https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9951

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **SUCCESSION CAUSE NO. 208 OF 2003** **IN THE MATTER OF THE ESTATE OF M’MUREGA KARIGO (DECEASED)** **GENESIO MURIUNGI MUGIIRA…………...…PETITIONER/RESPONDENT** **VERSUS** **PURITY KIENDE……………………………..……OBJECTOR/APPLICANT** **JUDGMENT** 1. For determination is the Summons dated 16/4/2026 under **Rules 49 and 73 of the Probate and Administration Rules, Articles 50 and 159 (2) (d) of the Constitution**, seeking that: 1. **Spent** 2. **Spent** 3. **This Honourable Court be pleased to grant leave to the Objector/Applicant to amend the Summons for Revocation dated 17th June, 2022 herein in terms of the draft amended Summons for Revocation annexed thereto.** 4. **The draft amended Summons for Revocation annexed thereto be deemed as duly filed and served.** 5. **The costs of this Application be costs in the cause.** 2. The application is premised on the grounds that the Applicant has made substantive discoveries *inter alia* that she sought revocation of the certificate of grant instead of revocation of the grant of letters of administration intestate issued on 18/9/2003. The intended amendments are indispensable to enable the Court effectually and conclusively deal with issues at variance between the parties herein, and unless the same are allowed before judgment is rendered, there shall be a miscarriage of justice. Those amendments will not affect the evidence already tendered in court as no new facts are being introduced and no prejudice will be occasioned to the Respondent, if the application is allowed. 3. The Respondent did not file any response to the application. **Disposition** 1. The general principles on amendment of pleadings are provided in Halsbury’s Law of England 4th Edition Reissue Vol. 36 (1) para 76, as follows; “***The purpose of amendment is to facilitate the determination*** ***of the real question in controversy between the parties to any proceedings, and for this purpose the court may at any stage order the amendment of any document, either on the application of any party to the proceedings or of its own motion, on such terms as to costs or otherwise as may be just and in such manner, if any, as the court may direct. The person applying for amendment must be acting in good faith. Amendment will not be allowed at a late stage of the trial if on analysis it is intended for the first time thereby to advance a new ground of defence. If the amendment for which leave is asked seeks to repair an omission due to negligence or carelessness, leave to amend may be granted if the amendment can be made without injustice to the other side, and there is no injustice if the other side can be compensated by an order as to costs.”*** 1. The application is pretty straight forward and the import of the amendments is to enable the court effectively determine the real controversy in the suit. 1. I find the application to be merited and it is hereby allowed in terms of prayers 3 and 4 thereof. 2. Turning now to the substantive amended summons for revocation of grant, the Applicant seeks: 1. **Spent.** 2. **This Honourable Court be pleased to annul and revoke the grant of letters of administration intestate issued to the Petitioner/Respondent herein on 18th September, 2003.** 3. **This Honourable Court be pleased to review, vary and/or set aside the Certificate of Confirmation of Grant dated 3rd April, 2004.** 4. **The costs of this Application be in the cause.** 3. The application is premised on the grounds that the mode of distribution contained therein was unequitable, as it disinherited all the daughters of the deceased, inclusive of the Applicant. The grant was thus obtained by means of untrue allegation of fact and misrepresentation. 4. The Respondent swore a Replying Affidavit on 2/10/2024 in opposition to the application. He averred that the application was an afterthought and brought in bad faith 21 years down the line. The Applicant and others actively participated and her mother was also provided for as per the mode of distribution. He accused the Applicant of including properties that do not belong to the deceased in order to delude the court into granting undeserved orders. **Oral Evidence** 1. **OW1 Purity Kiende**, the Applicant herein, adopted her statement dated 9/3/2023 as her evidence in chief and produced the documents filed therewith as exhibits. She told the court that, the Respondent, her brother, did not give her any share of the estate, despite being a daughter of the deceased. She was however amenable to getting a share from the portion allotted to the Respondent’s mother. 2. **OW2 Delphina Karimi Mangira**,adopted her statement dated 9/3/2023 as her evidence in chief.She told the court that the Applicant and the Respondent were her siblings and the deceased was her father. She denied consenting to the mode of distribution and insisted on getting a share of the estate. 1. **PW1 Genesio Muriungi Mungiria**, the Respondent herein adopted his statement dated 18/4/2023 as his evidence in chief. He conceded that the Applicant was his sister and told the court that the 6½ acres given to his mother was to be held in trust for his 4 sisters. 2. **PW2 Teresina Igoki**,adopted her statement dated 7/11/2023 as her evidence in chief. She told the court thatOW1 and OW2 were her sisters, and they had agreed during a family meeting that their mother would hold the portion given to her in trust for the daughters. Although she was not in court during the confirmation hearing, she was agreeable to all of them getting an equal share of the estate. 3. **PW3 Catherine Naitore**,adopted her statement dated 7/11/2023 as her evidence in chief. She was equally agreeable to the estate being shared equally and acknowledged that OW1 and OW2 were her sisters. 4. The application was canvassed by way of written submissions, which were duly filed. **Disposition** 1. Having considered the application, the affidavits, the oral testimonies, the submissions on record and the authorities relied on, I find the issue for determination to be whether it is merited. 