https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6820

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI SUCCESSION CAUSE NO. E367 OF 2024 IN THE MATTER THE ESTATE OF KATA MATEMU KITHYO (DECEASED) MELANY MWELU KITHYO ........................................ APPLICANT VERSUS AGNES MURORUNKWERU KATA ..................... 1ST RESPONDENT ARRIANE ROSE OKONG'O .............................. 2ND RESPONDENT BILLY NZUMA KATA ....................................... 3RD RESPONDENT MUMO MATEMU .............................................. 4TH RESPONDENT DORIS MUTHEU .............................................. 5TH RESPONDENT ISAAC KIMEU KITHYO .................................... 6TH RESPONDENT AND PRISCA MUKETHE KITHYO ……………… 1ST INTERESTED PARTY SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 1 of 29 po/ hkc MARK MUINDE KITHYO …………………. 2ND INTERESTED PARTY RUTH KIVINYA KITHYO ....................... 3RD INTERESTED PARTY RULING 1. This ruling relates to the application dated 20th December, 2024 filed by the Applicant, Melany Mwelu Kithyo; seeking for ORDERS THAT: 1. Spent. 2. Pending the hearing of this application, the Grant of Letters of Administration Intestate issued to the 1st – 3rd Respondents and the Applicant herein on 23rd August, 2024 and any consequential action therefrom be stayed. 3. This Honourable Court be pleased to call and revoke/annul the Grant of Letters of Administration Intestate issued to the 1st – 3rd Respondents and the Applicant herein on 23rd August, 2024 and any consequential action therefrom. 4. Pending the hearing of this application, inter- partes, the 4th and 5th Respondents – Mumo Matemu and Doris Mutheu – be restrained through an order of injunction from interfering with the Estate of Kata Matemu Kithyo the SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 2 of 29 po/ hkc deceased herein or in any way intermeddling with the said Estate. 5. Pending the hearing of this suit, the 4th and 5th Respondents – Mumo Matemu and Doris Mutheu – be restrained through a permanent order of injunction from interfering with the Estate of Kata Matemu Kithyo the deceased herein or in any way intermeddling with the said Estate. 6. The costs of this application be borne by the Respondents. 2. The application is based on the grounds thereof and supported by affidavit sworn by Melany Mwelu Kithyo on 20th December, 2024. 3. She avers inter alia that she is an adult daughter of the deceased, Kata Matemu Kithyo, and that the application seeks revocation of the Grant of Letters of Administration Intestate issued on 23rd August, 2024 to the 1st to 3rd Respondents together with herself. 4. She states that the deceased died on 18th April, 2024 and was survived by his widow, Prisca Mukethe Kithyo and children namely Mark Muinde Kithyo, Ruth Kivinya Kithyo and herself. She avers that her parents were married under Akamba customary law before solemnizing the union through a Christian marriage in December 1974. According to her, following the death of the deceased, burial arrangements were undertaken by the 4th Respondent, Mumo Matemu, who allegedly excluded SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 3 of 29 po/ hkc her mother and siblings from participation and proceeded with the burial despite objections raised in court. 5. She contends that the persons appointed as Administrators were unqualified and procured the grant through fraud and concealment of material facts. She avers that the 1st Respondent, Agnes Murorunkweru Kata, is a Rwandese citizen residing in Canada on parole after conviction on drug trafficking charges and is therefore incapable of discharging duties of an administrator under Section 83 of the Law of Succession Act. 6. She further deposes that the 2nd Respondent, Arriane Rose Okong’o, is merely a former girlfriend of the deceased, has never lived with him or participated in management of his estate and is therefore not a beneficiary or dependant. 7. She also alleges that the 3rd Respondent, Billy Nzuma Kata, is an illegitimate son born out of wedlock, resides in Australia and similarly lacks connection to the estate. 8. She further asserts that neither she nor the 1 st and 3rd Respondents executed the petition documents on 14th May, 2024 as alleged, since she was not present at the offices of the advocates who purportedly commissioned her signature while the 1st and 3rd Respondents were outside the jurisdiction in Canada and Australia respectively. She disputes the authenticity of the affidavits and consent forms filed in support of the petition and maintains that the consent of her siblings, SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 4 of 29 po/ hkc Ruth Kivinya Kithyo and Mark Muinde Kithyo, was never sought before the petition was lodged. 