https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11018

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **MISC.SUCCESSION APPEAL NO.E006 OF 2025** **IN THE MATTER OF THE ESTATE OF JANE NGOIRI ALIAS JANE NGOIRI KIOI** **(DECEASED)** **BETWEEN** **JOSEPH KIOI MIRUNGU........................................................................APPELLANT** **-VERSUS-** **DAVID THUO KIMINGI............................................................................RESPONDENT** ***(Being an Appeal from the Ruling of Hon.Peter Muholi, Principal Magistrate, in Githunguri PM’s Court Misc. Succ Cause No.E078 of 2023 delivered on 20th March,2025)*** **RULING** **A. Introduction** 1. This is an appeal arising from the decision of the Honourable Magistrate sitting at the Principal Magistrate’s Court at Githunguri in Succession Cause No. Misc. 078 of 2023 whereby the trial court revoked and/or annulled the Grant Ad Litem dated 14th December 2023 issued to the Respondent and subsequently declared that the proceedings leading to the issuance of the grant defective in substance directed that a fresh grant be issued jointly in the names of the Appellant and the Respondent. **B. Background** 1. The deceased, Jane Ngoiri Alias Jane Ngoiri Kioi died intestate on 27th March, 1991 leaving behind an estate among them GITHUNGURI RANCHING COMPANY LTD PLOT NUMBER 2328. 2. Following the death of the deceased, the Respondent petitioned for a grant of letters of administration intestate which was issued on 14th December,2023 3. Subsequently, the Appellant filed an application seeking revocation of the said grant through summons dated 28th May, 2024 on the basis that the same had been obtained fraudulently and through concealment of material facts, particularly failure by the Appellant to disclose the Respondent as a beneficiary of the estate. 4. The Appellant contends that he is the sole beneficiary of the deceased’s estate and produced a letter from the area Chief confirming his relationship with the deceased and entitlement to benefit from the estate. 5. The Respondent opposed the application and maintained that the grant had been properly obtained. However, the Appellant similarly relied on a letter from the Chief confirming that he is also a beneficiary of the estate. 6. Upon hearing the parties, the trial court found that both parties had demonstrated a legitimate interest in the estate and that the circumstances surrounding the issuance of the original grant required intervention by the court. The trial court therefore directed that the earlier grant ad litem issued on 23rd April,2024 be amended ordered that a fresh grant issue jointly in the names of the Appellant and Respondent. 7. It is this decision that has given rise to the present appeal. **C. The Appeal & Cross Appeal** 1. Being dissatisfied with the said decision, the Appellant lodged this appeal on the following grounds: 1. ***THAT*** *the Honourable Court has jurisdiction to her and determine this application in the best interest of justice.* 2. ***THAT*** *the learned trial Magistrate erred in law and in fact in failing to revoke the Grant yet the applicant in his submissions proceed one of the grounds for revocation of the said grant as per Section 76 of the Law of Succession Act.* 3. ***THAT*** *the learned trial Magistrate erred in law and in fact in maintaining the said Grant as it is prejudicial to the Appellant. Further the court has all the necessary means to determine a genuine document from a fraudulent one.* 4. ***THAT*** *the learned trial Magistrate erred in law and in fact in arriving at a Ruling that was against the weight of evidence on record.* 5. ***THAT*** *the learned trial Magistrate erred in law and in fact in failing to consider the totality of the submissions filed on behalf of the Appellant.* 6. ***THAT*** *the learned trial Magistrate erred in law by failing to exercise his discretion judiciously.* 7. ***THAT*** *the Appellant is dissatisfied with the Ruling at the Githunguri Chief Magistrates Court by the learned Magistrate in* ***MCCSUCC No.E078 of 2023 on 20th March,2025*** *and has preferred and Appeal.* 8. ***THAT*** *it in the interest of fairness and justice that the Ruling issued on 20th March,2025 at the Chief Magistrate in* ***Githunguri MCSUCCMISC No.E078 of 2023*** *hereby set aside.* 2. Further the Respondent also went ahead and filed a Cross-Appeal in which they set out the following grounds of appeal: 1. ***THAT*** *the learned trial Magistrate erred in law by issuing foreign and contradictory orders imposing a joint grant which completely undermined the Court’s own position that there was no legal basis to disturb the Respondent’s existing grant ad litem.* 2. *T****HAT*** *the learned trial Magistrate erred in law and in fact in issuing orders that were never pleaded, canvassed or prayed for by the parties, specifically order for joint grant thereby acting ultra petita and denying the Respondent the right to be heard on merits of such radical departure from their pleadings.* 3. ***THAT*** *the learned trial court misdirected itself by failing to dismiss the Appellant’s application for revocation upon implicitly determine that the grounds for annulment were not satisfied and or the invitation was premature, instead opting to impose a relief that was neither sough nor legally sound.* 4. ***THAT*** *the order for joint grant creates a legal and procedural absurdity where the Appellant, who is the Defendant in the recovery suit in THIKA ELC NO.E220 OF 2025 (formerly Ruiru ELC E016 OF 2024) ,is simultaneously empowered as an administrator of the estate he is being sued by.