REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BOMET
SUCCESSION CAUSE NO. E023 OF 2022
IN THE MATTER OF THE ESTATE OF JOSEPH CHESOBOI KERING (DECEASED).
SARAH CHERUTO TONUI …………………………...……. PETITIONER
VERSUS
FFESTUS KIPRONO KERING……………………………….. APPLICANT
RULING
1. In this matter, a Certificate of Confirmation of Grant was issued to the Petitioner on 13th November 2025.
Summons for Revocation dated 10th June 2026
2. The Applicant filed the referenced Application seeking the following orders: -
I. THAT the Grant of Letters of Administration made and issued to Sarah Cheruto Tonui on the 19th day of June 2023 be revoked and/or annulled.
II. THAT a new Grant be made/issued to Festus Kiprono Kering to administer the estate on behalf of other beneficiaries.
III. THAT the Certificate of Confirmation of Grant issued on the 13th day of November 2025 be amended to reflect the name of Festus Kiprono Kering.
IV. THAT the share previously allocated to the deceased Petitioner be transmitted and/or allocated to her son namely Johnson Kipngeno.
3. The Application was brought under section 76 of the Law of Succession Act and Rule 44 of the Probate and Administration Rules. It was premised on the grounds on the face of the Application and further by the supporting affidavit sworn by Festus Kiprono Kering on 10th June 2026.
The Applicant’s case
4. The Applicant stated that the Petitioner petitioned this court for Grant of Letters of Administration and the same was issued to her on 19th June 2023. That the Grant was confirmed and a Certificate of Confirmation of Grant was issued.
5. It was the Applicant’s case that the Petitioner died on 15th April 2025 before the Grant could be effected. That her demise made the Grant useless and inoperative. It was the Applicant’s further case that upon the Petitioner’s death, they convened a family meeting and agreed that he (Applicant) be appointed as a substitute Administrator for the purpose of completing the distribution of the estate. That the family further resolved that the share that had already been allocated to the deceased be inherited by her son Johnson Kipngeno.
6. In his Further Affidavit dated 17th August 2026, the Applicant stated that the Petitioner’s Advocate’s did not object to his Application save that he is paid retainer fees which he claimed that he had agreed with the deceased’s Petitioner. That it legally untenable as he (Applicant) was not party to the retainer Agreement and could not assume personal liability. The Applicant further stated that he disputed the retainer Agreement and further disputed its validity and evidentiary value.
7. It was the Applicant’s case that the alleged contractual dispute between the deceased Petitioner and his Advocate could not be converted into a condition precedent for the appointment of the new Administrator. That the Advocate had not demonstrated any lawful basis upon which this court could not issue a fresh Grant. It was the Applicant’s further case that in the interest of justice required that the estate be placed under administration of the living without further delay.
8. At the time of writing this Ruling, the Applicant had not filed his written submissions.
Response
9. Through a Replying Affidavit dated 16th July 2026, Rogers Mugumya Advocate stated that he was the deceased’s Administrator’s Advocate. That the Petitioner passed away on 15th April 2026 before completing the administration of the deceased’s estate. The Advocate further stated that the deceased Petitioner had willingly executed a retainer agreement dated 14th February 2023 undertaking to remit Kshs 3,000,000/= as legal fee but had not paid a single cent at the time of her passing.
10. It was the Advocate’s case that the retainer agreement survived the deceased Petitioner and he was entitled to his legal fee under section 45 of the Advocates Act because he had completed the succession matter. It was the Advocate’s further case that the Applicant sought to take over the deceased’s administrator’s responsibilities while escaping the lawful liabilities that are owed to him. That he would be prejudiced as per the provisions of Rule 55 of the Advocates (Remuneration) Order.
11. Through his written submissions dated 24th July 2026, the Advocate submitted that the Applicant should be ordered to settle his legal fee. That his relationship with the deceased Petitioner was birthed via a retainer agreement dated 14th February 2023 for the sum of Kshs 3,000,000/=, a sum which was to be paid within one year of executing the agreement. The Advocate further submitted that he had represented the deceased Petitioner from the inception until she was issued with a Certificate of Confirmation of Grant.
12. It was the Advocate’s submission that the pending legal fee should be categorized as an administrative expense and subsequently, the Applicant in taking over from the deceased Petitioner should meet the said expense from ten distributable assets of the estate before the same is administered to the beneficiaries. He relied on Rule 55 of the Advocates (Remuneration) Order, Keti vs WK Ngenoh & Co. Advocates [2024] KEHC 7358 (KLR) et.al.
