https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7669

In re Estate of M’mwithimbu Alaja Mukotho (Deceased) (Civil Appeal 480 of 2011) [2026] KEHC 7669 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7669 (KLR) Republic of Kenya In the High Court at Meru Civil Appeal 480 of 2011 HM Nyaga, J May 28, 2026 IN THE MATTER OF THE ESTATE OF M’MWITHIMBU ALAJA MUKOTHO – DECEASED Between Henry Mworia Respondent and Eunice Mwaronja 1st Applicant Stanley Kimathi 2nd Applicant Ruling 1.Coming up for determination is the summons dated 14th November 2022 which seek the following orders: -a.Spentb.That this Honourable court be pleased to stay the implementation of the certificate of confirmation of grant herein pending the hearing and determination of this application.c.That this honourable court be pleased to include in this matter the deceased’s properties forming part of the estate which was left out as per paragraph 5 of the supporting affidavit.d.That this honourable court be pleased to order the revocation of grant on distribution herein and allow a fresh proposal on distribution upon inclusion of part of the estate which had been left out.e.That this honourable court be pleased to appoint the applicants herein as the administrators for the purposes of protecting and distributing the deceased’s estate.f.That this Honourable court be pleased to issue any further orders in the interests of justice. 2.The summons are propped by the grounds set out on their face and are supported by the affidavit of Eunice Mwaronja the 1st applicant. 3.In a nutshell, the applicants state that the petitioner herein left out some of the deceased’s properties particularized as follows:a.LR Kiirua/Naari/Maitei/298b.Plot. No. 15A Thege Marketc.Plot No. 38B Kiirua Marketd.LR No. Kiirua/Naari/1073 4.The applicants aver that the petitioner illegally sold and transferred the said properties after the demise of their father, the deceased herein. 5.It is further averred that land parcels No. Kiirua-Naari/14 and Kiirua/Naari – Maitei/296 are still in the name of the deceased herein. 6.The applicants further state that they were left out in the distribution of the estate and as such they ought to be provided for. 7.The application was opposed by the petitioner who swore a replying affidavit sworn on 16th June, 2024. 8.In a nutshell the petitioner states that the introductory letter from the chief that was used to commence this cause were obtained by Eunice Mwaronja and Rael Karamuta. 9.It is further averred that the two said persons included LR. Kiirua/Naari/140 as the deceased’s property and was included in the certificate of confirmation of the grant. 10.It is further averred that title for LR. No. Kiirua/Naari-Maitei/296 had not been issued due to a prolonged dispute. 11.It is further stated that the applicant and Rael Karamuta were present during the confirmation of the grant and never objected to the proposed mode of distribution then. 12.As regards Plot. No. (5A) Thege market, the petitioner averred that the same was lawfully transferred to him with the consent of the beneficiaries. 13.For Plot 38B Kiirua market, it was averred that the same belonged to one M’ Mwithimbu Alaja Mukotho and upon her demise his beneficiaries followed due process in transferring the same to one Andrew Kirimi. 14.As regards LR. No. Kiirua/1073 the respondent averred that the same belonged to him having purchased it sometime in 2002. 15.For LR. Kiirua/Naari-Maitei /296, the respondent averred that the same could be distributed as per the wishes of the deceased. 16.The summons proceeded by way of viva voce evidence, where the parties reiterated their stances. 17.Before I address the summons in question, there is need to give a brief history of the cause. 18.The deceased died at Naari on 16th December 1994. He left behind 8 children including the applicants and the petitioner. 19.On 7th September 2011, the petitioner filed this cause. The only asset listed was LR. No. Kiirua/Naari/140. On 29th September 2014 the grant was confirmed. 20.On 23rd February 2015, the applicant moved the court seeking to have the grant herein revoked. Her reasons were that although she was a daughter of the deceased, she had not been provided for and that she had signed the consent for confirmation without knowing what she signed for. 21.The matter proceeded for hearing and in a judgment delivered on 12th April 2018, the court dismissed the application. 