https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/487

 REPUBLIC OF KENYA IN THE MAGISTRATE COURT OF KENYA AT MURANGA COUNTY COURT NAME: MURANGA MAGISTRATE COURT CASE NUMBER: MCSUCC/223/1995 IN THE ESTATE OF JOSEPH KANGETHE GACHUNGA RULING # THE APPLICATION 1. On 19 th January 1996, letters of administration intestate were issued to James Mwangi Kang’ethe (herein “the administrator”), in the estate of his late father, Joseph Kang’ethe Gachunga. Subsequently, the grant was confirmed on 13th August 1996 and the deceased’s estate distributed. James Mwangi Kang’ethe was allocated Loc. 6/Gikarangu/589 (herein “land parcel 589”), while Samson Mwangi Muiruri was allocated land parcel No. Makuyu/Kimorori/Block 1/1015 (herein “land parcel 1015”). 2. Muiruri Kang’ethe, the applicant in the summons presently before this court asserts that the administrator failed to disclose that the deceased was in fact survived by 3 children namely James Mwangi Kang’ethe, Jane Wairimu Kang’ethe and Muiruri Kang’ethe. He averred that the respondent’s misrepresentation had caused his siblings to be disinherited. As a result of the concealment, the deceased’s land parcel 589 was subdivided into portions and the administrator registered as the proprietor to land parcel Loc. 6/Gikarangu/3961 (herein “land parcel 3961”), whereas the 2nd interested party was registered as the proprietor to Loc. 6/Gikarangu/3962 (herein “land parcel 3962”). The deceased’s land parcel 1015 was also transmitted to the 1st interested party, who was a stranger to the deceased’s estate. The applicant therefore urged the court to grant the following orders in his Summons for Revocation of Grant dated 16th September 2025; * 1. **THAT** letters of administration intestate issued to James Mwangi Kang’ethe on 19th January 1996 and confirmed on 13th August 1996 be revoked and/or annulled; * 1. **THAT** the court be pleased to cancel all transactions arising from the impugned Certificate of Confirmation of Grant issued to James Mwangi Kang’ethe and the same do revert to Joseph Kang’ethe Gachunga to wit; * + 1. Entry no. 4 on Makuyu/Kimorori Block 1(Ngimu)/1015 in the name of Samson Mwangi Muiruri; and 2. Entry no. 11 on Loc. 6/Gikarangu/589 and/or in the alternative, cancel entry 1 on Loc. 6/Gikarangu/3961 and entry 1 & 2 on Loc. 6/Gikarangu/3962 being the resultant titles arising from Loc. 6/Gikarangu/589; 1. **THAT** the court be pleased to issue a grant of letters of administration intestate to the applicant herein; 2. **THAT** costs be in the cause. # THE 1ST INTERESTED PARTY’S CASE 1. The 1st interested party, Samson Mwangi Muiruri, in his response sworn on 21st January 2026 argued that the Summons for Revocation of Grant was bad in law as it had been brought 29 years after the grant had been issued and confirmed. The 2nd respondent claimed that land parcel 1015 had been sold to him for a consideration of Kshs. 92,500/= and eventually transferred to him on 20th November 1996. The 1st interested party claimed that he was a purchaser for value without notice and was protected by **Section 93 (1)** of the **Law of** **Succession Act**. He informed the court that once the property was transferred to his name by the administrator and a title deed issued to him on 3rd December 1996, he carried out extensive developments on the land. He claimed that as of 21st November 2025, the land was valued at Kshs. 20,855,000/=. In the event that the summons for confirmation of grant was allowed, the 1st interested party urged the court to order the applicant to compensate him for the value of the land. # 2ND INTERESTED PARTY’S CASE 1. For his part, the 2nd interested party raised a preliminary objection vide a notice dated 15th June 2026 on the grounds that the matter was Res judicata. He claimed that the dispute had been heard and determined by the Maragua Land Dispute Tribunal vide Land Dispute Tribunal Case No. 43 of 2001 and an award issued. The award had subsequently been adopted as an order of the court vide Murang’a SPM LDT Case No. 71 of 2001. Additionally, the court in Murang’a CMC Civil Suit No. 190 of 2019 had reiterated in its ruling delivered on 16th August 2022 that the matter was Res judicata. He also pointed out that the Summons for Revocation of Grant had been brought 29 years and was therefore frivolous and bad in law. 1. The 2 nd interested party added in his response sworn on 20th February 2026 that the administrator became the sole proprietor of land parcel 589 after the grant was confirmed. He had thereafter entered into a sale agreement with the administrator for a portion of 0.4 Ha out of land