https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9159

In re Estate of Kwinga alias Mutune (Deceased) (Succession Cause 267 of 2017) [2026] KEHC 9159 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEHC 9159 (KLR) Republic of Kenya In the High Court at Makueni Succession Cause 267 of 2017 TM Matheka, J June 26, 2026 IN THE MATTER OF THE ESTATE OF THE LATE FRANK JOSEPH MUTUNE KWINGA alias FRANK J.M KWINGA alias FRANK K. MUTUNE alias F.J MUTUNE alias F.J.M KWINGA alias JOSEPH FRANCIS MUTUNE alias FRANCIS JOSEPH MUTUNE KWINGA alias FRANCIS JOSEPH MUTUNE (Deceased) Between Rosemary Mutinda Mutua (Suing as the Donee of Sammy Mutua Muswii) Protestor and Esther Ngunya Kwinga Administrator Ruling 1.Before me is the Summons for Revocation of Grant (SRG) dated 30/7/2024 brought by Rosemary Mutinda Mutua suing as the donee of Sammy Mutua Muswii (Protestor/applicant) against Esther Ngunya Kwinga, the Administrator of this estate. The SRG is brought under Section 47 and 76 of the Law of Succession Act Cap 160, Laws of Kenya.The applicant seeks:-1.Spent2.That an order do issue suspending the use of the confirmed grant and barring any further dealings with respect to land parcel number Makueni/Unoa/208 or any subdivisions and/or sale thereof pending the hearing and determination of this application.3.That the grant to the Administrator and confirmed on 16/06/2022 be revoked and the issue of distribution to start afresh with respect to land number Makueni/Unoa/208 or any of its subdivisions thereof.4.That, all the title deeds and transfers effected by use of the said grant confirmed on 16th June 2022 be recalled and cancelled.5.That the cost of this application be in the cause. 2The summons is supported by the affidavit of the applicant and the annexures therewith. 3The main ground is that the property LR. Makueni/UNOA/208 was not an asset of the estate of the deceased- that the parcel of land wholly belonged to the protester, who sold a portion of the land to the late Joseph Mutune Kwinga and an alleged 26 others, yet in the confirmed grant- the entire property was shared among the Administrator and her children. That the protester only came to know about this when the protester wanted to subdivide the portion of land to the alleged 26 purchasers. 4In the replying affidavit sworn on 6/9/2024, the Respondent depones that the issue raised by the applicant is about ownership of the land previously known as Makueni/Unoa/208 and hence this court does not have the jurisdiction to hear this matter or deal with the issue raised herein. It is deponed that the deceased purchased the property and it was registered in his name on 29/3/1990. Hence it has always been his registered property and at the time of his death it belonged to the deceased. 5The respondent concedes that at the time of purchase of the land there were 16 persons who had purchased the upper part of the land, and it was agreed between the seller and the deceased that the deceased would demarcate the portion and transfer it to the buyers. She depones that at the time of the purchase the applicant (the seller) pointed out the portion that had been sold out to the deceased and herself. That the deceased had asked for the particulars of the purchasers to enable the transfer but the applicant never revealed the same. 6That it was not true that the applicant owned any part of the said land- that the respondent obtained the list of 16 purchasers from the Chief Wote – and that the applicant’s statement that they were 26 is a lie. 7The respondent swore a detailed affidavit with annexures on what she did to ensure that the 16 purchasers got their shares of the land that the deceased had bought, and that the only thing she needs is indemnity from the applicant that upon transfer of the said portion to the buyers or to the applicant she would not be liable to any claims regarding the said potion of land. 8The draft indemnity is a annexed to the affidavit. The parties agreed to file written submissions. 9The applicant made a further affidavit sworn on 9/12/2024. 10She denies that there was a sale between the deceased and her principal. She deponed that there was fraud and forgery of the transfer to the deceased. She set out in her affidavit what she considered to be the particulars of fraud and forgery. She deponed that she subjected the land consent forms presented by the respondent to a document examiner for authentication; That the document examiner confirmed that the said Sammy Mutua Muswii did not sign the application for consent to the land consent board - that the transfer to the deceased was illegal and unprocedural. 11I have considered the applicant’s submissions. 12The applicant submits that the respondent did not disclose the liability of the estate in the suit property. 13The applicant relies on Rule 7(1) (d) of the P & A Rules – that on a petitioner petitioning for letters of administration was required , in the supporting affidavit to the best of her acknowledge to have provided an inventory of all the deceased’s assets and labilities at time of the date of his death. It says:(d)a full inventory of all his assets and liabilities at the date of his death (including such, if any, as may have arisen or become known since that date) together with an estimate of the value of his assets movable and immovable and his liabilities; 14It is submitted that the respondent was aware of the existence of the 16 purchasers yet proceeded to not disclose that to the court at the time of filing of the Petition and filling of the form P&A 5 , and even the filing and the hearing of the summons for confirmation of the grant, the distribution of the estate. 