In re Estate of M'Juju (Deceased) (Succession Appeal 1 of 2025) [2026] KEHC 12204 (KLR) (31 July 2026) (Judgment)

In re Estate of M'Juju (Deceased) (Succession Appeal 1 of 2025) [2026] KEHC 12204 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KEHC 12204 (KLR) Republic of Kenya In the High Court at Meru Succession Appeal 1 of 2025 RA Oganyo, J July 31, 2026 IN THE MATTER OF THE ESTATE OF BAGIRI M’JUJU(DECEASED) Between Adriano Kinoti M'Ringera Appellant and Consulata Mpinda Gichuru Respondent (Being an appeal from the ruling of Hon. T.A Sitati (SPM) delivered on 9th February, 2024 in Nkubu SPM Succession Cause No. E006 of 2023) Judgment 1.This appeal arises out of the decision of Hon T.A Sitati (SPM) delivered on 9th February, 2024 in Nkubu SPM Succession Cause No. E006 of 2023 where the Respondent herein had petitioned the court for grant of letters of administration of the estate of the deceased Bagiri M’juju who died intestate on 9th June, 1988. He was survived bya.Consulata Mpinda Gichuru - Daughterb.Nkobe M’mutea - Daughterc.Kithinji M’aburia - Grand sond.Kithira M’aburia - Grand daughtere.James Kaai M’aburia - Grandsonf.Adriano Kinoti M’Ringera - Grandsong.Evangeline Karimi Ngeera - Granddaughterh.Florence Gaichugi Ngeera - Granddaughteri.Ntinyari M’ringera - Granddaughterj.Derrick Gitonga - Grandson 2.The Grant of letters of administration intestate was issued on 8th May, 2023 to the Respondent herein. The appellant filed an affidavit in protest of making of grant dated 13th February, 2023 in which he averred that that he is a grandson to the deceased Bagiri M’juju who before his demise had bequeathed him and one Kithinji one acre curved out of LR Abothughuchi/Gitie/37 to share equally amongst themselves. He denied having been served with the pleadings in Citation No. 10 of 2019 by the Respondent herein and stated that he is the first in priority to apply for a grant of administration in respect of the deceased’s estate, together with his brother, Kithinji, who is mentally challenged. He stated that the Petitioner got married many years ago and has land elsewhere. He argued that the deceased owned 3 acres of land, which he had divided as follows: 1 acre to M’aburia M’bagiri, 1 acre to Augustine M’ringera M’Aburi, while the remaining 1 acre he retained for himself and later gave to Adriano Kinoti M’ringera and Kithinji M’aburia. He further argued that the persons who consented to the issuance of the grant to the Respondent are her nieces and nephews. He prayed that his protest be allowed until the rightful beneficiaries file a proper succession cause. This protest was later withdrawn by the Appellant’s Advocates on record who indicated that he would file a proper protest. 3.There was no other activity in the trial court’s file between 13th February, 2023 and November, 2023 when the Respondent herein made an application for confirmation of the grant issued to her. The court allowed the Respondent’s application and confirmed the grant and confirmed the same by distributing the deceased’s Land Parcel Number LR Abothuguchi/Gitie/37 amongst the Respondent and her sister Nkobe M’mutea. The confirmed grant was issued on 11th March, 2024. 4.The Appellant via application dated 27th August, 2024 sought for revocation of the grant confirmed on the 11th March, 2024. The Application was heard and dismissed on grounds of being an abuse of the court process. In his ruling, the trial magistrate stated that the Appellant herein had been given sufficient time to review(sic) but failed to do so. He then stated that the Appellant’s application seeking to revoke the grant issued was an abuse of the court process. 5.The appellant dissatisfied with the trial court’s decision on grounds that;a.The trial magistrate erred in law and fact by failing to appreciate the nature of the cause and thus confirmed the grant.b.That the learned trial magistrate erred in law and fact by failing to appreciate the evidential value of the affidavits of protest and thereby confirmed the grant.c.That the trial magistrate misdirected himself and based his findings on wrong considerations by withdrawing the protest and thereby confirmed the grant. 6.The Appeal was disposed of by written submissions which I have read and considered. This being the 1st appellate court, I am guided by the dicta in Gitobu Imanyara & 2 Others Vs. Attorney General (2016) eKLR where the court held that; -“[A]n appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect” 7.Having considered the Appellant’s grounds of opposition vis a vis the pleadings and trail court record as well as the record of appeal, I find that the issues for determination are whether the trial court erred in confirming the grant and whether the deceased had bequeathed the Appellant an acre out of the suit property. 