parcel 589 and was issued with title to Loc. 6/Gikarangu/3962. He claimed that he had undertaken massive developments on his parcel of land to the tune of Kshs. 30 million. He therefore urged the court to dismiss the application. # ISSUES, ANALYSIS AND DETERMINATION 1. The main issues arising from the Summons for Revocation of Grant dated 16th September 2025, the preliminary objection dated 15th June 2026 and the responses thereto are; 2. Whether the 1st interested party is a bona fide purchaser, protected under Section 93 of the Law of Succession Act. 3. Whether the matter relating to land parcel Loc. 6/Gikarangu/589 is res judicata; and; 4. Whether the grant issued to the administrator should be revoked for concealment of material facts. # Whether the 1st interested party is a bona fide purchaser, protected under Section 93 of the Law of Succession Act 1. The 1st interested party asserts that he is a bona fide purchaser protected under **Section 93** of the **Law of Succession Act**. Section 93 of the Act provides; ***93. Validity of transfer not affected by revocation of representation*** 1. *All transfers of any interest in immovable or movable property made to a purchaser either before or after the commencement of this Act, by a* *person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act.* 1. *A transfer of immovable property by a personal representative to a purchaser shall not be invalidated by reason only that the purchaser may have notice that all the debts, liabilities, funeral and testamentary or administration expenses, duties, and legacies of the deceased have not been discharged nor provided for.* 2. The 1st interested party claims that he purchased land parcel 1015, from the administrator and therefore the transfer of the subject parcel of land to him is protected under Section 93 above. The 1st interested party has referred this court to an undated land sale agreement to support his case that he is a *bona fide* purchaser. Although the sale agreement is undated, this court notes that the first deposit made for the purchase of land parcel 1015 by the 1st interested party to the administrator was paid on 7th December 1995 before the Grant of letters of Administration were issued to the administrator on 19th January 1996 and confirmed on 13th August 1996. Further, while the 1st interested party asserts that the land was allocated to him by virtue of being a purchaser for value, the affidavit sworn in support of the summons for confirmation of grant shows that the 1st interested party is identified as the deceased’s uncle. 3. Section 93 of the Act protects transfers of any interest in immovable property by a person to whom a grant of letters of administration has been made. However, the courts have emphasized that such transfer is only valid if its acquisition was lawful. In support of this position, this court is guided by the decision of the Court of Appeal in [***Kamau v Wanyoike & another (Civil Appeal 181 of 2008) [2012] KECA 27 (KLR) (6 February 2012)***](https://kenyalaw.org/akn/ke/judgment/keca/2012/27/eng%402012-02-06) where the court held as follows on the applicability of the protection to a purchaser under Section 93 of the Law of Succession Act; *Before the appellant could seek protection as a purchaser under Section 93 of the Act she had first to prove that she is a purchaser. In this case, there was no prima facie evidence that she was a purchaser. In any case, and as provided by Section 82 (b) (II) of the Act, it would have been illegal for Beatrice Njeri Magondu to sell the land before the confirmation of the grant.* 1. Similarly, in the case of [***Jane Gachoki Gathecha v Priscilla Nyawira Gitungu & another [2008] KECA 212 (KLR)***](https://kenyalaw.org/akn/ke/judgment/keca/2008/212/eng%402008-06-06) the Court of Appeal held as follows regarding the transfer of a plot by Kabitau who claimed to be the only son of the deceased in that matter; *We think, with respect, that there is a fallacy in invoking and applying the provisions of section 93(1) of the Law of Succession Act and the superior court fell into error in reliance of it. The section would only be applicable where, firstly, there is a “transfer of any interest in immoveable or moveable property”. Kabitau had no interest in plot 321 or any part thereof and therefore he could not transfer any. A thief acquires no right or interest which is transferable in stolen property. The transaction would be void ab initio and the property is traceable.