https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11314

**REPUBLIC OF KENYA** **In the High Court at THIKA** **Family APPEAL NO. E023 OF 2024** **IN THE MATTER OF THE ESTATE OF OBADIAH KIMENDERO NDANGANGA (DECEASED)** **Between** **DANIEL METHU NDANGANGA…………………………………….……..APPELLANT** **and** **GRACE WANGUI NDANGANGA………………………………….………Respondent** ***(Being an Appeal from the Judgment of Hon. O. Wanyaga (PM) delivered on 2nd August, 2024 in Thika Succession cause No. 291 of 2018)*** **Judgment** **Introduction** 1. This appeal arises from the judgment of the Hon. O. Wanyaga (PM) delivered on 2nd August, 2024 in **Thika Chief Magistrate’s Court Succession Cause No. 291 of 2018**. 2. The succession relates to the estate of **Obadiah Kimendero Ndanganga** (deceased)who was survived by the following: * Grace Wangui Ndanganga - spouse * Paul Kimendero Ndanganga - son * Joseph Muchura Ndanganga - son * Daniel Methu Ndanganga - son * Jewel Wamuyu Ndanganga - granddaughter 1. Following the demise of the deceased, the Respondent herein sought and obtained Grant of Letters of Administration Intestate. The Grant was issued to the Respondent and confirmed on 28th February, 2022, vesting the property **RUIRU KIU BLOK 2/3871** to the Respondent absolutely. 2. Thereafter, the Appellant filed summons for revocation of grant dated 11th April, 2024 alleging fraud and material non-disclosure by the Respondent. 3. The trial court delivered a ruling dated 2nd August, 2024, dismissing the summons for revocation of grant. 4. Dissatisfied with the trial court’s decision, the appellant filed a Memorandum of Appeal dated 3rd December, 2024. **The Appeal** 1. The memorandum of appeal raises the following grounds: 2. *THAT the learned trial magistrate erred in law and fact in making the determination on disputed facts without the benefit of hearing parties orally.* 3. *THAT the learned trial magistrate erred in law and fact by failing to give adequate consideration to the appellants application for summons for Revocation of Grant dated 11th April 2024, which raises triable issues of merit.* 4. *THAT the learned trial magistrate erred in law and fact by entertaining the Replying Affidavit of the respondent when the same was not properly on record and had not been served upon the Applicant.* 5. *THAT the learned magistrate erred in law and fact by not affording the Appellant an opportunity to respond to the Replying Affidavit.* 6. *THAT the learned magistrate erred in law and in fact by dismissing the April, 2024, without affording the Appellant an opportunity to urge his Appellant's Application for Summons for Revocation of Grant dated 11th application through a hearing and/or by way of submissions.* 7. *THAT the learned magistrate erred in law and fact by finding that the Applicant had not given details of the alleged material non-disclosure or afforded the Applicant an opportunity to adduce evidence in support of its any fraud/wrongdoing on the part of the Respondent when it had not case.* 8. *THAT the learned magistrate erred in law and fact in finding that all the beneficiaries were present in Court including the Appellant for confirmation of grant vet the Appellant was not present in Court and was out of the Country.* 9. *THAT the learned magistrate erred in law and fact in finding that the Applicant had been gifted by his father before he passed on a portion of land which was 0.102ha and he had extensively developed within estate.* 10. *THAT the learned Magistrate erred in law and fact in finding that the further consent to confirmation of grant on mode of distribution of the estate dated 10th December, 2021, was signed by all beneficiaries, the Appellant included yet the Appellant was not present, did not sign the Consent and his signature is forged.* 11. *THAT the learned magistrate erred in law and fact by finding that the Applicant did not sign nor consent to the making of a grant of administration.* 12. *THAT the learned Magistrate grossly misdirected himself in the manner he handled the impugned proceedings as he disregarded the Rules of Natural Justice.* 13. Consequently, the appellant urges this Court to allow the appeal, set aside the ruling of the trial court and for the application dated 11th April 2024 to be heard. **The Appellant’s Submissions** 1. In support of the appeal, the Appellant filed submissions dated 15th August, 2025. 2. On the issue of whether the trial court erred in finding that all beneficiaries were present in court during confirmation, he submits that he was neither present nor did he sign the consent to distribute the estate and he was abroad ,The Appellant alleges forgery of his signature and that the court did not comply with procedure for parties to be present in court during confirmation of grant. 3. Citing **Re estate of Moses Wachira Kimotho, Succession cause No.112 of 2002[2009]eKLR,** he urges the court to allow the appeal. 4. The appellant submits that the trial Court erred in dismissing his application for revocation of grant after the issue of forgery was raised, he faults the court for not investigating or subjecting the same to forensic examination. He accuses the Respondent of forging his signature on the consent as the writings are strikingly similar. Further, he states that the deceased gifted him land within the estate before his demise and the curt ought to have allowed his application for revocation. 5. The appellant submits that the share gifted to home by the deceased should be taken into account during distribution and be granted to him and not the rest of the beneficiaries, He also prays for costs of the appeal. **The Respondent’s Submissions** 1. The respondent filed its submissions dated 31st October,2025 and 19th December,2025 in opposition to the appeal, identifying three issues for determination: * Whether the trial court dealt with the Appellant's Application Revocation of Grant in accordance with procedural law and the principle of natural justice. * Whether the Appellant's Summons for Revocation of Grant satisfied the substantive legal grounds for revocation as stipulated under Section 76 of the Law of Succession Act (Cap160). * Whether the Appellant's claim of a gift inter vivos and his subsequent developments on the estate land constitute a valid claim or amount to intermeddling with the estate of the deceased. 1. On the first issue, the respondent submits that there was no violation of the Appellants right to fair hearing, that the court record shows that Appellant participated in the proceedings and he never asked for *viva voce* hearing and that Rule 44(4) of the Probate and Administration Rules does not mandate an oral hearing. The disposal of such an application is a discretionary power of the Court. 