https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7694

In re Estate of Elizabeth Ngina Nduva alias Ngina Nduva (Deceased) (Succession Cause 2935 of 2003) [2026] KEHC 7694 (KLR) (Family) (18 May 2026) (Judgment) Neutral citation: [2026] KEHC 7694 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 2935 of 2003 CJ Kendagor, J May 18, 2026 IN THE MATTER OF THE ESTATE OF ELIZABETH NGINA NDUVA ALIAS NGINA NDUVA – DECEASED Between Emmah Wayua Nduva 1st Applicant Beth Ngina Nduva 2nd Applicant and Emily Mwikali Respondent Judgment 1.Elizabeth Ngina Nduva died on 5th May, 2002 and a Grant of Letters of Administration intestate was issued to her two children, Emily Mwikali and John Nduva on 15th December, 2003. The Grant was confirmed on 31st May, 2004. 2.This decision relates to summons dated 9th September, 2016 seeking the revocation of the Grant issued to the two administrators. The 1st Applicant, Ema Wayua Nduba, is the widow of John Nduva, one of the administrators who has since passed on, and the 2nd Applicant, Beth Ngina Nduva, is their daughter. 3.The application seeks orders inter alia;i.That the grant issued on 31st May, 2004 be revoked as it was obtained through non-disclosure of material facts and fraud;ii.That fresh letters of administration do issue in the name of Emah Wayua Nduva and Beth Ngina Nduva (applicants);iii.That LR NO. Nairobi/Block 119/3226 measuring 0.1196 Hectares situated at Githurai Kamiti Road be excluded from assets of the deceased property as it did not belong to her estate as it had already been given to the 2nd Applicant before a title was issued through Githurai Thinganga Company Ltd and hence did not belong to the deceased’s estate. 4.Emily Mwikali, the surviving administrator and beneficiary (hereinafter referred to as the Respondent), opposed the application. 5.The matter was heard via viva voce evidence and each party called witnesses in support of their case. 6.The Applicants contend that the proceedings to obtain the Grant were defective in substance in that the Respondent applied for Letters of Administration without the consent of other beneficiaries. Further, that the Grant was obtained fraudulently by making a false statement, namely that the Respondent did not inform the Court that the 2nd Applicant is the registered owner of LR No. Nairobi/Block 119/3226. 7.The 1st Applicant testified that the deceased gifted the parcel to the 2nd Applicant, and her late husband agreed to have the plot registered in their daughter’s name. They assert that the title they possess is the genuine document issued by the land-selling company and argue that the Respondent’s processing of the transmission was fraudulent, given the gift inter vivos. 8.The Applicants state that the Respondent lives on an inherited plot, while the disputed plot belongs to the 2nd Applicant. 9.The Respondent claims that she obtained the Grant in collaboration with her late brother and that they agreed on the distribution of the estate. Both she and her two witnesses stated that the disputed plot was her inheritance, while the deceased, John, had also received his rightful share of the estate. Analysis and determination 10.The Court has considered the application, the supporting documents and the testimony of the Applicant. The issue for determination is whether the Applicant has presented sufficient evidence to warrant revocation or annulment of the Grant. 11.Section 76 of the Law of Succession Act gives the Court the power to revoke a Grant provided the conditions stipulated therein have been met. It states that:“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion: -a.That the proceedings to obtain the grant were defective in substance;b.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;c.That the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;d.That the person to whom the grant was made has failed, after due notice and without reasonable cause either: -i.To apply for confirmation of the grant within one year from the date thereof, or such longer period as the court has ordered or allowed; orii.To proceed diligently with the administration of the estate; oriii.To produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; ore.The grant has become useless and inoperative through subsequent circumstances. 12.In order to determine the issue at hand, there must be proof that any of the circumstances described under Section 76 of the Law of Succession Act has occurred. 13.In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR), Mwita J. (as he then was) made pertinent observations on the principles for the revocation of a Grant as follows:“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.” 14.The Applicants highlighted two grounds;i.That the proceedings to obtain the grant were defective in substance in that the respondent applied for letters of administration without the consent of other beneficiaries;ii.That the grant was obtained fraudulently by making a false statement that LR No. Nairobi/Block 119/3226 belongs to the estate of Elizabeth Ngina Nduva. Whether the respondent applied for letters of administration without the consent of other beneficiaries; 15.The petition for Letters of Administration initiating this succession cause was presented by Emily Mwikali and John Nduva. Both Petitioners duly signed the relevant forms. A Chief’s letter filed on 14th October 2003, confirms that they are the only surviving beneficiaries of the estate. Subsequently, both of them signed the summons for Confirmation of the Grant. 16.Based on this information, the Court on 31st May 2004, concluded that they were indeed the sole beneficiaries and thus confirmed the Grant in accordance with the distribution schedule that they had filed. 