https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11503

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT SUCCESSION CAUSE NO. 46 OF 2001** **IN THE MATTER OF THE ESTATE OF GITHU MURIITHI** **JOHN MUNG’ARU WAITHAKA…………………….………APPLICANT** **VERSUS** **JAMES MAINA MURIITHI……………………….…1ST RESPONDENT** **JOSPHAT MACHARIA GITHU……………………..2ND RESPONDENT** **JUDGEMENT** 1. Before this Court is the Summons for Revocation of Grant dated **11th July** **2025** in which the Objector **JOHN MUNG’ARU WAITHAKA** seeks the following orders;- **“1. SPENT.** **2. THAT the Court be pleased to issue temporary stay orders staying the implementation and execution of the orders emanating from the ruling delivered by this Honourable Court on 30th April 2025.** **3. THAT the confirmed Grant letters of administration** **intestate for the estate of GITHU MURIITHI (Deceased) issued to JAMES MAINA MURIITHI on 30th April 2025 be revoked and annulled.** **4. THAT all the consequential and/or subsequent orders and actions arising from the said ruling and the confirmed Grant be declared null and void.** **5. THAT each party to bear their costs.”** 2. The Summons which was premised upon **Section 76 of the Law of** **Succession Act** and all other enabling provisions of the Law was supported by the affidavit of even date sworn by the Objector. 3. The Administrator/Respondent **JAMES MAINA MURIITHI** opposed the Summons through the Grounds of opposition dated **29th July 2025** as well as the Replying Affidavit dated **2nd December 2025** sworn by the 2nd Respondent **JOSPHAT MACHARIA GITHU**. 4. The Summons was canvassed by way of written submissions. The Applicants filed the written submissions dated **16th February 2026**, the 1st Respondent relied upon the written submissions dated **24th** **March 2026** whilst the 2nd Respondent relied upon the submissions dated **5th May 2026**. **BACKGROUND** 5. This succession cause relates to the estate of the late **GITHU MURIITHI alias GITHU NGWENY**A who died intestate on **10th** **December 1964**. 6. The record indicates that the deceased was a polygamous man who was survived by two (2) widows namely:- **(i) Wacuka Githu - 1st wife** **(ii) Wangari Githu aka Florence Wangari Githu - 2nd Wife** 7. The beneficiaries of the Deceased were as follows:- **First House** 1. **Wacuka Githu (Deceased)** 2. **Muriithi Githu (Deceased)** 3. **James Maina Muriithi - Grandson** 4. **Maina Mwangi - Deceased** * **Rebecca Wangui Mwangi - Daughter-in-law - Deceased** * **Jane Nyambura Mwangi - Grand-daughter** * **Njeri Mwangi - Grand-Daughter** **Second House** 1. **Wangari Githu aka Florence Wangari Githu** 2. **Wilson Muriithi Githu - Son (Deceased)** **- Irene Wairimu Muriithi - Daughter** **- Josphat Macharia Githu - Grandson** 8. Following the demise of the Deceased there has been lengthy and sustained litigation over his estate involving the children and grandchildren of the Deceased which litigation has lasted almost **forty** **(40) years**. 9. In his Ruling dated **30th April 2025** **Hon. Justice Magare** found that the estate of the Deceased comprised of only two properties being **(1)** **Parcel of land known as Loc 14 Kairu/313** **(2) Parcel of land known as Loc 14/Kairu/305** 10. The Applicant avers that sometime in the year **1964** during his lifetime the Deceased sold to him the parcel of land known as **Loc 14/Kairu/313** and that the widow was a witness to the sale transaction. The Applicant states that he did not conclude payment of the purchase price until **1976** when a Sale Agreement was executed. Thereafter the Applicant took up possession of the land and began to farm thereon. 11. That later due to wrangles between the two widows the matter went before the **Kangema Land Disputes Tribunal which** rendered a decision in favour of the Applicant on **26th August 1997**. 12. The Applicant then cited the widow to take up letters of Administration but upon her failure to do so then Applicant himself took out letters of Administration as a creditor. That Grant was however never confirmed. 13. As it transpired the widow and her son had also initiated succession proceedings relating to the estate at the Murang’a Law Courts being **Murang’a Succession Cause No. 67 of 1982**. Yet another succession Cause relating to the very same estate was instituted at the Kangema Law Courts being **Kangema** **Succession No. 56 of 1997**. Thereafter the Succession cause was transferred to the **Nyeri High Court**. 14. The Applicant states that he continued to follow up the matter with the family’s advocate. That to his shock the Applicant learnt that the matter had been concluded vide the ruling delivered on **30th April 2025** and that the parcel of land known as **Loc 14/Kairu/313** had been allocated to the 2nd Respondent **Josphat Macharia Githu**. 15. The Applicant complains that immediately after delivery of said ruling the 2nd Respondent started to threaten, harass and intimidate the applicant. That the 2nd Respondent has invaded the suit land and has been uprooting tea bushes belonging to the Applicant. 16. The Applicant contends that the suit land having been sold to him by the Deceased and by virtue of his having taken up possession of the land and having lived there peacefully for over fifty (50) years, the said parcel of land did not form part of the estate by the Deceased and was therefore not available for distribution. 17. The Applicant pleads that he is a senior citizen aged over 85 years and has a sickly wife. That cannot afford to lose this lifetime investment which no amount of damages can compensate. He urges the court to revoke the confirmed Grant which had been issued to the 1st Respondent. 18. The 2nd Respondent vide his Replying Affidavit dated **2nd December 2025** asserted that the Applicant had no locus standi in the matter as he was neither a beneficiary of the estate or a dependants of the Deceased. 