2. On whether the summons for revocation of grant satisfied the grounds under the Law of succession Act, it was the respondents case that the Appellant alleged fraud and material non-disclosure as well as forgery but provided no particulars or evidence given the grave nature of the allegations. Asserting that the court record confirms that all beneficiaries were present during confirmation. Reliance was placed on **re Estate of Samuel Muiruri Nganga(deceased)[2025]KEHC 179(KLR).** 3. Regarding whether the alleged gift inter-vivos stands the test of scrutiny, the respondent states that, the assertion is flawed and constitutes intermeddling. That for a gift inter vivos of land to be valid, it must be perfected by the appropriate legal instruments, namely transfer and registration under the Land Registration Act. Which the Appellant has not produced. Highlighting the decision in in **Ngugi v Mukuria [2025] KEHC 11395 (KLR)** . 4. The respondent is of the view that the Appellant wants to re-litigate distribution preference and the application was without merit, she asks for dismissal of the appeal with costs. **ANALYSIS AND DETERMINATION** 1. This court has considered the record of appeal, the parties’ respective submissions as well as the cited decisions referred. 2. This being a first appeal, the High Court is under a duty to reconsider and re-evaluate the evidence and draw its own conclusions. The court must take great exception with respect to the fact that it has neither seen nor heard the witnesses. 3. The duty of a first appellate court was reiterated in the case of ***Gitobu Imanyara v Attorney General (2016) eKLR*,** as follows:- ‘*An appeal to this court by way of retrial and the principles upon which this court acts in such an appeal are well settled. The court must reconsider the evidence, evaluate itself and draw its own conclusion, though it should always bear in mind that it has never seen nor heard the witnesses and should make due allowance in this respect’.* 1. Therefore, this court is not bound by the trial court’s findings of fact if it appears that the trial court has clearly failed on some account of particular circumstances or probabilities materially to estimate the evidence. 2. The issue for determination is as follows: 3. ***Whether the trial court erred in dismissing the summons for revocation of grant?*** 4. The Appellant has alleged fraud, forgery and material non-disclosure as the main reasons for the application for revocation. 5. The grounds upon which a Grant may be revoked are set out in Section 76 of the Law of Succession Act Cap 160, laws of Kenya which provides as follows:- “**76.Revocation or annulment of grant** *A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by an interested party or of its own motion –* * 1. *That the proceedings to obtain the grant were defective in substance;* 2. *That the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;* 3. *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 allegations was made in ignorance or inadvertently;* 4. *That the person to whom the grant was made has failed after due notice and without reasonable cause either –* 1. *To apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or* 2. *To proceed diligently with the Administration of the estate; or* 3. *To produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of Section 83 or has produced any such inventory or account which is false in any material particular; or* *(e) That the grant has become useless and inoperative through subsequent circumstances”.* 1. The court in the case of **Re Estate of Prisca Ong’aya Nande (Deceased) 2020 eKLR** held as follows:- “***A grant of letters of Administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstance, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore becomes unqualified to hold any office of trust”.*** 1. The Appellant did not provide any documentary evidence of his allegations, be it a forensic report on the forgery, materials or circumstance not disclosed by the Respondent or criminal proceedings or any action taken by him against the fraud and forgery, they are mere allegations. 2. The Appellant by these claims is alleging that the Respondent obtained the Grant fraudulently. Indeed, the Appellant is alleging that forgery occurred with respect to the consent form. An accusation of fraud once pleaded must be specifically proven. Allegations of fraud and/or forgery are serious allegations which border on Criminal activities and therefore must be proven with specifity. 3. Section 109 of the Evidence Act places the burden of proof on the person advancing the allegation. The section provides that: *The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie in a particular person’’* 1. In the case of **Gatirau Peter Munya vs Dickson Mwenda Kithinji & 3 Others [2014] eKLR,** the Supreme Court held: ***“The person who makes such allegation must lead evidence to prove the fact She or he bears the initial legal burden of proof which she or he must discharge The legal burden in this regard is not just a notion behind which any party can hide It is a vital requirement of the law On the other hand, the evidential burden is a shifting one, and is a requisite response to an already discharged initial burden The evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue”*** 1. In the case **Urmila wo Mahendra Shah vs Barclays Bank International Ltd and the Standard Bank Ltd [1979] KECA 15 (KLR),** this Court held that, ***“To constitute a forgery, it must be shown that the signature on it was forged, or was placed on it without the authority of the person whose signature it purports to be, or, of course, that it has been fraudulently altered in a material particular after it was drawn”*** 1. In the instant case, the trial court record confirms that the appellant was present in court during the confirmation of grant and had agreed on the mode of distribution, in addition to a consent being filed and annexed to the application for confirmation of grant. 2. Court proceedings enjoy a presumption of accuracy and regularity; these are the day-to-day records of a trial. They consist of witness testimonies, filed documents, evidence submitted, and the spoken arguments of counsel and the Appellant cannot therefore allege inaccuracy or falsehood of the proceedings. 3. Having re-evaluated the evidence before the trial court that the allegations of the Appellant were not proven or established, I find nothing warranting the revocation of the grant issued by the trial court to the respondent. 4. In sum, this appeal is without merit and is hereby dismissed with costs to the Respondent. ***Dated, signed and delivered at Nairobi this 23rd day of July 2026.*** **DAVID MBURU** **JUDGE**