolamhoosain Manjee Keshavjee (Deceased) [2017] KEHC 1395

• Facts: Sole executor under will died before completion.
• Holding: Probate revoked; grant de bonis non with Will issued to another beneficiary.
• Takeaway: De bonis non grants are appropriate when executor (or administrator) dies without completing the estate, even where there's a will.

 

📌 3. In re Estate of Harrison Mbari Waithaka (Deceased) [2018]

• Facts: Both administrator and administratrix died leaving part of estate unadministered.
• Holding: Court granted Letters de Bonis Non; applied Section 76(e) and Fifth Schedule paragraphs 14,16,20.
• Takeaway: Reinforces that the estate doesn’t get frozen; new grant fills the gap left by deceased administrators.

 

📌 4. In re Estate of Ngaigwo M’Shomba (Deceased) [2019] KEHC 2362

• Facts: Application sought substitution of deceased single administrator without de bonis non.
• Holding: Court struck out the application, directing proper route is revocation under Section 76(e) and new de bonis non grant.
• Takeaway: Clarifies that one cannot simply substitute under Section 81; must revoke and seek de bonis non.

 

📌 5. Faith Wanjiku Maganjo v Rebean Muriithi Maganjo [2017]

• Facts: Substitution of administrator occurred without de bonis non grant.
• Holding: Recognized necessity of de bonis non; second administrator lawfully administered remaining estate.
• Takeaway: Validates de bonis non grants where administrators die but require formal issuance.

 

Additional Authorities:

• Langok Tioni (2009) – Grant de bonis non issued to enable completion of intestate estate administration.
• Henry Clement Wariithi [2017] – Confirms practice—even if paperwork titles are inconsistent, courts overlook technicalities when grant serves estate administration.
• Elizabeth Wanjiku Njoka [2016] KEHC 978 – Found original grant “useless and inoperative” after administrator’s death, supporting de bonis non issuance.

 

✅ Summary of Legal Landscape

Situation	Correct Procedure
Administrator/executor dies before completing estate	Revoke original grant under Section 76(e) and apply for Letters de Administration de Bonis Non
Applicants propose substitution under Section 81 or Rule 49	Court redirects to de bonis non route (irrelevant if all admins are deceased)
Estate is intestate or testate	De Bonis Non applies in both scenarios; source of grant (intestacy or Will) doesn’t matter
Beneficiaries agree	Courts require written consents, but lack of formal procedure isn’t fatal—substance over form prevails

 

📚 Why This Matters

• These authorities create a consistent precedent under Kenyan law for handling incomplete estate administration due to death or incapacity of an administrator.
• They affirm that Section 76(e) + Fifth Schedule provide the legal foundation, not Section 81.
• Courts invariably prioritize completion of administration over rigid procedural compliance, especially where beneficiaries give consent.