https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10876

In re Estate of Kishenga (Deceased) (Succession Cause 70 of 2012) [2026] KEHC 10876 (KLR) (Family) (17 July 2026) (Ruling) Neutral citation: [2026] KEHC 10876 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 70 of 2012 M Thande, J July 17, 2026 Between Hamis Munga Chishenga 1st Applicant Kadzo Munga Chishenga 2nd Applicant Gunga Bidii Gunga 3rd Applicant Elivina Munga 4th Applicant Janet Munga Chishenga 5th Applicant Kelvin Munga Chisenga 6th Applicant and Harry Shida Elijah 1st Administrator Sidi Baya Chai 2nd Administrator and Hesbit Mosoti Mong’are 1st Interested Party Stephen Masha Ngowa 2nd Interested Party Ruling 1.The proceedings herein relate to the estate of James Munga Kishenga (the deceased) who died intestate on 24.8.08. A grant of letters of administration was on 14.5.13 issued to Harry Shida Elijah (Harry) and Sidi Baya Chai (Sidi) who in their application for grant described themselves as the nephew and widow of the deceased respectively. The grant was confirmed 18.2.14 and the estate of the deceased which comprised of Title No. Chembe/Kibabamshe/350 was distributed to the 2 administrators in equal shares. 2.Before me for consideration is a summons dated 11.2.25 in which the Applicants who are grandchildren of the deceased seek in the main, revocation of the said grant and confirmation thereof. They also seek appointment of Gunga Bidii Gunga and Hamis Munga Chishenga as administrators of the estate of the deceased. They also seek revocation and annulment of all sub-divisions numbers Chembe/Kibabamshe/1321, 1322, 1323, 1324, 1325, 1326, 1327 1878 emanating from Land Parcel Chembe/Kibabamshe/350 (the suit property) and revert the same to the name of the deceased for purposes of distribution. 3.The Applicants’ case is that the grant was obtained fraudulently and through concealment of material facts. They stated that they are the children of the late Dama Munga Chishenga, the only child of the deceased and hence beneficiaries of the estate of the deceased. They assert that the grant was obtained and confirmed without their consent or involvement. Further that Sidi Baya Chai, is of unsound mind and incapable of administering the estate of the deceased, thus the grant issue to her is untenable. Additionally, that Harry Shida Elijah is not a beneficiary of the estate of the deceased. 4.The Applicants stated that in October 2024, they noticed that there was clearing of bushes and excavation on the suit property. Upon investigations, they discovered the instant succession proceedings in which beneficiaries were not disclosed. They also obtained a green card and discovered that the suit property was subdivided vide a court orders issued by the Environment and Land Court in ELC No. 19 of 2017. They further discovered that title deeds in respect of the subdivisions had been issued to 3rd parties. 5.In his replying affidavit sworn on 12.5.25, Harry denied that the grant was obtained fraudulently or that the Sidi is of unsound mind. He averred that the Applicants were all along aware of the petition and exhibited a letter dated 3.3. confirming this. The present application is thus an afterthought. He further stated that the Applicants have failed to take care of the deceased’s only surviving widow and have never wished her well. He further stated that the Applicants who were not on good terms with the deceased now wish to take away the only property left to her by the deceased. Further, that the Applicants are grandchildren of the deceased and the children of one Gunga, a son in law of the deceased. 6.He stated that the deceased had been fraudulently dispossessed of the suit property which had been registered to Roving Investments (Africa) Limited which later transferred the same to Mayungu Real Estate Limited. As the deceased was unable to recover the suit property, he entrusted the recovery to Harry; that at the time, the Applicants had beaten and chased the deceased from his home on accusations that he was a witch; that they never assisted the deceased in the recovery of the land. 7.Harry went on to state that upon the demise of the deceased, his advocates advised him to obtain a grant of representation with the widow of the deceased who is of advanced age, to enable him file suit for recovery of the suit property. He stated that the suit property was eventually registered in their names pursuant to the judgment of the court in ELC No. 12 of which the administrators filed. His contention is that this court lacks jurisdiction to set aside that judgment and decree. He then stated that in the event the Application is allowed, then the suit property should revert to Mayungu Real Estate Limited which was the registered owner at the time of his demise. He urged that the Application be dismissed with costs. 8.In her replying affidavit sworn on even date, Sidi reiterated the averments made by Harry. She stated that due to her advanced age, she could not on her own institute and prosecute the suit for recovery of the suit property and agreed that Harry spearhead the same. Her position is that the Applicants not being children of the deceased should inherit from their father Gunga. 9.I have given due consideration to the matter including the parties’ respective submissions. The issues that fall for determination are:i.Whether the Grant should be revoked.ii.Whether Gunga Bidii Gunga and Hamis Munga Chishenga should be appointed administrators of the estate of the deceasediii.Whether the subdivision of the suit property should be revoked and the title reverts to the deceased. Whether the Grant should be revoked 10.The jurisdiction of this Court to revoke a grant of representation is set out in Section 76 of the Law of Succession Act (LSA) as follows:76 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; orii.to proceed diligently with the administration of the estate; oriii.