https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8294

In re Estate of Nzioki (Deceased) (Succession Cause 164 of 1994) [2026] KEHC 8294 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 8294 (KLR) Republic of Kenya In the High Court at Machakos Succession Cause 164 of 1994 RC Rutto, J June 12, 2026 IN THE MATTER OF THE ESTATE OF THE LATE SAMUEL MWANZIA NZIOKI (DECEASED) Between Rebecca Mbula Kisaingu Applicant and Benson Nzioka Mwanzia Respondent Ruling 1.Before this Court for determination is a Summons for Revocation and or annulment of grant dated 28th March, 2025, which seeks the following orders;a.Spentb.That the grant of letters of administration Intestate and certificate of confirmation of grant issued to Benson Nzioka Mwanzia in respect of the estate of Samuel Mwanzia Nzioki- deceased on 16th October 2023 be revoked and that a fresh grant do issue jointly to Objector/Applicant herein Rebecca Mbula Kisaingu & Administrator/Respondent herein Benson Nzioka Mwanzia.c.The Administrator/Respondent be directed to enjoin the Objector/Applicant herein Rebecca Mbula Kisaingi as a co-administrator and/or consider the Objector/Applicant as a dependent and the beneficiary thereof since the Administrator/Respondent fraudulent omitted the Objector/Applicant by forging her signature.d.That parcels of land known as Ndalani/Ndalani Block 1/553, Ndalani/Ndalani Block 1/555 & Ndalani/Ndalani Block 1/556 be excluded from the list of properties of the deceased since the said properties belong to the Objector/Applicant and should not form part of the deceased estate.e.Spent.f.That the costs of this application be borne by the Respondents. 2.The application is premised on the grounds set out on the face of the summons and supported by the affidavit sworn by the Applicant who states that she is the last born daughter of the deceased. The gravamen of the application is that the Applicant discovered that the Administrator/Respondent had secretly and fraudulently initiated this succession cause in 1994 and obtained a Grant of Letters of Administration Intestate in 1997 but did not disclose this fact until 16th October, 2023, when he obtained a Certificate of Confirmation of Grant together with a schedule of distribution. 3.The Applicant further avers that the Respondent filed a consent letter in court on 15th February, 1997, in which her purported signature was forged. She stated that she reported the matter to the police, where necessary action has been taken and subjected the said signature for forensic analysis which confirmed that it was a forgery. 4.She further contends that, in addition to omitting her from the succession proceedings, the Respondent misled the court by including properties that had been gifted to her by the deceased in 1990 namely; Ndalani/Ndalani Block 1/553, Ndalani/Ndalani Block 1/555 & Ndalani/Ndalani Block 1/556. She avers that, after duly registering the land, she entered into several sale agreements between 2000 and 2006 selling portions of the said properties. She subsequently subdivided the land and transferred the title deeds to the purchasers, who have since undertaken developments thereon. 5.She alleges that the Respondent was aware of her ownership of the properties and the subsequent sales to third parties but maliciously waited for 28 years from the issuance of the grant before applying for its confirmation of grant on 16th October, 2023. 6.The Applicant further contends that following the issuance of the impugned certificate of confirmation of grant, the Respondent, instituted several cases against the purchasers of the said properties, which he had fraudulently included in the deceased estate. These cases were filed in the Machakos Chief Magistrate Environment Land Cause Nos. MCELC/E003/2024, MCELC/E004/2024, MCELC/E007/2024, MCELC/E010/2024, MCELC/E014/2024 and MCELC/E015/2024. She states that some of these matters have been concluded, resulting in eviction orders. 7.She maintains that she is a bona fide owner of the properties known as Ndalani/Ndalani Block 1/553, Ndalani/Ndalani Block 1/555 & Ndalani/Ndalani Block 1/556 and that the Respondent had no basis to include them as part of the estate while simultaneously excluding her. She further contends that the Respondent has been threatening third parties’ purchasers with eviction from land they occupied and developed for many years, having acquired it from her following the alleged gift more than thirty years ago. 8.In response, the Respondent in his Replying Affidavit annexed to the application dated 10th June, 2025, asserts that the Objector’s purported sale agreements relating to the deceased’s properties were undertaken without a grant, and therefore constitute intermeddling with the deceased’s estate which is a criminal offence. He contends that this disentitles the Applicant from seeking the discretionary orders before the court as she approached the court with unclean hands. 