https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11423

In re Estate of Wathirwa & Mugweru (Deceased) (Succession Cause 525 of 1997 & 250 of 2007 (Consolidated)) [2026] KEHC 11423 (KLR) (Family) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11423 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 525 of 1997 & 250 of 2007 (Consolidated) HK Chemitei, J July 23, 2026 IN THE MATTER OF THE ESTATE OF MAAKA MUKUHI MUGWERU (DECEASED) Between Martin Mugweru Applicant and Loise Wairimu Mugweru 1st Respondent Ruth Wanjiru Mugweru 2nd Respondent and National Land Commision 1st Interested Party Chief Land Registrar 2nd Interested Party ABSA Bank Nyeri Branch 3rd Interested Party National Bank Harambee Avenue 4th Interested Party Equity Bank Fourway Towers 5th Interested Party Ruling 1.Before me for determination is summons for Revocation of Grant dated 26th September 2025 brought under section 76 of Laws of Succession Act and Rule 44,63 and 73 of the Probate and Administration Rules. 2.The Applicant prays for orders that:a.Spent;b.Spent;c.That an injunction be issued retraining the Respondents, their agents, servants, transferees and/or any persons acting under authority from selling, transferring, leasing, mortgaging, charging, alienating, dissipating or in any way dealing with the deceased’s estate properties including but not limited to Kasarani LR 13041/2, Karatina Township Block 1/186, Karatina Township Block 1/206 and Ewaso Nyiro Surgoi Block 111/452 (12 acres) and from withdrawing or distributing any related proceeds held at Njuguna Kahari & Kiai Advocates or in any financial institution.d.That this Honourable Court be pleased to order the Respondents, their Agents, Njuguna Kahari & Kiai Advocates and/or any financial institution that in the event they have already received or disbursed proceeds of the deceased estate to forthwith restitute and deposit all such monies already withdrawn, disbursed or distributed into this Honourable Court to be held pending the hearing and determination of this Application and/or until the final lawful distribution of the estate;e.That the Chief Land Registrar, the National Land Commission and all relevant county land registrar be directed to register caveats or restrictions against estate properties, including but not limited to:i.Kasarani LR 13041/2ii.Karatina Township Block 1/186iii.Ewaso Nyiro Surgoi Block 111/452 Nanyuki (12 acres)iv.Karatina Block 1/206v.Land No. 217 Narumorovi.Rumuruti Plot No. 6724vii.Ruiru West Block 1 Plot 1383 (Githunguri sheet No. 7)viii.Ruiru Farm 2373 (ballot No. 2335)ix.Karatina Plot Konyu Baricho 1161f.That this Honourable Court be pleased to declare that the consent order recorded and adopted on 22nd February 2022 before Hon. Justice Muchelule remains valid, binding and subsisting and cannot be varied, overridden or negated by any subsequent consent, mediation report or ruling unless and until it is first lawfully set aside or reviewed by this Honourable Court on recognized legal grounds;g.That the Respondents within 30 days of this Honourable Court Order or within such period as the Court may direct, produce a full, complete and verified account of all dealings, receipts, disbursements and transactions relating to the estate, supported by an affidavit;h.That the grant of letters of administration and the certificate of confirmation issued on 27th March 2025 be revoked and annulled under section 76 of the Act;i.That all acts, dealings and transactions undertaken pursuant to the impugned grant and certificate of confirmation be declared null and void and the estate revert to its status quo for lawful administration and distribution.j.The Costs be provided for. 3.The Application was supported by the affidavit of Martin Mugweru, who sought the revocation of the Mediation Partial Agreements dated 3rd March 2023 and 22nd May 2023, filed on 24th May 2023 and adopted as an order of the Court on 27th March 2025. 4.He contended that he was excluded as a co-administrator without his consent, that the Court adopted the agreements without first hearing the protest lodged by a company claiming to be a creditor of the estate, and that certain properties which remained contested during the mediation were nonetheless recorded as having been allocated absolutely. 5.The Application was opposed by both the 1st & 2nd Respondents. Issues for Determination 6.I have considered the Application, the supporting affidavit, the preliminary objections, the grounds of opposition, the replying affidavits and the submissions filed by the parties. In my view, the following issues arise for determination:a.Whether the Applicant has established sufficient grounds for the revocation of the Grant of Letters of Administration and the Certificate of Confirmation of Grant issued on 27th March 2025.b.Whether the Applicant is entitled to the orders sought. Analysis and Determination 7.The central issue for determination is whether the Applicant's application meets the threshold for revocation of grant within the meaning of Section 76 of the Law of Succession Act. For avoidance of doubt, section 76 states:”76.Revocation or annulment of grantA 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—a.that the proceedings to obtain the grant were defective in substance;b.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;c.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;d.that the person to whom the grant was made has failed, after due notice and without reasonable cause either—i.to apply for confirmation of the grant within one year from the date thereof, or such longer period as the Court order or allow; orii.to proceed diligently with the administration of the estate; oriii.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; ore.that the grant has become useless and inoperative through subsequent circumstances.” 8.The scope and application of section 76 was clearly expounded by the Court in re Estate of Prisca Ong'ayo Nande (Deceased) [2020] eKLR where it was stated that:“Under section 76, a Court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. 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 circumstances, 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.” 