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; ore.that the grant has become useless and inoperative through subsequent circumstances. 11.A party seeking revocation of a grant of representation must demonstrate the existence of any of the grounds set out in Section 76 of the Act. 12.The grounds upon which the Applicants seek revocation of the grant are that first, Sidi is of unsound mind and second, the grant was obtained and confirmed without their consent or involvement. 13.The claim that Sidi is of unsound mind is denied by the Administrators. 14.It is trite law that he who asserts must prove. An applicant must prove his claim to the required standard if he is to obtain the remedy that he seeks. The Evidence Act is very clear in this regard. Section 107 stipulates:1.Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.2.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.Section 108 provides:The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.Section 109 provides:The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 15.Section 2 of the Mental Health Act provides that a “person with mental illness” means a person diagnosed by a qualified mental health practitioner to be suffering from mental illness. It is noted that no such diagnosis of Sidi was produced before the Court to support their claim that Sidi was of unsound mind. 16.It is not enough for the Applicants to simply state that Sidi is of unsound mind. They were obligated to place before the Court a diagnosis by a qualified mental health practitioner confirming that Sidi was suffering from mental illness. Without such a diagnosis, their claim remains unsubstantiated and must fail. 17.I now turn to the ground that the grant was issued and confirmed without their consent and involvement. It is not disputed that Sidi is the only surviving widow of the deceased. This is confirmed by the chief’s letter exhibited by the Applicants. The letter indicates that the deceased’s first wife Kadzo Mkala Kombo and daughter Dama Munga Chisenga are both deceased and that the deceased left 7 living grandchildren. The Administrators acknowledge the fact that the Applicants are grandchildren of the deceased and even claim that they were not in good terms with the deceased and further, that they neglected Sidi. 18.Section 66 of the Act stipulates the list of persons given preference to administer the estate of a deceased intestate as follows:When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference -a.surviving spouse or spouses, with or without association of other beneficiaries;b.other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V; 19.Rule 26 of the Probate and Administration Rules (the Rules) then provides:1.Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.2.An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require. 20.Rule 26 places a requirement upon an applicant to notify and obtain the consent of persons who are entitled to the grant in a degree equal to or in priority to such applicant. Applying the above provisions to the present case, it was not obligatory for Sidi to notify the Applicants of her application for the grant or obtain their consent. This is because as wife to the deceased, she ranked higher in priority to the Applicants who are grandchildren of the deceased in as far as entitlement to obtain the grant is concerned. 21.Were Sidi the sole applicant for the grant, the matter would have ended there and the Application would have been dismissed. However, the application for grant was made jointly with Harry who is a nephew of the deceased. Under Part V of the LSA, Harry as a nephew ranks very low in priority to the Applicants who are grandchildren of the deceased. Under Section 39, Harry would only be considered if the deceased left no surviving spouse, children, grandchildren, parents or siblings. In light of the foregoing, the consent of the Applicants ought to have been obtained. 22.Additionally, Rule 40(8) of the Rules requires that at the time of confirmation of a grant, the consent of all dependants or other persons who may be beneficially entitled, be obtained and filed.Where no affidavit of protest has been filed the summons and affidavit shall without delay be placed by the registrar before the court by which the grant was issued which may, on receipt of the consent in writing in Form 37 of all dependants or other persons who may be beneficially entitled, allow the application without the attendance of any person; but where an affidavit of protest has been filed or any of the persons beneficially entitled has not consented in writing the court shall order that the matter be set down as soon as may be for directions in chambers on notice in Form 74 to the applicant, the protester and to such other persons as the court thinks fit. 23.Under Section 29 of the LSA, grandchildren are included in the meaning of dependants. As such, their consent and participation in the application for confirmation of grant was necessary. 24.I accordingly find that failure to obtain the consent of the Applicants rendered the proceedings to obtain and confirm the grant were defective in substance. 