https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11812

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **FAMILY DIVISION** **SUCESSION CAUSE NO. 2361 OF 2014** **IN THE MATTER OF THE ESTATE OF KARANJA KAGO (DECEASED)** **MARY WANJIKU KARANJA ……..... PETITIONER/RESPONDENT** **VERSUS** **GEORGE KAGO KARANJA …………. 1ST OBJECTOR/APPLICANT** **DUNCAN MWEBIA ARIMI …………………………… 2ND OBJECTOR** **AND** **CHARLES KIHAGI THUAH ……..……………………. 1ST CAVEATOR** **OMEGA COMMERCIAL SERVICES LTD …............ 2ND CAVEATOR** **RULING** 1. Before me for determination is summons for Revocation of Grant dated **13th February 2018** brought under section 76 of Laws of Succession Act and Rule 44 of the Probate and Administration Rules. 2. The applicant prays for orders that; * 1. **The grant of letters of administration issued to MARY WANJIKU KARANJA in this matter on 7th January 2015 be revoked and/or annulled.** 2. **The costs of this application be provided for.** 3. The Application is supported by the affidavit of **George Kago Karanja**, who deponed that the Respondent, as the administrator of the deceased's estate, had failed to administer the estate fairly, equitably and in accordance with the deceased's wishes. He alleged that the Respondent intended to defraud the estate by excluding purchasers who had lawfully acquired portions of **Gathieko/Ruai (L.R. No. 9365/65)** from the estate, had failed to render accounts of the estate, and had neglected to apply for confirmation of the grant despite the expiry of the statutory period. 4. He further deponed that the deceased, who owned Gathieko/Ruai (L.R. No. 9365/65), had obtained approval on 6th September 2012 to subdivide the land into twenty-five (25) one-acre portions, selling most of them to various purchasers while reserving a portion for his immediate family. According to the Applicant, the original mother title was entrusted to the advocates for the 2nd Caveator, who had purchased four (4) acres, while other purchasers were issued with share certificates through Vika Investment Ltd and Giatheko Enterprises, companies associated with the deceased. 5. He further stated that the deceased instructed T.T. Ng'ang'a Advocates to act on behalf of both himself and the purchasers and later incorporated Giatheko Bypass Ltd to facilitate the issuance of future share certificates. 6. The Applicant alleged that following the deceased's death in June 2014, the Respondent continued receiving outstanding purchase price balances through M-Pesa and her bank account. Although T.T. Ng'ang'a Advocates assisted the family in obtaining the grant of letters of administration, he stated that disagreements subsequently arose within the family. 7. He alleged that the Respondent, together with his sister Wangari Karanja and his late maternal uncle Alex Kibebe Kungu, sought to disregard the purchasers' interests after the land appreciated in value. According to the Applicant, this was achieved through cancellation of approved deed plans, harassment and eviction of purchasers, destruction of property, institution of litigation including ELC No. 447 of 2015, complaints to the National Land Commission and the Law Society of Kenya against T.T. Ng'ang'a Advocates, and misleading representations to purchasers and the public through newspaper publications. 8. Consequently, he maintained that the Respondent was incapable of administering the estate honestly, fairly and in accordance with the law, and urged the Court to revoke the grant and appoint him either as the sole or joint administrator of the estate. 9. The Respondent, **Mary Wanjiku Karanja**, filed a Replying Affidavit dated 6th May 2026 opposing the application for revocation of the grant. She denied the Applicant's allegations and contended that the 1st and 2nd Objectors, together with the 1st and 2nd Caveators, were acting in concert to defraud the deceased's estate. 10. She asserted that Giatheko Enterprise Bypass Limited and Vika Investments Limited were entities incorporated to facilitate the fraudulent disposal of the estate and urged the Court to declare any transactions undertaken through those companies null and void. She further invited the Court to take judicial notice of criminal proceedings pending before the Makadara Law Courts against the 1st Objector, in which he had allegedly been charged with forgery, intermeddling with the estate, and conspiracy to defraud. 11. The Respondent also challenged the *locus standi* of the 2nd Objector and the 1st and 2nd Caveators, and alleged that their advocates were conflicted by reason of their involvement in the incorporation of Giatheko Enterprise Bypass Limited, particularly T.T. Ng'ang'a Advocates. She therefore prayed that the summons for revocation of grant be dismissed with costs. 12. The 2nd Caveator, **Omega Commercial Services Ltd**, filed a Replying Affidavit dated **4th May 2018**, asserting that it had a beneficial interest in the estate by virtue of having purchased four (4) acres of Gathieko/Ruai (L.R. No. 9365/65) from the deceased. It deponed that under a sale agreement dated 2nd December 2008, it purchased 3½ acres for Kshs. 1,000,000, and by an addendum dated 8th July 2009, acquired a further ½ acre for Kshs. 500,000, bringing the total acreage purchased to four (4) acres for a total consideration of Kshs. 1,500,000. 13. It further stated that, under the initial agreement, Kshs. 985,000 of the purchase price was applied towards the settlement of outstanding land rates on the property. **Issues for determination** 14. I have considered the application, the affidavit in support thereof, the Replying Affidavits and the submissions filed by the parties, where applicable. 15. In my view, the following issues arise for determination: a. Whether the Applicant has established sufficient grounds for the revocation of the Certificate of Confirmation of Grant dated 7th January 2015. 