https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7742

In re Estate of M'Mugwika M'Mwirabua alias Muwika Mwirebua (Deceased) (Succession Cause 453 of 2015) [2026] KEHC 7742 (KLR) (2 June 2026) (Ruling) Neutral citation: [2026] KEHC 7742 (KLR) Republic of Kenya In the High Court at Meru Succession Cause 453 of 2015 HM Nyaga, J June 2, 2026 IN THE MATTER OF THE ESTATE OF M’MUGWIKA M’MWIRABUA alias MUGWIKA MWIREBUA - (DECEASED) Between M’Mungania M’Mugwika 1st Petitioner Peter Mworia Gatuma 2nd Petitioner and Gerald Ndumba 1st Protestor Simon Gikundi Mugwika 2nd Protestor Kenneth Maitethia Kigunda 3rd Protestor Ruling 1.Coming up for determination is the summons dated 15/09/2025 which seeks the following orders: -a.Spentb.That there be a stay of the Chamber Summons dated 05/11/2024 together with the execution and implementation of the grant issued on 25/4/2019 and dated 27/05/2019 pending the hearing and determination of the summons herein.c.That the grant issued on 25/04/2019 and dated 27/05/2019 be revoked or annulled to facilitate fair and equitable distribution of the deceased’s estate.d.That the grant of letters of administration issued to Peter Mworia Gatuma be revoked and a fresh grant be issued jointly to Kenneth Maitethia Kigunda.e.That the court be pleased to grant such further orders as it may deem just and expedient.f.That costs be borne by the petitioner/respondent. 2.The application is supported by the grounds set out on its face and the affidavit of the 3rd protestor/applicant. 3.In a nutshell, the applicant’s case is that they are children of the late Martha Gatuga who was a child of the deceased. That the grant herein issued on 05/11/2019 and dated 27/05/2019 excluded their mother. That Alex Kigunda the spouse to Martha Gatiga had no capacity to execute a consent on her behalf without letters of administration of her estate. That the grant was obtained fraudulently and involved concealment of material facts in a bid to disinherit the applicants and other beneficiaries. 4.It is further averred that the deceased had during his lifetime allocated property to various family beneficiaries which ought to have been taken account during the confirmation of the grant herein. 5.The applicants further state that if Kenneth Muthethia is appointed as an administrator, he will act faithfully towards all the beneficiaries. That it was imperative that the respondent be restrained from the implementation of the impugned grant and the same be revoked. 6.The application was opposed by the petitioner/respondent who filed an affidavit sworn on 22/10/2025. 7.In a nutshell, the respondent states that the applicant and the other protestors were fully aware of this cause and that the confirmation of the grant was done lawfully. That the estate was shared equally among the beneficiaries. That the application is an afterthought and was only filed after he filed the application dated 5/11/2024 seeking to implement the grant. That the applicant and the protestors have colluded with the purpose of discriminating against his father. 8.The respondent urged the court to dismiss the application and order that the grant be implemented. 9.Parties filed submissions which I have perused and will refer to them herein. 10.The Law of Succession Act provides for revocation or annulment of grants under Section 76, which states 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 substanceb..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.In re Estate of Prisca Ong’ayo Nande (Deceased) (2020) eKLR in expounding Section 76 it was stated that:“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.” 12.The gist of the application is that the 1st applicant’s mother Mary Gatiga was excluded from the grant despite being a child of the deceased. 13.The court record shows that the court heard the summons for confirmation and the protest vide viva voce evidence before rendering its judgment on 25th April 2019. 14.From the court record, it is evident that the names of all the children of the deceased were provided by the 1st protestor, Gerald Ndumba. The protestor duly notified the court of the existence of Martha Gatiga who is listed under paragraph (d) of the 1st protestors testimony. 15.The court duly considered that evidence. It is therefore not true that the said Martha Gatiga was not disclosed to the court. 16.Indeed, at paragraph 15 of the judgment, the court duly recognized the existence of Martha Gatiga. 17.In such circumstances, I find that there was no concealment of material facts. If the court erred in not providing for the children of Martha Gatiga, then that is a ground for appeal. By presenting this application, the applicant is seeking to regurgitate an issue already determined by the court. I find that the issue is res judicata. 18.On the question of whether there were gifts inter vivos made by the deceased during his life time, that issue was also duly considered by the court. Thus, the application in that respect is also res judicata. 19.I note that Gerald Ndumba who was the protestor supports the application, knowing very well that he testified in court during the protest. I concur with the respondent that there is an apparent collusion between the other protestor and the applicant. 20.Having considered the matter, I find that the same lacks merit and it is dismissed. 21.There shall be no orders as to costs. 22.The parties are directed to move forward and have the grant implemented. DATED, SIGNED AND DELIVERED AT MERU THIS 2ND DAY OF JUNE 2026.…………………………..H. M. NYAGAJUDGE