https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6654

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI FAMILY DIVISION SUCCESSION CAUSE NO. 1657 OF 2011 IN THE MATTER THE ESTATE OF PETER MWIKYA KAKENYI ALIAS MWIKYA KAKENYI ALIAS PETER KAKENYI ALIAS BRIG. PETER KAKENYI ALIAS BRIG. PETER RAYMOND KAKENYI (DECEASED) THOMAS KAKENYI ...…………………………………….. 1ST APPLICANT GLORIA MUTHIO KIILU ………………………………… 2ND APPLICANT ANGELLINA MUENI MBAABU………………………….. 3RD APPLICANT CLEMENT MUTHEU LAUKS……………………………… 4TH APPLICANT SALOME MWIKALI MUTHIANI………………………… 5TH APPLICANT VERSUS JOSEPH MUOKI KAKENYI ……………………………. 1ST RESPONDENT SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 1 of 41 po/ hkc ANNUOUNCEATAH MARITIA KITETA …………….. 2ND RESPONDENT MATTHEW MWEU KAKENYI …………………………. 3RD RESPONDENT CONSOLIDATED RULING 1. This ruling relates to the applications dated 6th May, 2024 and 9th June, 2025. APPLICATION DATED 6 TH MAY, 2024 : 2. The application dated 6th May, 2024 filed by the Applicants, Thomas Kakenyi, Gloria Muthio Kiilu, Angellina Mueni Mbaabu, Clement Kakenyi, Lucy Mutheu Lauks and Salome Mwikali Muthiani through the firm of Kamende D. C. & Company Advocates, which is on record for the 1st and 2nd Respondents; seeks for ORDERS THAT: 1. The Amended Certificate of Confirmation of Grant Further rectified on 11th September, 2019 and again further rectified on 28th July, 2020 be revoked. 2. The costs of this application be costs be provided for. 3. The application is based on the grounds thereof and supported by affidavit sworn by Annoceatah Maritia Kiteta and Joseph Muoki Kakenyi on 6th May, 2024 and filed by the firm of Kamende D. C. & Company Advocates, which is on record for the 1st and 2nd Respondents. SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 2 of 41 po/ hkc 4. They aver inter alia that they are beneficiaries of the deceased’s estate while the Respondents, Joseph Muoki Kakenyi and Annonceatah Marita Kiteta, are the Administrators. 5. They depose that the deceased died on 27th April, 2011 and those letters of administration were issued to the Respondents on 30th January, 2012. They further state that the grant was confirmed on 5th November, 2014 and rectified on 10th February, 2015, 10th June, 2015, 11th September, 2019 and 28th July, 2020. 6. The Applicants contend that the rectifications undertaken in September 2019 and July 2020 were carried out irregularly, fraudulently and without the knowledge, participation or consent of several beneficiaries. 7. They aver that upon perusal of the court file, the Administrators discovered that the firm of M/S Bitala & Kakinga Advocates had purportedly filed two applications for amendment of the Certificate of Confirmation of Grant dated 27th August, 2019 and 20th July, 2020 without their authority or consent. They state that copies of the said applications and the amended certificates of confirmation were annexed to the application as exhibits. 8. The Applicants further allege that beneficiaries such as Benedicta Kivela Kakenyi, Bridget Mbatha Kakenyi and Caroline Maria Katiti were omitted from the distribution schedule and that certain assets were transferred to SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 3 of 41 po/ hkc Matthew Mweu Kakenyi and Jacqueline Kivela Kakenyi to the exclusion of other dependants. 9. They also claim that signatures appearing on some court documents were forged and that investigations have since been commenced by the relevant authorities. They therefore urge the court to revoke the rectified certificate of confirmation of grant. 10. The annexures attached to the affidavit consist largely of the death certificate of the deceased, the original grant of letters of administration, several certificates of confirmation and rectification of grant, title deeds, deed plans and schedules of property distribution. 11. The death certificate confirms that the deceased died at Nairobi Hospital on 27th April, 2011. The grant issued on 30th January, 2012 appointed Joseph Muoki Kakenyi, Mathew Mweu Kakenyi (deceased) and Annonceatah Marita Kiteta as Administrators of the estate. The confirmed grant and subsequent rectifications contain extensive schedules of distribution allocating numerous parcels of land situated in Machakos, Athi River, Kangundo and other locations among the beneficiaries. The schedules also include motor vehicles, livestock, shares, bank accounts and pending legal fees. Various title deeds annexed to the application show that several subdivisions in Mavoko Municipality and Athi River were subsequently transferred into the names of individual beneficiaries pursuant to the rectified grant. SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 4 of 41 po/ hkc 12. The deed plans attached to the application correspond to the subdivided parcels and appear intended to demonstrate that the estate properties had already been partitioned and transmitted. The annexures further demonstrate that the estate was extensive and comprised multiple subdivisions carved out of larger parcels. 13. The rectified certificates of confirmation distributed properties to various beneficiaries absolutely, while some assets such as specific parcels of land, shares, livestock and proceeds from litigation were to be shared equally among all beneficiaries. Certain parcels appear to have been transferred jointly to more than one beneficiary, while others were assigned individually. 14. The Applicants’ grievance, as reflected from both the affidavit and annexures, is that the rectification process fundamentally altered the mode of distribution and resulted in the registration of titles in favour of some beneficiaries without the consent or involvement of others. The numerous title documents and deed plans annexed to the application are relied upon to demonstrate that the impugned rectifications were already implemented on the ground through registration and transmission processes, thereby necessitating court intervention to safeguard the integrity of the administration process and protect the interests of the excluded beneficiaries. SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 5 of 41 po/ hkc 15. The application is opposed vide notice of preliminary objection and grounds of opposition dated 30th September, 2025. 16. The notice of preliminary objection is filed by the Applicants, Thomas Kakenyi, Gloria Muthio Kiilu, Angellina Mueni Mbaabu, Clement Kakenyi, Lucy Mutheu Lauks and Salome Mwikali Muthiani through the firm of Bitala & Kakinga Advocates, which is on record for the Applicants. 17. It is based on the grounds that the application dated 6th May, 2024 is incompetent and legally defective because it improperly seeks revocation of a Certificate of Confirmation of Grant under Section 76 of the Law of Succession Act, whereas a certificate of confirmation is merely a court order issued under Section 71 and is not itself a grant capable of revocation. 