* 5. ***THAT*** *the learned trial Magistrate erred in law and in fact in failing to appreciate that the imposition of a joint administrator on an estate with pending adverse litigation creates an irreconcilable conflict of interest ,rendering the grant ad litem ineffective for its primary purpose of assets preservation.* 6. ***THAT*** *the court failed to consider the grant ad litem had already been utilized to institute litigation THIKA ELC NO.E220 OF 2025 (formerly Ruiru ELC E016 OF 2024),and procedurally irregular and prejudicial to the ongoing suit.* 7. ***THAT*** *the trial court misapprehended the nature of the limited grant ad litem by treating it as a general grant requiring equitable joint administration rather that a specialized procedural toll for litigation representation.* 8. ***THAT*** *the order for joint grant significantly prejudices the estate by granting the Defendant in the recovery suit(the Appellant) the power to obstruct, stifle, or sabotage the litigation from within, directly defeating the interests of the beneficiaries.* 9. ***THAT*** *the learned Magistrate exercised his discretion erroneously by attempting a compromise that was not grounded in law or fact, thereby failing to act in the best interests of the estate and instead creating an unworkable administrative structure.* **D. Analysis and Determination** 1. **Whether the grant was properly obtained** 2. The application before the trial court sought revocation of the Grant Ad Litem principally on the ground that it had been obtained fraudulently through concealment of material facts and exclusion of persons allegedly entitled to benefit from the estate. 3. From the record, both parties laid claim to being beneficiaries of the deceased. 4. The Appellant produced a letter from the Area Chief identifying him as a beneficiary of the estate. 5. Equally, the Respondent relied upon another letter from the Area Chief recognizing him as a beneficiary and on the strength of which he obtained the Grant Ad Litem. 6. The existence of two conflicting letters from the same administrative office identifying different beneficiaries immediately raised serious questions regarding the identity of the rightful beneficiaries of the estate. 7. The trial court correctly appreciated that it could not conclusively determine the authenticity of the competing claims merely on the basis of the conflicting Chief's letters. 8. More fundamentally, succession proceedings are intended to ensure that all persons beneficially entitled to the estate are identified before representation is granted. 9. The Law of Succession Act requires utmost good faith and full disclosure in succession proceedings. A grant obtained without disclosure of all persons beneficially entitled is liable to interference under Section 76 of the Act. 10. In the present matter, it was evident that the dispute was not merely between the Appellant and the Respondent. Rather, the identity of the beneficiaries themselves remained contested. 11. In those circumstances, the learned magistrate was justified in finding that the proceedings leading to the issuance of the grant were defective and called for the intervention of the court. 12. Consequently, this Court finds no basis for interfering with the trial court's finding that the existing Grant Ad Litem could not stand in its original form. 13. **Whether the trial court erred by revoking the grant** 14. This being a first appeal, this court is obligated to re-evaluate the evidence placed before the trial court and arrive at its own independent conclusion while bearing in mind that it did not have the advantage of hearing the witnesses testify. This principle was settled ***Selle and Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123***, this principle was enunciated thus: ***“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."*** 1. The power to revoke a grant is donated, by Section 76 of the Laws of Succession Act Cap 160 of the Laws of Kenya. It states 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 any 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 allegation 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-* 5. *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* 6. *to proceed diligently with the administration of the estate; or* 7. *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. In the case of ***Matheka & Another Vs Matheka [2005] KLR,*** the Court of Appeal set out the guiding principles for revocation of a Grant as follows; - ***“From the foregoing, it is clear that a grant may be revoked either by application by an interested party or on the Court’s own motion. But even when revocation is by the Court upon its own motion, there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of a false statement or by concealment of something material to the case, or that the grant was obtained by means of untrue allegation of facts essential in point of law or that the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the estate. The grant may also be revoked if it can be shown to the Court that the person to whom the grant has been issued has failed to produce to the Court such inventory or account of administration as may be required.”