1. If the answer to the first issue is in the affirmative, whether the estate should be redistributed as proposed by the Applicant. **Analysis and determination** 16. The central issue for determination is whether the Applicant's application meets the threshold for revocation of grant within the meaning of **Section 76** of the [Law of Succession Act](https://kenyalaw.org/akn/ke/act/1972/14). For avoidance of doubt, section 76 states: ***“76. Revocation or annulment of grant*** ***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.”*** 17. The scope and application of section 76 was clearly expounded by the court In **re Estate of Prisca Ong'ayo Nande (Deceased) [2020] eKLR** where it was stated that: ***“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.”*** 18. In the present Application, the Applicant, **George Kago Karanja**, deponed that the Respondent, as the administrator of the deceased's estate, had failed to administer the estate fairly, equitably and in accordance with the deceased's wishes. He alleged that the Respondent intended to defraud the estate by excluding purchasers who had lawfully acquired portions of **Gathieko/Ruai (L.R. No. 9365/65)** from the estate, had failed to render accounts of the estate, and had neglected to apply for confirmation of the grant despite the expiry of the statutory period. 19. This Court notes that there is pending Summons for Confirmation of Grant dated **25th September 2019**. From the material placed before the Court, it is evident that the principal impediment to the confirmation of the grant and the completion of the administration of the estate is the dispute surrounding **Gathieko/Ruai (L.R. No. 9365/65)**. Several individuals have laid claim to portions of the said property as purchasers under various sale agreements entered into with the deceased during his lifetime. The competing claims have generated serious disputes as to the ownership and extent of the interests allegedly acquired by the respective purchasers. 20. It is settled that the jurisdiction of a succession court is limited to identifying, preserving and distributing the **free property** of the deceased in accordance with the provisions of the Law of Succession Act. Where the ownership of property is genuinely contested between the estate and third parties, the probate court cannot conclusively determine such proprietary rights within succession proceedings. Such disputes fall for determination by a court of competent jurisdiction in separate proceedings, after which only property found to constitute the deceased's free estate may be available for distribution as was established in ***In re Estate of M'Marete M'Mbijiwe (Deceased) [2004] eKLR*** and ***In re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR*.** 21. In the present case, the gravamen of the Applicant's complaint is not that the grant was obtained fraudulently, by concealment of material facts, or through defective proceedings within the meaning of **Section 76 of the Law of Succession Act**. Rather, the dispute concerns competing claims by purchasers over portions of **Gathieko/Ruai (L.R. No. 9365/65)** and the extent of their respective interests in that property. Those are questions of proprietary rights between the estate and third parties, which fall outside the scope of an application for revocation of grant. 22. A grant of representation may only be revoked on the grounds set out under **Section 76 of the Law of Succession Act**, namely where the proceedings to obtain the grant were defective in substance, the grant was obtained fraudulently by making false statements or concealment of material facts, was obtained by means of an untrue allegation of an essential fact, the administrator has failed to diligently administer the estate, or the grant has become useless or inoperative through subsequent circumstances. The burden lies upon the applicant to establish one or more of those statutory grounds. 23. Having considered the material before the Court, I am not persuaded that the Applicant has established any of the grounds for revocation under Section 76. The complaints advanced primarily relate to the validity and extent of the purchasers' interests in Gathieko/Ruai (L.R. No. 9365/65) and the proposed distribution of that property. Those issues are more appropriately determined in proceedings specifically instituted for that purpose and cannot, without more, form the basis for revoking an otherwise valid grant of representation. 24. On the same note I have seen the ruling of my sister Odero J dated 11th March 2022 in which she directed that the matter ought to proceed by way of *viva voce* evidence. 25. To be fair and considering the nature of the dispute over the above suit property it is necessary to hear out the parties. This will settle out the issue of how and when the parties purchased their portions; whether through the deceased or the administrator or the deceased beneficiaries. 26. At the same time there is the questions of the incorporated companies namely Giatheko Enterprises ByPass Limited and Vika Investments Limited. There is a dispute on whether or not the deceased was involved and whether or not it disposed some portion of the land. The above questions can only be answered through oral evidence and the parties subjected to cross-examination. 27. Equally important is the entitlement of each of the deceased children and the widow. They seemed not to agree on what each ought to get apart from the other third parties’ entitlement. 28. In the premises I direct as follows: **a) The application dated 13th February 2018 is hereby dismissed.** **b) The matter to proceed to its logical conclusion by way of *viva voce* evidence as per the orders of 11th March 2022.** **c) The orders of 11th July 2024 shall remain in force till the conclusion of the matter.** **d) Matter be fixed for hearing forthwith.** **e) Costs in the cause.** **Dated signed and delivered via video link at Nairobi this** **30th day of July, 2026.** **H.K. CHEMITEI** **JUDGE, FCIArb.**