[2025] KEHC 179 (KLR)

In re Estate of Samwel Muiruri Nganga (Deceased) (Succession Cause E088 of 2013) [2025] KEHC 179 (KLR) (20 January 2025) (Judgment)

Neutral citation: [2025] KEHC 179 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause E088 of 2013

RN Nyakundi, J

January 20, 2025

IN THE MATTER OF THE ESTATE OF THE LATE SAMWEL MUIRURI NGANGA- (DECEASED) AND IN THE MATTER OF AN APPLICATION FOR REVOCATION AND/OR ANNULMENT OF GRANT

Between

Charles Mbugua Muiruri

Applicant

and

Zipporah Njoki Muiruri

Respondent

Judgment

Representation:M/s Mwaka & Co. AdvocatesM/s Mukabane Kagunza Advocates 1. The deceased, Samwel Muiruri Nganga, died on 21st October, 2012. His wife, Zipporah Njoki Muiruri, petitioned for letters of administration intestate on 17th April, 2013 and a notice was published on the Kenya Gazette on 17th May, 2013. There being no objection, a grant of letters of administration intestate was issued to the said Zipporah Njoki Muiruri on 1st August, 2013 to faithfully administer the estate according to law and to render a just and true account thereof whenever required by law so to do. According to the petitioner, the deceased was survived by the following:a.Zipporah Njoki Muiruri – Widow - 68 yearsb.Mary Kaheto Muiruri – Daughter – 50 yearsc.Elizabeth Wambui Muiruri – Daughter – 48 yearsd.James Nganga Muiruri – Son – 45 yearse.Peter Mugiri Muiruri – Son – 43 yearsf.Geoffrey Kamau Muiruri – Son – 42 yearsg.Julia Wangari Muiruri – Daughter – 37 yearsh.Charles Mbogua Muiruri – Son – 35 yearsi.George Njenga Muiruri – Son – 34 years

2. At the time of his death, he owned the following assets:a.Olare/Burnt Forest Block 2/223 Measuring 1,940 HA.b.Nyahururu Plot No. 1438 4. 8 Acres.c.Munyaka Plotd.East Africa Breweries Shares (Varies Yearly)e.Retirement (benefits) Pension Monthly Kshs. 3,000/= Monthly

3. On 23rd April, 2014, the petitioner filed summons for confirmation of grant, there being no dependency claims or objections pending. The summons went unopposed, and on July 28, 2014, Justice G.W. Ngenye-Macharia issued a Certificate of Confirmation of Grant. This certificate was subsequently amended on 18th April, 2016, following the petitioner's application of October 23, 2015. The amendment corrected the property description from Nyahururu Plot No. 1438 measuring approximately 4. 8 acres to Nyandarua/Njabini/1435 measuring approximately 1. 72 hectares.

4. On 23rd April, 2014 the petitioner proceeded to file summons for confirmation of Grant there being no application for dependency or any objection. The summons was not opposed as well and on 28th July, 2014, this court under the leadership of Justice G.W Ngenye – Macharia issued a Certificate of confirmation of Grant dated 28th July, 2024, which was later amended on 18th April, 2016 precipitated by the Petitioner’s application dated 23rd October, 2015. The amendment sought that the name of the property as it appears on the Certificate of confirmation of Grant i.e. Nyahururu Plot No. 1438 Measuring Approx. 4. 8 Acres be rectified to read Nyandarua/Njabini/1435 Measuring Approx. 1. 72 HA.

5. Five years following the initial proceedings, Charles Mbugua Muiruri, acting in his capacity as the deceased's son, filed a summons on 2nd June, 2021, seeking revocation of the grant. These proceedings form the core of the present matter, which I will address shortly. It is noteworthy that when the Petitioner previously sought the court's intervention for rectification of the amended grant, the court dismissed this application in its ruling dated 11th June, 2024. The dismissal was based on the grounds that such rectification would fundamentally alter the originally adopted distribution model. However, the court emphasized that as the administrator of the estate, the Petitioner retains full discretionary powers to distribute the estate as she deems appropriate, thereby rendering the rectification application unnecessary.