* 1. This court is guided by the foregoing interpretations of Section 93 by the Court of Appeal in finding that the alleged sale of land parcel 1015 to the 1st respondent was illegal. As already noted from the foregoing analysis, the administrator had not been issued with a grant nor had the grant been confirmed when he initiated the sale of the deceased’s land parcel 1015 to the 1st interested party. The administrator had no good title in the land to pass to the 1st interested party. The sale of land parcel 1015 cannot therefore be protected under Section 93 of the Act. 2. This court notes the assertion by the interested parties that the Summons for Revocation of Grant has been made 29 years after the same was confirmed. The court in the case of [***In re Estate of Kihagi Mbuthia (Deceased) [2019] KEHC 5964 (KLR)***](https://kenyalaw.org/akn/ke/judgment/kehc/2019/5964/eng%402019-06-27)rejected a similar argument and held as follows while revoking a grant issued in October 1995; *“It is not too late in the day. Courts will, as I do, frown, at any attempt to plead ‘long time’ when a party has committed illegalities in obtaining a grant. That is why it can be revoked any time as limitation does not apply.”* 1. The 1st interested party has availed before this court a valuation report which puts the value of land parcel 1015 and the developments thereon at more than 20 million shillings. This court while empathetic to the 1st interested party’s plight notes that he is identified as an uncle of the deceased. He ought to have known that there were other parties with a valid beneficial interest in land parcel 1015 when he got into the illegal transaction with the administrator. If there is any party who is to compensate him for any loss emanating therefrom, it would be the administrator, who sold to him the subject parcel of land without a legal basis. This court therefore finds merit in the application for cancellation of the Entry no. 4 on Makuyu/Kimorori Block 1(Ngimu)/1015 in the name of Samson Mwangi Muiruri which ought to revert to the name of the deceased. # Whether the matter relating to land parcel Loc. 6/Gikarangu/589 is res judicata 1. The 2 nd interested party has asserted that the dispute herein is res judicata, the same issues having been litigated between the same parties. He referred this court to the decision of the Maragua Land Dispute Tribunal in Land Dispute Tribunal Case No. 43 of 2001 whereby the tribunal in its award dated 30th April 2001 heard and determined a dispute relating to land parcel 589. According to the copy of the proceedings and the award in the said matter, the applicant herein and Jane Wairimu Kang’ethe, lodged a claim against the administrator, whom they identified as their brother, for selling off 1.5 acres of family land. The tribunal made a decision subdividing the subject parcel of land as follows; 1. Muiruri Kang’ethe (1st plaintiff) - 1.8 acres 2. Jane Wairimu Kang’ethe (2nd plaintiff) - 0.6 acres c Peter Mwangi Muiruri (purchaser) - 1.0 acres d James Mwangi Kang’ethe (defendant) - 0.2 acres 1. An order was subsequently made on 26 th April 2002 in Murang’a SPM Court, Land Disputes Tribunal Case No. 71 of 2001, authorizing the Executive Officer of the court to sign all relevant documents for sub-division and transfer of land parcel 589 on behalf of the defendant therein, James Mwangi Kang’ethe. 2. From the copies of official searches furnished to this court by the applicant, it is established that land parcel 589 was subsequently subdivided into two portions, land parcel 3961 and 3962. Land parcel 3962 was thereafter transferred to the 2nd interested party on 1st November 2007 and a title issued in his name a few days later. 3. This court notes that the transfer of land parcel 3962, occurred after the Tribunal dispute had been finalized. The 2nd interested party got a portion of land measuring 0.4 Ha, which is the equivalent of approximately 1 acre, as determined by the Tribunal. It is not clear why the applicant has not pursued the portion allocated to him from the administrator herein. It is also not evident why the applicant, if aggrieved by the decision of the Land Dispute Tribunal, did not pursue a review or appeal of that decision. 4. The doctrine of res judicata bars a suit from being heard when each of the following elements are met; 1. The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit. 2. The former suit must have been a suit between the same parties or between the same parties under whom they or any of them claim. 3. Those parties were litigating under the same title in the former suit. 4. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised. 5. Elucidating the role of the principle of res judicata the Court of Appeal in case of ***The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, Nairobi CA Civil Appeal No. 105 of 2017 [2017] eKLR*** held: *“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”* 1. This court finds that the dispute with respect to land parcel 589 has been heard and determined conclusively. It has been proved definitively, that the applicant herein and Jane Wairimu Kang’ethe instituted proceedings against the administrator and the 2nd interested party to enforce their beneficial rights over land parcel 589. That dispute was fully adjudicated and culminated in the subdivision of the parcel of land, following which the 2nd interested party acquired title over his respective portion, 3962. 2. The parties in Land Dispute Tribunal Case No. 43 of 2001 are the same parties before this court and are litigating under the same title. Further, the issue in the former proceedings, being the sale of a portion of the deceased’s land parcel 589 to the 2nd interested party, is the same issue in contestation in the present matter. The jurisdiction of the Tribunal was never challenged and in fact, its decision was adopted by the court in Murang’a SPM Court, Land Disputes Tribunal Case No. 71 of 2001. This court further notes that the applicant herein filed Civil Suit No. 190 of 2019 against the administrator herein and the 2nd interested party, seeking to have land parcel 589 revert to its original state. That suit was dismissed for being res judicata. 1. This court is therefore satisfied that the elements of the doctrine of res judicata have been met. The dispute relating to land parcel 589 cannot be reopened before this court. Accordingly, the prayers sought with respect to that parcel of land are hereby dismissed. # Whether the grant issued to the administrator should be revoked for concealment of material facts 1. **Section 76** of the **Law of Succession Act** empowers this court to revoke a grant of representation whether confirmed or not if it decides *inter alia*; 2. *that the proceedings to obtain the grant were defective in substance;* 3. *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;* 4. *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; ...* 5. From the evidence placed before this court, it has been proved on a balance of probabilities that the administrator concealed material facts to the court. There is no doubt that the applicant herein is the administrator’s step brother. He is identified as such in the aforementioned proceedings before the Land Dispute Tribunal. The administrator posed as the deceased’s sole son when he swore form P&A 5 in support of the Petition for letters of administration intestate. In his amended affidavit sworn in support of the Summons for Confirmation of Grant, he introduced Jane Wairimu Kang’ethe and the 1st interested party as a married daughter and uncle of the deceased respectively. The administrator did not reveal the existence of the applicant and thus concealed a material fact from the court. Consequently, this court finds that a basis has been made for revocation of the grant issued to James Mwangi Kang’ethe on 19th January 1996. A fresh grant is hereby issued to the applicant. # CONCLUSION 1. In the summary, this court makes the following final orders; 2. The letters of administration intestate issued to James Mwangi Kang’ethe on 19th January 1996 and confirmed on 13th August 1996 be and are hereby revoked; 3. A fresh grant of letters of administration intestate in the estate of Joseph Kang’ethe Gachunga be and is hereby issued to Muiruri Kang’ethe; 4. The transactions arising from the impugned Certificate of Confirmation of Grant with respect to Makuyu/Kimorori Block 1(Ngimu)/1015 being entries number 3 and 4 are hereby cancelled; 5. This court hereby orders that Land parcel Makuyu/Kimorori Block 1(Ngimu)/1015 revert to the name of Joseph Kang’ethe Gachunga, the deceased; 6. The matter relating to land parcel Loc. 6/Gikarangu/589 is found to be res judicata and is hereby dismissed; 7. The costs shall be in the cause 8. Mention 6th October 2026 for further directions. # DATED, SIGNED AND DELIVERED AT MURANG’A THIS 5TH DAY OF AUGUST 2026. **HON. GRACE WAITHĨRA SENIOR RESIDENT MAGISTRATE** **RULING READ ON THE VIRTUAL PLATFORM AT 11:44 A.M. IN THE PRESENCE OF;** **C/A MR. MUYA** **MR. MWANGI FOR THE APPLICANT: PRESENT ADMINISTRATOR/RESPONDENT: ABSENT** **MR. KIRUBI FOR THE 1ST INTERESTED PARTY: PRESENT MR. KIMANI FOR THE 2ND INTERESTED PARTY: PRESENT** SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. GRACE WAITHIRA** Muranga Magistrate Court Magistrate Court Date: 2026-08-06 19:14:09