https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12803

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT SUCCESSION CAUSE NO 789 of 2013** **IN THE MATTER OF THE ESTATE OF DUNCAN MUNGE GIKONYO ALIAS DUNCAN MUNGE S/O GIKONYO (DECEASED)** **ANN NKIROTE MUNGE ……………………………………PROTESTOR** **VERSUS** **PETER MANYI MUNGE………………………………..ADMINISTRATOR** **JUDGEMENT** 1. The Protestor herein **ANN NKIROTE** **MUNGE** has filed in Court a Summons for Revocation of Grant dated **15th November 2015** seeking revocation of the Confirmed Grant issued to the Administrators on **20th** **November 2014.** 1. The Administrator of the estate **PETER MANYI MUNGE** filed a Replying Affidavit dated **4th December 2015** opposing the summons for revocation. The matter was canvassed by way of oral evidence. At the close of hearing parties were invited to file their written submissions. The protestor filed the written submission dated **14th April 2026** whilst the Respondents relied upon their submissions dated **16th April 2026**. **BACKGROUND** 1. This succession cause relates to the estate of the late **DUNCAN MUNGE** **GIKONYO** (hereinafter the Deceased’) who passed away on **19th August** **2013**. A copy of the Death Certificate Serial No. **0037189** is attached to the Petition for Letters of Administration dated **6th** **November** **2013.** 1. In the said Petition it was indicated that the Deceased was survived by the following persons **(a) Ann Nkirote - Widow.** **(b) Elizabeth W. Ngumo - Daughter** **(c) David Gikonyo Munge - Son** **(d) Peter Manyi Munge - Son** **(e) Mary Wanjiku Munge - Daughter** **(f) Nancy Wakiru Munge - Daughter** **(g) Rose Nyambura Munge - Daughter** **(h) Joy Wangari Munge - Daughter** 5. The estate of the Deceased comprised of the following assets **(i) Land Parcel CHINGA/GATHERA/0628** **(ii) Land Parcel CHINGA/GATHERA 051019 (L)** **(iii) Land Parcel CHINGA/GATHERA 589** **(iv) Land Parcel Laikipia/Uwaso Narok/707** **(v) Account No. 011111796101 held at Family Bank** **(vi) 4030 shares with KTDA Chinga** 6. Following the demise of the Deceased his son **Peter Manyi Munge** petitioned for and was on **7th January 2014** issued with letters of Administration Intestate. The Grant was duly confirmed on **20th November 2014**. According to the Certificate of Confirmation of Grant the estate of the Deceased was to be distributed as follows:- **“NAME** **DESCRIPTION OF PROPERTY** **SHARE OF HEIRS** 1. **ANN NKIROTE - L.R NO. LAIKIPIA/UASO – NAROK/707 WHOLE** 2. **L.R NO. CHINGA/GATHERA S. 89 BE SHARED EQUALLY BY:-** 3. **PETER MANYI MUNGE** 4. **MARY WANJIKU MUNGE** 5. **LUCY NJOKI MUNGE** 6. **ROSE NYAMBURA MUNGE** 7. **L.R CHINGA/GATHERA – D. 628 BE SHARED EQUALLY BY:-** 8. **DAVID GIKONYO MUNGE** 9. **NANCY WAKIRU MUNGE** 10. **ELIZABETH WAKANYI MUNGE** 11. **CHINGA/GATHERA/D.510/9 (L) BE TRANSFERED TO DAVID GIKONYO MUNGE** 12. **K.T.D.A SHARES BE TRANSFERED TO PETER MANYI MUNGE AND NANCY WAKIRU MUNGE** 13. **FAMILY BANK A/C NO. 011111796101 TO NANCY WAKIRU MUNGE.”** 14. The Protestor then filed this Summons for revocation of Grant on account of her dissatisfaction with the mode of distribution of the estate. 1. On his part the Respondent asserts that the estate was fairly Distributed and that all beneficiaries were included in the said distribution. He urges the Court to dismiss the summons in its entirety. **THE EVIDENCE** 9. The Protestor told the Court that she was the second wife of the Deceased. That she had one child and at the time of Deceased’s deaths she was pregnant with their second child. She states that she has always resided with the Deceased on the parcel of land known as **LR Chinga/Gathera/89** and that during his lifetime the Deceased allocated to her 1,500 tea bushes to support her upkeep. 10. The Protestor complains that she was not informed when the summons for confirmation of Grant came up for hearing. That she has been completely left out of the distribution of the estate of the deceased that the succession cause was commenced and proceeded without her knowledge and/or import. That she was not served with the summons for confirmation of Grant and the Protestor denies that she signed the consent to that summons dated, **1st July 2014**. 11. The Protestor states that during his lifetime the Deceased had indicated to the family how he wished his estate to be distributed. The Protestor insists that the land in Laikipia had been given by the Deceased to her mother as dowry when he married the Protestor. That the deceased put up rental units for the protestors mother on said land. The Protestor prays that the Grant be revoked. 12. **PW2 STEPHEN GIKONYO WAITHAKA** told the court that the deceased was his cousin. **PW2** stated that he knew the Protestor **Ann** **Nkirote** as the second wife of the Deceased. That the deceased’s first wife died in the year **2005** after which the deceased attempted to marry one ‘**Mama Grace’** but his children vociferously opposed this plan and the deceased abandoned the said **‘Mama Grace’**. **PW2** states that the deceased adamantly proceeded to marry the Protestor against the wishes of his children. He states that the Protestor came into the marriage with one daughter and that she was pregnant when the deceased died. 13. **PW2** stated that during his lifetime the deceased had indicated to him how his properties were to be distributed. **PW2** stated that the land in Kieni - Laikipia had been given by deceased as dowry to the mother of the protestor. Both the protestor and **PW2** both oppose the allocation of parcel of land known as **LR No.