https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/480

 REPUBLIC OF KENYA IN THE MAGISTRATE COURT OF KENYA AT MURANGA COUNTY COURT NAME: MURANGA MAGISTRATE COURT CASE NUMBER: MCSUCC/E570/2022 IN THE ESTATE OF NJUNG'E NJOROGE RULING 1. On 16th March 2023, the grant of letters of administration issued to Eliud Muchoki Njung’e in the estate of Njung’e Njoroge (deceased) were confirmed. The deceased’s sole property, land parcel No. Loc. 12/Sub-Loc 3/1405 (herein *“the subject parcel of land”)* thereby devolved to the 2 nd respondent, John Mwangi Irungu. 2. Subsequently, the applicant, John Macharia Maina, filed summons dated 20th June 2024, seeking to have the grant revoked. In his supporting affidavit, the applicant claimed that he had purchased 0.3 acres out of the subject parcel of land from the deceased vide a land sale agreement dated 11th October 2011. On the same day, the deceased applied for a consent from the land control board which was given on 15th November 2011. The applicant claimed that the next day, he paid the deceased for subdivision of the subject parcel of land which was thereafter subdivided into portions measuring approximately 0.08 Ha and 0.12 Ha. Unfortunately, the deceased passed away before the transfer was effected. The 1st respondent, despite being aware of the agreement between the applicant and the deceased, had proceeded to apply for confirmation of the grant without his knowledge. The applicant therefore sought the following orders in his aforementioned summons; 1. **THAT** the grant of letters of administration issued to ELIUD MUCHOKI NJUNG’E the 1st respondent herein and confirmed by the Honorable Magistrate Court Murang’a on 16th day of March 2023 be revoked; * 1. **THAT** land measuring approximately 0.3 acres out of land parcel No. Loc. 12/Sub-Loc 3/1405 is not and did not form part of the free property of the deceased hence not available for disposition as per the Law of Succession Act; * 1. **THAT** in light of order (2) above any interest accruing to the 2nd respondent with regard to all that land parcel No. Loc. 12/Sub-Loc 3/1405 is limited to the remainder of the property upon sub-division and excision of 0.3 acres belonging to the applicant from the deceased estate; * 1. **THAT** the 1st respondent and administrator of the estate of Njung’e Njoroge (deceased) do transfer to the applicant land measuring approximately 0.3 acres out of land parcel No. Loc. 12/Sub-Loc 3/1405 measuring approximately 0.16 Ha, the property of Njung’e Njoroge now deceased; * 1. **THAT** on failure by the 1 st respondent to transfer to the applicant land measuring approximately 0.3 acres upon sub-division of land parcel No. Loc. 12/Sub-Loc 3/1405 measuring approximately 0.16 Ha, the Deputy Registrar of this honorable court be at liberty to sign the transfer forms in place of the 1st respondent * 1. **THAT** the cost of this application be provided for. 1. The 1 st respondent/administrator did not respond to the summons for revocation despite service. 2. For his part, the 2 nd respondent refuted the summons for revocation of grant in his replying affidavit sworn on 6th September 2024. He begun by challenging the applicant’s locus to bring the application on the basis that he is not a beneficiary of the estate of the deceased. He also asserted that the issue of ownership of land could not be determined by probate courts and hence, this court lacked jurisdiction to determine the application. Further, the 2nd respondent asserted that the sale agreement had been made more than 13 years prior and was therefore statute barred. He also pointed out that the applicant had not proved that he had paid the last installment, hence there was a breach of agreement. According to the 2nd respondent, the grant issued to the 1st respondent was valid as there had been no fraud or concealment of material facts, hence the summons dated 20th June 2024 ought to be dismissed with costs. # ISSUES, ANALYSIS AND DETERMINATION 1. The issues arising from the parties’ depositions are whether; # Whether the applicant has locus to file the summons for revocation; 1. **Whether this court has jurisdiction to determine the summons;** 2. **Whether the applicant bought land measuring approximately** **0.3 acres out of land parcel No. Loc. 12/Sub-Loc 3/1405 from the deceased; and if so;** 1. **Whether the 1 st respondent ought to transfer to the applicant land measuring approximately 0.3 acres out of land parcel No. Loc. 12/Sub-Loc 3/1405 measuring approximately 0.16 Ha.** 2. On the first issue, the 2 nd respondent asserts that the applicant has no locus to move the court to revoke the grant as he is not a beneficiary of the estate. In the affidavit sworn in support of the petition for letters of administration, the 1st respondent/administrator listed himself, Kennedy Mwangi, Ruth Muthoni, Nancy Mwihaki, Jane Nyambura, Alice Wangechi, Ceciliah Wanja and Kelvin Njunge as the children and grand son of the deceased respectively. From that list of beneficiaries, it is clear that neither the applicant nor 2nd respondent have any relation to the deceased as envisaged under the Law of Succession Act. The chief’s introductory letter indicated that the 2nd respondent had a special interest in the estate. The applicant also claims a purchaser’s interest in the estate of the deceased. Under **Section 76** of the **Law of Succession** Act, any interested party may apply to have a grant revoked. He therefore had locus to file the summons for revocation of grant. 