https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8390

In re Estate of Thuo alias Ngari s/o Thuu (Deceased) (Succession Appeal E016 of 2023) [2026] KEHC 8390 (KLR) (2 June 2026) (Judgment) Neutral citation: [2026] KEHC 8390 (KLR) Republic of Kenya In the High Court at Nyeri Succession Appeal E016 of 2023 DKN Magare, J June 2, 2026 IN THE MATTER OF THE ESTATE OF NGARE THUO alias NGARI s/o THUU alias NGARI THUU Between Lucy Wanja Ndururi 1st Appellant John Karuri Kariuki 2nd Appellant and Margaret Nyaguthii Gitonga 1st Respondent Josphat Ngari Nderitu 2nd Respondent Lydia Gathigia Theuri 3rd Respondent Esther Wanjugu Ndiritu 4th Respondent Jane Njeri Maina 5th Respondent John Karoki Gathirike 6th Respondent Helina Gathigia Gathirike 7th Respondent (Being an appeal from the decision of Hon. E. N. Angima (SRM) given on 11.09.2023 in Nyeri Succession Case Number 440 of 2021) Judgment 1.This is an appeal from the decision of Hon. E. N. Angima (SRM) given on 11.09.2023 in Nyeri Succession Case Number 440 of 2021. The appeal was filed on 21.09.20223 against the whole of the judgment and set forth the following grounds of appeal:a.The learned trial magistrate erred in law and facts in shifting the burden of proof to the appellants whereas the same lay on the respondents, thus a miscarriage of justice was occasioned.b.The learned trial magistrate erred in law and facts in delivering a judgment that was against the weight of evidence.c.The learned trial magistrate erred in law and facts in delivering a judgment that offends the law in that she considered a separate estate in denying the appellants the benefit of the estate at hand.d.The learned trial magistrate erred in law and facts in failing to consider and apply the law applicable in determination of dependency thus proceeding to distribute the estate in a departure from the law.e.The judgment was rendered per incurium. Pleadings 2.By the Summons for Confirmation of Grant dated 21.6.2022 and filed by the Appellants in the lower court, the Appellants sought a Certificate of Confirmation of Grant in respect of the temporary grant dated 11.10.2021. 3.The Appellants were the administrators of the estate of the deceased, whose estate subject to this succession proceedings who died on 21.12.1970. The deceased left behind one parcel of land, that is, land parcel No. Kirimukuyu/Mutathiini/584 measuring 6.9 acres. 4.The grant was confirmed as per paragraph 5 of the Affidavit in support of the Summons for Confirmation of Grant. The beneficiaries had their shares as follows:Beneficiaries Sharea.Lucy Wanja Ndururi 1.6 acresb.Margaret Mugure Gitonga 1.6 acresc.Gathoni Muchucha 0.25 acresd.Dennis Muthee Kariuki 0.575 acrese.Jarvis Gitonga Kariuki 0.575 acresf.John Karuri Kariuki 0.575 acresg.Thomas Wachira Kariuki 0.575 acresh.Josephat Kamau Kariuki 0.575 acresi.Josephat Kamau Kariuki 0.575 acresj.Jane Wanjiru Kinyua in trust forFlorence Njeri andNancy Wanjiru Njoroge 0.575 acres 5.The Respondents filed an Affidavit of Protest dated 29.7.2022 sworn by Lydia Gathigia Theuri. By the said Affidavit, it was deposed as follows:i.None of the persons listed under paragraph 5 of the affidavit in support of the summons for confirmation of grant was beneficiary or dependant of the deceased.ii.The deceased had only 3 children namely Anne Njeri Mathenge (deceased), Elizabeth Wathenya Gathirike (deceased) and Esther Wanjugu Nderitu (alive).iii.The chief’s letter dated 4.2.2022 was a lie and a fabrication.iv.John Karuri Kariuki unlawfully sold the deceased’s parcel No. Kirimukuyu/Gachuiro/406 having subdivided it into two plots.v.The persons listed in the chief’s letter were not entitled to any portion of the estate. 6.In their joinder in further affidavit sworn by the 2nd Appellant on 18.11.2022, the Appellants stated that they were a daughter in law and grandson of the deceased and the beneficiaries in the chief’s letter dated 4.4.2021 were unknown to them. 7.The 1st Appellant was daughter in-law of Kariuki Ngari and the 2nd Appellant was son of Kariuki Ngari who was son of the deceased. The Appellants also contended that they had stayed in the estate for over 40 years. 8.Further, that parcel No. Kirimukuyu/Gachuiro/406 was never part of the estate. Evidence 9.During the hearing, PW1 was Esther Wanjugu Nderitu. She testified she was daughter of deceased. They were 3 daughters only. 2 died and she was the one remaining. She did not know the Appellants. She did not know one Kariuki Ngari who is said to be son of the deceased. It was her case on cross examination that when her father died, no one remained on the land and so the Appellants encroached and remained thereon. 10.She relied on her affidavit of protest dated 29.7.2022. Therein, it was deposed that the 1st Appellant was the wife of Ndururi Kariuki who was the son of Kariuki Mathenge, a cousin of the deceased. Kariuki Mathenge was landless and was given accommodation by the deceased who reared him, sought employment for him in Nairobi. 