18. They further argue that both the application and supporting affidavit contravene Order 19 Rule 3 (1) of the Civil Procedure Rules, rendering them incurably defective. Consequently, they maintain that the application is frivolous, vexatious and an abuse of the court process, aimed at delaying and obstructing the hearing of the pending amended summons for revocation dated 18th April, 2024. 19. Vide the grounds of opposition, the Applicants oppose the Respondents’ application dated 6th May, 2024 on the ground that it is devoid of merit, legally unsustainable and incurably defective. They contend that the Respondents, despite being Administrators of the estate, have alleged SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 6 of 41 po/ hkc fraud without candidly disclosing material facts concerning the distribution and transfer of estate properties. 20. In particular, they state that property known as Machakos Town/Block 11/363 had been allocated to the Respondents as Administrators and that the 1st Respondent had personally benefited from the estate through allocation of Land Title No. Matungulu/Katine LR No. 2188, yet failed to explain the circumstances under which he obtained the said property or how it was subsequently dealt with. 21. The Applicants further aver that the Respondents deliberately failed to disclose that some of the persons alleged not to be beneficiaries were in fact close relatives who had assisted the deceased in acquiring the estate properties, including Brigit Mbatha Kakenyi, who is described as the widow of the 1st Respondent’s deceased brother. 22. They also fault the Respondents for failing to join persons in whose names properties had already been transferred, thereby denying them an opportunity to explain the circumstances surrounding their acquisition of the properties. 23. The allegations of fraud levelled against the firm of Bitala & Kakinga Advocates are described as baseless, with the Applicants asserting that the law firm was never allocated any property under the distribution schedule. The Applicants maintain that the Respondents participated fully in the court proceedings relating to the amendments and rectifications of SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 7 of 41 po/ hkc the certificate of confirmation of grant and therefore cannot now deny knowledge of the process or allege forgery. 24. They argue that the Respondents failed to raise substantive objections to the actual mode of distribution and instead improperly sought revocation of the amended certificates of confirmation. According to the Applicants, the court could not have amended the certificates without the Administrators’ participation and attendance during the proceedings. 25. They further contend that the application is incompetent because it was brought under Section 76 of the Law of Succession Act, which concerns revocation of grants rather than certificates of confirmation of grant. 26. Additionally, the Applicants assert that the Respondents improperly presented themselves as Respondents rather than Applicants in their own application despite being Administrators and sworn Respondents in the succession cause, thereby creating a procedural irregularity and abusing the court process. 27. They accuse the Respondents of misleading the court by challenging transactions from which they had benefited and by feigning ignorance despite allegedly consenting to the amendments. 28. The Applicants conclude that the Respondents have acted out of personal interest rather than in the best interests of the estate and that the application is frivolous, defective and brought with unclean hands. SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 8 of 41 po/ hkc APPLICATION DATED 9 TH JUNE, 2025 29. The application dated 9th June, 2025 filed by the Applicants, Joseph Muoki Kakenyi, Mathew Maweu Kakenyi (Deceased) and Annoceatah Mariita Kiteta seeks for ORDERS THAT: 1. Spent. 2. The Administrators’ Summons for Revocation of Grant dated 6th May, 2024 be deemed unopposed and be allowed accordingly. 3. In the alternative, this Honourable Court be pleased to direct that: a) The instant application be consolidated into and heard together with the Administrators’ Summons for Revocation of Grant dated 6th May, 2024; b) The Administrators’ Summons for Revocation of Grant dated 6th May, 2024 be heard in priority to the Respondents’ amended application dated 18th April, 2024 and that further proceedings relating to the Respondents’ amended application dated 18th April, 2024 be accordingly stayed. 4. This Honourable Court be pleased to find that the actions of M/s Bitala & Kakinga Advocates, in filing the applications dated 27th August, 2019 and 20th July, 2020, in the names of the Administrators SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 9 of 41 po/ hkc without their consent or signatures, constituted fraud on the court file and amounts to contempt of Court. 5. This Honourable Court be pleased to issue Summons to Mr. John J. Kakinga Advocate to appear in Court and show cause why he should not be punished for contempt with respect to his actions in filing the applications dated 27th August, 2019 and 20th July, 2020 and the said advocate be punished accordingly. 6. The costs of this application be provided for. 30. The application is based on the grounds thereof and supported by affidavit sworn by Joseph Muoki Kakenyi and Annoceatah Maritia Kiteta on 9th June, 2025. 31. They aver inter alia that they are the duly appointed Administrators of the deceased’s estate and that they previously filed a Summons for Revocation of Grant dated 6th May, 2024, which had not yet been subjected to directions. They state that although the application was duly served upon the firm of Bitala & Kakinga Advocates, no response or opposition had been filed. 32. They further aver that they later discovered what they describe as a grave fraud perpetrated upon the court through the filing of applications for rectification dated 27th August, 2019 and 20th July, 2020 without their knowledge, authority or consent, thereby misleading the court into issuing orders it would otherwise not have granted. SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 10 of 41 po/ hkc 33. According to the Administrators, the actions of the said advocate undermined the integrity of the court process and amounted to contempt of court. The Administrators contend that the Respondents’ application dated 18th April, 2024 seeks to hold them accountable for the administration of the estate and therefore their own application for revocation ought to be heard first and accorded priority. 34. They maintain that because allegations of forgery and fraud have been raised regarding documents filed in court, those issues should be determined at the outset in order to preserve the integrity of the judicial process. They further state that the matters raised are serious in nature and disclose that the Advocates Disciplinary Tribunal had already taken up the complaint against Mr. John J. Kakinga Advocate, who had been summoned to take plea before the Advocates Disciplinary Committee on 24th June, 2025. 