https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/118

In re Estate of Wambua (Deceased) (Succession Cause E054 of 2022) [2026] KEMC 118 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEMC 118 (KLR) Republic of Kenya In the Machakos Law Courts Succession Cause E054 of 2022 BC Koech, SPM May 19, 2026 IN THE MATTER OF ESTATE OFJOSEPHAT NZIOKA WAMBUA (DECEASED) Between Charles Fundi Administrator and Rosaitor Kalekye Kingeli Objector Ruling 1.Before this Court is an application dated 12th day of May 2025, in which the applicant, Rosaitor Kalekye Kingeli, principally seeks the revocation of the limited grant of letters of administration ad litem issued to Charles Fundi on 25th May 2022. The said grant had been issued solely for the purpose of substituting the deceased 1st defendant in Machakos ELC No. 74 of 2009: Joshua Mulwa, Julius Mutanda Kanyotu, and Charles Matheka versus Josephat Nzioka Wambua, Francis Kikuvi Nzioka, and Agnes Mutindi Ngandi 2.The application is supported by an affidavit sworn on the 8th day of May 2025 by the applicant on the and on the grounds set out on the face of the application. 3.The application is opposed by way of a replying affidavit sworn on 24th May 2025 by Charles Fundi, who describes himself as a former official of Kasuitu Plot Owners’ Self-Help Group. In addition, the respondent has filed grounds of opposition dated 27th May 2025, setting out the basis upon which the application is opposed. 4.The genesis of this petition is that the deceased, together with two others in Miscellaneous Succession Causes Nos. 53 and 55 of 2022, were sued as defendants in Machakos ELC No. 74 of 2009 in their capacity as former officials of Kasuitu Plot Owners’ Self-Help Group. Before the land dispute could be resolved by the High Court, the deceased—who was then a defendant in the matter—passed away, thereby leaving the suit pending without a representative to stand in for his estate 5.The plaintiffs, who were then the officials of the kasuitu self-help group, noting that the suit would abate if the defendants were not substituted, sought to have the deceased substituted to enable them proceed with the matter before the high court. It appears that the deceased family / beneficiaries were unwilling t to take out letters of administration ad litem for the purpose of substitution. 6.When the deceased family failed to substitute the deceased before the high court and fearing that the matter would abate, officials and members of kasuitu self- help group held a meeting and appointed him as administrator herein to take out letters of administration ad litem in respect of the three defendants who were by 2022, were all deceased. 7.It is on record that Julius Mutinda filed petition herein dated 22nd March 2022 seeking a limited grant of letters of administration ad litem for the administrator herein, Charles Fundi, to be appointed and granted authority to represent the estate of the deceased in Machakos ELC No. 74 of 2009, such grant being expressly limited to the purpose of prosecuting and defending that suit only. 8.The gist of the applicant’s case for revocation of the limited grant is that she is the lawful wife and next of kin of the deceased. She contends that the officials of Kasuitu Self-Help Group acted unilaterally and without notice to the family when they petitioned for letters of administration ad litem. She further asserts that the group never informed the family that substitution was required in the pending High Court suit. It is her position that since the deceased resided in Athi River, the petition ought to have been filed at the Mavoko Law Courts, thereby rendering the Machakos Court without territorial jurisdiction to issue the grant. The applicant also maintains that the administrator, Charles Fundi, is a complete stranger to the estate, and that he has misused the limited grant by filing suits and recording consents on behalf of the estate. She therefore alleges that the grant was obtained fraudulently and in disregard of the rights of the rightful heirs 9.In response, the respondent avers that the application is a non-starter, as the applicant has not demonstrated whether she is a member of Kasuitu Self-Help Group. He contends that the applicant has failed to prove the allegations of fraud. The respondent further states that the proceedings before the High Court concern several unlawful transactions allegedly entered into by the deceased, involving the sale and subdivision of the group’s properties to third parties. He notes that the deceased was restrained by an order issued on 22nd November 2012 by Hon. Justice Dulu, which order remains in force and has not been set aside. The respondent asserts that, having sought substitution of the deceased on several occasions and fearing that the suit would abate, members of Kasuitu resolved in a meeting held on 19th February 2022 to appoint him, Charles Fundi, to substitute the deceased, given that he was an official during the deceased’s tenure. The members further settled on him because of his personal knowledge of the facts and transactions that gave rise to Machakos ELC No. 74 of 2009. 10.The respondent further avers that the deceased family were not members of kasuitu self-help group and would not help the court in determining the case before the high court. That following member resolution, they approached the court and filed the petition dated 22nd March 2022. That the grant they were issued was limited in scope and purpose. That the applicant has not demonstrated that the grant has been used for any other purpose than that was not intended. 11.The respondent further contends that the applicant seeks revocation of the grant without proposing any alternative relief, thereby pursuing the matter in disregard of the ongoing proceedings before the Environment and Land Court at Machakos. He asserts that the applicant has failed to disclose any vested interest in the estate, and that the present application is calculated merely to delay the resolution of the suit. The respondent maintains that the process of obtaining the limited grant ad litem was duly sanctioned by the Environment and Land Court on 18th January 2022, following the demise of the last defendant, and was therefore procedurally regular and lawful. 12.I have considered the application before me, the affidavit in support as well as the reply thereto. I have also read the submissions filed. The following in my view are questions/issues that arise for determination before me:i.Whether this Court had the requisite territorial jurisdiction to issue the limited grant of letters of administration ad litem, and whether such jurisdictional objection can properly be addressed within the present application.ii.Whether a limited grant of letters of administration ad litem can be revoked under the Law of Succession Act and the Probate and Administration Rules.iii.If issue (ii) is answered in the affirmative, whether the objector/applicant has established sufficient grounds to warrant revocation of the limited grant issued to the respondent Issue of jurisdiction. 