** **Laikipia/Uwaso-** **Narok/707** to the Protestor (as indicated in the confirmed grant). They insist that this parcel of land belongs to the Protestors Mother who received the same as dowry for her daughter. 14. The Respondent **Peter Manyi Munge** told the Court that he was a son of the Deceased from the first wife. The Respondent states that his mother who died in the year **2005** bore seven (7) children. He confirms that he was appointed as administrator of the estate of his late father. 15. The Respondent vehemently denies the Protestors claim that she has been excluded from this succession cause. He states that the Protestor is not a wife of the deceased. That he only met her when deceased was ailing at **Outspan Hospital** in Nyeri. According to the Respondent after the demise of the deceased the family met and they nevertheless included the Protestor as one of the beneficiaries of the estate. He states that he has involved the Respondent each step of the way and that she was aware of the confirmation of the grant and even signed the consent. 16. According to the Respondent the deceased had settled the Protestor on parcel of land **LR Laikipia/Uaso-Narok/707**. That the Protestors mother has been occupying the said parcel of land to date. 17. **DW2 TITUS GICHERU GIKONYO** told the Court that the deceased was his elder brother. He stated that he only met the Protestor when she accompanied the deceased to the home of **DW2** to attend his daughters wedding. He states that he does not know whether the Deceased had married the Protestor as he never accompanied the deceased for any cultural marriage rites. **DW2** stated that after the burial of the deceased he chaired a family meeting where it was agreed how the estate should be distributed. He reiterates that the protestor was a friend to the Deceased who lived with the Deceased after his first wife died in the year **2005**. 18. **DW3 MARY WANJIKU** is a daughter of the deceased from the first wife. **DW1** states that the Protestor has been fully aware of this succession cause from its inception and was an active participant in the same. She states that when the family went to withdraw the funds from the accounts held by deceased, the protestor accompanied them and that she was even given a share of the money. **DW3** state that the deceased had settled the Protestor on his land in Laikipia where the mother of the Protestor currently resides. Both the Respondent and **DW3** submit that the protest has no merit and urge the court to dismiss the same. **ANALYSIS AND DETERMINATION** 19. I have carefully considered the protest before this court, the reply filed thereto, the evidence adduced by the various witnesses as well as the written submissions filed by both parties. 20. It is common ground that the Deceased in this matter passed away way back on **19th August 2013**. The court was told that the Deceased had a first wife who having died in the year **2005** pre-deceased him. The Protestor claims to be the 2nd wife of the Deceased. The question of whether or not the protestor was a wife of the deceased was not much contested by the Respondent. It seems that the Protestor was cohabiting with the Deceased at the time of his death and according to the protestor she was pregnant for deceased at the time of his death. It would appear that the family met and agreed to include the Protestor as a beneficiary to the estate. 21. The Protestor is seeking to have the grant issued to the Respondent revoked. The grounds upon which a Grant may be revoked are set out in **Section** **76** of the **Law of Succession Act** which provides as follows:- **“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 -** 1. **that the proceedings to obtain the grant were defective in substance;** 2. **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**; 3. **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;** 4. **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** 1. **that the grant has become useless and inoperative** **through subsequent circumstances.” [own emphasis]** 22. This provision of the law was expounded upon by the court in the case of **RE ESTATE OF PRISCA ONG’AYA MANDE (Deceased)** **2020 eKLR** where it was held as follows:- **“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 circumstance, 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.”** 23. The Protestor has in her Summons alleged that she was not made aware of this succession cause at all and that she was not informed of the hearing of the summons for confirmation of Grant. From the record this allegation by the Protestor is a blatant lie. Both the Respondent and **DW2** confirm that the Protestor attended the family meetings and accompanied them to the Chief’s office to get the introductory letter. The chief’s letter dated **13th** **November 2013** names the Protestor **Ann** **Nkirote** as a widow of the Deceased. Moreover the protestor has appended her signature next to her name on that letter. 