The legal principles that relate to succession law in Kenya with reference to the context of estate administration gaps

Key Legal Principles & Comparisons

1. 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.

 

2. Inapplicability of Substitution (Section 81 LSA)

• Law Applied: Section 81 – applicable only if at least one administrator survives.
• Key Ruling: If all administrators are deceased, Section 81 does not allow any of them to be substituted.

📌 Why it matters: Many applications wrongly invoke substitution in these cases. This judgment clarifies the correct remedy under Kenyan law.

 

3. Power of Court to Appoint Administrator (Section 66 LSA)

• Courts have the power to appoint an administrator suo motu (on their own motion) if the proper procedure is unclear or unprovided.
• In this case, the court appointed Monica Rukwaro using this discretionary power.

📌 Relevance: Ensures continuity of estate administration even where procedural gaps or misapplications exist.

 

4. Rule 49 and Procedural Flexibility

• Rule 49, often a "catch-all" for applications not specifically covered, was used here—though technically incorrect, the court accepted it.
• The court relied on Article 159(2)(d) of the Constitution (substance over form), reinforcing that procedural technicalities shouldn’t defeat justice.

📌 Impact: Encourages courts to prioritize substantive rights over rigid technical compliance, especially in family and succession matters.

 

5. Consent of Beneficiaries

• The Court emphasized the need for written consents from other heirs when appointing a new administrator.
• Monica Rukwaro’s application was supported by signed consents, bolstering her eligibility.

📌 Best Practice: When applying for administration de bonis non, always include affidavits or consents from all known beneficiaries to avoid disputes.

 

💡 Practical Takeaways

Situation	Correct Legal Action	Wrong Action to Avoid
All administrators die	Apply for letters of administration de bonis non under S.76(e)	Do not apply for substitution under S.81
Unsure of procedure	Use Rule 49 + invoke Article 159	Do not rely solely on technical rules
No administrator left	Court may appoint new one under S.66	Do not assume the estate is frozen permanently

 

Legal Significance of the Principles:

This case:

• Clarifies successor appointment rules under Kenyan succession law.
• Demonstrates judicial flexibility and prioritization of equitable administration.
• Provides a practical precedent for estate lawyers, especially in family disputes or protracted estate delays.