11.PW2 was Lydia Gathigia Theuri. It was her stated case that the deceased took in and educated one Kariuki Mathenge, and later got surname, Ngari. They were not relatives. 12.PW3 was Jane Njeri Maina. She was granddaughter of the deceased. Her mother was Gathinya Gathiriki, second daughter of the deceased. Her grandmother and wife of the deceased was called Nyakonyu and was also deceased. The deceased was born alone. She did not know the Appellants. 13.PW4 was Josephat Mathenge. He was grandson of the deceased. His mother was Hannah Njeri, the first daughter of the deceased. He visited the estate once and the Appellants were strangers to him. 14.The Appellants testified, with John Karuri Kariuki being DW1. He stated that his father, Kariuki Ngari was son of the deceased. The protesters were unknown to him. His father had two wives and he came from the house of Gathoni. The 1st Appellant was from the house of Hanna Wairimu and was his sister-in-law, being wife of his deceased step brother one Francis Ndururi Kariuki. According to him, the 11 beneficiaries per the chief’s letter lived on the land. Submissions 15.The Appellants filed submissions dated 30.3.2026. The submissions were filed by Lucy Wanja Ndururi pro se. I have noted that she filed a notice to act in person on 26.11.2024. It was submitted that the Appellants proved the assertions. There was miscarriage of justice as the Respondents failed to produce evidence to support their allegations. 16.It was submitted that delays were occasioned by existence of two parcels of land with different owners in respect of parcel Nos. 58A and 406. She also submitted more that there was no law prohibiting a person from owning property and also inheriting other property from parents. 17.The Respondent filed submissions dated 2.2.2026. It was submitted that the Appellants ranked lower in the line of consanguinity of the deceased. They submitted that the Respondents were not disputed. They submitted that the Appellants had their own land acquired through Nyeri Succession Cause No. 267 of 2004 and that is what they were entitled to. They also submitted that the Respondents were the rightful heirs and relied on ELMS v Heard KEELC 3155 (KLR) judgment. Analysis 18.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a subordinate court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. This Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong. In the case of Mbogo and Another vs. Shah [1968] EA 93 the court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 19.The duty of the first appellate court was set out in the case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the Judges in their usual gusto, held as follows:“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the subordinate Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.” 20.The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the subordinate court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. In Fidelity & Commercial Bank Ltd V Kenya Grange Vehicle Industries Ltd (2017)eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth;-“Courts adopt the objective theory of contract interpretation, and profess to have the overriding aim of giving effect to the expressed intentions of the parties when construing a contract. This is what sometimes is called the principle of four corners of an instrument, which insists that a document's meaning should be derived from the document itself, without reference to anything outside of the document (extrinsic evidence), such as the circumstances surrounding its writing or the history of the party or parties signing it." 21.This court’s the jurisdiction to review the evidence should be exercised with caution bearing in mind that the court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet this court must reconsider the evidence, evaluate it itself and draw its own conclusions. In the cases of Peters vs Sunday Post Limited [1958] EA 424 , the court therein rendered itself as follows:-“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be e4xercised with caution: it is not enough that the appellate court might have come to a different conclusion…” 22.The Respondents filed and prosecuted their protest. The burden was on the Respondents as protestors to prove the allegation in the affidavit of protest. In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act." 23.The Respondents were thus expected to demonstrate on a balance of probabilities that the assertions in the affidavit of protest were such as to shift the scales of justice towards adopting their case that they were the beneficiaries entitled to the estate as opposed to the Appellants and their suggested mode of distribution. The question then is what amounts to proof on a balance of probabilities. Kimaru, J in William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526 stated that:In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred. 24.The Respondents as protestors maintained that the Appellants were unknown to them, and that they were the true beneficiaries. The Appellants were strangers who were taken in through their father, Kariuki Mathenge the deceased and who remained on the suit premises as an act of benevolence by the deceased. 