22.Subsequently, the petitioner filed summons dated 22nd July 2019, which sought to lift the inhabitations placed against the said parcel of land No. LR. Kiirua/Naari/140. The applicant opposed the application. 23.After hearing the parties the court allowed the application, after finding that the 1st applicant herein had not preferred any appeal against the judgment of the court delivered on 12th April 2018. 24.I have looked at the present application. In so far as it seeks to revoke the grant on the grounds set out therein, that the applicant was not involved, I find that this issue is res judicata. The same having been dealt with by the court in its judgment of 12th April 2018. The applicant did not appeal against that decision and as such, she cannot revisit the same issue on the same grounds. 25.Therefore, as regards land parcel No. Kiirua/Naari/140, the issue was concluded by this court’s judgment. 26.The applicants also brought up the issue of omission of certain property from the estate. They identified the following properties:a.LR Kiirua/Naari/Maitei/296b.Plot. No. 15A Thege Marketc.Plot No. 38B Kiirua Marketd.LR No. Kiirua/Naari/1073 27.The law on such an issue is to have the grant reviewed and any new property that is free for distribution is included. The discovery of such property is not a ground for seeking the revocation of the grant. 28.The applicant’s position is that some of the said property were illegally transferred after the death of the deceased. 29.From the documents tendered before the court it is apparent that Plot No. 38B Kiirua belonged to the deceased. 30.The petitioner states that the intention of the deceased was to have that properties transferred to Andrew Kirimi and that the parties then agreed that it be so. 31.The petitioner never added this property to the estate nor sought to have it devolve to the said Andrew Kirimi. It was thus an illegal transmission. 32.Regarding Plot. no. 15A Thege Market, it is also conceded that it belonged to the deceased. 33.Similarly, it ought to have been included in the estate and then have it distributed to the intended beneficiary. The transfer done thereon was also illegal. 34.Regarding land parcel Kiirua/Naari/1073, the same belonged to one M’ Twaruchiu Kibaya and not the deceased. It was then transmitted to Joseph Gikundi and the petitioner on 25/1/2022. Clearly that land was not part of the estate of the deceased herein. 35.Regarding land parcel Kiirua/Naari – Maitei/296 the copy of certificate of search annexed by the applicants shows that it was in the name of the deceased as at 21st June 2021. As such it sought to be included as part of the estate herein. 36.The other prayer by the applicants was that Eunice Mwaronja and Stanely Kimathi be appointed as the administrators. 37.In my view, there is really no value to be added by that order. In fact, I think that it will just complicate the issues given the history and circumstances of the case herein. The orders that shall issue herein can effectively be addressed by the administrator who is in place but if he does not act, then he can be removed. 38.Having considered the market I find that:a.The transfer of plots No. 15A Thege Market and Plot 38B Kiirua market was illegal and the same are cancelled. The property ought to revert to the name of the deceased.b.The distribution of land parcel No. Kiirua/Naari/140 was adjudicated upon and the issue is res judicata.c.Land Parcel No. Kiirua/Naari/1073 did not belong to the deceased and is not part of the estate.d.Land Parcel No. Kiirua/Naari/296 belongs to the deceased and ought to be included as part of the estate. 39.Consequently, the application is partly allowed and the following orders do issue:a.The transfer of plot No. 15A Thege market is hereby revoked and the plot shall revert to the name of the deceased.b.The transfer of Plot No. 38B Kiirua market is hereby revoked and shall revert to the name of the deceased.c.Land parcel No. Kiirua/Naari-Maitei/296 shall be included to the estate.d.The petitioner shall within the next 60 days apply to review the grant and file a proposed mode of distribution of the 3 properties.e.Any beneficiary opposed to the proposal may file a protest thereto within 15 days of service of the proposal.f.A date for compliance shall be given.g.There shall be no orders as to costs. DATED, SIGNED AND DELIVERED AT MERU THIS 28TH DAY OF MAY, 2026.H. M. NYAGAJUDGE