https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8425

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **SUCCESSION MISC. CAUSE NO. E007 OF 2023** **IN THE MATTER OF THE ESTATE OF JACOB GATOTO GICHERE (DECEASED)** ## **MARGARET GATHIGIA MURIITHI…................................. 1ST APPLICANT** ## **NELIUS WANGU GATOTO…............................................... 2ND APPLICANT** ## **LOISE MWIHAKI NDIRITU……………………………........ 3RD APPLICANT** ## **ALICE WAIRIMU WACHIRA………………………….......... 4TH APPLICANT** ## **JOHN NGARI MWANIKI…................................................... 5TH APPLICANT** ## **ROBERT MUGI WAHOME…................................................ 6TH APPLICANT** ## **MARTIN KARUE KARIITHI….............................................. 7TH APPLICANT** ## **FAITH WACHEKE GATOTO……………………………...... 8TH APPLICANT** ## **VERSUS** ## **CHARLES GT GATOTO…………………………….……...1ST RESPONDENT** ## **SAMUEL KINYUA GATOTO……………………….….... 2ND RESPONDENT** ## **DICKSON MWATHA NGOTHO……………………....... 3RD RESPONDENT** ## **DICKSON MWATHA NGOTHO…………………........... 3RD RESPONDENT** **RULING** 1. By a summons for revocation of grant dated 30.8.2023 the Applicants sought for the following reliefs: 2. That the Grant of Letters of Administration Intestate issued on 19.8.2005 and confirmed on 12.7.2006 be revoked and/or annulled. 3. There be an order cancelling all entries made on LR No. Nyeri/Waraza/597 as a consequence of the Grant issued and confirmed in Karatina RMC Succession Cause No. 60 of 2004 in the matter of the estate of Job Gatoto Gichere. 4. There be an order cancelling the titles in LR No. Nyeri/Waraza/2398, 2399, 2400 and 2401. 5. That alternatively, there be an order redistributing the estate and directing that LR No. Nyeri/Waraza/2398, 2399, 2400 and 2401 be registered in the names of the Applicants absolutely. 6. The costs be provided for. 7. The Application was supported by the Affidavit of Margaret Gathigia Muriithi, Alice Wairimu Wachira and Nelius Wangu Gatoto and was based on the following grounds: 8. The deceased had 3 wives and the last wife, one Mercy Wairimu Gatoto died in 2022 without leaving a child. The first and second wives were also deceased. 9. The first wife was known as Phylis Nyanguthii Gatoto left 7 children, 2 of whom were deceased while the second wide, Wambui Gatoto left 5 children, 2 of whom were deceased. 10. The deceased gave his sons as gifts *inter vivos* parcels numbers LR Magutu/Gatei/245, Nyeri/Waraza/593 and LR No. Nyeri/Waraza/595. 11. Parcel No. Nyeri/Waraza/597 was given to Mercy Wairimu Gatoto where she resided all her life and was cared for by Nelius Wangu Gatoto. 12. In 2017, Mercy Wairimu Gatoto discovered that Parcel No. Nyeri/Waraza/597 had been subdivided into 4 portions and given new numbers namely LR No. Nyeri/Waraza/2398, 2399, 2400 and 2401. 13. It was discovered that the Respondents had fraudulently and by dishonesty caused the chief of Magutu location to issue an introduction letter dated 31.5.2004 recognizing them as the sole survivors of the decease. 14. The Respondents had also secretly filed and obtained letters of administration as sole survivors of the deceased through Karatina RMC Succ. Cause No. 60 of 2004. 15. The Applicants are entitled as daughters to the resultant subdivisions of LR No. Nyeri/Waraza/597, that is the 4 parcels namely: LR No. Nyeri/Waraza/2398, 2399, 2400 and 2401. 16. In consultation with other family members, they sought and the Grant was confirmed on 20.6.2022. 17. There are no beacons or boundaries. 18. The Respondents have already registered the parcels in their names. 1. The Respondents filed a Replying Affidavit sworn by Dickson Mwatha Gatoto by which it was deposed as follows: 2. The Applicants were all aware of the succession cause filed in Karatina RMC Succ. No. 60 of 2004. 3. The deceased shared the land while he was alive and the Applicants were aware the deceased had instructed that Nyeri/Waraza/597 could go to the four sons. 4. The deceased did not intend to give daughters land and the 1st, 2nd, 4th, and 8th and the mothers of the 5th and 7th Applicants were all married. 5. Parcel No. Nyeri/Waraza/596 was given to Mwihaki Ndiritu, a daughter who had come back from marriage. 6. The 2nd Applicant was rewarded with 3 cows and all the goats that Mercy Wairimu Gatoto had left when she passed on and the 2nd Applicant thereby agreed to vacate Nyeri/Waraza/597. 7. The subdivision was done by the father of the 5th Applicant and who was aware. 8. The Respondents had also secretly filed and obtained letters of administration as sole survivors of the deceased through Karatina RMC Succ. Cause No. 60 of 2004. 9. The Applicants are entitled as daughters to the resultant subdivisions of LR No. Nyeri/Waraza/597, that is the 4 parcels namely: LR No. Nyeri/Waraza/2398, 2399, 2400 and 2401 10. In consultation with other family members, they sought and the Grant was confirmed on 20.6.2022. 11. There are no beacons or boundaries. 12. The Respondents have already registered the parcels in their names. Submissions 1. The Applicants filed submissions dated 19.3.2026. It was submitted that the Applicants had satisfied the grounds to revoke the grant. 