9.He further avers that the alleged sale agreements are witnesses by the deceased who was already deceased at the material time, thereby rendering the documents questionable. He urges that setting aside succession proceedings after nearly 25 years would occasion injustice and hardship, particularly as other family members, some now deceased, were involved in the process. 10.The Respondent also maintains that the Applicant is not entitled to any share of the estate, just like the other daughters who did not make claims. He states that the Objector is married to Mr. Kisaingu and resides in Kangundo Machakos and has not divorced her husband, who owns substantial land. He contends that all family members participated in the succession proceedings and gave their consent. 11.He denies that the deceased issued any will or gift in favour of the Objector in 1990, asserting that the document relied upon is not genuine, lacks witnesses, and does not appoint an executor. He further states that, as at 2014, records at Yatta Ranch indicated that the entire Yatta Ranch land parcels remained registered in the name of the deceased. 12.The application was canvassed by written submissions. Both the parties filed their submissions. DIVISION - Applicant’s/Objector submissions 13.The Applicant/Objector submits that her application squarely falls within the ambit of Section 76 of the Law of Succession Act and that the circumstances of this case satisfy several of the statutory grounds set out therein. To reinforce the legal basis for revocation, she relies on the decision in Jamleck Maina Njoroge v Mary Wanjiru Mwangi (2015) eKLR. 14.The Applicant alleges that the Respondent procured the grant through fraud and deliberate misrepresentation. She contends that the Respondent filed a consent purportedly signed by all beneficiaries, including herself, to facilitate the issuance of the grant. However, she maintains that she never signed the consent, was never informed of the succession proceedings, and had no knowledge of the petition for letters of administration. Upon discovering the existence of the succession proceedings, she reported the matter to the police and subjected the impugned signature to forensic examination. According to her, the forensic analysis confirmed that the signature attributed to her was forged. 15.The Applicant therefore argues that the Respondent deliberately misled the court and obtained the grant fraudulently. In support of this position, the Applicant relies on In Re Estate of Gaudencia Akumu Oikiko (Deceased) [2024] KEHC 16866 (KLR) where the court revoked a grant founded on a fraudulent document. She submits that the same reasoning applies in the present case, as the consent relied upon was founded on a forged signature. The Applicant also cites Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] eKLR to emphasize that the concealment of a beneficiary is not a mere procedural defect but a substantive violation that renders the entire process incurably defective. Further reliance is placed on Matthew Njega Njogu & Another v Rosemary Muthoni Njue [2021] eKLR, where the court reiterated that revocation of a grant is governed by Section 76 of the Law of Succession Act and must be grounded on proof of the statutory criteria. The Applicant submits that she has successfully met this threshold through the evidence she has placed before the court. 16.On the issue of proof, the Applicant invokes Section 107(1) of the Evidence Act, which places the burden of proof on the party asserting the existence of particular facts. She submits that she has discharged this burden by producing documentary evidence demonstrating fraud and concealment. In particular, she refers to exhibits marked RMK-2(a-c), comprising the disputed consent, a police OB extract, and the forensic report on the signature. She urges that these documents conclusively establish that the consent relied upon by the Respondent was forged and that the grant was consequently obtained fraudulently. 17.The Applicant therefore maintains that she has satisfied the requirements under Section 76 of the Law of Succession Act and established a valid basis for revocation of both the grant and certificate of confirmation. She contends that the evidence of fraud, concealment and procedural irregularity warrants the court’s intervention. 18.In addition to the forgery allegations, the Applicant raises a separate issue concerning parcels of land identified as NDALANI/NDALANI BLOCK 1/553, 1/555, and 1/556. She submits that these properties were wrongly included as part of the deceased’s estate despite belonging to her personally. According to the Applicant, the deceased gifted the parcels to her before his death in 1990 and they were duly transferred and registered in her name. 19.She further states that she subdivided and sold portions of the land between 2000 and 2006 to third parties, who have since developed the properties. Consequently, she maintains that these parcels could not lawfully form part of the estate available for distribution. She relies on the settled principle that property not registered in the name of a deceased person at the time of death cannot constitute part of the deceased’s estate. On this basis, she argues that the Respondent knowingly misled the court by presenting her private property as estate property, thereby abusing the probate process. 