*** 1. Further a grant may be revoked upon production of evidence proving the grounds in Section 76 [*Law of Succession Act*](https://kenyalaw.org/akn/ke/act/1972/14), whereupon the court will exercise its discretion and revoke the grant. In the case of ***Albert Imbuga Kisigwa Vs Recho Kavai Kisigwa [2016] KEHC 1528 (KLR),*** Mwita J. made pertinent remarks on principles for the revocation of a grant as follows: - ***“(13)Power to revoke a grant is a discretionary power that must be exercised judiciously an1d 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.”*** 1. Guided by the case of ***Jamleck Maina Njoroge Vs Mary Wanjiru Mwangi [2015] eKLR*** the court set out the circumstances under circumstances under which a grant may be revoked ***as follows: -*** ***“The circumstances that can lead to the revocation of grant have been set out in Section 76, law of Succession. For a grant to be revoked either on the Application of an interested party or on the court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of a false statement or by or by concealment of something material to the case or that the grant was obtained by means of untrue allegations of facts essential in point of law.”*** 1. The central issue before the trial court was not merely whether the Appellant had obtained a grant, but whether the process through which the grant was obtained was fair and whether all persons entitled to participate in the succession proceedings had been disclosed. 2. From the record, it is evident that both the Appellant and the Respondent produced letters from the area Chief confirming that each was a beneficiary of the estate of the deceased. 3. The existence of two letters from the same administrative authority recognizing both parties as beneficiaries demonstrates that the estate was not one where the Appellant had exclusive entitlement. The Appellant therefore ought to have disclosed the Respondent’s interest when petitioning for the grant. 4. Succession proceedings are proceedings that require utmost good faith. A petitioner is under a statutory obligation to disclose all beneficiaries and persons who may have an interest in the estate. Failure to do so may amount to concealment of material facts within the meaning of Section 76 of the Law of Succession Act. 5. The learned trial Magistrate was therefore entitled to find that the circumstances under which the initial grant was obtained were questionable and required correction. 6. In the circumstances, this court finds that the revocation of the grant was not an error of law. The trial court exercised its discretion within the parameters provided by Section 76 of the Law of Succession Act. 7. **Whether fraud was proved** 8. The Appellant argued that the Respondent failed to prove fraud against him. 9. It is correct that allegations of fraud must be specifically pleaded and strictly proved. However, in succession matters, the court does not require proof of criminal fraud before intervening under Section 76 of the Law of Succession Act. 10. The issue is whether there was concealment of material facts or whether the grant was obtained through an incomplete disclosure of persons entitled to participate. 11. In this case, the evidence showed that both parties had documents confirming their beneficiary status. The failure to include the Appellant in the original petition was therefore a material omission capable of affecting the validity of the grant. 12. **Whether the issuance of a joint grant was proper** 13. The Appellant argues that the trial court ought not to have issued a grant jointly to parties who were contesting each other's entitlement. 14. The Respondent, through the Cross-Appeal, argues that the court acted *ultra petita* by imposing a joint grant which had neither been sought nor canvassed by the parties. 15. This Court agrees that once the learned magistrate concluded that there existed competing claims as to the rightful beneficiaries, the logical consequence ought not to have been the appointment of both disputants as joint administrators. 16. A grant of representation cannot properly issue before the court has satisfactorily identified the persons entitled to administer and benefit from the estate. Therefore the order directing issuance of a joint grant effectively presumed that both parties were beneficiaries notwithstanding that this very question remained unresolved. 17. The record demonstrates that the parties do not merely dispute the administration of the estate; they fundamentally disagree on their respective entitlement to inherit. The Respondent asserts that he is a **nephew** of the deceased, while the Appellant maintains that he is the **grandson** of the deceased. Each party relies on a separate letter from the Area Chief in support of his alleged relationship to the deceased and each accuses the other of having procured his documentation through fraud or misrepresentation. 18. These competing claims go to the root of succession proceedings because the degree of consanguinity or affinity to the deceased directly affects the order of priority in entitlement under the Law of Succession Act. Before any person can properly be appointed as an administrator, the court must first ascertain the identity of the deceased's lawful survivors and beneficiaries. That exercise cannot be undertaken summarily in proceedings for revocation of a limited grant where the court is confronted only with conflicting Chief's letters and allegations of fraud. 19. A Grant Ad Litem is issued for the limited purpose of enabling representation of an estate in litigation. It is not intended to conclusively determine questions of heirship or beneficial entitlement. Where rival claimants assert different familial relationships to the deceased, the court must conduct a comprehensive inquiry in substantive succession proceedings so that all persons who may rank in priority under the Law of Succession Act are identified and heard. 