https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8254

In re Estate of Mukunzi (Deceased) (Succession Cause E0114 of 2017) [2026] KEHC 8254 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEHC 8254 (KLR) Republic of Kenya In the High Court at Makueni Succession Cause E0114 of 2017 TM Matheka, J May 29, 2026 IN THE MATTER OF THE ESTATE OF KAKINDU KIETI MUKUNZI (DECEASED) In the matter of Mbenya Kakindu Kieti Petitioner and Bernard Kieti Kachungwa 1st Applicant Ngwae Kakindu Kieti 2nd Applicant Ruling 1.Kakindu Kieti Mukunzi died on 16/4/2001.According to the Assistant Chief Kiambua Sub-Location Tawa – through his letter dated 30/12/2005 he had 3 wives:-Kavisya – deceasedNdilu – deceasedMbenya – alive 2.In the letter he stated that Kavisya was mother to Ngwae and Katunga; Ndilu mother to Kathuma; Mbenya mother to Patrick Muli, Mary Wanza Mualuka, Kieti and Nzioki. 3.Mbenya filed this cause at Machakos as Succession Cause 14/2005. 4.She listed the children from all the houses and the estate as: -Kiteta/Kiambwa/1130 – 4.6 HaKiteta/Kiambwa 1651 – 1.9 HaKiteta/Kiambwa/1065 – 22.45 HaIn the farm P & A 5 dated 18/1/2006.On 16/10/2006 she filed Summons for Confirmation of Grant seeking the distribution of the estate. In the supporting affidavit she identified the beneficiaries as follows.1.Mbenya Kakindu Kieti – Widow2.Mary Wanza Mwaluko – Daughter in law –adult3.Kieti Kakindu – Son – Adult4.Nzioki Kakindu – Son – Adult5.Patrick Muli Kakindu – Son – Adult6.Kathuma Kakindu – Son – Adult7.Ngwae Kakindu – Son – Adult8.Katunga Kakindu – Son - Adult 5.She proposed to distribute the estate as follows:-That the parcel No. 1. Kiteta/Kiambwa/1130 measuring 4.60 ha.2.Kiteta/Kiambwa/651 measuring 1.9 ha.3.Kiteta/Kiambwa/1065 measuring 22.45 ha.1.Kiteta Kiambwa/1130 – To be subdivided into two equal parts among Katunga Kakindu and Kathuma Kakindu.2.Kiteta/Kiambwa/651 – Mbenya Kakindu Kieti to have the whole portion3.Kiteta/Kiambwa/1065 – To be subdivided into three equal parts – Mbenya Kakindu Kieti, Katunga Kakindu and Kathuma Kakindu. 6.A certificate of confirmation was issued on 23/4/2007 in the following terms:-Name description of Property Share of HeirsKatunga Kakindu ) Kiteta/Kiambwa/130 held jointlyKathuma Kakindu )Mbenya Kakindu Kieti – Kiteta/KAMBWA/651 – wholeMbenya Kakindu Kieti)Katunga Kakindu) Kiteta/Kiambwa/1065 held in equal sharesKathuma Kakindu) 7.The record shows that on 23/4/07, the Petitioner told the court (Sitati J) that all the beneficiaries were present except Nzioki Kakindu, who she said had filed his consent – (in Kikamba). The application was allowed subject to the court relating a translated consent. 8.On 10/5/10 – the court was told that there was a summons for revocation of the grant dated 10/2/10 when the matter came for directions before Waweru J – the court was told that the objection was about the former Kiteta/Kiambwa 1065 – which it was said had been sub-divided into Kiteta/Kiambwa 1207, 1208 and 1209. 9.Counsel for the Objectors told the court that they were objecting to the entire distribution. Counsel for the Petitioner told the court his view was that the estate had been distributed equitably.The Objectors were given time to file an affidavit in distribution. 10.The matter was mentioned severally before Waweru J, then before Kihara Kariuki J, then before Dulu J.On 26/10/2012, Dulu J gave directions that the application – summons for revocation of grant be heard by way of viva voce evidence – and all the beneficiaries/survivors be served – each was given 21 days to file response. 11.The matter went before Jaden J in 2013 and 2014 where it was mentioned a few times but it did not proceed, at the behest of parties.It was before Nyamweya J ( as she then was ) in 2016 when at some point counsel for the Objectors sought to cease acting.On 20th February 2017 the application to cease acting was allowed. The file was transferred to Makueni. 12.The matter went before C. Kariuki J on 8th June 2017. On 13th July 2017 the cause was dismissed for want of prosecution. 13.Through the application dated 24th April 2024 the applicant sought the reinstatement of the cause, and revocation of the grant made to Mbenya on 2006 on grounds inter alia. The Petitioner did not disclose that the deceased was polygamous and had three wives. That a substantial number of the beneficiaries were not disclosed. That the Petitioner cited severally without involving the other beneficiaries. That despite a grant that stated that the property Kiteta/Kiambwa/1065 was to be held by the three beneficiaries in equal shares, she distributed it to her benefit, getting the largest chunk. 14.Annexed to the supporting affidavit was the letter from the chief dated 8th May 2023 listing the beneficiaries to the estate. Also attached were the green cards for parcel no 1065 showing that the title deed was transferred from the deceased to Mbenya on 9/5/2008, and that it was closed on 5/5/2009 on subdivision to parcel numbers 1207, 1208 and 1209; and the green card for parcel no. 651 showing that it was transferred to herself on 9/4/2008; and a copy of the Certificate of Confirmation of grant dated 23/4/2007 showing the manner in which the estate was distributed. 15.In that replying affidavit Mbenya acknowledged the Objectors as for step son and step grand-son. She deponed that the children of the other wives of her husband were uncooperative when it came to the succession cause but she proceeded and petitioned for letters of administration. 