6. Following the court's ruling, the Petitioner executed the distribution of the estate among the beneficiaries and subsequently filed an affidavit detailing the comprehensive allocation of properties to each beneficiary. This documentation formally records the manner in which the deceased's assets were apportioned. For avoidance of doubt and for record purposes, she deposed as follows in her affidavit sworn on 4th December, 2024:a.That as a consequence of family meeting and ruling of court I have since been appointed as the administrator of the estate of the deceased and taken the following actions to manage and distribute the estate of the deceased.b.That I have caused subdivision and placement of beacons on land parcel Olare/Burnt Forest/Block 2/223 into 7 equal parcels of half an acre each.c.That I have caused subdivision and placement of beacons on land parcel Nyandarua/Njabini/1435 into 7 equal parcels of half an acre each and one acre.d.That I sold booth the East African Breweries Shares and the KCB Shares which realized a total of Kshs. 271,433. 55= and Kshs. 231,658. 45/= respectively.e.That the said amount has gone towards construction of the house that I reside in at Munyaka plot which is still unregistered and the rest of my upkeep and treatment.f.That the above is a true account of how I have managed the assets entrusted to me as an administrator of the estate of the deceased since the grant was confirmed.

7. Having outlined the sequence of events, from the original grant to the recent distribution of assets, I shall now address the central matter before this court: the summons for revocation of grant filed by Charles Mbugua Muiruri on 2nd June, 2021. The orders sought in the said summons are:a.Spentb.That the grant of letters of administration and the confirmed grant issued on 14th July, 2014 to Zipporah Njoki Muiruri the Respondent herein be revoked and annulled and a fresh grant be issued thereafter.c.That a temporary injunction be issued restraining the Respondent, her servants or agents from selling, transferring by way of transmission and in any way causing subdivision of land parcels: Olare/Burnt Forest Block 2/223, Nyahururu Plot No. 1438 & Plot at Munyaka, shares with East Africa Breweries (which varies yearly) and Retirement Benefits until the hearing and determination of this application.d.That preservatory orders be granted on land parcel Nos. OLare/Burnt Forest Block 2/223, Nyahururu Plot No. 1438 & Plot at Munyaka, shares with East Africa Breweries (which varies yearly) and Retirement Benefits until the hearing and determination of this application.e.That all consequential transactions undertaken by the letters of administration and the confirmed Grant issued on 14. 07. 2014 to Zipporah Njoki Muiruri the Respondent herein be cancelled.f.That an order directing that the applicant’s house on Plot 105 held in Munyaka Ndutunyagwwoo Mwene Self Helf Group that forms part of the estate of the deceased not to be interfered with an order directing that the applicant to remain in situ until distribution of the estate equally between the beneficiaries of the estate.g.That the costs of this application be borne by the Respondent.

8. The summons are based on grounds that:a.Grant of letters of administration issued to Zipporah Njoki Muiruri and confirmed on 14. 07. 2014 was obtained fraudulently and the proceedings to obtain grant were defective in substance.b.The grant was obtained fraudulently by making of a false statement and by concealment from the court of existence of true beneficiaries and all assets belonging to the deceased.c.That the grant was obtained by mean of untrue allegations and in particular consent to the making of administration intestate to a person of equal of lesser priority was not obtained from all the bonafide beneficiaries to the estate of the deceased.d.The grant was obtained by misrepresentation and/or omission and/or non-disclosure of relevant facts.e.That the purported certificate of confirmation of grant reveals that the Respondent holds a life interest beneficiary to the estate of the deceased hereto and the Respondent is not proceeding diligently in the administration of the estate as she is disposing of the deceased estate for her personal gains.f.That the grant of representation was made secretly despite having been gazetted.g.That unless the Grant is revoked and/or annulled, the Respondent will be at liberty to unfairly distribute the deceased’s assets to the detriment of the applicant and prejudice other lawful beneficiaries/dependants of the estate herein.

9. In response to the application, the Petitioner deposed that all claims in the application are malicious, frivolous, and vexatious and should be dismissed with costs. He emphasized that the application is lacking merits, concentrating on material facts and has developed half-truths in his affidavit to collect real issues.

10. The Respondent further deposed that the grant to the estate was committed in 2014 and thereafter the same was distributed on the 18th day of April, 2016. The objective, according to the Respondent, was not living a lifelong objector, and all his children were involved in the process of obtaining the said grant.

11. Regarding the court proceedings, the Respondent clarified that the Objector has not explained how a copy of his identification card was found and maintained in court documents and has not denied being physically present at the confirmation proceedings. He added that the Objector has not told the court why the grant was fraudulently and secretly obtained as before the temporary grant was made and placed in public through the Kenya Gazette and thereafter the six months’ period before the summons for confirmation were filed and heard he still had the chance to launch the objection.