20.To support this position, the Applicant relies on Re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR, which underscores that property registered in a third party’s name should not be treated as part of the deceased’s estate. The Applicant further submits that despite being aware of the prior transfers, that the Respondent included the properties in the certificate of confirmation of grant and subsequently filed multiple suits before the Environment and Land Court seeking the eviction of purchasers who had lawfully acquired the land. 21.She characterizes this conduct as evidence of bad faith, abuse of process, and misuse of the confirmed grant to perpetuate injustice against both herself and innocent third parties who acquired interests in the land. The Applicant argues that a fraudulent grant cannot confer lawful rights and that succession proceedings must be conducted transparently, fairly, and in a manner that protects beneficiaries and innocent third parties. She contends that allowing the impugned grant to stand would sanction fraud, encourage abuse of court process, and prejudice innocent purchasers. In her view, revocation is necessary to restore legality, fairness, and confidence in the probate process. 22.In conclusion, the Applicant submits that she has established sufficient grounds under Section 76 of the Law of Succession Act to warrant revocation of both the Grant of Letters of Administration and the Certificate of Confirmation of Grant issued on 16th October, 2023. She therefore prays that the Court revokes and annuls the grant, nullifies the certificate of confirmation, and directs that a fresh succession process be undertaken with the participation of all beneficiaries and full disclosure of all relevant facts.Respondent’s submissions 23.The Respondents/Administrator submits that the Applicant’s objection is primarily grounded on the allegation that the three parcels of land included in the estate do not belong to the deceased, but to her. He contends that this assertion remains unproven and is vigorously disputed. According to the Respondent, the Applicant’s claim is based on a letter allegedly written by the deceased on 1st January, 1990, through which she asserts that the deceased gifted or bequeathed the parcels of land to her. He argues that the alleged letter is incapable of conferring proprietary rights and cannot justify of the revocation of grant that has existed for nearly thirty years. 24.The Respondent further submits that the letter dated 1st January, 1990, is neither witnessed nor supported by evidence demonstrating that the deceased intended it to operate as a valid testamentary instrument. He points out that neither the deceased’s widow, who is now deceased, the surviving sisters, Rose and Esther, nor any other family members witnessed or had knowledge of the document. Additionally, he argues that even the translated version of the letter does not specifically identify the three parcels of land claimed by the Applicant. 25.In his view, had the properties truly been gifted or bequeathed to the Applicant in 1990, both family members and Matungulu Ranch would have been aware of the transfer. He further contends that the Applicant’s reliance on a letter from Matungulu Ranch dated 21st February, 2024, is misplaced. To the contrary, he has produced earlier correspondence from the same entity dated 3rd January, 2014, and 11th June, 2014, indicating that the three parcels were still registered in the deceased’s name and formed part of the deceased’s estate at the time of distribution. He argues that these documents directly contradict the Applicant’s claims that the parcels had been transferred to her prior to the deceased’s death. 26.The Respondent maintains that a mere letter cannot operate as either a valid will or a completed gift. He submits that a valid gift inter vivos must be perfected during the donor’s lifetime through compliance with all requisite legal processes, including transfer of title and possession. According to him, the Applicant has not demonstrated that any transfer of the three parcels was effected during the deceased’s lifetime. Consequently, even if the letter existed, it did not confer ownership rights capable of excluding the properties from the estate. He therefore contends that the alleged gift remained incomplete and legally ineffective. 