8.Section 29 (a) of the Law of succession Act which lists the order of priority in application for administration of the Estate of a deceased person provides that;“For the purposes of this Part, "dependant" means—(a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;” 9.Further, Section 38, 41 and 42 of the Law of Succession Act. The only relevant section of that Act to the facts in this appeal is Section 38 which provides: -“Where intestate has left a surviving child or children but no spouse where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of Sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.” 10.The Respondent herein therefore ranks in priority to the Appellant as she is a child/daughter to the deceased while the Appellant is a grandson of the deceased. The Court therefore rightly applied itself in confirming the letters of administration and distributing his estate among his surviving children. 11.The grounds were reiterated in the case of Jamleck Maina Njoroge –vs- Mary Wanjiru Mwangi (2015) eKLR where the court stated:“The circumstances that can lead to the revocation of grant have been set out in Section 76 Law of Succession. For a grant to be revoked either on the Application of an interested party or on the court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.” 12.In the instant case, the Appellant was aware all through that the Respondent had petitioned the court for grant of letters of administration. He even swore and filed an affidavit objecting the grant issued which he later withdrew. He then took no action until the grant was confirmed then filed an application for revocation of the same. Clearly, the Appellant not only slept on his right but is also in abuse of the court process. 13.Rule 26 provides that letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant. Further that in an application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require. 14.In the case of Amina Karama vs Njagi Gachangua & 3 others [2020] eKLR where the court held:“It has been held that equity aids the vigilant and not the indolent. It has also been held that delay defeats equity. In the case of Ibrahim Mungara Mwangi Vs Francis Ndegwa Mwangi [2014] eKLR the court quoted the following passage from Snell’s Equity by John MC Ghee Q.C. (31st Edition) at page 99: “The Court of equity has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence; where these want the court is passive, and does nothing.” 15.On the 2nd issue on whether the Deceased had bequeathed the Appellant an acre curved out of the suit property, Law of Succession Act provides that;“A gift made in contemplation of death shall be valid, notwithstanding that there has been no complete transfer of legal title, if—a.(a)the person making the gift is at the time contemplating the possibility of death, whether or not expecting death, as the result of a present illness or present or imminent danger; andb.a person gives movable property (which includes any debt secured upon movable or immovable property) which he could otherwise dispose of by will; andc.there is delivery to the intended beneficiary of possession or the means of possession of the property or of the documents or other evidence of title thereto; andd.………. 16.In the instant Appeal and cause, I have perused the trial court’s file together with the record of appeal filed by the appellant herein and have not seen any ownership document by the Appellant to prove that the same were actually delivered by the deceased to the Appellant and his brother. 17.The upshot is that I find that the Appellant slept on his rights and failed to oppose the grant of letters of administration even after being granted time to do so, that the deceased never delivered the title to the properties allegedly bequeathed to the Appellant hence the alleged parcel of land was never bequeathed to the Appellant within the meaning of the law of succession Act and that the Respondents rank in priority over the deceased’s estate takes precedent over that of the Appellant. 18.In the light of the above, this appeal fails and is dismissed with costs.It is so ordered.Right of appeal 28 days. DATED, SIGNED AND DELIVERED THIS 31ST DAY OF JULY, 2026………………….………………….HON. ROSELINE OGANYO, MRS.JUDGE.In the presence of: -Court Assistant……E, Sana