12. The Respondent also addressed the acquisition of properties, stating that the said properties listed in the confirmed Grant were acquired during his marriage to the deceased and through joint efforts. She further explained that after the Grant was made and due to old age and poor health, he relocated to Plot No. 105 in Munyaka and consequently sold the Kenya breweries shares to enable him to build the House that he and the Objector reside in, at all good faith and administration of the deceased's estate.

13. The Respondent emphasized that despite obtaining the Grant and having all beneficiaries' properties administered, the objector and others have been cutting fees and selling them. She detailed that later, she decided that despite having a right interest in the estate of the deceased and properties transferred and distributed, all beneficiaries were in attendance at a family meeting where a consensus was reached and the properties fairly allocated.

14. The Respondent maintained that she is only an administrator holding a life interest and she could deal with any of the said properties in a fair manner to the beneficiaries which includes selling the same but she has not done so and if the same was to happen it would only be in respect of the parcels that as a family, they agreed will remain hers. That the objectors and other beneficiaries are young, can work and have a source of income but she is old and sickly and needs a source of livelihood which the objector seems to curtail despite the fact that the properties were acquired by herself together with the deceased.

15. She reiterated that the present objector’s application has not met the threshold of the law and that he has not proved any fraud or laid before the court such evidence.

16. In further response, the Objector swore a supplementary affidavit in which he deposed that he found the contents of paragraphs 2, 3, 12, and 21 of the replying affidavit strange. Regarding paragraphs 5,6,7,8, and 19, he categorically denied ever being involved in the process leading to the confirmation of grant and/or amendment. He asserted that he never signed the consent form, and that the signature appearing on form 37 was a forgery, as it did not match his signature on his supporting affidavit or any other documents he had previously signed. He expressed his intention to cross-examine the Respondent on the contents of paragraphs 6,7,13,18, and 19, particularly concerning how his signature was forged and how his Identity card came into her possession without his knowledge.

17. The Objector further argued that if he had been involved in the succession process as alleged by the Respondent, he would have had no reason to object several years later, as he would have filed a protest upon learning of the same before confirmation of the grant. He cited Section 76 of the Law of Succession Act of Kenya, stating that a confirmed grant can be revoked at any time, even after distribution has taken place, where reasonable grounds exist. He referenced Section 47 of the same Act and Rule 73 of the Probate and Administration Rules regarding the court's inherent powers to determine disputes and make appropriate orders.

18. The Objector pointed out that paragraphs 10,11,15,16,17,22,23,25, and 27 of the Replying affidavit amounted to an admission that the Respondent was interfering with the estate by selling Kenya Breweries shares without his consent or that of other beneficiaries. He revealed that the purported family minutes were signed under duress, as the Respondent had instructed Kapsoya police officers to arrest him the day before the meeting. He stated that he signed the minutes at the police station and was subsequently released without any charges.

19. Regarding paragraph 18, the Objector reiterated that certain properties were left out of the estate list, including Burnt Forest Plot No.105, Uikaro Plot No.106, and KCB shares (Certificate No.592233 with 5,330 shares and Certificate No.609642). He explained that these documents were destroyed during post-election violence, and the Respondent had illegally registered Burnt Forest Plot No.105 in her name and was pursuing title processing for Uikaro plot No.106 while taking all KCB Bank shares.

20. The Objector concluded by expressing his current state of hopelessness, insecurity, and apprehension about the Respondent's intentions unless the court allowed his application. He urged the court to allow his application as meritorious and in the interest of justice.

21. The parties filed submissions in support and opposition of the application which have been summarized as hereunder.

Applicant’s submissions 22. Learned Counsel Mr. Kagunza submitted for the applicant that the deceased, Samwel Muiruri Nganga, died on 21. 10. 2012 leaving behind nine dependants who are all adults, namely the widow Zipporah Njoki Muiruri and eight children. Counsel submitted that the Respondent obtained Letters of Administration fraudulently on 14. 07. 2014 and proceeded to attempt evicting the Objector from Plot No.105 held in Munyaka Ndutunyagwwo Mwene Self Help Group.

23. Learned Counsel further submitted that the Respondent fabricated criminal charges against the Objector and filed an application to restrain the Objector from residing in his house, with the intention of rendering the Objector and his family fugitives.

24. On the issue of consent, Counsel submitted that there were no minutes of any meeting to discuss the distribution of the estate, despite the Objector's name being included in the Petition documents. It is the Applicant's case that the signature appearing on form 37 is a forgery.