9. She further avers that the grant proceedings formed part of a wider conspiracy orchestrated by the 4th Respondent, Mumo Matemu, together with the 2nd Respondent, aimed at excluding the lawful beneficiaries from the estate. She alleges that Mumo Matemu and Doris Mutheu were irregularly introduced as guarantors in the succession proceedings and that the 4th Respondent has since used the grant to intermeddle with estate property, harass her mother and sibling and procure the arrest and detention of her 71-year-old mother at Masii Police Station on allegations of intermeddling. 10. She states that she became aware of the grant only after being informed by her brother Mark Muinde Kithyo and subsequently undertook inquiries which revealed alleged irregularities in the succession cause. She expresses embarrassment that her name was included as a petitioner in proceedings she neither understood nor participated in and claims the process was conducted with unusual haste in order to exclude the deceased’s immediate family from participation in the administration of the estate. 11. In support of her averments, she annexes several documents which she relies on to demonstrate inconsistencies in the petition proceedings. These include the impugned Grant of Letters of Administration issued SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 5 of 29 po/ hkc on 23rd August, 2024, affidavits of justification allegedly signed by herself and Billy Nzuma Kata, an affidavit by Arriane Rose Okong’o claiming to be the deceased’s daughter and listing herself among the survivors, guarantees executed by Doris Mutheu and Mumo Matemu, and a consent form purporting to authorize the petitioners to apply for the grant. 12. She also exhibits letters from assistant Chief’s containing conflicting lists of beneficiaries, some excluding her mother while others identifying only Prisca Mukethe Kithyo and her children as survivors of the deceased. Additional annexures include letters allegedly issued by advocates acting for Arriane Rose Okong’o directing tenants of estate properties to remit rent to her and warning occupants against dealing with other family members. She relies on these annexures to demonstrate what she terms as fraudulent procurement of the grant, misrepresentation regarding beneficiaries and attempts by the 4th Respondent and his associates to assume control of estate assets and rental income pending determination of the succession dispute. 13. The application is opposed vide replying affidavits sworn by Agnes Murorunkweru Kata and Arianne Rose Okong’o on 24th January, 2025 and 14thJanuary, 2025. 14. Agnes Murorunkweru Kata asserts that she is the lawful widow of the deceased and had been married to him since 1997. She avers that the deceased’s earlier SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 6 of 29 po/ hkc marriage to Prisca Mukethe Kithyo had already been dissolved through divorce proceedings finalized in 1995. She states that the Applicant and the Interested Parties were aware of and participated in the succession proceedings leading to issuance of the grant. 15. According to her, the Applicant voluntarily signed the petition and supporting documents and cannot now disown them after participating in the process. She further denies allegations regarding criminal convictions in Canada and asserts that the application for revocation is frivolous, vexatious and intended to delay the administration of the estate. She annexes copies of the grant, consent forms, birth certificate and petition documents in support of her position. 16. Arriane Rose Okong’o describes the Applicant’s allegations as false, scandalous and unsupported by evidence. She avers that the deceased had separated from the 1st Interested Party, Prisca Mukethe Kithyo, many years prior to his death and that their marriage had formally been dissolved through Divorce Cause No. 57 of 1987, culminating in a decree absolute issued on 20th September, 1996. 17. She further contends that Mark Muinde Kithyo, the 2nd Interested Party, is not a biological child of the deceased and therefore not entitled to inherit from the estate. 18. In relation to the burial dispute, she states that the deceased was buried in accordance with his wishes and SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 7 of 29 po/ hkc annexes pleadings allegedly sworn by the Applicant in earlier proceedings where the Applicant had indicated that she did not object to the burial arrangements. She further avers that the deceased died intestate while legally married to the 1st Respondent, Agnes Murorunkweru Kata, whom she describes as the lawful surviving spouse. She dismisses allegations that the 1st Respondent was convicted of drug trafficking in Canada as defamatory and unsupported by evidence. 