24. Secondly I note that the Protestor has signed the consent to making of the Grant to the Respondent. That consent is dated **6th November** **2013** and once again the Protestor has appended her signature against her name. The Protestor has not denied having signed any of the above documents. It is clear therefore that the Protestor was aware and was fully involved in this succession cause from its inception. In her evidence the protestor admits that she did attend a meeting at the chief’s office. 25. The Protestor categorically denies having had knowledge of the hearing of the summons for confirmation of Grant dated **1st July 2014**. The record indicates that said summons was heard by Hon. **Justice Ngaah on 20th November 2014**. On that date the Respondent was in court in his capacity as the administrator of the estate. All the other beneficiaries save for the Protestor were said to be in court. The learned Judge considered the summons and noted that the Protestor **Ann Nkirote** had signed the consent and proceeded to confirm the grant notwithstanding the physical absence of the protestor. 26. I have perused the summons for confirmation of grant dated **1st July** **2014** as well as the consent to the summons which is also dated **1st** **July** **2014**. I note that the Protestor has appended her signature against her name on that consent as did all the other beneficiaries. 27. The Protestor vehemently denies having signed the consent dated **1s**t **July 2014**. She claims that her signature on the consent has been forged. In her evidence the protestor says;- **“I did not sign the consent of the confirmation of the grant. The consent is dated 1/7/2014. I never went before advocate CM King’ori. The signature on this** **consent is not mine. It is fake.”** 28. The protestor invites the court to make a comparison of the signature on that consent and her signature on all the other documents. This court does not have the expertise of a document examiner and cannot tell whether a signature is a forgery or not, simply by looking at it. 29. It is trite law that he who alleges must prove. It is a general proposition of the law that the legal burden of proof lies upon the party who invokes the aid of the law. **Section 107(1) of** the **Evidence Act (Chapter 80** **of the Laws of Kenya)** provides as follows:- **“107. (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.”** 30. **Sections 109 and 112** of the same Act provide that: **“109. 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.“112. In civil proceedings,** **when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”** 31. The two provisions of the law were dealt with in the decision of **Anne** **Wambui Ndiritu -vs- Joseph Kiprono Ropkoi & Another [2005** **1 EA 334**, in which the Court of Appeal held as follows: **“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.”** 32. Similarly in **Gatirau Peter Munya vs Dickson Mwenda Kithinji & 3** **Others (2014) eKLR** the Supreme Court held inter alia: **“The person who makes such allegations must lead evidence to prove the fact. She or he bears the initial legal burden of proof, which she or he must discharge. The legal burden in this regard** **is not just a notion behind which any party can hide. It is a vital requirement of the law. On the other hand, the evidential burden is a shifting one, and is a requisite response to an already discharged initial burden. The evidential burden is the obligation to show if called upon to do so, that there is sufficient evidence to raise an issue as to the existence of a fact in issue.”** 33. By denying her signature on the consent the Protestor is clearly alleging that the confirmed grant was obtained by way of fraud being the forgery of her signature on the consent. Firstly forgery is an offence under **Section 345** of the **Penal Code Cap 63 Laws of Kenya**. The Protestor did not make any report regarding the forgery of her signature to the police or indeed to any other authority. 34. Secondly a party seeking to rely on allegation of fraud must not only plead but must also prove the alleged fraud. In the case of **ARTHI** **HIGHWAY** **DEVELOPERS LTD -VS- WEST END BUTCHERY LTD &** **6 OTHERS [2015] eKLR** the Court of Appeal held as follows:- **“As a serious allegation fraud ought to be specifically pleaded and proved on higher balance of probability but not beyond reasonable doubt………”** 35. Proof of fraud requires clear and cogent proof. The standard of proof on allegation of fraud was discussed in the case **Urmila W/O** **Mahendra Shah VS. Barclays Bank International Ltd & Another** **(1979) eKLR** thus:- **“As was said by this Court’s predecessor in RATILAL** **GORDHANBHAI PATEL V LALJI MAKANJI [1957] EA 314, 317**: **“There is one preliminary observation which we must take on the learned judge’s treatment of this evidence: he does not anywhere….. expressly direct himself on the burden of proof or on the standard of proof required. Allegations of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required. There is no specific indication that the learned judge had this in mind:** **there are some indications which suggest he had not.”** **[Emphasis added]** 36. In the case **Kuria Kiarie & 2 Others Vs. Sammy Magera (2018)** **eKLR in quoting Vijay Morjaria Vs Nansingh Madhusingh Darbar** **& Another [2000]** **eKLR** the court of Appeal also confirmed standard of proof for fraud as follows:- **“It is well established that fraud must be specifically** **pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.’ [Emphasis added]** 37. Finally on this issue in the case of **KOINANGE & 13 Others -vs-** **CHARLES KARUGA KOINANGE [1986] KLR** the Court held that **“When fraud is alleged by the plaintiffs the onus is on the plaintiff to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so** **heavy beyond reasonable doubt, something more than a balance of probabilities is required.”** 38. It is one thing to throw about allegations of fraud but quite another thing altogether to prove said allegations. The Protestor has made no effort whatsoever to prove the allegation of fraud. No evidence was tabled from a document examiner to confirm whether or not the signature on the consent was that of the Protestor. The consent was executed before a commissioner of Oaths Advocate **CM King’ori**. The Protestor did not call this advocate as a witness to support her contention that she never appeared before him to sign the consent. 39. As it is therefore the Protestors denial of her signature against her name on the consent dated **1st July 2014** remains a mere denial. The protestor has not proved the fraud which she alleges. In the circumstances I find and hold that the protestor did sign the consent dated **1st July 2014**, thereby giving her consent to the confirmation of the grant as well as to the mode of distribution of the estate proposed therein. Having so consented to the confirmation of Grant and the mode of distribution of the estate the Protestor cannot now purport to renege on that consent. 40. The Protestor objects to the allocation to herself of the Parcel of land known as **Laikipia/Uaso-Narok/707**. The Protestor and her witness **PW2** claim that the allocation runs counter to the expressed wishes of the Deceased. It must be remembered that the deceased died intestate. No written will left by the deceased was produced by the protestor and no oral will was proved. Therefore any wishes the deceased may have had regarding the distribution of his estate have not been properly proved in this case. 41. The Protestor claims that the **Laikipia** land was given to her mother by the deceased as dowry when he married the protestor. Dowry negotiations are not conducted in secret. The protestor has not called any witness to confirm that indeed the Deceased gave out this parcel of land to her mother as dowry. There is no document signed by the Deceased indicating that he had given out this parcel of land as dowry. A copy of a search certificate dated **10th September 2013** reveals that **LR Laikipia/Uaso-Narok/707** was still registered in the name of **Duncan Munge Gikonyo** (the Deceased herein) at the time of his demise. If the deceased truly intended to relinquish this parcel of land as dowry he would have transferred the same to the protestor’s mother. Why would the deceased retain in his own name a parcel of land which he had given out as dowry. It is not lost on the court that the protestor did not even call her own mother who is said to be still residing on the land to testify as to whether or not the same was given to her as a dowry payment. 42. Accordingly I reject this claim that the Laikipia Land had been given to a third party as a pure fabrication. I find and hold that **LR Laikipia** **/Uaso-Narok/707** belonged to the Deceased at the time of his death. The said parcel of land forms part of the estate of the deceased and is available for distribution to the beneficiaries. 43. The Protestor claimed that she and her children were not provided for in the distribution of the estate and states that they have been effectively disinherited. Again this is a blatant lie. The certificate of confirmed grant issued on **20th November 2014** clearly indicates that the entire Laikipia parcel of land was allocated to the Protestor. The Respondent and **DW2** testify that it was agreed during the family meeting that this Laikipia land be allocated to the Protestor and the Protestor accepted this. The Protestor was certainly not left out or excluded in the distribution of the estate as she claimed. 44. Finally I note that the Grant herein was confirmed in **November 2014.** This application was filed a year later in **November 2015**. If the Protestor (who this court already found was fully involved in this Succession cause) was truly aggrieved by the mode of distribution of the Estate why did she not take action much sooner. In my view this summons for revocation of grant is a mere afterthought. 45. Notably, the power to revoke or uphold a grant is a discretionary one. This principle was enunciated in the persuasive decision in **Albert** **Imbuga Kisigwa vs Recho Kavai Kisigwa Succession Cause No.** **158 of 2000** where Mwita J stated:- **“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.” [Own Emphasis]** 46. The protestor has failed to prove any of the allegations of wrongdoing made against the Respondent. There is no evidence of any infraction of **Section 76** of the **Law of Succession Act** to warrant the annulment of the Grant issued to the Respondent on **6th January** **2014**. This is a very old succession cause in which the Deceased died in the year **2013** - over a decade ago. It is time to put this matter to rest. 47. Based on the foregoing I find no merit in the summons for revocation of grant dated **15th November 2015**. The same is hereby dismissed in its entirety. This being a family matter each side will bear their own costs. **Dated in Nyeri this 11th day of August 2026.** **…..…………………..** **MAUREEN A. ODERO** **JUDGE**