25. On the legal framework, Counsel relied extensively on Section 76 of the Law of Succession Act, which provides grounds for revocation of grants. In support of the application, Counsel cited the case of Bernard Kimani Kagia v Martha Njoki Kagia & another [2016] EKLR, which establishes precedent for revocation where succession proceedings are marked with irregularities and fraud.

26. On the question of life interest, Counsel submitted that while the Respondent enjoys a life interest in the estate, this does not entitle her to dispose of the property absolutely. Counsel emphasized that since all the children of the deceased are still alive, the widow cannot have absolute rights over the property but is only entitled to income derived from it.

27. In conclusion, Learned Counsel urged the court to find sufficient cause for revocation based on the demonstrated irregularities, fraud, and concealment in the succession process.

Respondent’s submissions 28. It is submitted for the Respondent that there are three main issues for determination: whether the grant was obtained fraudulently and should be annulled, whether Burnt Forest Plot No. 105 and Uikaro Plot 106 form part of the deceased's estate, and whether the distribution was fair and equitable.

29. On the issue of fraudulent obtainment of grant, learned Counsel Mr. Mwaka submitted that although the Applicant alleges his signature was forged on the consent form, under cross-examination he failed to explain why no police report was made regarding the alleged forgery. Counsel further submitted that court records demonstrate the Applicant's physical presence and participation when the grant was confirmed.

30. Learned Counsel emphasized that the grant was properly gazetted and the Applicant took active part in the proceedings for eight years without raising any complaints of forgery or fraud. It is the Respondent's case that no evidence has been presented to demonstrate concealment, fraud or forgery that could not have been discovered earlier.

31. Regarding the disputed properties, Counsel submitted that while the Applicant relies on evidence from one Francis Ndungu who claimed to have sold the plot to the deceased, during cross-examination Ndungu failed to produce any documents linking himself to the land, including title deeds or green cards. Counsel contended that this appears to be a scheme between the Applicant and his witness to maliciously grab the parcel from the Respondent.

32. On the question of distribution, Counsel submitted that material evidence before court demonstrates that land parcel Olare/Burnt Forest Block2/223 and Nyahururu plot 1438 have been distributed equally to all beneficiaries. Counsel further submitted that the Respondent sold the East African Breweries and KCB shares to construct her house at Munyaka, and that signed minutes exist showing the distribution was done with family consensus.

33. In conclusion, Learned Counsel urged the court to find that the application lacks merit, is fatally defective and should be dismissed with costs. Counsel particularly highlighted humanitarian concerns, noting that the Respondent is an elderly woman of 80 years who is sickly and unable to fend for herself.

Analysis and determination 34. The central issue for determination is whether the Applicant's application meets the threshold for revocation of grant within the meaning of Section 76 of the Law of Succession Act. For avoidance of doubt, section 76 states:“76. Revocation or annulment of grantA 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 order or allow; 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)that the grant has become useless and inoperative through subsequent circumstances.”

35. The scope and application of section 76 was clearly expounded by the court In re Estate of Prisca Ong'ayo Nande (Deceased) [2020] eKLR where it was stated that:“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. 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 of 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 circumstances, 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.”

36. Let me examine each ground raised by the Objector systematically. The first allegation concerns forgery of signatures on Form 37. The Objector claims that the signature appearing on the form does not match his known signatures.

37. The law has established clear principles regarding allegations of fraud and forgery in succession matters. In Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR, the court held:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from facts.”

38. Similarly, in Ndolo -V-Ndolo [2008] 1KLR (G &F) 742 the court stated as follows:“We start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in criminal cases…….” “……In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.”

39. In the present matter, the Objector alleges that his signature was forged on Form 37 and that he never consented to the distribution scheme. However, several critical elements are missing from his case. First, while he disputes the authenticity of the signature, he has not provided expert evidence to demonstrate the alleged forgery. The law places the burden of proving forgery on the person making such allegations. As held in Re estate of Julius Mimano (Deceased) [2019] eKLR, the person alleging forgery must produce evidence from a qualified document examiner to support their claim.

40. Second, though the Objector claims the signature is not his, he has taken no steps to report the alleged forgery to law enforcement authorities, despite forgery being a criminal offense. This failure to take action when fraud is suspected weighs against the credibility of his allegations.

41. Third, the Objector has not explained the considerable delay in challenging the grant, having waited several years after its issuance and confirmation to raise these allegations. The courts have consistently held that allegations of fraud should be brought to their attention at the earliest opportunity.