20. In the present case, the conflicting claims that one party is the deceased's nephew while the other is her grandson raise questions that cannot properly be resolved through an application for revocation alone. The court would be required to receive evidence regarding the deceased's family tree, determine the existence or otherwise of surviving spouses, children, parents, siblings and other relatives, and establish whether either or both parties fall within the categories of persons entitled to inherit under Part V of the Law of Succession Act. 21. Consequently, the trial court erred in directing that a joint grant issue in favour of both parties before first determining whether either of them was legally entitled to administer the estate. Such an order effectively presumed the very issue that remained in dispute and risked conferring representative capacity upon a person whose beneficial interest had not been judicially established. 22. The proper course was to revoke the impugned grant and direct the commencement of a **fresh petition for letters of administration intestate**. Such a petition would require full disclosure of all survivors and beneficiaries, citation of all persons claiming an interest in the estate, and compliance with the Probate and Administration Rules. It is only after that process has been undertaken that the court can properly determine who, among the competing claimants or any other eligible persons, should be appointed as administrators of the estate. 23. A fresh petition is therefore necessary not merely because the original proceedings were defective, but because the identity of the rightful beneficiaries and administrators remains unresolved. The filing of a new petition will afford the trial court the opportunity to receive all relevant evidence, determine the competing claims on merit, and ensure that no beneficiary is excluded from the administration of the estate. 24. The record further demonstrates that both parties accuse each other of fraud and concealment. Those allegations underscore the necessity of commencing proper succession proceedings where all persons claiming beneficial interest are afforded an opportunity to appear before the court. 25. The purpose of succession proceedings is not merely to resolve disputes between rival claimants but to facilitate proper administration of the estate for the benefit of all beneficiaries. 26. A court exercising succession jurisdiction must therefore ensure that no beneficiary is excluded from the process. 27. In the present case, the record does not satisfactorily establish that the Appellant and the Respondent are the only surviving beneficiaries of the deceased. 28. Indeed, the conflicting letters from the Chief only reinforce the need for a comprehensive inquiry through a substantive petition for letters of administration. 29. This Court is therefore persuaded that although the learned magistrate correctly found fault with the original grant, he erred in proceeding to direct that a joint grant be issued. 30. The proper course ought to have been to set aside the defective grant and require the institution of fresh succession proceedings in which every person claiming beneficial interest would be disclosed and heard. 31. The Cross-Appeal therefore succeeds only to the extent that the order directing issuance of a joint Grant Ad Litem cannot stand. 32. Equally, the Appellant's contention that the grant ought to have been revoked succeeds only to the extent that the estate should revert to the position existing before issuance of the impugned grant pending proper succession proceedings. 33. The trial court therefore acted correctly in directing that administration of the estate be undertaken jointly. **E. Disposition** 29. In the result, the Court makes the following orders— * 1. The Appeal partially succeeds. 2. The Cross-Appeal also partially succeeds. 3. The order of the trial court directing that a joint Grant Ad Litem be issued in the names of the Appellant and the Respondent is hereby set aside. 4. The Grant Ad Litem issued in favour of the Respondent is hereby revoked and/or annulled. 5. The parties are directed to file a **fresh Petition for Letters of Administration Intestate** before the court of competent jurisdiction **within forty-five (45) days** from the date of this Judgment. 6. The fresh petition shall **fully disclose all the beneficiaries and survivors of the deceased**, and all persons claiming beneficial interest in the estate shall be cited, notified and accorded an opportunity to participate in the succession proceedings in accordance with the Law of Succession Act and the Probate and Administration Rules. 7. Upon the filing of the fresh petition, the trial court shall hear and determine the question of the rightful administrators after considering the interests of all beneficiaries. 8. Pending the filing and determination of the fresh succession proceedings, **no party shall deal with, alienate, transfer, charge, dispose of or otherwise interfere with any asset comprising the estate of the deceased.** 9. Each party shall bear their own costs of this Appeal and the Cross-Appeal, the dispute being a family succession dispute. 10. Each party shall bear its own costs of this appeal. It is so ordered. **Dated and delivered at Malindi this 20th day of July 2026** **C.AKAIGWA** **JUDGE** In the presence of ; Driscillah-Court Assistant Mr. Kihara for Appellant NA for Respo