35. In support of this assertion, they annexed a letter from the Law Society of Kenya notifying the advocate of the disciplinary proceedings and requiring his attendance virtually before the disciplinary committee. 36. The Administrators further depose that unless the application is heard urgently and the orders sought are granted, the estate stands to suffer irreparable loss and prejudice as a result of the alleged fraudulent actions. They therefore urge the court to intervene in the interests of justice by granting the orders sought in the application. SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 11 of 41 po/ hkc 37. The application is opposed vide grounds of opposition dated 30th September, 2025 on the grounds that it is frivolous, incompetent and legally defective. They argue that the application improperly includes Mathew Maweu Kakenyi, who is deceased, as a party and therefore amounts to an abuse of the court process. 38. They further contend that the Applicants’ request for the application to be heard in priority to the Respondents’ amended summons dated 18th April, 2024 is untenable because the latter application was filed earlier and should therefore take precedence in the absence of special circumstances justifying deviation from the ordinary rule of priority. 39. The Respondents also assert that the Applicants’ application is already overtaken by events and has effectively been subsumed by the Respondents’ earlier application. The Respondents additionally object to the prayers seeking contempt proceedings against their advocate, arguing that the application does not disclose the existence of any court order that was disobeyed. They maintain that contempt proceedings can only arise where there is proof of a valid court order, knowledge of the order and deliberate disobedience, none of which has been demonstrated. 40. They further contend that the allegations of fraud arising from the applications dated 27th August, 2019 and 20th July, 2020 are repetitive and had already been raised in the Applicants’ earlier application dated 6th May, 2024, which SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 12 of 41 po/ hkc the Applicants had never prosecuted or fixed for hearing. The Respondents accuse the Applicants of bringing the application maliciously with the intention of frustrating and delaying the hearing of the Respondents’ application dated 18th April, 2024. 41. They also allege that the Applicants have failed in their duties as Administrators and are seeking to divert attention from the Respondents’ efforts to remove them as Administrators due to alleged irregularities and illegalities committed in the administration of the estate. 42. Further, the Respondents argue that the two applications cannot properly be consolidated because they concern distinct causes of action, one relating to revocation of a certificate of confirmation of grant and the other relating to revocation of the grant itself. 43. The Respondents finally state that they have already filed a preliminary objection challenging the application and therefore the prayer for consolidation cannot stand pending determination of the objection. They maintain that the application lacks merit, was brought in bad faith and is intended to waste judicial time, and they accordingly pray that it be dismissed with costs. 44. The Applicants, Thomas Kakenyi, Gloria Muthio Kiilu, Angellina Mueni Mbaabu, Clement Kakenyi, Lucy Mutheu Lauks and Salome Mwikali Muthiani have filed written submissions dated 9th December, 2025 in support of their preliminary objection and grounds of opposition dated 30th SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 13 of 41 po/ hkc September, 2025 and in response to the Respondents’ applications dated 6th May, 2024 and 9th June, 2025. 45. They argue that the conduct of the Respondents/Administrators demonstrates a consistent pattern of delay and abuse of the court process, contending that each time the Applicants’ amended summons dated 18th April, 2024 is scheduled for hearing, the Respondents introduce fresh applications intended to frustrate and postpone the determination of the substantive dispute concerning the estate. They submit that the application dated 6th May, 2024 is incompetent and contrary to Section 76 of the Law of Succession Act because the provision only permits revocation or annulment of grants and not certificates of confirmation of grant. They maintain that a certificate of confirmation is merely a court order issued under Section 71 of the Act and therefore cannot be revoked through proceedings brought under Section 76. 46. In support of this argument, they rely on authorities including In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR), In re Estate of Samuel Kariuki Kiragu (Deceased) [2023] KEHC 26573 (KLR) and In re Estate of Kiberenge Mukwa (Deceased) [2021] KEHC 1392 (KLR), which they interpret as holding that grievances relating to confirmation of grant should be pursued through review, appeal or applications to set aside confirmation orders rather than revocation proceedings under Section 76. They further argue that it is contradictory SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 14 of 41 po/ hkc for the Respondents, who are themselves Administrators and beneficiaries under the grant, to seek revocation of the same grant issued in their favour. 47. The Applicants further contend that the application dated 6th May, 2024 is incurably defective because it cites the beneficiaries as Applicants while being supported by an affidavit sworn by the Respondents/Administrators. They argue that the affidavit creates a fatal contradiction because one party cannot depose an affidavit on behalf of another without express authority. 48. Relying on Order 19 Rule 3 (1) of the Civil Procedure Rules and Rule 63 of the Probate and Administration Rules, they submit that affidavits must contain facts within the deponent’s personal knowledge and be sworn by the proper applicant or authorised representative. They further submit that the defect is substantive and cannot be cured under Article 159 of the Constitution, relying on the decision in Simba v Tulu [2025] KEHC 14130 (KLR), where defective affidavits that failed to comply with statutory requirements were struck out. 49. The Applicants argue that the Respondents’ application dated 9th June, 2025 lacks merit and should be dismissed. They maintain that the application dated 18th April, 2024 was filed earlier and raises substantive complaints relating to concealment, maladministration and misuse of estate property and therefore ought to take precedence. SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 15 of 41 po/ hkc 50. They oppose the prayer for consolidation, arguing that the two applications have no sufficient nexus and that consolidation would only serve to delay the hearing and determination of the earlier application, which has been pending for 5 years now. 51. They further submit that the Respondents’ application for contempt against the Applicants’ advocate is unsustainable because no evidence has been presented of any court order that was disobeyed. According to the Applicants, the repeated applications filed by the Respondents are intended solely to delay the hearing and final determination of the amended summons for revocation of grant. They therefore pray that the preliminary objection be upheld, the Respondents’ applications dated 6th May, 2024 and 9th June, 2025 be dismissed with costs, and the Applicants’ amended summons dated 18th April, 2024 be fixed for hearing and final determination. 