https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11118

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT SUCCESSION CAUSE NO. 12 OF 1999** **IN THE MATTER OF THE ESTATE OF JAMES KIRUMA GATHINGI (DECEASED)** **JOE GATHINGI KIRUMA………………………………….APPLICANT** **VERSUS** **GLADYS MUTHONI KIRUMA** **MARY MUMBI KIRUMA……………………………...RESPONDENTS** **JUDGEMENT** 1. Before this Court for determination is the Summons for Revocation of Grant dated **20th March 2025** filed by the Applicant **JOE GATHINGI KIRUMA**. The application which was premised upon **Section 76** of the **Law of Succession Act, Cap 160 Laws of Kenya, Rule 44 of the Probate and Administration Rules** and all other enabling provisions of the law was supported by the affidavit of even date and the Further Affidavit dated **19th February 2026** both sworn by the Applicant. 2. The Respondent **MARY MUMBI KIRUMA** filed a Replying Affidavit dated **28th November 2025** opposing the summons. 1. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated **30th January 2026** whilst the Respondent relied upon her written submissions dated **16th February 2026**. **BACKGROUND** 1. This succession cause relates to the estate of the late **JAMES KIRUMA** **GATHINGI** who died intestate on **18th February 1992**. A copy of the Death Certificate Serial No. **239817** appears as Annexture **‘JGK ‘1’** to this summons for revocation of Grant. 2. The Deceased was a polygamous man who was survived by two (2) wives namely **GLADYS MUTHONI KIRUMA** (1st wife now Deceased) and **MARY MUMBI KIRUMA** (2nd wife the Respondent herein). According to the chiefs letter dated **14th January 1994** the first wife had four (4) children whilst the second wife had three (3) children. 3. Following the demise of the Deceased Grant of Letters of Administration was on **17th July 1997** made to the two widows. That Grant was later confirmed on **19th November 1999**. Sadly one of the Administrators of the estate **Gladys** **Muthoni Kiruma** (the first wife) passed away. 4. The Applicant has now filed this summons seeking to have the Grant revoked on several grounds. Firstly that the Grant was obtained by way of misrepresentation as some of the assets belonging to the Deceased were left out. Secondly the Applicant contends that in view of the demise of one of the Administrators the grant has become inoperative and ought to be revoked. 1. Thirdly the Applicant claims that the beneficiaries were not included/involved in the succession cause and that the mode of distribution as proposed in the confirmed grant was unjust and unfair, leading to family disputes. 2. Finally the Applicant complains that to date almost twenty six (26) years after the Grant was confirmed the estate remain un-distributed. He argues that a revocation of the grant would serve the best interests of all the parties. 1. In her reply the Respondent confirms that the Grant was confirmed to her and her co-wife on **19th March 1999**. The Respondent denies that any assets belonging to the Deceased were left out and submits that the demise of a co-administrator is not grounds to revoke a grant. 1. The Respondent insists that all beneficiaries were aware of and were involved in this succession cause and states that the Applicant consented to the mode of distribution of the estate. **ANALYSIS AND DETERMINATION** 1. The grounds upon which a grant may be revoked are set out in **Section** **76** of the Law of Succession Act which provides as follows:- **“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 -** 1. **that the proceedings to obtain the grant were** **defective in substance;** 1. **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;** 1. **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;** 1. **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 as such inventory or account which is false in any material particular ; or** 4. **that the grant has become useless and inoperative** **through subsequent circumstances;”** 1. This provision of the law was expounded upon by the court in the case of **RE ESTATE OF PRISCA ONG’AYA NANDE (Deceased) 2020** **eKLR** where it was 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 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 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 Applicant has submitted that due to the demise of the 2nd Administrator the grant was rendered useless and inoperative and therefore ought to be revoked. This is a case in which the estate had two (2) joint administrators. It is not in dispute that one of the Administrators of the estate namely **Gladys Muthoni Kiruma** the mother of the Applicant passed away after the Grant was issued. Though this fact is conceded by the Respondent. I note that no proof of her demise e.g a death certificate was produced by the Applicant. Be that as it may. Does the death of one of the Administrators render the grant useless and inoperative as alleged by the Applicant. 