2. It was the submission of the Applicants that Rule 18 of the Probate and Administration Rules, requires that a renunciation to be sought from a person who refuses or is unwilling to apply for administration of an estate or participate in any way. This was never done in respect of the applicants. 3. In this regard, it was submitted that the Respondents concealed material facts as to the lower court succession and the subsequent subdivision of the estate. Reliance was placed on Rule 26 is in the following words: "(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." 1. They relied on section 76(b) of the Act that the grant was obtained fraudulently through making of a false statement of something material to the case, or by the concealment. 2. The Respondent filed submissions dated 25.3.2026. They submitted that the deceased had the power to distribute his property and has shard the estate inter vivos during his lifetime. 3. They submitted further that the 2nd Respondent voluntarily exited the suit remises upon demise of Mercy Wairimu Gatoto as a sign that she knew the property to belong to the Applicants. They cited **Albert Imbugwa Kisigwa v Rachael Kavai Kisigwa (2016) KEHC 1528**. 4. It was also submitted that there was a delay of 19 years and the property had been subdivided and shared and the Application was an afterthought barred by the doctrine of laches. Analysis 1. Section 51 of the Law of Succession Act, requires a person seeking to administer the estate of a person who died in 1980 to comply with section 51(2)(g) of the Law of Succession Act and Rule 7(1)(e) of the Probate and Administration Rules, which require disclosure of all the children of the deceased. 2. It is not in dispute that the 1st Respondent was the administrator of the estate of the deceased. He is accused of having left out the Applicants for being daughters and grandchildren by discreetly taking our letters of administration without involving them. 3. Nonetheless, the grounds for revocation or annulment of grant of Letters of Administration are set out in Section 76 of the Law of Succession as follows: 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. 1. In this case, whereas the Respondents maintained that the Applicants were aware of the lower court succession proceedings, the issue is not merely that the Applicants were aware or not. It is whether the Applicants as daughters and grandchildren of the deceased should be provided for as dependants of the deceased. The importance of whether or not they were aware may be relevant in so far as it may be used to challenge the late resurfacing long after matters are settled and title deeds issued. 2. The title deeds subject to the subdivision of title number Nyeri/Waraza/597 were issued on 2.2.2017 in favour of the Respondents. That is the land the Applicants would like to devolve to item. The certificate of confirmation of grant was issued on 12.7.2006 and the Applicants case is that they were not aware of the succession process in the lower court. 3. Even Nelius Wangu Gatoto who was described to have stayed with the youngest widow of the deceased who had a home on this parcel until her demise in 2022 denied knowing that there was a succession process or that the land was subdivided, until in 2017 when the late Mercy Wairimu Gatoto discovered this fact. There is no evidence that the said Mercy Wairimu Gatoto who resided on the parcel objected to the subdivision or was not aware of the succession process or subdivision process. 4. It is not a disputed fact that the Applicants were dependants of the deceased. Under Section 29 of the Law of Succession Act, on the meaning of dependant, it is provided as follows: **For the purposes of this Part, "dependant" means— (a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death; (b) such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and (c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.** 1. Based on the contested fact, the Applicants are not genuine. The assertion that the subdivision was fraudulent or succession process was concealed is not credible. The Applicants were daughters and grandchildren of the deceased. They had the obligation to raise issue as to their right to a share in their father’s estate. The deceased died in 1998 and the Appellants never sought a share. 2. Whereas the court has discretion to provide for the Applicants as dependants, the Applicants must satisfy the court that they are entitled to such provision, as such discretion may only be exercised in accordance with the law under Section 27 of the Law of Succession Act as follows: *Discretion of court in making order* *In making provision for a dependant the court shall have complete discretion to order a specific share of the estate to be given to the dependant, or to make such other provision for him by way of periodical payments or a lump sum, and to impose such conditions, as it thinks fit.