52. The Respondents/ Administrators have not filed written submissions. 53. The applications dated 27th August, 2019, 20th July, 2020 and 18th April, 2024 are mentioned adversely by both parties. It is necessary to glean through them so as to appreciate their tenor and effect on the instant proceedings. APPLICATION DATED 27 TH AUGUST, 2019 : 54. The application dated 27th August, 2019 filed by the Applicants Joseph Muoki Kakenyi, Mathew Maweu Kakenyi SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 16 of 41 po/ hkc (deceased) and Annoceatah Maritia Kiteta sought for orders that the Certificate of Confirmation of Grant issued on the 5th day of November, 2014 and further rectified on the 4th day of June, 2015 be amended and/or further rectified as stated in the Amended Schedule under Paragraph 9 of the Supporting Affidavit to this application and that this Honourable court does proceed to issue a further amended Certificate of Confirmation of grant. 55. The application was based on the grounds on its face thereof and supported by affidavit sworn by Joseph Muoki Kakenyi, Mathew Maweu Kakenyi (deceased) and Annoceatah Maritia Kiteta on 27th August, 2019. They averred that they are the Administrators of the deceased’s estate and that the grant of letters of administration was issued on 30th January, 2012 and later confirmed on 5th November, 2014. 56. According to the affidavit, certain estate properties were either omitted from the Certificate of Confirmation of Grant or inaccurately described due to the absence of original title documents at the time of confirmation. They contended that the errors affected the proper identification and transfer of the affected parcels to the intended beneficiaries. 57. The Administrators explained that one of the estate properties had not been included in the confirmed grant and that they wished the same to be incorporated and distributed equally among beneficiaries. SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 17 of 41 po/ hkc 58. They further deposed that the particulars relating to two properties allocated to Mathew Mweu Kakenyi (deceased) and Caroline Musau were either improperly described or inaccurately captured in the certificate of confirmation of grant. The affidavit indicates that the discrepancies between the particulars appearing in the confirmed grant and those contained in the original title documents rendered the transfer process difficult or impossible. 59. Under the existing mode of distribution, Mathew Mweu Kakenyi (deceased) had been allocated a parcel described as Machakos/Kyumbi Area Block, while Caroline Musau had been allocated a purchased plot in Machakos/Kyumbi Area Block. Angellina Mueni Mbaabu and Gloria Muthio Keli Kiilu had also been allocated portions of Matungulu/Katine L.R No. 2188 absolutely. 60. However, the Administrators proposed that the properties be rectified and accurately described in accordance with the original title documents. 61. In the amended schedule, Mathew Mweu Kakenyi (deceased) was to receive Land Title No. Athi River/Athi River Block 1/3955 absolutely, while Caroline Musau was to receive Land Title No. Athi River/Athi River/3963 absolutely. 62. The deponents further proposed that Machakos Town/Block 11/363 be allocated jointly to themselves, Joseph Muoki Kakenyi, Mathew Mweu Kakenyi (deceased) and Annouceatah Maritia Kiteta, to be sold and the proceeds shared equally among the named beneficiaries. SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 18 of 41 po/ hkc 63. They additionally sought that Matungulu/Katine L.R No. 2188 be allocated absolutely to Joseph Muoki Kakenyi as his share in the estate instead of the earlier arrangement reflected in the confirmed grant. The affidavit concludes by stating that all beneficiaries had consented to the revised mode of distribution. 64. This application was allowed by Hon. Musyoka J. on 11th September, 2019 and a further rectified certificate of confirmation of grant issued to which no review or appeal has been preferred. APPLICATION DATED 20 TH JULY, 2020 65. The application dated 20th July, 2020 filed by the Applicants Joseph Muoki Kakenyi, Mathew Maweu Kakenyi (deceased) and Annoceatah Maritia Kiteta sought for orders that the Certificate of Confirmation of Grant issued on the 5th day of November, 2014 and further rectified on the 11th day of September, 2019 be amended and/or further rectified as stated in the Amended Schedule under Paragraph 7 of the Supporting Affidavit to the application and that this Honourable court does proceed to adopt the amendments in the attached amended Certificate of Confirmation of grant and consequently issue a further Amended Certificate of Confirmation reflecting the said amendments. 66. The application was based on the grounds thereof and supported by affidavit sworn by Joseph Muoki Kakenyi, SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 19 of 41 po/ hkc Mathew Maweu Kakenyi (deceased) and Annoceatah Maritia Kiteta on 20th July, 2020. 67. They averred that they are the Administrators of the deceased’s estate and are conversant with the facts surrounding the succession proceedings. They aver that the grant of letters of administration was issued to them on 30th January, 2012 and subsequently confirmed on 5th November, 2014. 68. Following the confirmation of the grant, they allegedly discovered that two estate properties, namely Machakos Town/Block 11/363 and Machakos Town/Block 11/364, had not been allocated to the person they considered the rightful beneficiary, thereby necessitating the filing of the application for rectification and amendment of the certificate of confirmation of grant. They explain that under the existing certificate of confirmation, the two properties had been earmarked for sale with the proceeds to be shared equally among several beneficiaries of the estate, including Annoceatah Maritia Kiteta, Salome Mwikali Muthiani, Angelina Mueni Mbaabu, Romana Katee Steffen, Thomas Kakenyi, Clement Munyao Kakenyi, Lucy Mutheu Lauks, Gloria Muthio Keli Kiilu, Veronica Mueni Kiteta and Veronica Maria Katiti. 