25.The deceased had in fact sought employment for the said Kariuki Mathenge. They alleged that it was a mystery how the said Kariuki Mathenge came to acquire the name of the deceased to be known as Kariuki Ngari. However, PW2 contradicted PW1 that the 2nd Appellant’s father was not cousin of the deceased as they were not relatives. PW4 also contradicted PW1 that even having visited the suit premises once, he never knew the Appellants who were strangers, yet PW1 testified that the Appellants stayed on the suit premises after demise of the deceased. The court is also alive that Section 3(2) of the Law of succession Act describes a child to:include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, a child born to her out of wedlock, and, in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or of whom he has voluntarily assumed permanent responsibility. 26.The appellants were the petitioners in the lower court. They had been issued with letters of admiration intestate on 11.10.2021. The respondents then came in as protestors. The appellants were unsuccessful in their quest. The court dismissed the petitioner’s claim and awarded the parcel to the protestors in 7 potions. The court dismissed 40 years occupation as not a basis for succession. The court actually found that the appellants were in possession for over 40 years. They apparently had no right to do so. This then should have led the court to two concepts that lie in line with the owner. Therefore, even on a casual look, they had some interest. One is the concept of nec vi,nec clam, nec precario. The other one is trust. However, the court did not address who the Respondents were. 27.Facts are largely not disputed. Further, it is not in dispute that the petitioners have been in possession of the suit land exclusively for over 45 years. They are also not biologically related to the deceased. Had the respondents shown some interest, this could have then brought them within the meaning of rule 41 (3) of the Probate and Administrative Rules which provides as follows:Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order 37 , rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act, proceed to confirm the grant. 28.In respect of trust, the court has settled the same in the case of Kiebia v M’lintari & another (Petition 10 of 2015) [2018] KESC 22 (KLR), where the supreme court [DK Maraga, CJ & P, MK ibrahim, JB Ojwang, SC Wanjala & N Ndungu, SCJJ] posited as follows:Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor, is subject under the proviso to Section 28 of the Registered Land Act. Under this legal regime, (now repealed), the content of such a trust can take several forms. For example, it may emerge through evidence, that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be that other parts of the land, depending on the specific group or family setting, were reserved for various future uses, such as construction of houses and other amenities by youths graduating into manhood. The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor. 29.The Respondents did not protest on the ground that they ever sought to evict the Appellants as trespassers to the deceased’s land. PW1 who averred that she was daughter of the deceased stated that she had not visited the suit premises since it was far away. It was her case that one Kamanjiri who took care of the deceased remained on the suit premises taking care of it and also died and had no child. 30.One would wonder why PW1 as daughter of the deceased did not know the people who stayed on her father’s land and why she never moved to take out letters of administration or manage the estate after her father’s demise until 50 years later in 2021, when the Appellants, who are said to have been staying on the said parcel undertook this noble process. 31.The Appellants denied the Respondents and the Respondents denied the Appellants. Such denial in succession matters did not entirely mean that they were not known to one another. It could as well mean that they knew one another but did not recognize or were strangers to the interest being claimed. 32.The court had to establish who between the two opposing factions were the beneficiaries or dependants of the deceased. In my view, the burden remained on the Respondents as Protestors. The Appellants were already administrators of the estate of the deceased as grandson and his sister-in-law. The evidence before court clearly showed that the Appellants were son and daughter in law of Kariuki Ngari who was son of the deceased. The said Kariuki Ngari had two wives and the 2nd Appellant came from the house of Gathoni. The 1st Appellant was from the house of Hanna Wairimu and was the 2nd Appellant’s sister-in-law being wife of the 2nd Appellant’s deceased step brother one Francis Ndururi Kariuki. These were not contested matters. 