42. The Respondent has demonstrated that proper procedures were followed in obtaining the grant, including gazettement and involvement of all beneficiaries through their family advocate. While the Objector disputes participation in these processes, he has not produced sufficient evidence to discharge the heavy burden of proving fraud. As held in Central Bank of Kenya Limited v Trust Bank Limited & 4 Others [1996] eKLR, vague and general allegations of fraud cannot suffice given the serious nature of such claims.

43. The administrator’s duties and responsibilities are explicit and outlined in Section 79, 82 and 83 of the Law of Succession Act Cap 160.

44. The law grants administrators’ considerable discretion in the distribution and management of estates, provided they act fairly and in good faith. Administrators have the power to make reasonable decisions regarding estate distribution, as long as they fulfil their fiduciary duties. The evidence here shows the Respondent has exercised her discretion appropriately and has taken steps to ensure fair distribution among beneficiaries.

45. It is worth noting that succession matters often bring to fore deeper issues beyond mere property distribution. This court has observed with concern the growing trend of beneficiaries attempting to forcefully claim inheritance without appreciating the effort and industry their parents invested in building their estates. The deceased worked diligently throughout his life to acquire these properties. While his children are entitled to reasonable inheritance, they must also recognize that inheritance is not an absolute right but a privilege that comes with responsibilities.

46. The court must emphasize that the primary purpose of succession law is to ensure orderly distribution of estates while respecting the deceased's wishes and protecting genuine dependants. It is not meant to be a vehicle for adult children to make unreasonable demands on estates their parents worked hard to build. Beneficiaries would do well to focus their energies on building their own legacies rather than fighting over their parents' hard-earned wealth.

47. Based on the totality of evidence, I find that the Objector has failed to establish any grounds under Section 76 that would warrant revocation of the grant. The allegations of fraud, forgery and concealment remain unproven. More importantly, the Respondent has demonstrated proper administration of the estate in accordance with both the law and the deceased's wishes.

48. This is an interesting dispute between a son and his biological mother. The son who has pursued the claim as an objector seeks leave of this court to exercise jurisdiction under Section 76 of the Act to revoke the grant which the mother has diligently explained the steps taken to administer the intestate estate of the deceased. I find no evidence of mis-presentation, concealment, or any defect in the matter the estate has been distributed by the petitioner who also doubles up as the biological mother to the objector. This was learned exclusively acquired by the petitioner and his late husband and for me she is better placed to provide leadership on what shares should be allocated to the surviving sons and daughters in any event. I echo the words of the court in the case of Jackson Mwiti (2020) eKLR which observed inter - alia that adults children of sound mind and average age should stop weaponizing their parents on property rights under the notion that their entitlement is on the same fulcrum with that of their parents. The conduct of the objector in this matter is geared towards depriving her mother the petitioner the deserved peace of mind at her advanced sunset years. The property in question happens to be the matrimonial estate and a life interest occupied by the petitioner. This revocation of certificate of confirmation of grant under Section 76 by the objector is in bad faith and I find no sufficient cause to exercise discretion to grant the remedies applied for in the aforesaid application as agitated before this court. There is a common misconception within our legal system that children must always share or inherit equally with their parents. I take judicial notice that the Kenyan Constitution 2010 has had a significant impact on all the branches of our legal system including customary law. This same constitution has transformed and reshaped important aspect of our inheritance rights since its promulgation. There is now a quest in Kenya’s Succession Laws for courts to determine which rights pass or devolve to the deceased beneficiaries. It appears the legal battle ground is not only limited as between siblings or beneficiaries of the estate but it has looped in the creators and owners of the intestate and testate estate. Admittedly so the objector’s dissenting voice is about yielding more proprietary rights survived of the deceased. This is not a claim I am about to be persuaded by the objector to invoke Section 76 of the law of Succession Act. The petitioner in this case was and is the primary care giver and on the demise of her spouse she was granted full parental rights and responsibilities to facilitate any decision making on inheritance rights so long as the same is not in contravention with Article 27 (4) of the Constitution.

49. Accordingly, I make the following orders:a.The summons for revocation dated 2nd June, 2021 is hereby dismissed in its entirety.b.The grant of letters of administration issued to Zipporah Njoki Muiruri, as amended on 18th April, 2016, is upheld and confirmed.c.The costs of these proceedings shall be borne by the Objector.

50. Orders accordingly.

DATED AND DELIVERED AT ELDORET THIS 20TH DAY OF JANUARY 2025Mr. Mwaka for the Petitioner.Mr. Kagunza for the Objector…………………………………R. NYAKUNDIJUDGE