25.Further, Section 51(2) of the LSA stipulates the information that shall be included in an application for a grant as follows:(2)Every application shall include information as to—(a)the full names of the deceased;(b)the date and place of his death;(c)his last known place of residence;(d)the relationship (if any) of the applicant to the deceased;(e)whether or not the deceased left a valid will;(f)the present addresses of any executors appointed by any such valid will;(g)in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;(h)a full inventory of all the of all the assets and liabilities of the deceased; and(i)such other matters as may be prescribed 26.In their affidavit in support of the application for the grant, Harry and Sidi stated that they were the only survivors of the deceased. It is clear that Harry and Sidi did not comply with the express provisions of Section 51(2)(g) of the LSA and knowing the existence of the Applicants, went ahead and made this false statement. Additionally, they concealed from the Court that fact that the deceased was also survived by the Applicants who are children of his only child. In light of this, the Court finds that the grant was obtained fraudulently by the making of a false statement and by the concealment from the court of something material to the case. It is also clear that the grant was also obtained by means of an untrue allegation of a fact essential in point of law to justify the grant. 27.Failure to comply with Section 51(2)(g) by concealment of the existence of the listed beneficiaries will render the process of obtaining a grant defective and fraudulent. This was the holding in the case of In re Estate of Johana Indakwa (Deceased) [2021] eKLR where Musyoka, J. stated:It is common ground that the applicant herein was a biological child of the deceased. She is, therefore, one of the individuals that ought to have been disclosed in the petition by virtue of section 51(2)(g) of the Law of Succession Act. Her non-disclosure, therefore, amounts to a defect in the process of obtaining the grant, or to misrepresentation of facts or concealment of facts in the process. In short the court was misled into believing that the deceased had only one child, the former administrator. A fertile ground exists for revocation of grant in the circumstances. 28.And in the case of Rahab Nyakangu Waithanji vFredrick Thuku Waithanje [2019] eKLR, Achode, J. (as she then was) stated:From the record, there is nothing to show that the Respondent gave notice to the Applicant, who is a widow of the deceased herein, or to her children when applying for the grant. The identities of beneficiaries and their interests are material facts and once it is established that their interests were concealed from the court, the grant of representation issued was flawed. 29.In the present case, the Court was been misled into believing that the deceased was survived by Harry and Sidi and no other person. Had the Court been made aware that there were other beneficiaries, namely the Applicants, the grant would not have been issued to Harry and Sidi and certainly the suit property would not have devolved to them both in equal shares. 30.Further, the law is that a child or children of a child of an intestate who predecease him is or are entitled to the share which their parent would have taken had he not predeceased the intestate. The Applicants are children of Dama Munga Chisenga, the only child of the deceased. As the Applicants’ mother is deceased, they are entitled to her share in equal shares, in the deceased’s estate which she would have taken were she still alive. This is known as the principle of representation. The principle is set out in Section 41 of the Law of Succession Act as follows:Where reference is made in this Act to the "net intestate estate", or the residue thereof, devolving upon a child or children, the property comprised therein shall be held in trust, in equal shares in the case of more than one child, for all or any of the children of the intestate who attain the age of eighteen years or who, being female, marry under that age, and for all or any of the issue of any child of the intestate who predecease him and who attain that age or so marry, in which case the issue shall take through degrees, in equal shares, the share which their parent would have taken had he not predeceased the intestate. 31.In the case of Christine Wangari Gachigi v Elizabeth Wanjira Evans & 11 others [2014] eKLR, the Court of Appeal had this to say regarding the principle of representation:Although Sections 35 and 38 of the Laws of Succession Act is silent on the fate of surviving grandchildren whose parents’ pre-deceased the deceased, the rate of substitution of a grand child for his/her parent in all cases of intestate known as the principle of representation is applicable. The law on this is section 41. If a child of the intestate has pre-deceased the intestate then that child’s issue alive or en ventre sa mere or that date of the intestate’s death will take in equal shares per stirpes contingent on attaining the age of majority. Per stirpes means that the issue of a deceased child of the intestate takes between them the share their parents would have taken had the parent been alive at the intestate’s death. 32.In their application for the grant and confirmation thereof, the Harry and Sidi did not include the Applicants as beneficiaries of the estate of the deceased. They did not therefore comply with the provisions of Sections 41 and 51(2) of the LSA. In the premises, the grant and the confirmation thereof cannot stand. 