33.Therefore, the Appellants proved connection with the deceased. It did not matter that their father was a biological son of the deceased as asserted by the Respondents. For in law, children taken into the family of the deceased as his own were also entitled to the estate as dependants, provided that if they claimed not as children, they had to strictly prove dependency. 34.Be that as it may, under Section 29 of the Law of Succession Act, a “dependant” included children of the deceased whether biological or accepted as such. This did not however rule out the fact that the 2nd Appellant’s father was a biological son of the deceased. 35.The two letters from the chief were inadequate and I do not think were anything to go by. The deceased herein died in 1970 and the succession commenced unfortunately late in 2021, 50 years later, and it was difficult to prove circumstances immediately prior and immediately after his demise that would reveal whether the chief knew exactly the dependants and beneficiaries that the deceased left behind. Clearly, the chief herein was not the reigning chief at the time of the demise of the deceased in 1970. 36.The chief’s evidence was also not tested in cross examination as he was never called to testify which left the probative value of the letters low and unsupported. 37.On the significance of the chief’s letter in the Law of Succession, in the case of Re Estate of Mutaba Kioko alias Michael Mutava Kioko (deceased) Succession Appeal E004 of 2023 KEHC 8434 (KLR) the court took judicial notice of the important role played by the Chief’s letter in Succession proceedings. The court stated:“This Court takes judicial notice of the important role played by Chief’s letters in Succession proceedings. When one files for letters of administration intestate, one of the crucial documents that is required is a letter from the chief. In the case of Ayako v Oronje [2024] KEHC 7641 (KLR) the court held that should point out that the act of issuing a chief’s letter or that of local administration in succession proceedings is Administrative, not legal, on the part of the local administrator. 30 The courts traditionally require the chiefs to assist the court to ascertain the immediate kindred of a deceased person. The chiefs are considered reliable as it is expected that he/she is well acquainted with the residents of his location. However, there is no law that binds the chiefs to issue such a letter (s)” “In Mombasa Maize Millers Limited v Roselyne Atieno Ouma & Another [2017] KEHC 7642 (KLR), the court in determining the survivors of the deceased stated that, given that the defendant had at paragraph 2 of the defence disputed the Plaintiff’s locus the issue ought to have been allowed to go for trial because a consent on liability presupposes that even the locus of the persons bringing the suit is admitted in any event the chief’s letter suffices to prove that fact on a balance of probabilities more so there is no evidence rebutting it..... The chief’s letter is as I have stated the proves the status of the estate of the deceased as well as who his survivors were...”The foregoing authorities underscore the importance of a chief’s letter, though not legally conclusive, they are foundational documents used to introduce the deceased’s family to the court. The assumption is that the local administration possesses reliable knowledge of familial structures within their jurisdiction. The inconsistency between two letters authored by the same chief within one month and with materially different content is a critical evidentiary issue that the trial court ought to have interrogated. The failure to summon the chief or even question the legitimacy of the two contradictory letters, left a material evidentiary gap in the proceedings. Therefore, this court finds that the trial court fails to properly evaluate the evidence before it. 38.This leaves the issue as to whether the protest was proved. In other words, were the Respondents beneficiaries or dependants of the deceased? PW1 testified that she was the only surviving daughter of the deceased. PW3 testified that her mother, one Gathiriki was daughter of the deceased; and PW4, that PW4’s mother Hannah Wairimu was also daughter of the deceased. 39.As earlier stated herein, the burden was on the Respondents. PW1 had to prove that she was daughter of the deceased. She had to show connection with the deceased. None was shown, from her name to the chief’s letter which she relied on. It remained unproven how PW1 would be categorized as a child of the deceased or even dependant. No birth certificate was shown in evidence. Her national identity card was not produced. There was no way to tell that she was a daughter of the deceased as alleged. No witness was called who would testify in favour of her being child of the deceased. This also ran contrary to her quest to claim beneficiary interest in the estate 50 years after her alleged father, the deceased herein had died; by moving only when the Appellants filed for confirmation of the grant. On dependants, the Law of Succession Act (Cap 160 defines who is a dependant at Section 29 as follows:-“(a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;(b)such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and(c)Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death. 