2. **Section 76 of the Law of Succession Act** stipulates that agrant of representation, whether or not confirmed, may at any time be revoked or annulled, either on application by any interested party or of its own motion if: **“(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.”** 1. In his introductory letter dated 17/6/2003, the Chief of Nkachie Location listed Elizabeth Gantuku Philip – widow, Genesio Muriungi Mungiira – son, Teresina Igoki Josphat - daughter, Catherine Naitore Riungu – daughter, Delfina Karimi Mugira – daughter, Stanley Mutwiri Mugira – son as the beneficiaries of the deceased. In the subsequent letter dated 17/5/2022, the Senior Principal Chief, Meru County, listed the Applicant as a daughter of the deceased. 2. The deceased was indeed the Applicant’s father, as reflected in her birth certificate. This fact was buttressed by the oral testimonies, which remained uncontroverted that the Applicant was a daughter of the deceased. 3. Although the application has been filed after considerable delay, I note from the certificates of official searches dated 24/1/2022 that the estate properties are still in the name of the deceased and have not yet been transmitted to the beneficiaries. 4. The Court cannot declare itself powerless in the face of a manifest injustice merely because the Applicant is guilty of inordinate delay in filing her application. The evidence on record undoubtedly demonstrates that the Applicant and her sisters were unlawfully disinherited despite being beneficiaries of the estate. The Respondent’s justification for excluding his sisters, in essence, appears to have been predicated solely on the fact that they were women and married. That form of discrimination on the basis of gender and marital status is out rightly prohibited by the Constitution and the Law of Succession Act. 1. I find that the grant herein was obtained through deliberate concealment of the material fact that the Applicant was a daughter of the deceased, and consequently a beneficiary of the estate. The Respondent was under legal duty to, at the very least, disclose the Applicant’s existence and include her among the beneficiaries, notwithstanding that she was a minor at the time. 1. Evidence was led that during a family meeting, it was resolved that the share allocated to Elizabeth Gantuku Philip would be held in trust for the daughters. 1. Certificate of Confirmation of a Grant dated 4th May 2004 shows that: 2. L. P. No. ABOGETA/NKACHIE/847 share of heirs is as follows:- * Genesio Muriungi Mugiira – 5 Acres * Stanley Mutwiri Mugiira - 5 Acres * Elizabeth Mugiira - 3 Acres 1. L.P. No. ABOGETA/NKACHIE/388 share of heirs as follows:- * Genesio Muriungi Mugiira - 5 Acres. * Stanley Mutwiri Mugiira - 5 Acres. * Elizabeth Mugiira - 3 Acres 1. L. P. No. ABOGETA/NKACHIE/306 Share of heirs is as follows:- * Genesio Muriungi Mugiira - 2 ½ Acres * Stanley Mutwiri Mugiira - 2 ½ Acres * Elizabeth Mugiira - ½ Acres 1. PLOT No. L/KIRINGA 219 share of heirs as follows:- * Genesio Muriungi Mugiira - 26 Acres * Stanley Mutwiri Mugiira - 24 Acres * Elizabeth Mugiira - 2 Acres 1. In the Supporting Affidavit dated 16th March, 2004 there’s another disclosed property, PLOT NO. 24 KATHITHINE MARKET which is to go to Genesio Muriungi Mugiira as a whole. 2. The argument that the daughters entitlement to their late father’s estate is sufficiently protected through the portion allocated to their mother is without legal foundation and cannot be sustained. 3. Under the Law of Succession Act, the widow and the children are distinct beneficiaries, each deriving their entitlement directly from the estate of the deceased and not through one another. To hold that the daughter should look to their mother’s comparatively smaller share for their inheritance, while the sons receive direct and substantially larger allocations, is to deny the daughters their independent proprietary rights and to perpetuate discrimination on the basis of sex. Such a proposition is inconsistent with **Article 27 of the Constitution of Kenya, 2010,** which guarantees equality before the law and prohibits discrimination, as well as **Section 35,38 and 40 of the Law of Succession Act,** which envisage the distribution of an intestate estate among the surviving spouse and children according to law, and not through an implied trust in favour of one class of beneficiaries. 1. The Court of Appeal emphatically affirmed this principle in **Rono –vs- Rono and Another (2005) eKLR** where the Court held that daughters are entitled to inherit from their deceased father’s estate on an equal footing with sons, and that any differentiation based solely on gender is discriminatory and contrary to the Law. 2. Similarly, in **In re Estate of Lerionka Ole Ntutu (Deceased) (2008) eKLR**, the High Court held that the Law of Succession Act does not discriminate between male and female children or between married and unmarried daughters, and that daughters cannot be deprived of their inheritance on the basis of custom or any other discriminatory practice. 1. Accordingly, and for the foregoing reasons, the Grant of Letters of Administration and the certificate of Confirmation of Grant issued herein are hereby revoked pursuant to **Section 76 of the Law of Succession Act.** Any distribution, transfer, transmission or registration effected pursuant to the revoked grant is hereby declared null and void, subject to the rights of bona fide purchasers for value where applicable. 2. A fresh Grant of Letters of Administration shall issue to Genesio Muriungi Mugiira, who shall, within 60 days from the date hereof, file a summons for Confirmation of Grant proposing a mode of distribution that accords with the Constitution, the Law of Succession Act, and the findings contained in this Judgment. 3. Pending the Confirmation of the fresh Grant, no beneficiary shall sell, transfer, charge, alienate of otherwise deal with any asset comprising the estate without prior leave of the Court. 4. Each party shall bear their own costs, this being a dispute involving members of the same family. **DATED AND DELIVERED AT MERU THIS 8TH DAY OF JULY, 2026.** **S.M. GITHINJI –JUDGE** **8/7/2026** **In the presence of:-** Mr. Kiogora Arithi holding brief for Betty Kiyuki for the Respondents. Genesio Muriungi - Present in person.