1. In this case, the applicant asserts that 0.3 acres out of the subject parcel of land does not form part of the deceased’s estate. The applicant’s learned counsel aptly refers to **Section 3** of the **Law of Succession Act** which defines the deceased’s estate as *“the free property of a deceased person.”* The Act defines *“Free property”,* in relation to a deceased person, as *“the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death.”* 1. Hence, if the applicant’s claim that he had purchased 0.3 acres out of the subject parcel were established, that portion of land would not form part of his estate. Having sold off that portion of the subject land, it would not have formed part of the deceased’s free property, which he would have been at liberty to dispose. 1. Had the applicant made his application before the grant was confirmed, the disputed portion would have been set aside to await the determination of the dispute in the appropriate forum, as provided under **Rule 41 (3)** of the [**Probate and Administration Rules**](https://new.kenyalaw.org/akn/ke/act/ln/1980/104/eng%402022-12-31). In this instance, the summons for revocation of grant has been brought after confirmation of grant. The issues raised by the applicant relate to the purchase of property from the deceased during his lifetime. In response, the 2nd respondent has questioned the legitimacy of the applicant’s claim on the grounds that the same is statute barred. He has also asserted that there is no proof that the last instalment was paid to the deceased. According to the land sale agreement produced by the applicant, he was required to pay the balance of the purchase price for the land by 31st December 2011. Evidently, these are issues that cannot be determined by a probate court. 1. This court is guided by the comprehensive discourse on the issue in the case of [***In re Estate of Alice Mumbua Mutua (Deceased) [2017] KEHC 8289 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/8289/eng%402017-01-20) where Musyoka J. held; 2. *Disputes of course do arise in the process. The provisions of the Law of Succession Act and the Probate and Administration Rules are tailored for resolution of disputes between the personal representatives of the deceased and the survivors, beneficiaries and dependants. However, claims by and against third parties, meaning persons who a neither survivors of the deceased nor beneficiaries, are for resolution outside of the framework set out in the Law of Succession Act and the Probate and Administration Rules. Such have to be resolved through the structures created by the Civil Procedure Act and Rules, which have elaborate rules on suits by and against executors and administrators.* 3. *The Probate and Administration Rules recognize that, and that should explain the provision in Rule 41(3), which provides as follows –* *‘Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the* *provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or property comprising it to abide the determination of the question in proceedings under … the Civil Procedure Rules …’* 1. *Clearly, disputes as between the estate and third parties need not be determined within the succession cause. The legal infrastructure in place provides for resolution elsewhere, and upon a determination being made by the civil court, the decree or order is then made available to the probate court for implementation. In the meantime, the property in question is removed from the distribution table. The presumption is that such disputes arise before the distribution of the estate, or the confirmation of the grant. Where they arise after confirmation, then they ought strictly to be determined outside of the probate suit, for the probate court would in most cases be functus officio so far as the property in question is concerned. The primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the court’s work would be complete. The proposition therefore is that not every dispute over property of a dead person ought to be pushed to the probate court. The interventions by that court are limited to what I have stated above.* 2. Accordingly, this court finds that the issues relating to the legitimacy of the applicant’s claim, whether his claim is statute barred, whether he obtained a land control board consent or paid the balance of the purchase price cannot be determined by this court. That is the domain of the environment and land court. The second issue is therefore answered in the negative. This court lacks the requisite jurisdiction to hear and determine the issues raised in the Summons for Revocation of Grant dated 20th June 2024. The same is therefore dismissed. 3. The parties shall bear their own costs. # DATED, SIGNED AND DELIVERED AT MURANG’A THIS 22ND DAY OF JULY 2026. **HON. GRACE WAITHĨRA SENIOR RESIDENT MAGISTRATE** **RULING READ ON THE VIRTUAL PLATFORM AT 10:24 A.M. IN THE PRESENCE OF;** **COURT ASSISTANT: JEREMIAH** **MR. KIMATA ROYSTON H/B FOR MR. WAWERU FOR THE APPLICANT NO APPEARANCE FOR THE 1ST RESPONDENT/ ADMINISTRATOR** **NO APPEARANCE FOR THE 2ND RESPONDENT** SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. GRACE WAITHIRA** Muranga Magistrate Court Magistrate Court Date: 2026-07-22 12:52:42