19. She also maintains that the 3rd Respondent, Billy Nzuma Kata, is a biological son of the deceased and therefore properly appointed as an administrator. She further explains that because questions had arisen regarding the paternity of several persons claiming to be beneficiaries, parties had already sought court orders directing mandatory DNA testing of all alleged children of the deceased, including herself, Billy Nzuma Kata, Olga Mwikali Kata, Samuel Wambura Kata, Mark Muinde Kithyo and Ruth Kivinya Kithyo. She annexes a Government Chemist DNA report indicating that Arriane Rose Okong’o is biologically related to the deceased. 20. She denies allegations of fraud in the procurement of the grant and states that the Applicant actively participated in the succession proceedings from inception. According to her, the Applicant attended virtual meetings convened by the advocates on record, instructed the advocates to represent her interests and exchanged emails concerning SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 8 of 29 po/ hkc the succession process, proposed Administrators and estate assets. She annexes copies of email exchanges and WhatsApp communications allegedly showing the Applicant’s involvement and awareness of the proceedings, including discussions regarding confirmation of grant and proposed distribution of the estate. 21. She also states that the consent of the 2nd and 3rd Interested Parties had been sought before filing the petition, though they allegedly declined to execute the requisite forms. 22. The 2nd Respondent further deposes that the Applicant and the 1st Interested Party have themselves intermeddled with estate property, particularly properties situated at Kwale/Ukunda/138 and Kwale/Ukunda/3250 where hotels operate. She claims that they have been collecting rent and income from tenants and hotel customers without accounting to the estate Administrators, thereby prejudicing the estate and other beneficiaries. 23. She further avers that the 1st Interested Party’s arrest arose from alleged trespass and forcible takeover of property belonging to MPA Hotels Limited rather than from any misuse of the grant. She also disputes the authenticity of a subsequent assistant Chief’s letter excluding certain beneficiaries, stating that her advocates lodged complaints with the Commission on Administrative Justice and other authorities regarding the SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 9 of 29 po/ hkc allegedly fraudulent issuance of contradictory letters concerning beneficiaries of the deceased. 24. She ultimately maintains that the application for revocation lacks merit, was brought in bad faith and is intended merely to delay the administration and distribution of the estate. 25. Arianne Rose Okong’o and Billy Nzuma Kata have filed written submissions dated 9th December, 2025. They submit that the Applicant’s application is incompetent, misconceived and contrary to the strict requirements of Section 76 of the Law of Succession Act. They argue that revocation proceedings are governed by specific statutory grounds which must be expressly pleaded and strictly proved. 26. According to them, the Applicant failed to identify any of the recognized grounds under Section 76, such as fraud, concealment of material facts or defective proceedings and instead relied on generalized complaints unsupported by evidence. 27. Reliance is placed on authorities including Matheka & Another v Matheka [2005] eKLR, which emphasize that revocation is a drastic remedy requiring strict proof of fraud or procedural impropriety. They further contend that the Applicant herself was one of the appointed co- Administrators and actively participated in the succession proceedings. They state that meetings involving beneficiaries were convened through virtual platforms SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 10 of 29 po/ hkc and that the Applicant was fully aware of the petition process, the proposed Administrators and the administration of the estate. 28. They maintain that the grant issued on 23rd August, 2024 reflected the statutory order of preference under Section 66 of the Law of Succession Act because it appointed the surviving spouse and children of the deceased as Administrators. They further argue that the Applicant cannot approbate and reprobate by first participating in the process and later seeking revocation of the same grant. 29. They also challenge the legal standing of the Interested Parties, particularly Prisca Mukethe Kithyo. They maintain that she ceased to qualify as a spouse of the deceased after dissolution of her marriage through Divorce Cause No. 57 of 1987, finalized in 1996. 