27.The Respondent further accuses the Applicant of intermeddling with the estate contrary to Section 45 of the Law of Succession Act. He points to her admission that she sold the three parcels to third parties on the strength of the alleged 1990 letter without first obtaining letters of administration or any grant authorizing her to deal with estate property. In his view, such conduct constitutes unlawful intermeddling with a deceased person’s estate and disentitles the Applicant from the equitable relief she now seeks. He argues that, had the Applicant genuinely believed the properties had been gifted to her, she ought to have petitioned for a grant and sought judicial confirmation of her entitlement rather than dispose of the properties unilaterally. 28.With regard to the allegations of fraud, concealment and misrepresentation, the Respondent submits that these serious claims cannot be conclusively determined on the basis of conflicting affidavits alone. He states that the estate was distributed pursuant to a family consent duly signed and filed by all family members, including the deceased’s widow and siblings. He therefore rejects the Applicant’s assertion that she was excluded from the proceedings and maintains that the succession process was conducted openly with family participation. 29.The Respondent also challenges the credibility of the Applicant’s claim that she was unaware of the succession proceedings for thirty years. He argues that the Applicant cannot, on the one hand, claim to be a beneficiary of three parcels allegedly gifted by the deceased and, on the other, assert ignorance of the administration of the estate. In his view, a genuine beneficiary would have taken steps to safeguard her interests by participating in the succession proceedings or even initiating them herself. He submits that her prolonged inaction undermines the credibility of her allegations. 30.The Respondent further contends that the allegations of concealment are unfounded, as all family members, including the deceased’s widow and daughters, executed consents authorizing the administration and distribution of the estate. He notes that some of these individuals have since passed away, making it difficult to verify events that occurred decades ago. 31.A central aspect of his argument concerns the inordinate delay in bringing the application. He submits that the Applicant has failed to provide any satisfactory explanation for waiting approximately thirty years before challenging the grant. Invoking the equitable principle that equity does not aid the indolent and argues that it would be unjust to reopen the matter after such a prolonged lapse of time. He further contends that reopening the matter would occasion substantial prejudice given that key beneficiaries and witnesses have died and relevant documents may no longer be available. 32.The Respondent therefore urges the Court to uphold the principle of finality in litigation. He submits that succession disputes must come to an end, particularly where the family had already reached consensus through a consent that formed the basis of the distribution. Reopening the proceedings after thirty years would, in his view, undermine certainty and fairness in succession matters. 33.He further argues that the Applicant has failed to meet the threshold for revocation of a grant. In his assessment, the combined effect of the thirty year delay, the alleged intermeddling with estate property, and the lack of credible evidence of fraud or concealment militates against the exercise of the court’s discretion in her favour. He therefore urges the Court to dismiss the application in its entirety. 34.The Respondent relies on Estate of Gideon Manthi Nzioka (2015) KLR to support the proposition that a valid gift of land requires the donor to divest himself of ownership through proper legal instruments during his lifetime. Similarly, a valid will must comply with the legal requirements governing testamentary dispositions. The Respondent argues that the letter dated 1st January, 1990, satisfies neither requirement and therefore, cannot be relied upon to establish ownership of the three parcels or to justify reopening the succession proceedings after three decades. On that basis, he prays that the application for revocation of grant be dismissed with costs. Analysis and Determination 35.I have carefully considered the summons application herein, the affidavits filed by parties and the submissions placed before the Court. In my view, the following issues arise for determination;a.Whether the Applicant has established grounds for revocation of the confirmed grant under Section 76 of the Law of Succession Act.b.Whether the parcels known as Ndalani/Ndalani Block 1/553, 555 and 556 properly formed part of the deceased's estate available for distribution.c.Whether the delay in bringing the present application disentitles the Applicant from relief. Whether the Applicant has established grounds for revocation of the confirmed grant under Section 76 of the Law of Succession Act. 36.The application before this Court is one for revocation of a grant. Section 76 of the Law of Succession Act provides for revocation or annulment of grant 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 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 casec.