69. According to them, the mode of distribution created practical difficulties and made it impossible to transfer the properties to what they considered the proper beneficiary. They therefore proposed that the properties be reallocated SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 20 of 41 po/ hkc exclusively to Benedicte Kivele Kakenyi as her absolute share in the estate in place of the earlier arrangement contained in the certificate of confirmation of grant. They accordingly sought rectification and amendment of the confirmed grant to reflect the revised distribution schedule vesting Machakos Town/Block 11/363 and Machakos Town/Block 11/364 solely in her name. 70. They asserted that all dependants of the deceased had consented to the revised mode of distribution, with the requisite consents filed in court. This application was allowed by Hon. Muchelule J. (as he then was) on 28th July, 2020 and a further rectified certificate of confirmation of grant issued to which no review, appeal amendment has been preferred nor sought. AMENDED APPLICATION DATED 18 TH APRIL, 2024 (ORIGINALLY DATED 24 TH MAY, 2021) 71. The amended application dated 18th April, 2024 (originally dated 24th May, 2021), filed by the Applicants, Thomas Kakenyi, Gloria Muthio Kiilu, Angellina Mueni Mbaabu, Clement Kakenyi, Lucy Mutheu Lauks and Salome Mwikali Muthiani seeks for ORDERS THAT: a) Spent. A1) The 3rd Respondent (Deceased) be struck off the proceedings herein. b) A temporary injunction be issued restraining the 1st & 2nd & 3rd Respondents either by SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 21 of 41 po/ hkc themselves or their agents from accessing, withdrawing and/or authorizing any payments of the rental income deposited on account No:01120415248100 Cooperative Bank Machakos Branch yielding from Nguangani Building pending the hearing and determination of this application inter-parties. c) The 1st & 2nd & 3rd Respondents be compelled to deliver in court an account of how the sum of Kshs.44,352,576 (Kenya Shillings Forty-Four Million Three Hundred and Fifty-Two Thousand Five Hundred and Seventy-Six cents) being the rental income yielding from Nguangani Building at a rate of Kshs.410,672.00 being the total rental income (Per Month) obtained by the tenants in the said property from the date of their appointment to date. d) The 2nd Respondent be compelled to deliver in court an account of the income obtained from the commercial leases for the billboards/posters erected by Unga Holdings Limited and Safaricom or their agents on the estate property being Machakos Town Block 11/280. e) The 1st & 2nd & 3rd & 4th Respondents be compelled to deliver in court the account statement for Bank Account No: 0112 0415248100 operated at the Cooperative Bank SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 22 of 41 po/ hkc Machakos Branch from the year 2012 to date where the rental income for Nguangani Building is deposited and further disclose any account where the said rental income is deposited. f) The Grant of Letters of Administration issued on the 30th day of February, 2012 be revoked and the said Administrators be removed. g) This Honourable Court be pleased to appoint GLORIA MUTHIO KIILU & THOMAS KAKENYI as the new legal representatives and/or Administrators of the Estate of the late Peter Mwikya Kakenyi alias Brig. Peter Kakenyi hence forth. h) A declaration that property Machakos Town Block 11/280 together with the building erected thereon registered under the company called Nguangani Company Limited belongs to the deceased estate. The same be added to the Certificate of Confirmation of Grant and shared as per the agreement of the beneficiaries. i) Costs of the application be borne by the Respondents. 72. The application is based on the grounds thereof and supported by affidavit, further affidavit and supplementary affidavit sworn by Thomas Kakenyi, Gloria Muthio Kiilu, Angellina Mueni Mbaabu and Clement Kakenyi and Gloria Muthio Kiilu on 19th May, 2021, 18th April, 2024 and 3rd November, 2021 respectively. SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 23 of 41 po/ hkc 73. They aver inter alia that that they are beneficiaries of the deceased’s estate and had authority from the 5th and 6th Applicants to swear the affidavit on behalf of all beneficiaries. They state that the 1st Respondent is their step-uncle, the 2nd Respondent their stepmother, the 3rd Respondent their brother and the 4th Respondent the manager of Nguangani Building situated on Machakos Town Block 11/280. 74. According to the Applicants, the 1st, 2nd and 3rd Respondents were appointed Administrators of the estate on 30th January, 2012 and had administered the estate for approximately 9 years. They allege that the Administrators concealed from the court the existence of Machakos Town Block 11/280 and the Nguangani Building erected thereon, which they claim belonged to the deceased and was registered under Nguangani Company Limited. 75. They further contend that the 1st, 2nd and 3rd Respondents irregularly appointed themselves directors of the company and allocated themselves shares in the company without the knowledge or consent of the other beneficiaries. They state that the Administrators had been collecting rental income from tenants occupying Nguangani Building through a Cooperative Bank account operated at Machakos Branch and had failed to render any account or inventory regarding the estate assets and liabilities despite their obligations as Administrators. SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 24 of 41 po/ hkc 76. They accused the Administrators of abusing and misusing their powers by misappropriating rental income generated from Nguangani Building for personal benefit over several years. The Applicants allege that rental income amounting to approximately Kshs.44,352,576.00 had never been declared or accounted for and that the Administrators had been receiving monthly rental income of approximately Kshs.410,672.00 from tenants in the building. 77. They further state that portions of the building, particularly the first floor previously used as lodging, had been abandoned and left in a dilapidated condition. Additionally, the Applicants complain that the 4th Respondent was appointed property manager without consultation and had denied them access to the premises unless authorised by the 2nd Respondent. 78. The Applicants further accuse the 1st Respondent of conflict of interest and maladministration by allegedly attempting to purchase Nguangani Building himself while serving as administrator, withholding original title documents, seeking to charge the property to secure loans, misleading beneficiaries regarding alleged legal fees owed by the estate, avoiding family meetings and circulating threatening messages regarding disputes over estate property. 79. Similar allegations are levelled against the 2nd Respondent, including failure to account for rental income, using estate income for personal benefit, refusing to reimburse the estate for occupation of estate property and authorising SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 25 of 41 po/ hkc commercial billboards and advertisements by companies such as Safaricom and Unga Holdings Limited without accounting for the income received. 