9.In the present Application, the Grant of Letters of Administration and the Certificate of Confirmation of Grant were issued to the 1st and 2nd Respondents on 27th March 2025 pursuant to a Court -annexed mediation process. By a Partial Mediation Agreement dated 3rd March 2023, the parties agreed, among other things, that the 1st and 2nd Respondents would be appointed as the administrators of the estate. 10.The Applicant contends that he did not sign that Partial Mediation Agreement as he opposed his removal as a co-administrator and, on that basis, seeks the revocation of the grant issued on 27th March 2025. 11.The Applicant further contends that he is dissatisfied with the mode of distribution of certain estate properties and the manner in which some creditors' claims were addressed, asserting that he raised those concerns during the mediation process. Nevertheless, it is common ground that he appended his signature to the Mediation Agreement dated 22nd May 2023, which recorded the parties' agreement on the distribution of the estate and the treatment of the creditors' claims. 12.Since the Grant herein was confirmed pursuant to a Court -annexed mediation settlement, the Applicant cannot seek reinstatement as a co-administrator merely because he is dissatisfied with his removal. Any interim orders previously issued by the Court appointing him as a co-administrator were superseded by the parties' consensual agreement, reached during the mediation process, to reconstitute the administration of the estate, which agreement was subsequently adopted by the Court. 13.Further, section 66 of the Law of Succession Act vests the Court with discretion in the appointment of administrators, while requiring the Court to have due regard to the order of preference prescribed therein. In the present case, the 1st and 2nd Respondents, being children of the deceased, rank in priority over the Applicant, who is a grandchild of the deceased. Consequently, the decision by the beneficiaries to appoint the 1st and 2nd Respondents as administrators in place of the Applicant was not inconsistent with either the law or the prescribed order of preference. 14.In the circumstances, the consensual reconstitution of the administrators during the mediation process, and its subsequent adoption by the Court, does not constitute a ground for revocation of the Grant under section 76 of the Law of Succession Act. The Applicant's dissatisfaction with his removal, without more, is therefore insufficient to warrant the revocation of the Grant issued on 27th March 2025. 15.On the issue of the Applicant's dissatisfaction with the mode of distribution of certain estate properties and the manner in which some creditors' claims were addressed, the Applicant has not placed before this Court any evidence demonstrating that the distribution of the assets or the treatment of the creditors' claims was fraudulently introduced into the mediation process or resulted from any misconduct affecting the integrity of the mediation proceedings. 16.It is not disputed that the Applicant appended his signature to the Mediation Agreement dated 22nd May 2023. In the absence of cogent evidence that his consent was procured through fraud, duress, undue influence, misrepresentation, mistake or any other vitiating factor, this Court cannot revoke the Grant on the basis of mere allegations. 17.Under section 76 of the Law of Succession Act, the burden lies on the Applicant to establish one or more of the statutory grounds for revocation, and those grounds must be proved by evidence. Mere dissatisfaction with the terms of a mediated settlement, without more, does not warrant the revocation of a grant. 18.In Re Estate of Mburu Gitau (deceased) [2002] eKLR, the Court stated as follows:“Distribution of the estate comes during the proceedings to confirm the relevant grant and a party dissatisfied with the distribution may not necessarily be dissatisfied with the grant of letters of administration and vice versa. That being the position, it becomes unreasonable for a person dissatisfied with the distribution of the estate only to proceed to ask for the revocation of annulment of the grant which, as in this case, has nothing wrong.While Section 76 of the Law of Succession Act should therefore be relied upon to revoke or annul a grant it is not proper to use the same section where the objector is challenging the distribution only. There are relevant provisions to be used for that purpose and section 76 is not one of them.” 19.The Court of Appeal in SMN v ZMS [2017] eKLR summarized the case law and the grounds upon which a consent may be varied or set aside as follows: -“i.Where the consent was obtained fraudulently.ii.Where there was use of collusion between affected parties in securing the consent.iii.Where the consent agreement runs contrary to public policy.iv.Where the consent is based on insufficient material facts.iv.Where the consent was obtained on the basis of misapprehension or ignorance of material facts.v.For any other sufficient reason.” 20.Section 107(1)(2) of the Evidence Act provides: -“(1)Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 21.Section 112 of the Evidence Act provides thus:“In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” 22.From the evidence on record, I am not persuaded that the Applicant has satisfied the threshold for the revocation or annulment of the Grant under section 76 of the Law of Succession Act. The record demonstrates that the Applicant actively participated in the Court - annexed mediation proceedings and voluntarily appended his signature to the Mediation Agreement dated 22nd May 2023 in his capacity as a beneficiary of the estate. He was therefore fully aware of, and assented to, the agreed mode of distribution of the estate and the manner in which the parties resolved the issues arising during the mediation process. 23.Having failed to demonstrate that the grant was obtained fraudulently, by concealment of material facts, through an untrue allegation of an essential fact, or on any other ground contemplated under section 76 of the Law of Succession Act, the Applicant has failed to establish a legal basis for the revocation or annulment of the Grant. 24.Accordingly, the application for revocation of grant is devoid of merit and it is hereby dismissed. 25.Each party to bear their own Costs. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 23RD DAY OF JULY 2026.H.K. CHEMITEIJUDGE, FCIArb.