* 1. This court believes the position by the Respondents that the Applicants were aware of the succession proceedings in the lower court and knew that the deceased had already shared the entire estate among his sons during his life time with Mercy Wairimu Gatoto, the youngest widow only enjoying a life interest in the disputed title No. Nyeri/Waraza/597. This position was stated in the Replying affidavit and the Applicants did not bother to challenge it through a further affidavit. 2. Taken together with the years the Applicants took to file this application, I am not satisfied that the Applicants have made up a case to annul or revoke the certificate of confirmation of grant and have a share in title No. Nyeri/Waraza/597 which was transferred to the Respondents in 2017. It cannot be the law that the law of succession has no bar on limitations. A dependant or beneficiary must satisfy the court that he or she was not informed of the succession process and there was no way they would have known without being informed. That is why there are requirement for gazette notices in succession matters for general public knowledge. Under Section 30 of the Law of Succession Act on limitation of time for application for provision as dependants, it is provided as follows: *No application under this Part shall be brought after a grant of representation in respect of the estate to which the application refers has been confirmed as provided by section 71.* 1. The allegation by the Applicants that the process of obtaining the grant was defective and tainted with material nondisclosure is not supported. The personal representatives herein properly obtained letters of administration to administer and distribute the estate and I am satisfied that no contrary claims were made in objection or protest to the issuance and confirmation of the grant. In the High Court case of **In the Estate of Julius Mimano (Deceased) [2019] eKLR** the court analyzed the unique position in law held by the personal representative of a deceased person by stating as follows: **“…personal representatives administer estates on the strength of legal instruments made to them by the probate court. The vesting of the estate of the deceased on the personal representatives by virtue of section 79 of the Act, flows from the instrumentality of the grant of representation. Upon representation being made, the grant holder then becomes entitled to exercise the statutory powers conferred upon personal representatives by section 82 of the Act and incurs the duties imposed on them by section 83 of the Act. Additional powers flow from and duties are imposed by other statutes, such as the Trustee Act. Under section 82 of the Act, there are powers to enforce and defend causes of action on behalf of the estate, to sell or convert estate assets, to assent to vesting of bequests and legacies on the beneficiaries, among others. Acts done or actions taken on behalf of the estate or for the benefit of the estate would have to be accounted for. In other words, the personal representatives are bound to account for every action they take on behalf of the estate, for they exercise the powers on delegation.”** 1. The revocation of grant is a matter of discretion which must be exercised in accordance with the law. In the case of **Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 of 2000,** the Court stated as follows: “[13] 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.” 1. The court has not found a reason to scuttle the grant that was already confirmed and the estate fully administered and distributed in light of the application that was filed in 2023, more than 17 years after confirmation of grant and 16 years after subdivision of impugned estate even though title deeds were subsequently issued in 2017. The Applicants are of majority age and were not out of the jurisdiction of Kenya. The allegation of nondisclosure and discreet action by the Respondent is a farfetched allegation of fraudulent conduct without material basis. In **the Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR** the Court observed as doth: “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.” 1. There is therefore no basis upon which this court can revoke the confirmed grant and interfere with the settled distribution of the property of the deceased herein. The prayer for cancellation of the title deeds cannot hold and also falls by the way. 2. Whereas this is a family matter, I am inclined to assess costs of Ksh. 45,000/= which the Applicants shall pay to the Respondents in respect of these proceedings that were unnecessary. Determination 1. In the upshot, I make the following orders: 2. The Summons for Revocation of Grant dated 30.8.2023 lacks merit and is dismissed *in limine.* 3. The Applicants shall pay costs of Ksh. 45,000/= to the Respondents within 30 days failing of which execution to issue. 4. The file is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **2nd** day of **June 2026**. Ruling delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the Presence of: -** Mr. Kamunya for the Applicant Ms. Macharia for the Respondent Court Assistant – Martin