15The applicant relies on Re: Estate of Eliakim Shibia Musa (deceased)[2023]eKLR. The applicant also relies on Adome –vs- Ogutu (Succession Appeal) No. 24/2021) 2024 KLR – for the proposition that if the deceased had sold land, died before transferring it, this ought to be disclosed as a matter of good faith and honesty; on Julius Ndubi Javan (Deceased)[2018] eKLR for the proposition that parties must make full disclosure of all he material facts to the court – as non-disclosure undermines the justice system; on Re Estate of Nasokotini Ole Sane (Succession Cause 48/2017) where the court set aside an application for confirmation because the administrator confirmed the existence of purchasers, but there was “misrepresentation and concealment of material facts, lack of notice of the protestors” when the application for confirmation of the grant was made. Analysis and Determination 16I have carefully considered the application before me, the rival affidavits and the submissions: 17The issue of jurisdiction has been raised and this court cannot proceed with the matter without making a determination on the issue of jurisdiction as to whether the issue before me is about the administration of the asset Makueni/Unoa/208 belonging to the estate of the deceased or about the acquisition /ownership of the said parcel of land. The latter would remove the issue before this court and place it before the ELC Court. 18The respondent’s position on jurisdiction is that the applicant is raising an issue of ownership of the land: That applicant on her part at first argued that the that was not the issue: that the issue was of only failure on the part of the respondent to disclose a liability to the estate i.e., the alleged 26 purchasers. : However, in the further affidavit the applicant deponed that the deceased never acquired the title Makueni/Unoa /208 legally from her principal. It is her position that the deceased obtained the land fraudulently and through forgery. 19The applicant submitted that this court under its Probate and Administration jurisdiction could deal with the matter, as it was an issue of distribution of the estate – in view of the fact the respondent had admitted that she was aware of the existence of purchasers before the grant was confirmed. That is the right position if she had just left it there. This is because the administrator had an obligation to disclose all liabilities to the estate known to her at the time of filing the cause. 20The failure of the respondent to disclose liabilities of the estate is an allegation that falls within the purview of the Section of 76 of the Law of Succession Act. 21However, the applicant in the further replying affidavit responding to the respondent’s affidavit on the efforts made to transfer the portion of the 16 purchasers to them, the applicant deponed that there was no proper sale of the land to the deceased, now saying that the land did not belong to the estate of the deceased. That the consent forms were a forgery, and the transfer was illegal. The applicant set out particulars of fraud in the manner in which the deceased acquired title to the said property. 22It is evident that the applicant in doing this agreed with the respondent that the applicant was raising an issue of ownership. The applicant is not pursuing an issue of mere distribution of Makueni/Unoa/208 but is accusing the deceased of fraudulent acquisition of the whole title Makueni/Unoa/208. It is no longer about the transfer of a portion of the land to 16 or 26 alleged purchasers depending on who is talking , but about the applicant wanting the whole parcel of land on account of alleged forgery and fraud on the part of the deceased. . 23In addition, there is the thorny issue of alleged purchasers – were they 16 years 26? Were they purchasers from the deceased or were they purchasers from the applicant’s principal the original owner? This is not within the purview of this court to determine issues as to the title of the property and the extent of other interests. The attack on the original title, and whether the deceased acquired the title legally is not an issue to be determined by this court. That is the role of the Environment and Land Court. 24The determination of that issue takes priority to the distribution of the estate, and whether or not estate owed the applicant/others portions of Makueni Unoa 208. 25In the end I find that the dispute as to how Makueni/Unoa/208 was acquired by the deceased and whether or not there were 16 or 26 purchasers from the original owner must be determined by the appropriate court 26The applicant cannot have it both ways – in one she says the deceased bought the land and owed some unknown buyers portions of the land – on the other side she says, the deceased did not acquire the title legally from the seller, and accuses him of fraud and forgery. 27The respondent’s actions have been based on the fact that the deceased obtained the title to Makueni/Unoa/208 legally and procedurally and that is the basis of the concession that deceased owed some portions to 16 persons, and not the applicant. 28In the circumstances the disputes is not for revocation of the grant. If the title is found to belong to the deceased – then the issue will belong here – if it is found to have been fraudulently obtained, then the issue will have been resolved once and for all. 29The application is denied. The applicant to pursue recourse in the appropriate court 30In the meantime, the status quo on Makueni/Unoa/208 in this cause to be maintained pending the determination of the issue of the title in the ELC court. 31The rest of the estate is not affected by this ruling. 32Each party to bear their own costs. 33Orders accordingly RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDAMA RAVINE ON 26TH JUNE 2026.MUMBUA T. MATHEKAJUDGEIn the presence of:CA ChrispolMs Mutuku for Gichuki for RespondentN/A for BM Mung’ata for applicant