16.She stated that they had consented to the mode of distribution of the estate. That the estate was divided as follows –Kiteta/Kiambwa/1065 – 22 Ha was to shared equally among the three houses, Kiteta/Kiambwa/1130 4.6. Ha to be shared between the 2 houses – 1st & 2nd and the final Kiteta/Kiambwa/651 – to her house.That she holds the other portions in her name as the administrator.That she is willing to transfer their portion to them upon payment of transfer fees. In her view the application lacks merit. 17.In statement she said that she had transferred the estate to some of the other beneficiaries. 18.The Objectors stated that prior to the cause the deceased had settled his families on various portions of the, but the Petitioner proceeded to carry out surveys and demarcating the estate without involving the rest of the beneficiaries. 19.The matter went through a viva voce hearing – and it is evident that all the parties involved are quite elderly. 20.This matter has been in court since 2005.At the close of the case for both sides their counsel – Nzei for Objectors and Mutinda for the Petitioner – put in written submissions. 21.For the Objector; the submissions reiterate the orders of the court in the Summons for confirmation of the grant and contend that there is no evidence that the objectors signed any consent for the distribution of the estate. 22.The Objectors set out the following issues for determination –i.Whether the grant of letter of administration intestate made to Mbenya Kakindu Kieti on 20/3/2006 and subsequently confirmed on 23/04/2007 should be revoked;’ii.Whether the deceased’s land parcel No’s Kiteta/KIABWE/1065 (now subdivided into land parcels No. KitetaT/Kiambwa/1207, 1208 and 1209) and Kiteta/Kiambwa/651 should be reverted back to the deceased (Kakindu Kieti MUKUNZI), and sub-division of land parcel No. Kiteta/Kiambwa/1065 be cancelled with the relevant registers be rectified accordingly.iii.What order should the court make; 23.On the first issue the objectors rely on section 76 of the Law of Succession Act. It is argued that the law provides for 2 distinct t scenarios that warrant the revocation of a grant. The proceedings leading to the obtaining of the grant; were they defective? Were they fraudulent by dint of false statements to /concealment of material facts from the court or were untrue allegations made to the court hence justifying the making of the grant? Circumstances after the issuance of the grant; – failures by the person to whom the grant was made to comply with the law on their duties and responsibilities – e.g., failure to apply for confirmation of the grant, failure to account for the administration of the estate, causing the grant to be useless and cooperative. 24.It is submitted that the petitioner did not comply with section 51(2)(g) of the Law of Succession Act failure to disclose – all the persons beneficially entitled to the estate; Failure to disclose that the deceased was polygamous and had three houses. That the petitioner failed to produce the form P & A 5. That she alleged that the Objectors were uncooperative; that there is no evidence that the objectors consented to the confirmation proceedings. 25.The objectors cite Re estate of Paulo Makabiro Waka alias Makabira Waka (deceased)[2025] KEHC 13804 (KLR) which cited the Court of Appeal in Matheka & Anor vs Matheka [2005] eKLR…The Court of Appeal in Matheka & Another v Matheka [2005] eKLR held that concealment of beneficiaries and failure to obtain their consent renders the process fraudulent and warrants revocation. Similarly, in re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR, the court emphasized that the law obliges a petitioner to disclose all beneficiaries, whether or not they support the petition, to enable fair distribution. In the Matter of the Estate of L.A.K (Deceased)[2014] eKLR, Musyoka J. reiterated that a grant obtained without disclosure of all beneficiaries is defective and subject to revocation under section 76. Likewise, in Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No. 158 of 2000, the High Court observed that fraud and concealment of material facts strike at the very root of the succession process, making the resultant grant liable to revocation. In Samuel Wafula Wasike v Hudson Simiyu Wafula [1993] eKLR, the Court of Appeal annulled a grant where the administrator had concealed material facts and disinherited rightful heirs, stressing that section 76 is meant to protect the rights of all beneficiaries…” 26..It is submitted that after the grant the Administration acted against the terms of the grant. She transmitted the estate to her name – instead of the beneficiaries. 27.In addition that she had not produced any of evidence to prove that she sought the alleged transfer fees from the applicants who failed. 28.That in any event section 83 (c) of the Law Of Succession Act Places on the Administrator the obligation to pay out of the estate the reasonable costs of administering the estate. Hence the alleged beneficiaries failure to pay transfer fees cannot hold as a ground to deny them participation at the distribution of the estate.Further that the Administrator is required to complete the Administration within 6 months – which has not been done.The court is urged to cancel the current titles, remit the estate back to the deceased and pave the way for proper administration and distribution to the rightful beneficiaries. 