30. Consequently, they argue that she had no priority or entitlement to administration under Section 66 of the Law of Succession Act. They further dispute the claim that Mark Muinde Kithyo was a biological child of the deceased and state that DNA testing had been undertaken to determine the true beneficiaries of the estate. They maintain that Agnes Murorunkweru Kata was the lawful surviving spouse while Arriane Rose Okong’o and Billy Nzuma Kata were biological children entitled to inherit and administer the estate. SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 11 of 29 po/ hkc 31. The submissions additionally accuse the Applicant and Interested Parties of instituting parallel succession proceedings in NRB HC Succession Cause No. E986 of 2024 and fraudulently obtaining a second grant of letters of administration in favour of Prisca Mukethe Kithyo and Mark Muinde Kithyo. The Respondents contend that the second cause was filed secretly despite the existence of the earlier grant issued on 23rd August, 2024 and while the present revocation proceedings were pending. They describe the second grant as unlawful, fraudulent and an abuse of the court process intended to defeat the original succession cause. 32. According to them, there cannot lawfully exist two parallel grants relating to the same estate. They therefore urge the court to strike out the second succession cause, uphold the original grant issued on 23rd August, 2024 as the valid and genuine grant and dismiss the Applicant’s summons for revocation with costs. 33. Agnes Murorunkweru Kata, has filed written submissions dated 12th February, 2026. She opposes the application and maintains that the grant issued on 23rd August, 2024 was lawfully obtained, procedurally proper and representative of the deceased’s beneficiaries. 34. The 1st Respondent submits that the grant appointed four Administrators comprising the surviving spouse and three children of the deceased, including the Applicant herself, SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 12 of 29 po/ hkc and therefore complied with the statutory order of preference under Section 66 of the Law of Succession Act. She argues that the Applicant has not demonstrated any of the statutory grounds under Section 76 necessary to warrant revocation of the grant. 35. She further contends that allegations of fraud, concealment and exclusion from the succession process have not been proved. According to the 1st Respondent, the Applicant participated in meetings convened among beneficiaries, including virtual consultations, and was fully aware of the process leading to issuance of the grant. She submits that no beneficiary was excluded from succession and that the Applicant cannot validly allege exclusion from proceedings which culminated in her own appointment as a co-Administrator. 36. She emphasizes that revocation is a drastic remedy requiring strict proof of fraud or procedural defect and that mere dissatisfaction with the composition of Administrators is insufficient to justify annulment of a grant. She also argues that the Applicant failed to discharge the burden of proof placed upon a party seeking revocation of grant. 37. Reliance is placed on Section 107 of the Evidence Act and authorities such as Matheka & Another v Matheka [2005] eKLR and In re Estate of Njiru Njagi (Deceased) [2021] eKLR, which hold that revocation only issues where fraud, concealment of material facts or SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 13 of 29 po/ hkc substantive defects in the proceedings are strictly established. 38. She states that the Applicant produced no documentary, forensic or independent evidence to substantiate allegations of fraudulent signatures, concealment or misrepresentation. 39. Finally, she submits that the interests of justice favour preservation of the grant because it remains lawful, inclusive and representative of the rightful beneficiaries. She argues that revocation proceedings should not be used to resolve personal disagreements among family members or to re-litigate issues concerning appointment of Administrators once a valid grant has been issued. She therefore urges the court to dismiss the summons for revocation dated 20th December, 2024 with costs, on the basis that no statutory grounds under Section 76 of the Law of Succession Act have been established. ANALYSIS AND DETERMINATION 40. I have gone through the application, the responses thereto and the rival submissions. 41. The principal issue for determination is whether the Applicant has satisfied the threshold for revocation or annulment of the Grant of Letters of Administration Intestate issued on 23rd August, 2024 under Section 76 of the Law of Succession Act. SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 14 of 29 po/ hkc 42. In Waweru v Bor & another [2024] KEHC 6325 (KLR) the court pronounced itself as follows: “… 21. The principles guiding stay of proceedings were laid down by a 5-judge Bench of the High Court, after looking at our jurisprudential scan on the question of stay of proceedings in the case of William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others [2019] eKLR; a. First, there must be an appeal pending before the higher Court; b. Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly; c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable; d. Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 15 of 29 po/ hkc not granted; e. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and f. Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay. 22. In the same vein, in Halsbury’s Laws of England, 4th Edition, Vol. 37 at p. 330: “The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the Court’s general practice is that a stay of proceedings should not be imposed unless the proceedings, beyond reasonable doubt, ought not to be allowed to continue….This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases…It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The Applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 16 of 29 po/ hkc of the pleading and the facts of this case.” 23. From the foregoing authorities, it is evident that the stay of proceedings is a radical measure which is only exercised in the most of deserving cases. This is a discretionary power that is exercised by the court sparingly. Hence, granting stay of proceedings pending an appeal over interlocutory matters is decided on the facts of each case and with “due regard to the salutary general rule that appeals are not entertained piecemeal.” See Walhaus & Others v Additional Magistrate, Johannesburg & Another, 1959 (3) SA 113(A) at 120D…” 43. In Mwatha v Karanja [2025] KEHC 6146 (KLR) the court pronounced itself as follows: “… 5. I have considered the application, the affidavit in support thereof, the replying affidavit and the submissions filed by the parties. What this court is tasked to determine is whether the Appellant has satisfied the criteria and/or conditions for grant of an order of stay of execution pending appeal. 6.Order 42 Rule 6(2) of the Civil Procedure Rules sets out the three conditions to be satisfied by an Applicant for an order of stay of execution pending appeal to be granted. 7.The first condition under the rule is that the application for stay pending appeal must have been brought without unreasonable delay. I note SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 17 of 29 po/ hkc that the judgement upon which the order for stay pending appeal is sought was entered on 5th February, 2024 and that the application that is the subject of this ruling was filed on 31st August, 2024…. 11.The second condition under the rule touches on substantial loss that the Applicant stands to suffer if stay of execution is not ordered. On this, the Applicant submitted that the decree will be executed if stay of execution is not ordered and that the same will occasion him irreparable loss. 12.The Applicant conveyed his apprehension that should his appeal eventually succeed, he is unlikely to recover the decretal sum if execution proceeds. 13.The question as to who bears the burden of proof on the issue of refund in the event of a successful appeal was discussed in the case of National Industrial Credit Bank Limited v Aquinas Francis Wasike & another [2006] eKLR, in which the court observed as follows: “Once an Applicant expresses a reasonable fear that a Respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the Respondent to show what resources he has since that is a matter which is peculiarly within his knowledge….”… 15. The third and final condition is the provision of security for the due performance of the decree. On this, the Appellant does not state SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 18 of 29 po/ hkc in his affidavit in support of the motion or his further affidavit that he is ready and willing to provide security. He has therefore not satisfied the third condition…” 44. In JM v SMK & 4 others [2022] eKLR Odunga J stated as follows: “The principles guiding the grant of interlocutory injunction are now well settled. Those principles were set out in East African Industries vs. Trufoods [1972] EA 420 and Giella vs. Cassman Brown & Co. Ltd [1973] EA 358. In Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR the Court restated the law as follows” “In an interlocutory injunction application, the Applicant has to satisfy the triple requirements to: a) Establish his case only at prima facie level, b) Demonstrate irreparable injury if a temporary injuction is not granted, and c) Ally any doubts as to (b) by showing that the balance of convenience is in his favour. These are the three pillars on which rests the foundation of any order or injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the Applicant is expected to surmount sequentially…” SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 19 of 29 po/ hkc 45. In re Estate of Joshua Githiari Kibui (Deceased) [2021] eKLR the court stated as follows: “18. For avoidance of doubt, Section 76 of the Law of Succession Act states as follows: a. “76. Revocation or annulment of Grant b. 