17.The Certificate of Confirmation of Grant dated 31st May 2004 distributed the properties as follows;i.To Emily –a.Nairobi/Block 119/3226 L.R No. 5964/2 (Plot No. A25)b.13 Shares in Githurai Tinganga Co. Ltdii.To John –a.Shares in Plot No. 166 Githuraib.Shares in Plot No. 39 Githuraic.Shares in Plot No. 940 Githuraid.Shares in Plot No. 19 Githurai 18.Section 29 of the Law of Succession Act defines dependant as;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;b.such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; ………. 19.The evidence shows a mutual understanding between John and Emily regarding the administration and distribution of the estate. As the Applicants are John’s wife and daughter, their interests are limited to the share allocated to John’s estate, as they do not satisfy the specified conditions and are not regarded as dependants under Section 29 of the Law of Succession Act. 20.Consequently, the Court concludes that there were no additional beneficiaries of the estate who were not involved in the initiation of the succession proceedings and the subsequent distribution of the estate. Whether LR No. Nairobi/Block 119/3226 is part of the assets of the estate of Elizabeth Ngina Nduva 21.The matter became contested after John passed away in 2008, and it is over the subject property that was bequeathed to Emily in the Grant. 22.The Applicants contest that the property was gifted to the 2nd Applicant (Beth) by the deceased (Elizabeth), who had transferred the same through records at the land buying company, though the title had not yet been issued and was issued in 2006. 23.The deceased died in the year 2002, and there is no evidence that she had signed any transfer documents vesting ownership in the 2nd Applicant, her granddaughter. The transfer was executed in 2006 after her passing. 24.There is evidence presented by the Applicant, supported by the loss of title report via OB 22/28/1/09, indicating that it is highly probable the Applicants were in possession of the original title document for the property in question, even though the document had been reported lost. The investigations were never reported back to the Court as directed by Muchelule, J. (as he then was) on 17th February, 2020. However, the evidence on record suggests that the Applicants possessed the lease that was reported lost. 25.The Applicants argued that the Respondent is occupying a property that belongs to the estate, but they did not provide any proof. The property (Githurai 44) is not listed in the petition or in the Certificate of Confirmation of Grant. The Respondent asserts that it is her exclusive property, and in the absence of evidence to the contrary, the Court has no reason to treat it as otherwise. 26.There is an acknowledgement by the 1st Applicant’s son of the sale of some of the plots by his late father (John). There is no evidence to support the assertion that the Respondent lured the deceased into selling the plots. There is also written evidence in the letter dated 3rd November, 2010 (Annexure EWN V in Applicant’s further affidavit dated 8th November, 2016) that the 1st Applicant and her late husband were involved in several transactions over plots that belonged to the deceased (Elizabeth). Therefore, it is plausible that the late John and his wife (1st Applicant) had already benefited from their share of the estate and are keen to frustrate the Respondent on the ground that they have nowhere else to stay. 27.There is also evidence of previous litigation involving the Respondent and the 1st Applicant, Charles (son), along with two additional parties in Civil Suit No. 58 of 2011. A judgment delivered on 31st January, 2012, found in favour of the Respondent and against the 1st Applicant, Charles and the other defendants, determining that they were trespassers and lacked any rightful claim to the subject property, and ordered that they deliver vacant possession or be evicted. Notably, this judgment has not been appealed. There is also an order directed at the lands registrar to remove the encumbrances therein. The Applicants are now seeking another opportunity to contest the matter by way of the summons for revocation. 28.The Court has noted from the annexure (bond) that one of the defendants, Paul Musyoki, was involved in a criminal case of burglary and theft, which was proceeding at the Makadara Law Courts in 1984. The complainant was the deceased - Elizabeth Ngina. This information substantiates the Respondent’s assertion regarding the loss of title that occurred during the deceased’s lifetime. 29.Elizabeth Ngina Nduva has been identified in various official documents from the land buying company as Ngina Nduva. The correspondence from the provincial administration further corroborates this identity. However, the Applicants are attempting to manipulate this situation by falsely claiming that the name Ngina Nduva mentioned in the lease actually refers to Beth Ngina Nduva, the 2nd Applicant. After analysis, I find the Applicants’ assertion to be a fraudulent presentation of identity. Disposition 30.The Court makes the following determination;a.That the property Nairobi/Block 119/3226 belongs to the estate of Elizabeth Ngina Nduva alias Ngina Nduva;b.That the Grant of Letters of Administration was obtained in compliance with the law, and there is no justification to revoke the same. Consequently, both the Grant and the Certificate of Confirmation of Grant remain valid;c.Any actions undertaken pursuant to the Grant remain valid;d.The encumbrances imposed on the property shall be removed forthwith;e.The Summons for Revocation of grant dated 9th September, 2016 is dismissed with costs to the respondent. 31.Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 18TH DAY OF MAY, 2026.………………………HON. C. KENDAGORJUDGEIn the presence of:Court Assistant: BerylMr. Matwere, Advocate for the Administrator/RespondentNo attendance for Applicants