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 inadvertentlyd.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. 37.Section 76 of the Law of Succession Act empowers the court to revoke or annul a grant at any time where, inter alia, it was obtained fraudulently or through the concealment of material facts; where the administrator has failed, after due notice, to apply for confirmation or to proceed diligently with the administration of the estate; the administrator has failed to render accounts as required or the grant has become useless or inoperative through subsequent circumstances. The duty of full and candid disclosure is central to succession proceedings. The burden therefore rests upon the Applicant to demonstrate existence of any of the statutory grounds warranting revocation of the grant issued herein. 38.The Applicant's complaint is twofold. First, she contends that she never participated in the succession proceedings. Secondly, she asserts that a consent attributed to her was forged and subsequently used to facilitate the administration and eventual distribution of the estate. The Respondent, on the other hand, maintains that all beneficiaries participated in the proceedings and contends that the Applicant has only resurfaced after many years due to disputes involving third-party purchasers. He further asserts that the Applicant had long been married and settled elsewhere and therefore lacked entitlement to the disputed properties. 39.This Court is unable to agree with the Respondent's position. 40.The issue before this Court is not whether the Applicant was married, whether she owned land elsewhere, or whether she was on good terms with her family. The central question is whether she was a beneficiary entitled to disclosure and participation in the administration of her father's estate. Under the Law of Succession Act, daughters enjoy equal status with sons in succession matters. The fact of marriage does not in itself, extinguish a daughter's entitlement to participate in succession proceedings relating to her parent's estate. Courts have consistently rejected discrimination based on gender or marital status. Consequently, if the Applicant was omitted from the process or if documents purporting to bear her consent were not genuinely executed by her, such circumstance would amount to material non-disclosure sufficient to invoke Section 76. 41.Turning to the evidence concerning the alleged consent, which lies at the heart of the present dispute, the Applicant produced a forensic document examination report prepared after comparison of the disputed signature appearing on the consent document with her known and specimen signatures. According to the report, the questioned signature was not authored by the Applicant and significant dissimilarities were identified between the disputed signature and her known signatures. The Applicant also exhibited a police report made upon discovery of the alleged forgery. 42.Of particular significant is the fact that the Respondent did not place before the court any competing expert evidence to challenge the findings of the document examiner. Neither did he procure an independent forensic examination to rebut the Applicant's evidence. Instead, the Respondent merely asserted that all beneficiaries participated and that the requisite consents were duly obtained. 43.While this Court appreciates that expert evidence is not binding and must be weighed against the totality of the evidence, uncontroverted expert evidence cannot be disregarded without cogent and compelling reasons. Having carefully examined the material placed before it, this Court finds no evidentiary basis upon which forensic conclusions can be displaced. The Respondent's bare denial is insufficient to controvert the scientific evidence presented by the Applicant and does not discharge the evidentiary burden required to rebut it. 44.Further, this Court notes that the Applicant's complaint regarding forgery is not an afterthought. Upon becoming aware of the succession proceedings, she reported the matter to the police and subsequently procured expert examination of the disputed signature. Her conduct is therefore consistent with that of a person disputing the authenticity of a document rather than one who knowingly participated in the process. 45.I am therefore persuaded, on a balance of probabilities, that serious doubt has been cast upon the authenticity of the consent relied upon in the succession proceedings. The evidence before Court points more convincingly to the conclusion that the Applicant did not execute the consent attributed to her. Once the authenticity of that consent is successfully impeached, the very foundation upon which this Court was led to believe, that all beneficiaries had consented, is substantially weakened. 