https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9228

In re Estate of the Late K (Deceased) (Succession Cause 2596 of 2008) [2026] KEHC 9228 (KLR) (Family) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9228 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 2596 of 2008 HK Chemitei, J June 25, 2026 IN THE MATTER OF THE ESTATE OF THE LATE MK (DECEASED) Between NWW 1st Administrator VMK 2nd Administrator CWK 3rd Administrator and Josphine Wambui Ngugi Ward Ruling 1.In her Chamber Summons application dated 15th July 2024 the Applicant seeks the following orders:(a)That leave be granted to the firm of Muluvi Mitau & Associates to come on record for the Respondent in place of the firm of Iseme Kamau and Maema Advocates.(b)That the Court be pleased to stay the order dated 1/7/2024 directing the Deputy Registrar of the Court to execute the transfer in respect of a portion of the suit property known as LR No. 57/16 Kasarani to effect transmission of the property in accordance with the consent dated 17th June 2022 and filed on 22nd June 2022 pending the hearing and determination of this application.(c)The Court be pleased to review and set aside the orders made of 1st July 2024.(d)That an order that the grant rectified on 5th July 2002 be and is hereby revoked.(e)That the named co Administrators of the estate namely Christopher Mwangi Kioi, Nancy Wambui Waweru and Victoria Muthoni Kiarie be compelled by this Court to furnish and produce to the Court within 21 days of the relevant order a full current list and description of assets and liabilities including any such inventory or account of administration of the deceased estate as contemplated under Section 83 of the Act.(f)That the Respondent’s joint guardians namely AW Ngugi and Pius Ngugi be appointed as co Administrators of the estate or the 4th administrator of the estate of Mwangi Kioi (deceased).(g)Costs be provided for 2.The application is based on the grounds thereof and the sworn affidavit of Pius Mbugua Ngugi dated 15th July 2022. 3.The Applicant is the spouse to the ward JWN pursuant to the appointment under the Mental Health Act on 7th October 2022 together with one AW. 4.He deponed that the consent entered on 17th June 2022 was in error as it did not disclose the entire assets of the estate and that since the deceased was his father-in-law, he was aware that he had assets spanning several regions of the country. 5.It is his case that the consent entered by the parties herein was tainted with fraud and lacked disclosure as the ward had no capacity to enter into such consent and that in any case as her guardian he was entitled to be notified. 6.It is also his case that the grant was obtained fraudulently and the same ought to be revoked as it had left out other properties. 7.The application is opposed by the replying affidavit of the 1st Administrator CMK sworn on 3rd September 2024 in which he refuted the Applicant’s claim. 8.The Respondent deponed that the consent entered between the counsel for the Applicant then on record and their counsel on 17th June 2022 was proper and that there was no fraud at all. 9.That the portion of the Kasarani property which the Applicant required in the consent was granted to her and that all the other assets left behind by the deceased were disclosed and none has been left out. 10.Further, that the ward refused to be involved in the arrangements where the Kasarani property was to be developed wholly by the Building Society and demanded that her share be excised which request was granted vide the consent. 11.The Respondent prayed for the application to be dismissed. ANALYSIS AND DETERMINATION 12.I have perused the pleadings herein as well as the rival submissions and the proceedings on record. 13.It is evident that the Applicant is the joint guardian to the Respondent/ ward pursuant to the orders granted by the Court. 14.It is also evident that the Applicant is a son in law to the deceased and may have known his lifestyle and his estate as per his claim. 15.The Applicant has not denied that the ward all along had been represented by a counsel and I suppose being the spouse he has been in the know. 16.The consent entered on 17th June 2022 was by consent of both counsels on record and the record of the Court dated 5th July 2022 clearly showed that both counsels were present and they notified the Court that they had entered the consent and the same be adopted. 17.The Court duly adopted the same as an order of the Court. 18.The Applicant and her daughter subsequently filed an application under the Mental Health Act in which they were granted the orders to manage the affairs of the ward herein. The same is dated 20th October 2022 which was about four months after the consent of 17th June 2022. 19.Prior to the adoption of the consent there was no evidence of the ward’s incapacity at all. The Applicants who are immediate members of the family never notified their counsel on record or least the Court that she was incapacitated and therefore unable to consent or deal with the estate herein as a beneficiary. 20.The Applicant’s application herein dated 15th July 2024 was filed close to two years after adoption of the consent and the orders to manage her estate. Clearly, they cannot be allowed to plead ignorance. The ward was visibly represented all through and if there was any error or misrepresentation then the same be visited upon the counsel and not the Respondents. 21.I think I have stated much to show that the application is belated. The provisions of Section 76 of the Law of Succession Act have not been met by the Applicant. There is no evidence of any concealment of material facts to warrant the grant to be revoked. 22.Neither is there any misrepresentation by the Respondents herein. The wards incapacity came to light after the consent had been entered. 23.It is trite law that setting aside a consent is akin to setting aside a contract. There must be evidence of fraud and misrepresentation which I have not seen herein. 24.The record shows that the parties requested the Court to grant them time to discuss on settlement and this dates as far back as 9th August 2021 which I belief culminated into the signing of the consent. 25.There is no evidence during this period of the ward’s incapacity. If anything, the counsel on record would have notified the Court. 26.Whether or not there are estates properties left behind because of its expansiveness is a matter left to the Administrators. The Applicant as well should be able to bring them out since the ward is a beneficiary. This does not warrant the revocation of the grant as a rectification would suffice in the event of extra properties being discovered. 27.The prayer for appointment as Administrators for the ward is not opposed and the same to that extent is allowed. They cannot however be appointed as joint Administrators of the estate herein as they are not of closer consanguinity to the deceased. In my humble view they remain to guard the interest of the ward in the estate. 28.I also find the prayer for counsel to come on record merited and I allow the same. 29.In the premises it is ordered that:(a)The Applicants are hereby appointed as guardians of the Ward, JWN in this cause but not as co Administrators in this estate.(b)Save for prayer (a) which is hereby allowed the rest of the prayers in the application are declined.(c)Costs shall be in the cause. DATED SIGNED AND DELIVERED AT NAIROBI THIS25TH DAY OF JUNE 2026.H K CHEMITEIJUDGE, FCIArb.