80. The Applicants state that despite raising these concerns through correspondence dated 14th May, 2021, the Respondents failed to take corrective measures and instead continued utilising the estate property for personal gain. They therefore urge the court to intervene to prevent further wastage and misappropriation of estate assets, revoke the existing grant and protect the interests of the beneficiaries. 81. In the further supplementary affidavit sworn on 18th April, 2024, Gloria Muthio Kiilu states that following the death of one of the Administrators, Mathew Mweu Kakenyi, on 4th January, 2024 due to metastatic prostate cancer, the beneficiaries had effectively been left without adequate representation in the administration of the estate. She avers that the deceased administrator had represented the interests of the first family and that his death created apprehension that the remaining estate affairs and properties would not be properly safeguarded. 82. She therefore supports the amended application seeking revocation of the grant issued on 30th February, 2012 and the appointment of new Administrators to secure and protect the estate. She further states that the court has jurisdiction to revoke or amend the grant in light of the changed circumstances and the earlier consent for removal of Administrators filed on 17th February, 2023. SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 26 of 41 po/ hkc 83. She maintains that revocation and appointment of fresh Administrators is necessary to ensure fair administration and protection of the beneficiaries’ interests. The affidavit concludes with an authority to plead executed by several beneficiaries authorising Gloria M. Kiilu to swear affidavits, plead and sign documents on their behalf in the succession proceedings. 84. In the supplementary affidavit, the Applicants depose that pursuant to court orders issued on 19th October, 2021, they applied for certified copies of documents relating to Nguangani Company through their advocates and subsequently obtained a bundle of certified company records from the Registrar. They further state that the Respondents’ advocates were informed of these developments through correspondence dated 1st November, 2021 and 2nd November, 2021 and were requested to proceed with filing responses to the application dated 24th May, 2021, which was amended on 18th April, 2024. 85. They further aver that they discovered what they describe as a will or written instructions left by the deceased concerning the distribution and management of his estate. They contend that during a meeting allegedly held on 25th July, 2010, the deceased gave instructions regarding his properties and estate affairs, with the 1st Respondent acting as secretary and recording the deceased’s wishes. 86. According to the Applicants, the Respondents intentionally concealed these instructions from the court during the SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 27 of 41 po/ hkc succession proceedings. They accuse the 1st Respondent of individually interpreting and applying the deceased’s wishes for his personal benefit while retaining custody of the original document. The Applicants maintain that the discovery of the alleged will and company documents demonstrates that the grant of letters of administration issued on 30th January, 2012 was obtained through concealment of material facts and therefore ought to be revoked. 87. They argue that the Respondents failed to disclose to the court the existence of Nguangani Company Limited and the deceased’s instructions relating to the company and other estate properties. 88. They further allege that the 2nd Respondent unlawfully took possession of the Nairobi West house belonging to the estate without paying for it and without disclosing the whereabouts of the original title documents. The affidavit emphasizes that it would be fair and in the interests of justice for the court to uphold and enforce the wishes of the deceased as allegedly expressed in the handwritten instructions annexed to the affidavit. 89. The Applicants therefore urge the court to revoke the existing grant and appoint new Administrators to facilitate the proper administration and final distribution of the remaining estate in accordance with the deceased’s wishes. 90. The application is opposed vide replying affidavit sworn by Annoceatah Maritia Kiteta and Joseph Muoki Kakenyi on 6th SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 28 of 41 po/ hkc May, 2024. They aver inter alia that they are the lawful Administrators of the deceased’s estate. They state that they are the widow and brother respectively of the deceased and contend that the application is incompetent because the certificate of urgency was unsupported by a properly sworn affidavit. They further adopt and rely on their earlier affidavits, supplementary affidavits, further affidavits and lists of documents previously filed in the succession proceedings. 91. The Respondents maintain that the estate had already been fully distributed through the Certificate of Confirmation of Grant issued on 5th November, 2014 and subsequently rectified on 10th February, 2015, 4th June, 2015, 11th September, 2019 and 28th July, 2020. They deny the allegation that the late Mathew Mweu Kakenyi represented the interests of the Applicants, arguing that the Applicants had previously accused him of wrongdoing in earlier proceedings and were now inconsistently portraying him as their representative after his death. 92. According to the Respondents, the death of Mathew Mweu Kakenyi (deceased) does not constitute a legal basis for revocation of the grant or removal of the surviving Administrators. The Respondents further allege that they later discovered that the rectifications made to the certificate of confirmation of grant on 11th September, 2019 and 28th July, 2020 were undertaken fraudulently and without their knowledge, participation or consent. They SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 29 of 41 po/ hkc contend that the applications leading to those rectifications were filed through forged signatures and that additional beneficiaries, including Benedicte Kivele Kakenyi and Caroline Maria Katiti, were irregularly introduced into the proceedings and allocated estate properties. 93. They also allege that certain estate properties, including Machakos Town Block 11/363 and 11/364, were transferred or allocated without involving all Administrators. 94. Further, they dispute the participation of Salome Mwikali Muthiani in the proceedings, asserting that she resides in the United States and that the affidavits purportedly sworn by her were not notarized. The Respondents state that upon the death of Mathew Mweu Kakenyi, they discovered that his name had allegedly been removed from the certificate rectified on 28th July, 2020. They therefore accuse the Applicants of forging the signatures of both the deceased and the Respondents in order to gain control of Nguangani Building and redistribute estate assets in their favour. 