46.In the circumstances, I find that the Applicant has established the concealment of material facts and use of an untrue allegation regarding beneficiary consent within the meaning of Section 76 of the Act. This Court is therefore satisfied that sufficient grounds have been demonstrated to warrant the intervention of the Court by way of revocation of the grant. Whether parcels NDALANI/NDALANI BLOCK 1/553, 555 and 556 formed part of the deceased's estate 47.The Applicant further contends that the disputed parcels did not form part of the deceased's free property, on the basis that the deceased had allegedly allocated them to her during his lifetime. In support of this assertion, she produced a handwritten letter purportedly authored by the deceased in 1990 together with a translation thereof. The Respondent challenges both the authenticity and legal effect of that document, contending that it constitutes neither a valid will nor evidence of a transfer of ownership. He further relied on correspondence from Matungulu Yatta Ranching Company, indicating that as late as 2014, the parcels remained registered in the name of the deceased and that title processing was being undertaken pursuant to succession proceedings. 48.I have carefully considered the rival positions. In my view, the evidence presently before this Court is insufficient to conclusively determine that the deceased validly transferred ownership of parcels Ndalani/Ndalani Block 1/553, 555 and 556, to the Applicant during his lifetime. The alleged handwritten letter raises significant evidentiary and legal questions that would require interrogation than is possible within the confines of the present revocation proceedings. Moreover, I am not satisfied that the letter meets the formal requirements of a written will under Section 11 of the Law of Succession Act. 49.Accordingly, I am unable to make a definitive finding that ownership of the parcels vested in the Applicant prior to the deceased's death. However, that issue is not determinative of the present application. The central question is not whether the Applicant has conclusively proved ownership of the parcels, but whether the grant was obtained and confirmed on the basis of full disclosure and with the participation by all beneficiaries. Even if the Applicant's claim to exclusive ownership were ultimately to fail, she nevertheless remained a beneficiary entitled to be notified of, and to participate in, proceedings concerning assets alleged to form part of the estate. 50.In that regard, the uncertainty surrounding ownership of the parcels underscores the necessity of an inclusive, transparent, and procedurally fair succession process, in which all persons with a legitimate interest are afforded an opportunity to be heard. Whether the delay in bringing the present application disentitles the Applicant from relief 51.The Respondent argues that the matter has existed for approximately twenty five years and ought not to be reopened. While this Court appreciates the importance of finality in succession proceedings, and estates should not remain perpetually indefinitely unsettled, the law is equally clear that fraud vitiates everything. Where a party demonstrates that a grant was obtained through concealment of material facts or through forged documentation, lapse of time alone cannot sanitize or cure such a defect. 52.Notably, this Court also observes that the confirmation of grant was only undertaken in October 2023. The Applicant asserts that she became aware of the proceedings thereafter and moved the Court with reasonably promptitude upon discovery. Most importantly, Section 76 of the Law of Succession does not impose a limitation period for application for revocation founded on fraud, concealment or procedural impropriety. 53.In the premises, the Court finds that in the particular circumstances of this case, delay alone does not constitute a sufficient basis for denying the Applicant the relief sought. 54.Accordingly, and for the foregoing reasons, I make the following orders;a.The certificate of confirmation of grant issued on 16th October, 2023, is hereby revoked and set aside.b.All consequential transmissions, registrations and dealings undertaken pursuant to the revoked certificate of confirmation of grant are hereby vacated, and any further dealings thereon are stayed pending fresh administration of the estate.c.The Respondent/Administrator shall within forty-five (45) days, file a fresh summons for confirmation of grant, supported by full disclosure of all beneficiaries and all assets alleged to comprise the estate.d.This being a family dispute concerning the estate of a deceased person, each party shall bear their own costs. 55.Orders accordingly DELIVERED, DATED AND SIGNED VIRTUALLY THIS 12TH DAY OF JUNE, 2026RHODA RUTTOJUDGEIn the presence of;Court Assistant: SelinaNo appearance by the parties