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— (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— 20. Further, In the Matter of the Estate of L A K – (Deceased) [2014] eKLR the court held that; SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 20 of 29 po/ hkc (a) Revocation of grants in governed by Section 76 of the Law of Succession Act. The relevant portions of Section 76 are paragraphs (a), (b) and (c) since the issues raised relate to the process of the making of a grant. A grant may be revoked where the proceedings leading up to its making were defective, or were attended by fraud and concealment of important matter, or was obtained by an untrue allegation of a fact essential to the point. 32. The court in the case of Jamleck Maina Njoroge v Mary Wanjiru Mwangi (2015) eKLR at paragraph 11 of its ruling in revoking a grant reiterated the grounds upon which a grant can be revoked. It stated as follows:- a. “11. 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 false statement, or by concealment of something material to the case, or that the SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 21 of 29 po/ hkc grant was obtained by means of untrue allegations of facts essential in point of law.” 33. In the case of Matheka and Another vs Matheka [2005] 2KLR 455 the Court of Appeal laid down the following guiding principles as to revocation of grants. (a) “i. A grant may be revoked either by application by an interested party or by the court on its own motion. (b) ii. 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 the 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.” 46. The guiding principles on consolidation of suits were well established in Omoke v Kenyatta & 83 others [2021] KESC 27 (KLR) where the court pronounced itself as follows: “… [8] We now therefore opine as follows: i. The jurisdiction to consolidate appeals in SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 22 of 29 po/ hkc this court is conferred by rule 21 of the Supreme Court Rules, 2021, which stipulates that; “The court may, upon application by any party or on its own motion, where satisfied that the issues involved in any two or more proceedings are similar, order that the proceedings be— a. consolidated, on such terms as the Court may determine…” ii. Consolidation of suits or appeals will be ordered where there are common questions of either law or fact in two or more suits or appeals and where it is desirable that all the related matters be disposed of at the same time. iii. When considering an application for consolidation, this court will bear in mind the guiding principles it pronounced in the case of the Law Society of Kenya v Centre for Human Rights & Democracy & 12 others, SC Petition No 14 of 2013, [2014] eKLR, that: “The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any undue advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards the party that opposes it.” iv. Through consolidation, costs, time and other resources are saved and multiplicity of proceedings avoided. All SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 23 of 29 po/ hkc the three petitions before this court arise from the same set of facts; the same subject matter; they raise similar issues of law; involve the same parties who were before the two superior courts below; and ensue from the same judgment…” 47. The Applicant alleges that the grant was procured fraudulently through forged signatures, concealment of material beneficiaries, misrepresentation regarding the status of Administrators and exclusion of the deceased’s immediate family. Conversely, the Respondents maintain that the Applicant actively participated in the succession proceedings, attended consultative meetings, executed the petition documents and was herself appointed a co- administrator. They further contend that the grant reflected the statutory order of preference under Section 66 of the Law of Succession Act and that no beneficiary was excluded. 48. The law governing revocation of grants is settled under Section 76 of the Law of Succession Act. A grant may only be revoked where the proceedings to obtain it were defective in substance, where the grant was obtained fraudulently by false statements or concealment of material facts or where it was founded on untrue allegations essential in law. Revocation is a drastic remedy which requires cogent evidence of fraud, concealment or procedural impropriety. Mere dissatisfaction with the identity of Administrators or SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 24 of 29 po/ hkc internal family disagreements cannot, without more, justify annulment of a grant. 49. Upon evaluating the material placed before this court, several contested factual issues emerge. First, there is a serious dispute concerning the status of the deceased’s lawful spouse. The Applicant maintains that Prisca Mukethe Kithyo remained the deceased’s widow, whereas the Respondents produced a decree absolute issued in Divorce Cause No. 57 of 1987 indicating dissolution of that marriage in 1996. 