https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/146

In re Estate of Edau (Deceased) (Succession Cause E031 of 2023) [2026] KEMC 146 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEMC 146 (KLR) Republic of Kenya In the Mombasa Law Courts Succession Cause E031 of 2023 EM Mwamuye, SRM June 25, 2026 IN THE ESTATE OF ELLISTONE MWANGEKA EDAU (DECEASED) Ruling Introduction 1.Before Court for determination is the objection dated 18th June 2025 lodged by Amanda Nerrissa Ndau and Hannah Wanyika Ndau against the proceedings relating to the Estate of Ellistone Mwangeka Ndau (Deceased). 2.The Objectors contend that the Respondent, Josephine Mwaka Ndau, obtained a grant without their knowledge and participation. They further contend that Plot No. Werugha/wundanyi/1723 belongs to the 1st Objector and does not form part of the estate of the deceased. They therefore urge the Court to revoke the said grant and grant them the reliefs sought in their objection. 3.The objection is opposed. The Respondent filed a Replying Affidavit and written submissions contending that no grant has ever been issued to her. She submits that the only grant issued in this cause was the grant issued on 20th July 2023 to Amanda Nerrissa Ndau and Hannah Wanyika Ndau, which was subsequently revoked by orders of this Court issued on 20th November 2023. She further contends that there is therefore no grant capable of revocation and that the objection is misconceived. 4.I have considered the objection, the affidavits on record, the rival submissions and the entire court record. Background 5.The record reveals that a Grant of Letters of Administration Intestate was issued on 20th July 2023 to Amanda Nerrissa Ndau and Hannah Wanyika Ndau. 6.On 3rd November 2023, Josephine Mwaka Ndau moved the Court seeking revocation of that grant. 7.The application was heard and on 20th November 2023 this Court made the following orders:a.The application dated 3rd November 2023 was allowed.b.The Grant of Letters of Administration issued on 20th July 2023 to Amanda Nerrissa Ndau and Hannah Wanyika Ndau was revoked and annulled.c.The application dated 14th September 2023 was set aside.d.The Court would proceed to determine each beneficiary and his or her respective share.e.A fresh grant would thereafter issue to such persons as the Court would appoint. 8.Thereafter, the Objectors moved the Court through an application dated 28th February 2025 seeking to set aside, vary or discharge the aforesaid orders and to be allowed to participate in the application dated 3rd November 2023. 9.In a ruling delivered on 5th June 2025, this Court dismissed that application and declined to interfere with the orders issued on 20th November 2023. Consequently, the orders of 20th November 2023 remain valid and binding upon all parties. Issues for Determination 10.The issues arising for determination are:a.Whether there exists a grant issued to Josephine Mwaka Ndau capable of revocation.b.Whether the objection dated 18th June 2025 meets the threshold for revocation under Section 76 of the Law of Succession Act.c.Whether the Court should determine ownership of Plot No. Werugha/wundanyi/1723 within these proceedings. Whether there Exists a Grant Capable of Revocation 11.The entire objection is anchored on the allegation that Josephine Mwaka Ndau obtained a grant without involving the Objectors. However, the court record does not support that assertion. 12.The record shows that the only grant ever issued in this cause was the grant dated 20th July 2023 issued to Amanda Nerrissa Ndau and Hannah Wanyika Ndau. That grant was revoked and annulled by the orders of this Court issued on 20th November 2023. 13.The same orders directed that a fresh grant would only issue after the Court determined the beneficiaries and their respective shares. 14.No material has been placed before Court demonstrating that any fresh grant was subsequently issued to Josephine Mwaka Ndau. 15.Indeed, the material on record shows that Josephine Mwaka Ndau merely filed a summons dated 17th October 2024 seeking appointment of administrators. An application for appointment is not itself a grant. This Court therefore finds as a fact that no grant has been issued to Josephine Mwaka Ndau. Whether the Objection Meets the Threshold Under Section 76 of the Law of Succession Act 16.Section 76 of the Law of Succession Act empowers the Court to revoke or annul an existing grant in specified circumstances. 17.Before the Court can invoke that provision, there must first exist a grant capable of revocation. 18.Since no grant has been shown to have been issued to the Respondent, there is no grant upon which Section 76 can operate. 19.The Court cannot revoke a grant that does not exist. 20.Further, this Court notes that the question whether the Objectors were denied an opportunity to participate in the proceedings leading to the orders of 20th November 2023 was substantially addressed in the application dated 28th February 2025. That application was heard and determined through the ruling delivered on 5th June 2025. The orders of 20th November 2023 were left intact. 21.The present objection cannot therefore be utilized to indirectly reopen issues already addressed by the Court without a proper application before it. 22.I therefore find that the objection does not satisfy the requirements of Section 76 of the Law of Succession Act. Whether Ownership of Plot No. Werugha/wundanyi/1723 should be Determined 23.The Objectors maintain that Plot No. Werugha/wundanyi/1723 belongs to Amanda Nerrissa Ndau and does not form part of the deceased's estate. 24.The Respondent disputes that assertion and maintains that the property is registered in the deceased's name. 25.The dispute before Court is therefore a substantive contest regarding ownership and beneficial entitlement. 26.Such a dispute requires evidence and cannot properly be determined through an objection whose foundation is revocation of a grant that has not been shown to exist. 27.The Court notes that the orders issued on 20th November 2023 specifically directed that the Court proceeds to determine beneficiaries and their respective shares before issuance of a fresh grant. 28.The dispute concerning the assets of the estate, including Plot No. Werugha/wundanyi/1723, is therefore best addressed during those proceedings. 29.Consequently, this Court declines to make any final finding on ownership of the said property at this stage. Observations of the Court 30.This dispute concerns members of one family and has remained pending for a considerable period. 31.The Court notes with concern that nearly three years after commencement of these proceedings, no fresh grant has been issued and the estate remains undistributed. 32.The Court is persuaded that the interests of justice require the parties to move beyond interlocutory contests and focus on the substantive determination of the estate. 33.The beneficiaries will ultimately be afforded an opportunity to present evidence regarding:a.The rightful beneficiaries of the estate;b.The assets comprising the estate;c.Any property alleged not to form part of the estate;d.The appropriate administrators; ande.The mode of distribution. 34.The Court therefore encourages all parties to cooperate in the administration of the estate and to avoid multiplicity of applications that only serve to delay final resolution of the matter. Orders 35.Accordingly, the Court makes the following orders:i.The objection dated 18th June 2025 is hereby dismissed.ii.The Court finds that no grant has been issued to Josephine Mwaka Ndau capable of revocation under Section 76 of the Law of Succession Act.iii.The orders issued on 20th November 2023 remain valid and in force.iv.The parties shall proceed with the pending process for identification of beneficiaries, ascertainment of estate assets, determination of shares and appointment of administrators in accordance with the orders of 20th November 2023.v.Any party claiming that Plot No. Werugha/wundanyi/1723 or any other property does not form part of the estate shall place evidence before the Court at the hearing for determination of beneficiaries, assets and distribution.vi.The Court administrator shall give the matter a priority mention date for directions towards expeditious determination of the estate.vii.The parties are advised, in the interest of preserving family relations and minimizing costs, to consider engaging in court-annexed mediation or consensual discussions with a view to agreeing on the administrators, beneficiaries and distribution of undisputed assets before the next hearing date.viii.Given the family nature of the dispute, each party shall bear its own costs. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 25TH JUNE 2026............................................EMILYM.MWAMUYESENIOR RESIDENT MAGISTRATE