https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11229

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **SUCCESSION CAUSE NO. 160 OF 2007** **IN THE MATTER OF THE ESTATE OF THE LATE MUINDI NDOLO (DECEASED)** **ANGELA MBULA MUINDI …………1ST ADMINISTRATOR/RESPONDENT** **MUMBUA MUINDI ………………......2ND ADMINISTRATOR/RESPONDENT** **VERONICAH NDINDA MUTUNGA ...3RDADMINISTRATOR/RESPONDENT** **SIMON MAKAU MUINDI …………...4TH ADMINISTRATOR/RESPONDENT** **VERSUS** **JOSEPH NDOLO MUNYAO ………………………………………..APPLICANT** **RULING** 1. The deceased, Muindi Ndolo, died on 5th January 2000. He was survived by four wives and children from each house. The four wives of the deceased were: **Ndila Muindi** (First Wife, deceased); **Ngondu Muindi** (Second Wife, deceased); **Mwikali Muindi** (Third Wife); and **Katunge Muindi** (Fourth Wife). The four houses together comprised numerous children of the deceased. 2. On 10th April 2000, a Petition for Grant of Letters of Administration Intestate was filed by Ngondu Muindi and John Munyao, the second wife of the deceased and her son respectively. In that Petition, only three beneficiaries were listed: Ngondu Muindi (widow), John Munyao (son) and Veronicah Ndinda Mutunga (daughter). The beneficiaries of the First, Third and Fourth houses were conspicuously and entirely omitted from the Petition. The assets of the estate listed therein comprised: a) **Kangundo/Muisuni/709** b) **Kangundo/Isinga/828** c) **Athi River Block 5/454** 3. The Grant of Letters of Administration Intestate was issued jointly to **John Munyao Muindi** and **Ngondu Muindi** on 10th July 2007, and was subsequently confirmed vide Summons for Confirmation of Grant on 29th July 2008, with all the properties of the estate directed to be registered solely in the name of John Munyao Muindi. Critically, no written consents were obtained from the widow or any of the children of the deceased from the First, Third, or Fourth houses. The consent obtained was limited to that of Veronicah Ndinda Mutunga, a daughter of the Second House. 4. The other beneficiaries of the estate stated to have only discovered the existence of these proceedings when the Respondent commenced the selling the assets of the deceased. On 28th October 2020, some twelve years after the confirmation of the grant, eight members of the deceased's family, drawn from across the four houses, filed Summons for Revocation of the confirmed grant. The Applicants comprised: Samuel Mwatu Muindi, Grace Muthike Mwetha, Angelina Mbula Muindi, Peter Muthama Muindi, Veronicah Ndinda Mutunga, Francisca Ngondu Mutiso, Mumbua Muindi, and Simon Makau Muindi. 5. The grounds upon which revocation was sought were, in summary, as follows: 1. ***That the Petition was lodged without notice to and consent of all the beneficiaries from the four houses;*** 2. ***That the grant was obtained through concealment of material facts, namely the existence of the other three houses and their beneficiaries;*** 3. ***That the proceedings leading to the grant were defective in substance; and that the administrator had, on the strength of the confirmed grant, sold and/or transferred estate properties to the detriment of the rightful beneficiaries. The Applicants further sought a preservation order prohibiting further transactions on all three parcels pending the hearing.*** 6. In opposition, the Respondent John Munyao Muindi swore a Replying Affidavit on 25th November 2020 and advanced three principal contentions. First, he maintained that each of the four wives had been settled by the deceased on separate parcels of land during his lifetime and that the properties listed in the confirmed grant were those allocated specifically to the Second House. Secondly, he deposed that he had sold **Kangundo/Isinga/828** to one Kimeu Wa Ngwatu and his children, who had taken possession of the parcel although transfer of title had not yet been effected; and that **Athi River Block 5/454** had been sold by himself and his mother. The Respondent raised the interests of these purchasers, contending that they had acquired rights in the property and ought to be heard before any cancellation of title was ordered. Thirdly, he proposed that rather than revoke the grant, the court should merely amend it to include additional administrators, which would in his view cure any irregularities. 7. The purchasers, who had acquired interests in the estate properties on the strength of the impugned confirmed grant, thus became a third relevant interest in these proceedings. Their interest was specifically flagged by the Respondent who urged that *"the buyers of the properties after the grant was confirmed need to be heard before cancellation of the titles."* However, the court (Muigai J) found it necessary to restore the estate to a lawful footing so as to enable proper distribution to all beneficiaries. 8. The Summons for Revocation came for determination before Hon. M.W. Muigai, J. who delivered a ruling on 16th December 2021. The learned Judge considered the application under **Section 76 ((a) and (b) of the Law of Succession Act**, which empowers the court to revoke a grant where the proceedings leading to the grant were defective in substance or where the grant was obtained through concealment of material facts. 