1. **Section 81 of the Law of Succession Act** provides that **“81 Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivors of them………………”** 1. In **RE ESTATE OF ELIJAH OKTAH MIKAH TSIMBWELE** **(Deceased) [2021] eKLR, Hon. Justice Musyoka** stated that **“The death of one or more administrators does not affect the grant, in terms of rendering it invalid or inoperative or useless. Under Section 81 of the Act, the powers and duties of personal representative vest in the surviving personal representative on the death of one of them……” [Own emphasis]** 1. Relying on the provisions of **Section 81** as well as cited case law it is quite obvious that a grant continues to be valid even if one of the administrators passes away. The remaining administrator in this case **Mary Mumbi Kiruma** is legally authorised to continue with the administration of the estate. Accordingly this ground of the summons has no merit and is dismissed. 1. The second ground on which the Applicant seeks to have the grant revoked is that there was concealment of material facts. The Applicant alleges that the Administrators left out of the list of assets, several assets owned by the Deceased. It is trite law that he who alleges must prove. **Section 107** of the **Evidence Act Cap 80 Laws of Kenya** places the burden of proof upon the party alleging the existence of a fact or set of facts. 1. In the case of **Gatirau Peter Munya vs Dickson Mwenda Kithinji** **& 3 Others (2014) eKLR** the Supreme Court held inter alia: **The person who makes such allegations 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 of act in issue.** 1. The Applicant alleged that the following assets which belonged to the Deceased were concealed by the Administrators and were not included in the list of Assets. 1. **A plot of Burguret Arimi Limited.** 2. **A plot No. 77 at Kangaita Market.** 3. **A plot No. 52 at Kangaita Market.** 4. **Shares held with Standard Chartered Bank Limited.** 5. In order to prove these claims the Applicant attached a share Certificate (Annexture ‘**JKG a’** to the supporting Affidavit) by Burguret Arimi Probe Committee. The Respondent in her reply stated that the shares which the Deceased held in **Burguret Arimi** were converted into Title. I note that the annexture produced by the Applicant bears the Title Number **TIGITHI MATANYA/181**, which property is indeed included in the list of assets in the certificate of confirmed Grant. Thus I find that this claim has no basis. 1. Further in respect of **Plot No. 52 Kangaita Market**, the Applicant has annexed an allotment letter which is dated **3rd October 1977** (almost forty (40) years ago). The Applicant has not shown that **Plot No. 52** at Kangaita Market was still registered in the name of the Deceased at the time of his demise. The same case applies to **Plot No. 77** where the allotment letter was issued on **12th June** **1984** – again over forty (40) years ago. 1. The Applicant needed to adduce evidence to show that from the time of allocation the said properties still remained registered in the name of the Deceased at the time when the certificate of Grant was being issued. No search certificates in respect of the said properties were annexed. 1. With respect to the shares held at **Standard Chartered Bank** (see Annexture ‘**JGK (d)’**) again no evidence has been availed to the court to show that these shares issued in **September 1984** were still registered in the name of the Deceased at the time of his demise. It is one thing to throw about allegations and accusations but it is a different matter altogether to prove said allegations. I therefore find that the Applicant has failed to prove on a balance of probability that any of the assets he named indeed belonged to the Deceased at the time of his demise. The allegation of concealment of assets has not been proved and is hereby dismissed. 1. Finally the Applicant claimed that the Grant was obtained fraudulently as himself and other beneficiaries were not notified of the petition for letters of Administration. The Applicant has not named the beneficiaries who were not notified of this cause and no other beneficiary has complained. I note that the Petition was gazetted vide Gazette Notice No. 1**803 of 8th April 1994**. A gazette Notice is adequate notice to any interested party of the existence of a cause or suit. 1. The Applicant is a son to the Deceased. I have no doubt that he was aware that his father had died. He cannot now **thirty (30) years** after the Petition was filed feign ignorance of the existence of this cause. The Applicants own mother **Gladys Muthoni Kiruma** was an administrator of the estate. I note that the Applicant appended his signature against the chief’s letter dated **14th January 1994** which listed the beneficiaries of the estate. The Applicant has not denied said signature. He cannot now deny knowledge of the existence of these succession proceedings. I find that there was nothing secretive or clandestine in the filing of this petition. 1. Finally I find that the Applicant has failed to demonstrate any or sufficient reason to warrant the revocation of this Grant and the Summons dated **20th March 2025** is hereby dismissed in its entirety. This being a family matter I make no orders on costs. **Dated in Nyeri this 22nd day of July 2026.** **……………………..…** **MAUREEN A. ODERO** **JUDGE**