50. Secondly, there is dispute concerning the paternity and beneficiary status of certain persons, including Mark Muinde Kithyo, Billy Nzuma Kata and Arriane Rose Okong’o. Significantly, the Respondents annexed evidence showing that DNA testing had already been ordered and partly undertaken to ascertain the deceased’s biological children. 51. Thirdly, the Applicant alleges that her signature and those of other petitioners were procured fraudulently, while the Respondents produced email exchanges, WhatsApp communications and evidence of consultative meetings allegedly demonstrating the Applicant’s participation in the succession process. These issues disclose a highly contested dispute whose issues cannot be conclusively resolved solely through affidavit evidence without full interrogation at the confirmation stage or through viva voce evidence if necessary. SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 25 of 29 po/ hkc 52. Importantly, the Applicant was appointed as one of the Administrators under the impugned grant. The evidence before court demonstrates that the grant included the persons then presented as the surviving spouse and children of the deceased. 53. At this interlocutory stage, I am not persuaded that there is sufficient evidence establishing deliberate concealment of beneficiaries or fraudulent procurement of the grant to the standard required under Section 76. Allegations regarding forged signatures and fraudulent execution of documents are serious in nature and would ordinarily require forensic or other independent evidentiary proof, none of which has been availed at this stage. 54. Similarly, allegations concerning criminal convictions of the 1st Respondent remain unsupported by documentary evidence. The burden of proof lay upon the Applicant pursuant to Section 107 of the Evidence Act and that burden has not been satisfactorily discharged. 55. Nevertheless, this court cannot ignore the evident hostility among the parties, the competing claims of beneficiary status and the existence of parallel succession proceedings in NRB HC Succession Cause No. E986 of 2024 relating to the same estate. Multiplicity of proceedings touching on the same estate creates a real risk of conflicting orders, duplication of grants and prejudice to the proper administration of the estate. Consolidation or coordinated management of SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 26 of 29 po/ hkc related proceedings is necessary to facilitate efficient, fair and expeditious resolution of all disputes concerning the estate. 56. With regard to the injunctive orders sought against the 4 th and 5th Respondents, the Applicant was required to satisfy the established principles by demonstrating a prima facie case, irreparable harm and balance of convenience. Although allegations of intermeddling have been raised by both sides, the evidence presently before court demonstrates competing accusations of unlawful collection of rent and interference with estate property by rival factions within the family. 57. In order to preserve the estate pending final determination, the appropriate course is not to selectively restrain one faction alone, but to direct that no party shall alienate, transfer, dispose of or otherwise interfere with estate assets except through lawful administration sanctioned by the court. 58. Accordingly, I find that the Applicant has failed to establish sufficient grounds for revocation or annulment of the grant under Section 76 of the Law of Succession Act and the summons for revocation dated 20th December, 2024 lacks of merit. 59. However, in order to preserve the estate and pending final determination, I direct and order as hereunder: SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 27 of 29 po/ hkc (a) The application dated 20th December 2024 is disallowed. (b) The Grant of Letters of Administration Intestate issued on 23rd August, 2024 shall remain in force pending confirmation of the grant. (c) The Administrators jointly and severally are hereby directed within 45 days from the date herein to apply for confirmation of the above grant. (d) All parties herein their servants and or agents are restrained from selling, transferring, alienating or otherwise intermeddling with estate assets without leave of the court. (e) The Administrators shall keep proper records of their management of the estate pending the final determination of this cause. (f) Nairobi High Court Succession Cause E367 of 2024 and Nairobi High Court Succession Cause No. E986 of 2024 be and are hereby consolidated and Cause No E367 of 2024 shall be the lead file. (g) Each party to bear its own costs. Dated signed and delivered at Nairobi via video link this 21st day of May 2026. SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 28 of 29 po/ hkc H K CHEMITEI JUDGE SUCCESSION CAUSE NO. E367 OF 2024 RULING Page 29 of 29 po/ hkc