9. The court found that the deceased was undisputedly survived by four wives and their respective children, a fact the Respondent himself had confirmed in his replying affidavit. Notwithstanding this, the Petition had been filed listing only the Second House, in plain contravention of **Section 51(2)(g) of the Law of Succession Act** , which requires disclosure of the names and addresses of all surviving spouses, children, parents and siblings , and **Rule 26(1) of the Probate and Administration Rules**, which prohibits the issuance of letters of administration without notice to every other person entitled. The court rejected the Respondent's contention that the grant should merely be amended, holding that the failure to make full disclosure of material facts rendered the proceedings leading to the grant *"defective in substance"* within the meaning of Section 76 of the Act. Invoking the principle articulated in **Re Estate of Wahome Mwenje Ngonoro (Deceased) [2016] eKLR**, the court reaffirmed that a litigant seeking a grant must make a full and fair disclosure of all material facts , including facts relating to all beneficiaries , and that failure to do so, whether deliberate or not, amounts to a concealment which vitiates the grant. The court was equally guided by the decision of Gikonyo J. in **Re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR**, where it was held that non-disclosure of material facts in succession proceedings *"undermines justice and introduces festering waters into the pure streams of justice."* 11.As regards the position of the purchasers, the court proceeded under **Section 45 of the Law of Succession Act**, which restricts intermeddling with a deceased's estate, and made a status quo order preserving all assets of the estate against any further subdivision, sale, transfer or interference by family members or purchasers alike, pending fresh confirmation of grant. The court declined to make any finding of fraud, noting that allegations of fraud require a higher standard of pleading and that the particulars tendered were insufficient to sustain such a finding. 12. The court accordingly held that the grant issued to Ngondu Muindi (deceased) and John Munyao Muindi and confirmed on 29th July 2008 stood **revoked**. The Respondent was directed to file a fresh application for confirmation of grant taking into account all rightful beneficiaries from the four houses within 45 days. 13. Following the revocation ruling, the matter encountered a further obstacle: the Respondent, John Munyao Muindi, who had been directed to file a fresh application, similarly died, leaving the estate wholly without an administrator and the proceedings stalled. The matter lay dormant for a considerable period. On 7th October 2024, this court, exercising its powers under **Section 66 of the Law of Succession Act**, directed the parties to nominate one administrator from each of the four houses of the deceased's family. On 9th October 2024, the following nominees were duly approved and appointed as administrators of the estate: a) **Angelina Mbula Muindi** , First House b) **Veronicah Ndinda Mutunga**, Second House c) **Mumbua Muindi**, Third House d) **Simon Makau Muindi**, Fourth House 14. The four administrators were expressly directed to carry out their statutory duties under **Sections 82 and 83 of the Law of Succession Act**. On 3rd December 2024, the court directed that a rectified grant be issued to them to enable the administration to proceed. The rectified grant was signed on 18th December 2024. 15. Summons for Confirmation of Grant were thereafter filed and duly served upon the beneficiaries. An affidavit of protest was received on behalf of certain beneficiaries, though it was initially uncommissioned. On 19th March 2025, time was granted for the protest to be regularised and for the administrators to respond. On 15th May 2025, in view of the longstanding family dispute and the desire to achieve a consensual resolution, the court directed the matter proceed through Court Annexed Mediation (CAM), with a mention fixed for 10th July 2025 to monitor progress. 16. On 10th July 2025, learned Counsel Mr. Nzioka for the administrators informed this court that the parties had reached a full and binding settlement through the mediation process and that a report had been duly filed. Mr. Odhiambo for the protestors confirmed the settlement. This court adopted the settlement agreement as an order of court, confirmed the grant, and directed that the mode of distribution of the estate shall be as per the terms of the settlement agreement. The mode of distribution as captured in the Certificate of Confirmation of Grant issued on 10th July 2025 and dated 17th September 2025 is as follows: | | | | --- | --- | | **Property** | **Share/beneficiary** | | Kangundo/Muisuni/709 & Kangundo/Isinga/828 | To be registered in the names of **Joseph Ndolo Munyao and Veronicah Ndinda Mutunga** to hold in trust for all beneficiaries | | Kangundo/Muisuni/709 & Kangundo/Isinga/828 | To be registered in the names of **Joseph Ndolo Munyao and Veronicah Ndinda Mutunga** to hold in trust for all beneficiaries | | Athi River block 5/45 (5 acres) | 1¼ acres **Angelina Mbula Muindi,** 1¼ acres **Mumbua Muindi,** 1¼ acres **Veronicah Ndinda Mutunga** 1¼ acres **Simon Makau Muindi** | 17. The Certificate of Confirmation of Grant expressly cautioned the administrators, pursuant to **Section 83 of the Law of Succession Act**, that they were required to complete the administration of the estate within six months from the date of confirmation and to produce to the court a full and accurate account of the completed administration. The matter was fixed before the court on 4th February 2026 to confirm that the estate transmission had been completed, with a view to closing the file. 18. The Application presently before this court is the summons dated 11th November 2025 which seeks to rectify the certificate of confirmed grant as follows: “ (a) ***That the Estate of the deceased herein, Muindi Ndolo, particularly in respect of the property Kangundo/Isinga/709 and Kangundo/Isinga/828, which were duly allocated to the second family be amended to read: to be registered in the joint names of Joseph Ndolo Munyao and Veronicah Ndinda Mutunga, to hold in trust for themselves and the other beneficiaries of the 2nd house.