An executor who will not act, cannot be trusted, or has stopped administering an estate can leave beneficiaries stranded. Kenyan law provides a route: removing an executor means asking the court to revoke or annul the grant. This guide explains the grounds under section 76, an executor’s duties, and how the process works.
This guide is for beneficiaries whose inheritance is stuck behind an executor who will not act or account, and for personal representatives who need to understand the standard the law holds them to. It explains when a Kenyan court will take a grant away and who steps in afterwards. It sits within the wider probate and administration process.
An executor is the person named in a will to administer the estate. But naming alone is not authority. Under section 53 of the Law of Succession Act (Cap 160), the court grants probate of the will to the executor named in it, and it is that grant that gives the executor power to collect assets, pay debts, and distribute the estate. Where there is no valid will, the estate passes instead to an administrator, and section 66 sets who ranks first for the grant: the surviving spouse, then other beneficiaries, then the Public Trustee, then creditors.
Because power flows from the grant, removing an executor is really about the grant. You do not “fire” an executor by agreement among the beneficiaries; you ask the court to take the grant away. Our guide to how to write a will in Kenya explains how executors are appointed in the first place, and the intestate succession guide covers who administers where there is no will.
Before asking whether an executor should be removed, it helps to know what the law requires of them. Under section 83, a personal representative must provide for reasonable funeral expenses, get in the estate’s assets, and pay administration expenses and debts. Crucially for disputes, they must also produce a full inventory and account of the estate within six months, and complete the administration and produce a final account within six months of confirmation of the grant. An executor who misses these duties is not merely slow; they are in breach of a statutory obligation, and that breach is often the foundation for removal.
Executors are also barred from cutting corners at the start. Under section 45, no one may take possession of or intermeddle with a deceased person’s property without lawful authority; doing so is an offence and carries liability to the rightful personal representative.
Section 76 of the Law of Succession Act sets out when a grant may be revoked or annulled, whether the court acts on an application or on its own motion. The grounds are:
In our view, the fourth ground does most of the work in practice. A beneficiary rarely needs to prove that an executor is dishonest; it is usually enough to show that the executor has not applied for confirmation, has stalled the administration, or has never produced the inventory and accounts section 83 demands. That failure, evidenced by the passage of time and the absence of filings at the registry, is what most removal applications are built on.
An application to revoke a grant is made to the court that issued it, supported by an affidavit setting out the ground relied on and the evidence for it. Where an executor is passive rather than plainly at fault, the Probate and Administration Rules also allow a citation — a formal call to the executor to accept or refuse the grant — which can force the issue without a full contest.
Revoking the grant does not leave the estate leaderless. The court can issue a fresh grant to a suitable person, typically a beneficiary in the order of preference under section 66, or the Public Trustee where the beneficiaries are in conflict. The new personal representative picks up the same section 83 duties and must account for the administration from that point. A related but separate question arises where the estate has passed into a trust and the problem is a trustee rather than an executor; the grounds and the governing law differ, and we deal with that in our note on trust disputes in Kenya.
Can beneficiaries remove an executor by agreement? No. An executor’s authority comes from the grant of probate, so removal means asking the court to revoke or annul that grant under section 76. Beneficiaries cannot simply replace an executor among themselves.
What are the grounds to remove an executor in Kenya? Under section 76, a grant may be revoked where the process was defective, where it was obtained by fraud or by an untrue allegation of an essential fact, where the executor has failed to apply for confirmation, to proceed diligently, or to produce the required inventory and accounts, or where the grant has become useless.
Do I have to prove the executor is dishonest? No. Dishonesty is one route, but it is not required. A failure to proceed diligently or to produce the inventory and accounts required by section 83 is enough to found an application.
How long does an executor have to account for the estate? Section 83 requires a full inventory and account within six months, and completion of the administration with a final account within six months of confirmation of the grant.
What happens after an executor is removed? The court issues a fresh grant to a suitable person — usually a beneficiary in the order of preference under section 66, or the Public Trustee where the beneficiaries are in conflict — who takes over the same section 83 duties.
The recurring mistakes are avoidable. Assuming the beneficiaries can remove an executor by agreement, when only the court can revoke the grant. Waiting while the estate is depleted, instead of acting on the delay. Alleging fraud when the real and more provable ground is a simple failure to account. And going to court before checking the registry to confirm whether the executor ever applied for confirmation or filed the section 83 inventory and accounts.
Our Private Clients, Wealth and Family team acts for beneficiaries seeking to remove an executor or administrator, and for personal representatives defending their conduct of an estate. If an estate has stalled or an executor is not accounting, speak to Andrew Mochu in our Private Clients, Wealth & Family practice and we will advise on the fastest lawful route to get the administration moving again.
This article is a general guide only and is not legal advice. Please seek advice on your specific circumstances.