13. I have gone through the Summons for Revocation of Grant dated 10th June 2026, the Applicant’s Further Affidavit dated 17th August 2026, the Advocate’s Replying Affidavit and written submissions dated 16th July 2026 and 24th July 2026 respectively. The only issue for my determination was whether the Application has merit.
14. In re Estate of Muroko Kimitu - (DCD) [2019] KEHC 9129 (KLR), the court held: -
“On the issue of substitution of the petitioner I am guided by decisions of the High Court & Court of Appeal. In John Karumwa Maina v Susan Wanjiru Mwangi [2015] eKLR The Court held;
In the case of FLORENCE OKUTU NANDWA AND ANOTHER VS JOHN ATEMBA KOJWA, Court of Appeal Civil Appeal in Civil Appeal No. 306 of 1998 at Kisumu where it was held that a court should not issue a grant to a person who has not sought for it. The judge stated as follows:-
“A grant of representation is made in personam. It is specific to the person appointed. It is not transferable to another person. It cannot therefore be transferred from one person to another.
The issue of substitution of an administrator with another person should not arise. Where the holder of a grant dies, the grant made to him becomes useless and inoperative, and the grant exists for the purpose only of being revoked. Such grant is revocable under section 76 of the Law of Succession Act. Upon its revocation, a fresh application for grant should be made in the usual way, following procedures laid down in the Law of Succession Act and the Probate and Administration (Rules)……..”
15. Similarly, in Julia Mutune M’mboroki v John Mugambi M’mboroki & 3 others [2016] KEHC 7023 (KLR), the court held: -
“……..I also think it is worth mentioning that the Law of Succession Act does not talk of substitution of administrator; it provides for making of a grant to another person or persons after revocation of grant or on the death of the administrator or on renunciation of right to apply or executorship etc…….
……. There is absolutely no room of substitution of the deceased administrator under the Law of Succession Act. In my view, therefore, where the sole administrator is a natural person, and he or she dies, the grant becomes useless or inoperative by reason of subsequent event of his demise. I am aware that the Law of Succession Act does not define or say what constitutes ‘’the grant has become useless and inoperative through subsequent circumstances’’. But, in my opinion, death of an Administrator would be a sufficient reason to revoke a Grant for having become useless and inoperative due to subsequent demise of its holder. Accordingly, in such case, the proper procedure is to apply for revocation of grant of letters of administration under section 76(e) of the Law of Succession Act on the reason that the grant has become useless and inoperative through subsequent circumstances and a grant to be made to another person named in the application……..”
16. The Grant issued to the Petitioner on 19th June 2023 indicated that the Petitioner was the sole administrator. The same position was reflected in the Certificate of Confirmation of Grant dated 13th November 2025. I have also looked at the Petitioner’s Death Certficate produced as “FKK-3” which confirmed the death of the Petitioner. It is therefore clear that the Petitioner being the sole administrator of the estate of Joseph Chesoboi Kering (Deceased) was deceased.
17. I associate myself with the findings in the authorities above. It is evident that this court cannot substitute the deceased administrator (Sarah Cheruto Tonui (Deceased) with the Applicant.
18. On the issue of the legal fee, it is clear that the retainer agreement was between the deceased Petitioner and her Advocate and I agree with the Applicant that the liability and execution of the same could not be levied upon the Applicant as he was not a party to the said Agreement. It is my finding that the said fee would be recoverable under the deceased Petitioner’s estate (Sarah Cheruto Tonui) as a liability and not in the present succession cause as the same related to the estate of Joseph Chesoboi Kering (deceased).
19. In the end, I make the following orders: -
I. The Grant issued on 19th June 2023 and confirmed on 13th November 2025 is hereby revoked.
II. The Applicant is at liberty to petition for a fresh Grant of Letters of Administration Intestate to administer the estate of Joseph Chesoboi Kering (Deceased).
III. Each party to bear their own costs.
IV. This file is now closed.
Ruling delivered, dated and signed at Bomet this 29th day of September, 2026.
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HON. JULIUS K. NG’ARNG’AR
JUDGE
Ruling delivered in the presence of:
Siele/Susan (Court Assistants)
Source: Supplied judgment file.