29.The objectors cited –In Re Estate of Ruth Wairimu Thairu Linsley (Deceased) [2023] KEHC 18372 (KLR) where the power of a succession court to effectively cancel titles by ordering that property revert to the name of the deceased was affirmed. The court held;…In Re Estate of Mutugi Mbutii (Deceased) [2018] eKLR, the Court asserted that where it is established the property of the estate was transferred contrary to the law as in the instant case, the Court so as to ensure the ends of justice are met and to preserve the estate had the power to cancel titles and order the property revert to the names of a deceased person. The Court cited with approval the decision in Santuzza Bilioti alias Mei Santuzza (deceased) vs Giancarlo Falasconi (2014) eKLR where it was alleged that a succession court cannot cancel a title, the Court stated.This cannot be the case as the succession court has powers to order a titled deed to revert to the names of a deceased person. This in effect amounts to cancellation of the title deed. Further, a succession Court can order a cancellation of a title deed if a deceased’s property is being fraudulently taken away by non-beneficiaries such as where the property is being sold before a grant is confirmed...”For the Administrator/Respondent it is submitted that the petitioner disclosed all the beneficiaries to the estate. 30.It is submitted that the Objectors were present (2nd Objector’s father) when the grant was confirmed – and that the estate was distributed among the three houses. 31.That the administrator does not dispute the distribution in the Certificate of confirmation of grant That the administrator is ready to sign any document necessary for the distribution of the estate to the objectors. Analysis And Determination 32.I have carefully considered the evidence on record, the submission by the parties’ counsel and the law.The issue for determination is whether the application before me has any merit. 33.From the evidence of PW1 and PW2 – their greatest complaint was that the estate was distributed without their involvement, without considering the fact that the deceased was polygamous, and the different houses had been settled on some parts of the land – that the Administrator unilaterally brought surveyors who surveyed the land in the manner in which she pleased without involving all the beneficiaries. It is also complained that they did not consent to the distribution. That she proceeded to register the estate in her name contrary to the certificate of confirmation of grant.The Administrator has 2 explanations that they were uncooperative, that they refused to pay transfer fees.On the issue of consent. –The administrator was required to obtain the consent of all the beneficiaries before the confirmation of the grant. There is no consent attached to Summons for confirmation of grant and the record only reflects her telling the Judge we are all here. It is not clear who the we was because as I have pointed out – there is no document of consents to indicate who it is that had consented to the distribution of the estate.More importantly the grant was specific – as to the mode of distribution. 34.However, the administrator proceeded to act contrary to the grant and registered the largest part of the estate in her name Kiteta/Kiambwa 1130 instead of the names of the 2 beneficiaries and for Kiteta/Kiambwa/1065 the grant clearly indicated that the property was to held in equal shares – it did not say that she was to register in her name, then distribute it into 3 parts . It is evident that the distribution required the participation of the three beneficiaries who represent the three houses because it was clear they were to hold their shares on behalf of other. 35.It is clear from the authorities cited by the objectors herein that there are circumstances that will allow the revocation of the grant and cancellation of titles obtained to protect the interests of the estate and those of beneficiaries. Here the Administrator failed to act in accordance with the grant. She effectively took over the estate and made it hers contrary to the grant. That is not what the grant had not told her to do – brings the grant into the purview of section 76 of the Law of Succession Act for revocation. 36.The Objectors sought inter aliaiii.That the grant of letters of administration intestate made to MABEYA Kakindu Kieti on 23/03/2006 and subsequently confirmed on 23/04/2007 be revoked;iv.Spent;v.That the deceased’s land parcel Nos. Kiteta/Kiambwa/1065 (now subdivided into land parcels No. Kiteta/Kiabwa 1207, 1208 and 1209) and Kiteta/Kiambwa/651 be reverted back to the deceased (Kakindu Kieti Mukunzi), sub-division of land parcel No. Kiteta/Kiambwa/1065 be called and the relevant registers be rectified accordingly;vi.That a fresh grant of letters of administration of the deceased’s estate be issued to Mbenya Kakindu, Ngwae Kieti Kakindu And Benard Kieti Kachungwa jointly;vii.Those costs of this application be provided for. 37.From the foregoing I allow the application in terms of prayer (iii), (iv). Regarding prayer (v) – Kiteta/Kiambwa/651 was to go to the petitioner – that remains as it is. 38.Kiteta/Kiambwa/130 was to be held in equal shares – the petitioner cited ultra vires the grant – the titles to Kiteta Kiambwa 1207, 1208 & 1209 be and hereby revoked to revert to Kiteta/Kiambwa/1065 – in the name of the deceased Kakindu Kieti Mukunzi, and to be held in equal shares by the three; Mbenya Kakindu Kieti, Katunga Kieti and Kathuma Kakindu as per the grant issued on 23/4/2007.The Administrators to finalize the distribution of the estate within 6 months hereof and to report to court accordingly.Costs – Each party to bear theirs. RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH MAY 2026MUMBUA T MATHEKAJUDGEIn the presence of:-CA, Chrispol.