19. The Respondents categorically deny that the Deceased sold the suit land to the Applicant and states that neither the widow or her son had any legal capacity to sell the suit land to any party. That no land control Board consent was ever obtained for the transfer of the suit land. 20. Finally the Respondents submit that the question of ownership of the suit land cannot be determined by the Probate Court. That in any event the summons has not disclosed any of the grounds for revocation of grant as set out in **Section 76** of the **Law of Succession Act**. The Respondents urge the court to dismiss this application in its entirety and award them costs. **ANALYSIS AND DETERMINATION** 21. I have carefully considered the summons for revocation of Grant filed by the Applicant, the replies filed thereto as well as the written submissions filed by both parties. 22. The grounds upon which a Grant may be revoked are set out in **Section 76** of the **Law of Succession Act** which provides as follows:- **“76 Revocation or annulment of a Grant.** **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.” [own emphasis]** 23. This provision of the law was expounded upon by the court in the case of **RE ESTATE OF PRISCA ONG’AYA NANDE (Deceased) 2020 eKLR** where it was held as follows:- **“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 circumstance, 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.”** 24. Therefore in order to merit the Orders which he is seeking the Applicant must adduce evidence to prove one of the grounds set out in **Section 76**. 25. The Respondents have submitted that the Applicant has no locus standi in this succession cause. The term ‘**Locus standi’** is a latin term which literally means ‘**place of standing’** and refers to the capacity of a party to participate in a particular suit. 26. The Applicant is **not** a beneficiary of the estate of the Deceased. Neither was the applicant dependant on the deceased in line with **Section 29** of the **Law of Succession Act**. The applicant is merely what is commonly referred to as a ‘**purchaser’**. A ‘purchaser’ cannot be a beneficiary of an estate and I find that indeed the applicant has no locus standi in this matter. 27. It is quite clear that the issue being raised by the Applicant revolves around the question of ownership of this **Loc 14/Kairu/313**. A probate court has no jurisdiction to make a determination on questions relating to ‘**Ownership’** of land. 28. Matters relating to the ownership use and occupation of land are now under **Article 162** of the **Constitution of Kenya 2010** mandated to be determined by a specialized court being the **Environment and Land Court (‘ELC’)**. 29. **Section 13** of the **Environment and Land Court Act** provides for the jurisdiction of that court as follows:- **13. Jurisdiction of the Court** **(1)** **The Court shall have original and appellate jurisdiction** **to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.** **(2) In exercise of its jurisdiction under Article 162 (2) (b) of the Constitution, the Court shall have power to hear and determine disputes -** **(a) relating to environmental planning and protection** **climate issues, land use planning, title tenure** **boundaries, rates, rents, valuations, mining, minerals and other natural resources;** **(b) relating to compulsory acquisition of land;** **(c) relating to land administration and management;** **(d)** **relating to public, private and community land and** **contracts, choses in action or other instruments granting any enforceable interests in land; and** **(e) any other dispute relating to environment and land [Rev. 2012] No. 19 of 2011 Environment and Land Court 9 [Issue 1].** 30. Therefore, the correct and proper forum before which the parties ought to ventilate their claim to the suit land is the **ELC**. The Environment and Land Court is the only court exclusively mandated by law to determine the question of ‘ownership’ of the suit land. 31. In **RE ESTATE OF STONE KATHUBI MUINDE (Deceased) [2016] eKLR Hon. Justice William Musyoka** held that:- **“Such claims to ownership of alleged estate property** **as between the estate and a third party, should be resolved through the civil process in a civil suit property brought before a civil court in accordance with the provisions of the Civil Procedure Act and Civil Procedure Rules. This could mean filing suit at the magistrates’ courts, or at the Civil or Commercial Divisions of the High Court, or at the Environment and Land Court. If a decree is obtained in such suit in favour of the claimant then such decree should be presented to the probate court in the succession cause so that that court can give effect to it.” (Own emphasis)** 32.Similarly **in Re Estate of Mbai Wainaina (Deceased) [2015]** the court held as follows:- **“…The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determining issues of ownership of property… It is not a matter of the probate court being incompetent to deal with such issues but rather the provisions of the Law of Succession Act and the relevant subsidiary legislation do not provide a convenient** **mechanism for determination of such issues. A party who wishes to have such matters resolved ought to file a substantive suit to be determined by the Environment and Land Court. Consequently, and for the reasons above stated, I must find and hold that this court has no jurisdiction to resolve the proprietary interest on land based on the alleged trust. In this case therefore, the only path legally open to the applicants is to institute separate proceedings to articulate their claim/rights in the right forum and which is the Environment and Land Court.” [Own emphasis]** 33. I therefore find that this court has no jurisdiction to make any pronouncement regarding the Applicants claim to ownership of the suit land. If the Applicant wishes to seek orders on that regard he must file a civil suit in the **Environment and Land Court**, which is the only court with the Mandate to make a decision over issues relating to ‘ownership’ of land. 34. In the circumstances I find no merit in the Summons for revocation of Grant dated **11th July 2025**. The same is hereby dismissed in its entirety. Costs will be met by the Applicant. **Dated in Nyeri this 24th day of July 2026.** **………………………..** **MAUREEN A. ODERO** **JUDGE**