13.The applicant contends that the Machakos Magistrates’ Court lacked territorial jurisdiction to issue the limited grant, since the deceased was ordinarily resident in Athi River. Territorial jurisdiction in succession matters is governed by Section 47 of the Law of Succession Act and Rule 7(1) of the Probate and Administration Rules, which tie venue to the deceased’s last known place of residence. However, territorial jurisdiction in succession proceedings is generally a matter of venue and convenience, rather than competence. In my view, if the applicant was dissatisfied, he ought to have moved the High Court either to transfer the matter to Mavoko or to nullify the grant. It is trite law, as held in Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, that jurisdiction is fundamental and a court without jurisdiction cannot move a step further. That said, there is nothing on record to demonstrate conclusively that the Machakos Court lacked territorial jurisdiction. The complaint therefore amounts to a procedural objection on venue, not a substantive defect that would automatically vitiate the grant. 14.In succession matters, filing in the wrong registry is my view treated as a procedural irregularity, curable by transfer or appeal, not automatic nullity. Generally, the complaint is merely about the matter having been filed in the “wrong station” or outside the deceased’s ordinary place of residence (territorial venue), this, in my view an issue of venue/procedure, not necessarily one that voids the grant automatically. In such a case, an appeal or transfer application before the high court would have been appropriate. Whether limited grant ad litem can be revoked. 15.There are several types of grants recognized under the Law of Succession Act. A limited grant ad litem is one such category, issued pursuant to Section 54 of the Law of Succession Act and Rule 14 of the Probate and Administration Rules. Such grants are temporary and specific in nature; they do not confer full powers of administration but are ordinarily issued for the limited purpose of enabling representation of the estate in pending proceedings. Like any other grant, however, a limited grant ad litem is subject to revocation under Section 76 of the Law of Succession Act where it is shown that it was obtained fraudulently, through concealment of material facts, by use of defective procedure, or where it has ceased to serve the purpose for which it was issued. Accordingly, I find and hold that a limited grant ad litem is amenable to revocation in the same manner as any other grant of representation. Whether the applicant has established sufficient grounds for revocation of limited grant 16.The question before me is whether application meet the threshold for the revocation of a grant within the meaning of Section 76 of the Law of Succession Act? Ssection 76 of the Law of Succession Act, Cap 160, Laws of Kenya reads as follows:“76.Revocation or annulment of grantA grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either onapplication 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.(Emphasis mine) 17.In this case, the members of Kasuitu Self-Help Group appointed Julius Mutinda to petition for letters of administration in respect of the deceased’s estate. The petition as filed sought the appointment of Charles Fundi as administrator, and a limited grant ad litem was subsequently issued in his favour. This arrangement effectively placed Kasuitu Self-Help Group in the anomalous position of being both the plaintiffs in the pending High Court suit and, through their chosen representative, the defendants as administrators of the deceased’s estate. Such a situation is legally untenable, as it offends the principle of impartial representation and undermines the integrity of adversarial proceedings. 18.The plaintiffs having noted that the beneficiaries of the deceased estate were unwilling to take out letters of administration, should have approached the court by way of citation first. The machinery of Citation is governed by Part VI of the Probate and Administration Rules (Rules 21–24). Rule 22(1) of the Probate and Administration Rules is explicit that:“A citation may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.” 19.A citation is a command by the court to a person who has a superior right to a grant, in this case, the Citee, calling upon him to accept or refuse the grant, or to show cause why it should not be granted to the person issuing the citation. 20.The purpose of a citation, as established in Re Estate of Anthony George Kimanthi (Deceased [2019] KEHC 2564 (KLR) is to trigger the process of applying for letters of administration intestate in circumstances where the persons entitled to apply are not willing or are slow in moving the court. It acts as a procedural catalyst to prevent the locking of an estate by inert beneficiaries to the detriment of creditors and other interested parties. Hon. Sitati, J. Also considered the purpose of citation proceedings in the case of John Osicho v Hana Omolo Osewe & another [2013] eKLR where she stated that: -“A citation is a document issued by the probate registry, whereby the person being the claimant (citor) calls upon the person cited (citee) to provide a reason why a particular step should not be taken;citation occur in both contention and non-contentious probate. in non-contention probate, they serve the purpose of bullying along or fast tracking the issue of a grant of letters of administration” 21.In this case, the objector, has annexed a letter from the Chief confirming that she is the widow of the deceased and, under Section 66 of the Law of Succession Act, she ranks in priority to petition for a grant of representation. There is nothing on record / attached to the petition to show that the petitioner or the appointed administrator issued a citation to the deceased’s family to take out letters of administration ad litem. The administrator’s failure to issue such citation was contrary to Rule 22 of the Probate and Administration Rules and rendered the proceedings defective. 22.For the above reasons, I find and hold that the procedure employed in obtaining the limited grant of letters of administration ad litem issued to Charles Fundi on 25th May 2022 was fundamentally defective. In the circumstances, the grant cannot stand. Accordingly, I hereby make the following orders:a.The limited grant issued to Charles fundi on the 25th day of May 2022 be and is hereby revokedb.The petitioner is directed to issue citation to the deceased’s legal heirs within 60 days if they so wish. 23.This case is marked closed. SIGNED, DATED AND DELIVERED AT MACHAKOS VIA TEAMS THIS 19TH DAY OF MAY, 2026.In the Presence of:Denis … Court AssistantKilonzi h/b for Nzei for the administratorsNjogu for the kasuitu objectors AbsentLANGAT BETTY KOECH (MRS)SENIOR PRINCIPAL MAGISTRATE,MACHAKOS LAW COURT