40.The Respondents generally did not avail any material or evidence based on which it would be inferred that they were dependants within the meaning of Section 29 of the Law of Succession Act. PW2, PW3 and PW4 though testified that they were grandchildren of the deceased, did not provide any material connecting them to their deceased mothers whom they alleged were daughters of the deceased alongside PW1, or directly connecting them to the deceased as dependants. In re Estate of Jackson Nicholas Kyengo Mulwa (Deceased) [2021] KEHC 1545 (KLR) the court stated as follows:32.In the interest of justice, it is paramount that all beneficiaries of the deceased are properly catered for. The Law of Succession Act in its very nature aims at ensuring all beneficiaries of a deceased person and their interests are protected. It is my opinion that the most efficient way to prove dependency in this matter would be through DNA evidence because the Applicant asserts that she is the biological child of the deceased. This court takes note that the Applicant has not prayed for DNA to be conducted. She alluded to her willingness to take the test to prove paternity in her affidavit and submissions. The 1st respondent opposed this assertion on the ground that the court has no basis to order for DNA because it was not prayed for in the pleadings.33.It is a principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings or which is at variance with the averments of the pleadings goes to no issue and must be disregarded (see Dakianga Distributors K Ltd Vs Kenya Seed Company ltd (2015) eKLR). This court can therefore not on its own volition order for a DNA test to be conducted.34.Accordingly, for the reasons set out above, I find that the evidence tendered by the Applicant Diana Mutheu Mwau is not sufficient for this court to make a finding that she is a dependent of the deceased Jackson Nicholas Kyengo Mulwa and that she is entitled to any share of his estate. I find that this application lacks merit. 41.Whereas the court had discretion to provide for the Appellants as dependants, the Appellants had to satisfy the court that they are entitled to such provision as such discretion could only be exercised in accordance with the law under Section 27 of the Law of Succession Act as follows:Discretion of court in making order:In making provision for a dependant the court shall have complete discretion to order a specific share of the estate to be given to the dependant, or to make such other provision for him by way of periodical payments or a lump sum, and to impose such conditions, as it thinks fit. 42.The court had to act on evidence since dependency was a matter of fact. Whereas the court believed the evidence of PW1 in so far as she testified that she was the only surviving daughter of the deceased, it was doubtful as to whether PW1, even though a beneficiary as had been presumed, had any interest in inheriting the deceased’s property having not laid any claim against the Appellants in respect of the suit premises since 1970 or sought to administer the estate after the demise of the deceased, or even sought to revoke the grant. 43.It cannot be the law that the law of succession has no bar on limitations. A dependant or beneficiary must satisfy the court that he or she was not informed of the succession process and there was no way they would have known without being informed. That is why there are requirements for gazette notices in succession matters for general public knowledge. Under Section 30 of the Law of Succession Act on limitation of time for application for provision as dependants, it is provided as follows:No application under this Part shall be brought after a grant of representation in respect of the estate to which the application refers has been confirmed as provided by section 71. 44.Moreover, having claimed to be daughter of the deceased, she had the duty to prove connection to the deceased as daughter. The rest of the Respondents did not prove any dependency either by themselves or the persons they alleged to claim through. In the case of Sarah Kanini Thigunku v. Elizaphan Njuki Thigunku [2016] eKLR the court observed that: ‘For one to be a dependant, however, under Section 29 aforesaid, it is clear that one must prove dependency. The use of the words “…as being maintained by the deceased immediately prior to his death...” In that Section, connotes that one must prove that he was dependent on the deceased before his demise…not every relationship, outside biological, automatically qualifies one to be a dependant under Section 29 of the Act. Proof of dependency is imperative. 