95. According to the Respondents, they have already lodged criminal complaints with investigative authorities regarding the alleged forgeries and fraudulent rectifications. They further maintain that they have continuously rendered accounts concerning the estate property and annexed bank statements and audit reports covering the years ending 31st December, 2022 and 2023. On that basis, they urge the court to dismiss the amended summons with costs. SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 30 of 41 po/ hkc 96. The parties have not filed written submissions on this application and it also does not have a ruling date. ANALYSIS AND DETERMINATION 97. Having considered the applications dated 6th May, 2024 and 9th June, 2025, the affidavits in support and opposition thereto, the annexures filed by the parties, the written submissions and the applicable law, the principal issue for determination is whether the Applicants have properly invoked the jurisdiction of this court under Section 76 of the Law of Succession Act in seeking revocation of the Amended Certificates of Confirmation of Grant rectified on 11th September, 2019 and 28th July, 2020. 98. This court further notes that the preliminary objection raises pure points of law touching on jurisdiction, competence of the applications and the legal nature of a Certificate of Confirmation of Grant, thereby falling within the established guiding principles on preliminary objections. 99. The law on notices of preliminary objection and grounds of opposition was well discussed IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA FIRST INSTANCE DIVISION: REFERENCE NO. 8 OF 2017: PONTRILAS INVESTMENTS LIMITED VERSUS CENTRAL BANK OF KENYA & THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA where it was stated as follows: “23. Having carefully considered the parties’ submissions, it is the considered view of the court that prior to a SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 31 of 41 po/ hkc substantive consideration of the said submissions at this stage, it is imperative that the court confirms that what is before it, is indeed a preliminary objection point of law that would be properly determined as a preliminary objection. 24. whereas the matter under consideration was raised and argued by all the parties as a preliminary objection, the court is alive to the importance of proper procedure in the judicial process. 25. In Attorney General of the Republic of Kenya vs Independent Medical Legal Unit (supra), the Appellate Division of this Court held: “The improper raising of points by way of preliminary objections does nothing on occasion confuse the issues. The court must therefore, insist on the adoption of the proper procedure for entertaining applications for Preliminary Objections. In that way, it will avoid treating, as preliminary objections, those points that are only disguised as such; and will instead, treat as preliminary objections, only those points that are pure law; which are unstained by facts or evidence, especially disputed points of facts or evidence or such like.” 26. This point was underscored in The Secretary General of the East African Community vs. Rt. Hon. Margaret Zziwa, Appeal No. 7 of 2015 where the court cited with approval the following exposition in Mukisa Biscuit Manufacturing Company Limited vs. West End SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 32 of 41 po/ hkc Distributors Limited (1969) EA 696 (per Newbold), P): “A Preliminary Objection is in the nature of what used to be demurer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion.” 27. The question of what would constitute a proper preliminary objection was further addressed in Attorney General of Tanzania vs African Network for Animal Welfare (ANAW) EACJ Appeal No. 3 of 2011, where the Appellate Division of this court held that a Preliminary Objection could only be properly taken where what was involved was a pure point of law, but that where there was any issue involving the clash of facts, the production of evidence and facts, the production of evidence and assessment of testimony it ‘should not be treated as a Preliminary Point. Rather, it becomes a matter of substantive adjudication of the litigation on merits with evidence adduced, facts shifted, testimony weighed, witnesses called, examined and cross – examined, and a finding of fact then made by the Court.” 100. The guiding principles on consolidation of suits were well established in Omoke v Kenyatta & 83 others [2021] KESC 27 (KLR) where the court pronounced itself as follows: “… [8] We now therefore opine as follows: i. SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 33 of 41 po/ hkc The jurisdiction to consolidate appeals in this court is conferred by rule 21 of the Supreme Court Rules, 2021, which stipulates that; “The court may, upon application by any party or on its own motion, where satisfied that the issues involved in any two or more proceedings are similar, order that the proceedings be— a. consolidated, on such terms as the Court may determine…” ii. Consolidation of suits or appeals will be ordered where there are common questions of either law or fact in two or more suits or appeals and where it is desirable that all the related matters be disposed of at the same time. iii. When considering an application for consolidation, this court will bear in mind the guiding principles it pronounced in the case of the Law Society of Kenya v Centre for Human Rights & Democracy & 12 others, SC Petition No 14 of 2013, [2014] eKLR, that: “The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any undue advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards the party that opposes it.” iv. Through consolidation, costs, time and other resources are saved and multiplicity of proceedings avoided. All the three petitions before this court arise SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 34 of 41 po/ hkc from the same set of facts; the same subject matter; they raise similar issues of law; involve the same parties who were before the two superior courts below; and ensue from the same judgment…” 101. At paragraph 27 of Henry Musemate Murwa v Francis Owino, Principal Secretary, Ministry of Public Service, Youth And Gender Affairs & another [2021] eKLR, Judge Maureen Onyango cited with authority the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR where Mativo J. restated the test for establishing contempt in his decision and stated – “40. It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order (ii) Knowledge of these terms by the Respondent, (iii) Failure by the Respondent to comply with the terms of the order. Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 35 of 41 po/ hkc book Contempt in Modern New Zealand who succinctly stated: - "There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that: - a) the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant; b) the defendant had knowledge of or proper notice of the terms of the order; c) the defendant has acted in breach of the terms of the order; and d) the defendant's conduct was deliberate…” 102. The record demonstrates that the grant of letters of administration issued on 30th January, 2012 was confirmed on 5th November, 2014 and subsequently rectified on several occasions, including on 11th September, 2019 and 28th July, 2020, pursuant to applications filed by the Administrators themselves. Those rectification applications were supported by affidavits sworn by Joseph Muoki Kakenyi, Mathew Mweu Kakenyi (deceased) and Annoceatah Maritia Kiteta, who expressly represented to the court that all beneficiaries had consented to the revised modes of distribution. The applications were allowed by this court and SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 36 of 41 po/ hkc amended certificates of confirmation of grant were accordingly issued. 103. Significantly, no appeal, review or setting aside proceedings were ever preferred against the orders issued on 11th September, 2019 and 28th July, 2020 to date but, instead, they filed the application dated 6th May, 2024 seeking revocation 7 and 6 years, respectively, later. 104. I agree with the preliminary objection that Section 76 of the Law of Succession Act only provides for the revocation or annulment of a grant and does not extend to the revocation of a Certificate of Confirmation of Grant. A Certificate of Confirmation of Grant is not itself a grant within the meaning of Section 76, but rather a consequential court order issued pursuant to Section 71 of the Act confirming the mode of distribution of the estate. The distinction is substantive and not merely semantic. 105. Accordingly, where parties challenge the propriety of confirmation proceedings or subsequent rectifications, the proper recourse lies in review, appeal, rectification or setting aside proceedings before the court that issued the impugned orders, rather than through revocation proceedings under Section 76. 106. In the present case, the Applicants improperly sought to invoke Section 76 to revoke the rectified Certificates of Confirmation of Grant issued on 11th September, 2019 and 28th July, 2020 instead of directly challenging the substantive orders from which those certificates arose. SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 37 of 41 po/ hkc 107. Consequently, the prayer seeking revocation of the rectified certificates of confirmation of grant is legally misconceived, incompetent and jurisdictionally untenable since jurisdiction flows from statute and a court cannot arrogate unto itself jurisdiction not expressly conferred by law. 108. Further, the application dated 6th May, 2024 is materially contradictory and procedurally defective. On the face of the application, Thomas Kakenyi, Gloria Muthio Kiilu, Angellina Mueni Mbaabu, Clement Kakenyi, Lucy Mutheu Lauks and Salome Mwikali Muthiani are named as Applicants, while Joseph Muoki Kakenyi and Annoceatah Maritia Kiteta are named as Respondents. 109. However, the supporting affidavit is sworn by the same Respondents in support of the application purportedly brought against them. Such inconsistency creates confusion as to the true parties before court and offends Order 19 Rule 3 (1) of the Civil Procedure Rules, which requires affidavits to be sworn by proper parties with personal knowledge of the matters deponed to. The contradiction is substantive and cannot be cured under Article 159 of the Constitution. 110. The allegations of fraud and forgery raised by the Respondents/Administrators are undoubtedly serious. I note the assertions that the applications dated 27th August, 2019 and 20th July, 2020 were allegedly filed without the Administrators’ authority or consent and that signatures may have been forged. I also note that complaints have allegedly SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 38 of 41 po/ hkc been lodged before investigative agencies and the Advocates Disciplinary Tribunal. 111. However, allegations of fraud, forgery and professional misconduct are matters requiring strict proof through cogent evidence and cannot be conclusively determined through the present applications as framed. Further, this court is not clothed with jurisdiction to address matters that are active before the Advocates Complaints Tribunal. 112. More importantly, the Applicants have not sought review or setting aside of the orders issued on 11th September, 2019 and 28th July, 2020, nor have they invoked the court’s review jurisdiction under the Probate and Administration Rules. 113. In the absence of such substantive proceedings, I find that this court cannot indirectly nullify subsisting court orders through an incompetent application for revocation. 114. With regard to the application dated 9th June, 2025, I find that that the prayers seeking stay of proceedings, priority hearing and consolidation do not meet the established threshold to wit no exceptional circumstances have been demonstrated warranting stay of the proceedings related to the amended summons dated 18th April, 2024 (originally dated 24th May, 2021), which was filed earlier and raises substantive issues concerning concealment of material facts from the court, concealment of estate property, failure to account and maladministration of the estate by the Respondents. SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 39 of 41 po/ hkc 115. Equally, the prayer seeking contempt proceedings against M/s Bitala & Kakinga Advocates and Mr. John J. Kakinga Advocate is unsustainable because no specific court order alleged to have been disobeyed has been presented in evidence before this court, contrary to the established principles governing contempt proceedings. 116. In the premises, I determine as hereunder: a) The preliminary objection dated 30th September, 2025 is merited and is hereby upheld. b) The application dated 6th May, 2024 is incompetent, misconceived and legally untenable and is hereby dismissed. c) The application dated 9th June, 2025 lacks merit and is hereby dismissed. d) The amended summons dated 18th April, 2024 shall proceed for hearing and determination on priority basis on its merits and the parties are hereby directed to file their respective written submissions on the amended summons dated 18th April, 2024 within 21 days and exchange the same from the date of this ruling, and upon confirmation of such filing, this court shall issue a ruling date. e) Each party to bear its costs for the applications dated 6th May, 2024 and 9th June, 2025. Dated signed and delivered at Nairobi via video link this SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 40 of 41 po/ hkc 14th day of May 2026. H K CHEMITEI JUDGE SUCCESSION CAUSE NO.1657 OF 2011 CONSOLIDATED RULING Page 41 of 41 po/ hkc