33.As I conclude on this issue I must address 2 matters. First, Harry and Sidi appear to be of the view that the Applicants are not entitled to the estate of their grandfather on account of the alleged bad blood between them. The law is that the relationship between a deceased person and his survivors is not a consideration in interstate succession. The allegations that the Applicants were not in good terms with their grandfather, does not strip them of their entitlement to his estate. 34.The second issue is that Harry deems himself entitled to the estate of the deceased to the exclusion of the Applicants, due to the key role he played in filing suit for the recovery the suit property which had been fraudulently transferred. While what he did is praiseworthy, it does not take away the entitlement of the Applicants’ who are grandchildren of the deceased. Whether Gunga Bidii Gunga and Hamis Munga Chishenga should be appointed administrators of the estate of the deceased 35.The Applicants seek that upon revocation of the grant, Gunga Bidii Gunga and Hamis Munga Chishenga be appointed administrators of the estate of the deceased. The LSA has conferred upon this Court the final discretion as to who a grant of letters of administration shall, in the best interests of all concerned, be made. Priority is given to beneficiaries in accordance with their beneficial interests in the estate. As indicated herein, under Section 66 of the LSA, Sidi ranks in priority to the proposed administrators who are the deceased’s grandchildren and should remain and administrator of the estate. However, both Sidi and Harry have stated that Sidi is of advanced age and that due to her age, she was unable to pursue the recovery of the suit property. In 2012 when the application for grant was made, it was indicated that she was 75 years old. In 2026, which is 14 years later, Sidi must be 89 years old. It would therefore not be prudent to retain her as administrator. The Court finds no reason not to exercise its discretion by appointing Gunga Bidii Gunga and Hamis Munga Chishenga as the administrators of the estate of their late grandfather. Whether the subdivision of the suit property should be revoked and the title reverts to the deceased 36.The Applicants seek that all the subdivisions emanating from the suit property be revoked and annulled and that the title reverts to the deceased. Harry and Sidi have argued that this Court lacks jurisdiction to revoke the title as they became registered owners of the suit property pursuant to the judgment and decree in ELC No. 19 of 2017 delivered on 14.12.18 and not through transmission. 37.The record shows that Harry and Sidi had filed the suit against Roving Investments (Africa) Limited and Mayungu Real Estate Limited. In the judgment, the ELC made the following orders:15.Accordingly, I hereby enter Judgment for the Plaintiffs and grant orders as prayed at paragraph (a) of the Plaint.16.The Plaintiffs shall have costs of this suit. 38.Paragraph (a) of the plaint reads as follows:An order cancelling the registration of the defendants as the owners of the said property situated at Chembe Kibabamshe Village within Kilifi County in the Respoublic of Kenya containing by measurement 8.8 hectares of (sic) thereabouts and known as Chembe/Kibabamshe/350 and for an order to the Land Registrar-Kilifi Land Registry to register the Plaintiffs as owners of the said suit property in their capacity as the administrators of the estate of the deceased and issue them with a Title Deed without requiring the Plaintiffs to produce the original Title Deed for the said suit property or any other document for the purposes of the registration other than the Court Order, the Grant of letters of Administration and certificate of Confirmation of Grant. 39.A reading of the order by the ELC and prayer (a) clearly shows that Harry and Sidi sought registration of the suit property in their names as owners of the said suit property in their capacity as the administrators of the estate of the deceased. In making the order, the ELC recognised that the suit property rightfully belonged to the deceased and accordingly granted the prayer as sought. This being the case, the argument that a prayer for revocation or annulment of the subdivisions emanating from the suit property is out of the reach of this Court is without legal basis. The orders seek restoration of the estate property to the deceased. This Court has inherent powers to make such orders as are expedient and as may be necessary for the ends of justice or to prevent abuse of the process of the court. 40.In the end and in view of the forgoing, I find that the Summons dated 11.2.25 has merit and I make the following orders in the interests of justice.i.The grant of letters of administration issued to Harry Shida Elijah and Sidi Baya Chai on 14.5.13 be and is hereby revoked.ii.The confirmation of the grant made on 18.2.14 is hereby set aside and the certificate of confirmation of grant dated 24.2.14 is hereby cancelled.iii.Sub-divisions numbers Chembe/Kibabamshe/1321, 1322, 1323, 1324, 1325, 1326, 1327 1878 emanating from Title No. Chembe/Kibabamshe/350 are hereby revoked and cancelled.iv.Status quo ante be restored and Title No. Chembe/Kibabamshe/350 do revert to the deceased James Munga Kishenga.v.Gunga Bidii Gunga and Hamis Munga Chishenga are hereby appointed administrators of the estate of the deceased James Munga Kishenga.vi.Gunga Bidii Gunga and Hamis Munga Chishenga shall file and serve upon Sidi Baya Chai summons for confirmation of grant by 14.8.26.vii.Mention for compliance on 7.10.26.viii.Each party shall bear own costs. DATED, SIGNED AND DELIVERED IN MALINDI THIS 17TH DAY OF JULY 2026M. THANDEJUDGE