*** ***(b)That the share of the 2nd house in the Estate of the deceased herein Muindi Ndolo, particularly in respect of the property Athi River Block 5/454 measuring 1¼ Acres, which was to be registered in the name of Veronicah Ndinda Mutunga, be amended and to read: 1¼ Acres to be registered in the joint names of Joseph Ndolo Munyao and Veronicah Ndinda Mutunga, to hold in trust for themselves and the other beneficiaries of the 2nd house.”*** 19. Despite service there was no response. The application is therefore unopposed. 20. On 23rd March 2026, this court directed Counsel in the matter to file written submissions. No submissions were filed. Be that as it may, I have carefully considered the application, the grounds thereof and the facts deposed to in the Affidavit in support. The grant was confirmed in accordance with a mediation agreement between the beneficiaries of this estate. In the application, it is sought merely to clarify the shares of the second house so that the registration is in the joint names of two of the beneficiaries who shall hold the affected properties in trust for the other beneficiaries in that house. I am persuaded that the rectification shall not prejudice the beneficiaries of that house or in the first house. In the premises the application is allowed, but so as to comply with Section of the Law of Succession Act, it is ordered that **Veronicah Ndinda** and **Joseph Ndolo Munyao** shall hold trust for the other beneficiaries who shall have equal shares in the property. 21. Before I pen off, it is important to remind the Administrator that **Section 83 of the Law of Succession Act** places a positive and non-delegable duty on every administrator to collect and get in all the assets of the deceased's estate, to discharge all lawful debts and obligations, and to distribute the residue to the persons entitled. This duty is not discharged merely by obtaining a grant or confirming it, but also requires active steps to vest the assets in the beneficiaries. **Section 76 (d) (ii)** of the same Act empowers the court to take appropriate remedial action, including the revocation of a grant whether or not confirmed, where an administrator fails in their duties. 22. In the case of **Re Estate of Grace Wanjiru Mucheru (Deceased) [2023] KEHC 25306 (KLR)**, the court reiterated that the office of administrator carries an active, not a passive duty. An administrator who holds a confirmed grant and a clear court-sanctioned mode of distribution yet takes no concrete steps to effect the transfers is in default of their statutory obligations. The beneficiaries across all four houses of this estate , who have endured over a decade of contested litigation, a revocation of the original grant, the death of the original administrator, fresh appointments and fresh confirmation proceedings , are entitled to see those obligations discharged without further delay. 23.The mere existence of a confirmed grant, without active follow-through by the administrators, is no more than paper. It cannot bring closure to the beneficiaries whose inheritance remains untransmitted and hence unregistered leaving them with no interest in the property inherited. 24. In the upshot, there is no further reason for delay. The administrators are directed to take immediate, concrete and time-bound steps to complete the administration of this estate in accordance with the confirmed mode of distribution. Failure to do so will leave the court with no option but to consider the full range of remedies available under *Section 76 (d)(i)&(ii) (d) (ii) of the Law of Succession Act*, including the removal of non-performing administrators. 25. Accordingly, I make the following orders: a) **The four administrators, Angelina Mbula Muindi, Veronicah Ndinda Mutunga, Mumbua Muindi and Simon Makau Muindi, are hereby directed, jointly and severally, to take all necessary steps to now transmit and vest the estate properties in the respective beneficiaries in strict accordance with the rectified certificate of confirmation of Grant that issue following this ruling which is derives from the settlement agreement adopted as an order of this court on 10th July 2025. The transmission shall be completed within six (6) months of the date of this ruling.** **b) The administrators shall within six (6) months jointly make an account to this court confirming the completion of the administration of the estate as provided in Section 83(g) of the Law of Succession Act.** **c) Should any administrator fail or refuse without reasonable cause to execute the necessary transfer instruments or otherwise obstruct the completion of administration, the remaining administrators and/or any aggrieved beneficiary shall be at liberty to apply to this court on short notice for orders compelling compliance, including the removal and replacement of the defaulting administrator.** **d) The matter shall be mentioned on 2nd February, 2027 for the court to confirm that the administration has been concluded and to formally close the file.** **e) This being a family matter there shall be no order for costs.** Orders accordingly**.** **Ruling signed, dated and delivered virtually through Microsoft Teams on this 23**rd **Day of July, 2026.** **E. N. MAINA** **JUDGE** **In the presence of:** Ms Keraro for Odhiambo for the Applicant No appearance for the beneficiaries Miriam - Court Assistant/Interpreter