45.The beneficiaries and dependants of the estate of the deceased are entitled to quite enjoyment of the bounds of the estate subject to genuine claims. They are not entitled to be ambushed by persons who came in too late to claim dependency and maintenance without sufficient evidence that such persons were children of the deceased or were maintained prior to the demise of the deceased. As was held In re Estate of David Omare Kimori (Deceased) (Succession Cause 4 of 2020) [2023] KEHC 23286 (KLR) (28 September 2023) (Judgment):There was no tangible evidence adduced to prove that the deceased paid the school fees for the said children, when their father was available and known. There is no evidence that the deceased took up the parental responsibility of the three children exclusively or even attempted to adopt the children of Livingstone Nyaribo who is well and alive and there is no evidence that Livingstone Nyaribo relinquished his parental responsibility towards the said children. If anything, the 1st objector was bound by law to seek for the children’s maintenance from their biological father since the deceased never sought consent of their biological father to be their guardians or to adopt them as his own. There being no evidence that the deceased assumed parental responsibility over the objector’s children inn as much as they may have been fond of him and that they had moved in his house with their mother…… Accordingly, I am not satisfied that the 2nd – 4th Objectors quality to be the deceased’s dependants. I reject their proposition and further find that for that very reason, they are legally not entitled to inherit from his estate. 46.This court also considers it crucial that it was not the case of the protestors that the grant should be revoked or that themselves or any of them should be the administrators. Whereas they appeared to suggest that the Appellants obtained the Grant through misrepresentation that they were beneficiaries and the proceedings in the lower court were defective as they were undertaken by persons not entitled as administrators or beneficiaries, the same remains a matter of conjecture as they did not seek to revoke the grant that the Appellants sort to be confirmed or prove dependency. The grounds for revocation or annulment of grant of Letters of Administration are set out in Section 76 of the Law of Succession as follows:A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion-(a)That the proceedings to obtain the grant were defective in substance;(b)That the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)That the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)That the person to whom the grant was made has failed, after due notice and without reasonable cause either—(i)To apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)To proceed diligently with the administration of the estate; or(iii)To produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)That the grant has become useless and inoperative through subsequent circumstances. 47.The court explained the rationale of Section 76 of the Law of Succession Act in Re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR where the Court observed as doth:“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.” 48.The Protestors also alleged that the 2nd Appellant sold property known as Kirimukuyu/Gachuiro/406 which was part of the estate of the deceased. There was, however, no evidence produced based on which it could be inferred that the property was part of the estate. The green card produced revealed that the property was registered in the name of the 2nd Appellant. Such property could not therefore be said to be part of the estate of the deceased. There was equally no evidence to infer a gift as it was not shown that the property was initially in the name of the deceased and so moved to the 2nd Appellant from the deceased during his lifetime. 49.The said estate was therefore a different estate not proved to be related to the estate herein and the lower court erred in its reasoning that the list of beneficiaries in relation to that estate ought to have contained the same beneficiaries as beneficiaries under this estate. 50.Consequently, the court below was plainly wrong. The sole property left by the deceased was available for distribution in the manner proposed in the Appellants’ summons for confirmation of grant. Determination 51.In the upshot, I make the following orders:a.The appeal is merited and is allowed.b.The Judgment of the lower court dated 11.9.2023 is set aside and substituted thereof with an order allowing the Summons for Confirmation of Grant dated 21.6.2022. A Certificate of Confirmation of Grant to issue forthwith.c.Transmission be concluded within 6 months.d.For the avoidance of doubt, the Protest dated 29.7.2022 is dismissed.e.Each party to bear their own costs. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 2ND DAY OF JUNE, 2026.Judgment delivered through Microsoft Teams Online Platform.KIZITO MAGAREJUDGEIn the presence of: -Appellants presentNo appearance for the respondentsCourt Assistant – Martin