https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9765

Njenga & 3 others v Gichia (Civil Appeal E015 of 2024) [2026] KEHC 9765 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 9765 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E015 of 2024 KL Kandet, J July 3, 2026 IN THE ESTATE OF NICHOLAS PETER NJUGUNA Between Mary Wanjiku Njenga 1st Appellant Joseph Ndungu Mukuhi 2nd Appellant Gladys Wairimu Njoroge 3rd Appellant Solomon Mburu Muiruri 4th Appellant and Susan Wangari Gichia Respondent (Being an appeal against the Ruling of Hon. Lilian Kwamboka, Resident Magistrate, delivered on 18th January 2024 in Kikuyu Magistrate’s Succession Cause No. E113 of 2020) Judgment 1.This appeal arises from the ruling of Hon. Lilian Kwamboka, Resident Magistrate, delivered on 18th January 2024 in Kikuyu Magistrate's Succession Cause No. E113 of 2020. The proceedings before the trial court were commenced by way of a Petition for a Special Limited Grant dated 16th December 2020 filed by Mary Wanjiku Njenga (the 1st Appellant herein) and Anthony Njenga Njenga in respect of the estate of the late Nicholas Peter Njuguna (deceased), who died intestate on 10th October 2019. The petition was gazetted and no objection was lodged. Consequently, a Grant of Letters of Administration was issued to Mary Wanjiku Njenga and Anthony Njenga Njenga on 4th May 2021 and was subsequently confirmed on 21st February 2022. 2.Thereafter, the Respondent, who is the mother of the deceased, filed an application dated 3rd October 2023 seeking the following orders:a.That the Grant of Letters of Administration be revoked on the ground that it had been obtained fraudulently, through concealment of material facts, without the knowledge of the Applicant, and in contravention of court orders issued on 18th October 2019;b.That the titles relating to Kabete/Kibichiko/4845 measuring 0.046 Ha, Kabete/Kibichiko/4846 measuring 0.046 Ha and Kabete/Kibichiko/4847 measuring 0.12 Ha, which were allegedly fraudulently registered in the names of the Respondents, be revoked;c.That the Honourable Court do find the 1st Respondent, Mary Wanjiku Njenga, to be in contempt of the court orders issued on 18th October 2019. 3.The application was opposed through a Replying Affidavit sworn by the 1st Appellant on 17th October 2023. She deponed that she was the lawful widow of the deceased and that, following his demise and pursuant to the consent recorded on 18th October 2019, she made efforts through emissaries to involve the Respondent in instituting the succession proceedings. According to the 1st Appellant, those efforts were met with hostility and no amicable resolution was forthcoming. She therefore proceeded to institute the succession proceedings after all attempts at securing the Respondent's cooperation proved futile. She further deponed that the petition was duly gazetted and that no objection was lodged. 4.Upon hearing the application, the learned trial magistrate delivered the impugned ruling on 18th January 2024 allowing the application dated 3rd October 2023 and ordered as follows:a)That the Grant of Letters of Administration issued to Mary Wanjiku Njenga and Anthony Njenga Njenga on 4th May 2021 and confirmed on 21st February 2022 was defective, having been obtained fraudulently and by concealment of material facts, owing to the court order dated 18th October 2019;b)That the 1st Respondent, Mary Wanjiku Njenga, was in contempt of paragraph 3 of the court order issued on 18th October 2019; andc)That the parties were at liberty to apply for a fresh Grant of Letters of Administration in compliance with the court orders issued on 18th October 2019 within ninety (90) days. 5.Aggrieved by the Ruling dated 18th January 2024, the Appellants preferred this appeal which is based on the following grounds:1.That the learned trial magistrate erred in law by ordering that the grant of letters of administration issued to Mary Wanjiku Njenga and Anthony Njenga Njenga on 4th May 2021 and confirmed on 21st February 2022 was defective and the same was obtained fraudulently and by concealment from court of material facts owing to the court order dated 18th October 2019.2.That the learned magistrate erred in law and fact by holding the 1st Appellant to be in contempt of court orders issued on 18th October 20193.That learned magistrate erred in law and fact by failing to recognize the 1st Appellant as the legitimate wife of Nicholas Peter Njuguna Gichia (deceased)4.That learned magistrate erred in law and fact by failing to recognize the 2nd, 3rd and 4th Appellants as legitimate purchasers for value without notice of a portion of land measuring Nought Decimal Nought Five Hectares (0.05) to be excised from all that property comprised within title deed number Kabete/Kibichiku/39085.That the learned magistrate erred in law and fact by failing to hold that the Respondent was not a beneficiary of the estate of Nicholas Peter Njuguna Gichia (deceased)6.That the learned trial magistrate erred in law and in fact by failing to protect the 1st Appellant from her greedy in laws who are out to disinherit her off her late husband’s estate.7.That the learned trial magistrates’ ruling and consequential orders issued on 15th January, 2024 be set aside and the Notice of Motion dated 3rd October 2023 be dismissed with costs 6.The appeal was canvassed by way of written submissions. Although the Respondent entered appearance, she neither filed a response to the appeal nor written submissions 7.The Appellants submitted that the learned trial magistrate erred in revoking the grant of letters of administration and declaring the 1st Appellant to be in contempt of court. Counsel argued that the 1st Appellant, being the widow of the deceased, ranked first in priority under Sections 29 and 66 of the Law of Succession Act and was therefore legally entitled to petition for letters of administration without obtaining the Respondent's consent. It was contended that the Respondent, being the deceased's mother, had no priority where the deceased was survived by a spouse and child. In support of this position, reliance was placed on several authorities interpreting Sections 29 and 66 of the Act. 8.The Appellants further submitted that the revocation of the grant did not satisfy the statutory threshold under Section 76 of the Law of Succession Act. It was argued that the grant was regularly obtained after the petition was duly gazetted, no objection was lodged, and there was no evidence of fraud, false statements, defective proceedings, or concealment of material facts. According to the Appellants, the trial court improperly relied on the alleged non-compliance with a consent order recorded in separate Environment and Land Court proceedings, yet such non-compliance was not one of the statutory grounds for revocation under Section 76 9.The Appellants also maintained that there was no deliberate concealment of the existence of the consent order. Counsel submitted that efforts had been made to facilitate compliance with the consent through community mediation, but these efforts were frustrated by the Respondent's lack of cooperation. It was therefore argued that any failure to undertake a joint filing could not properly be construed as fraud or concealment warranting revocation of the grant. 10.They further argued that the learned magistrate failed to appreciate that the 1st Appellant had acted transparently in administering the estate. It was submitted that the confirmed grant expressly recognized the minor child of the deceased as a beneficiary and allocated his share to be held in trust by the 1st Appellant, demonstrating good faith rather than any intention to disinherit beneficiaries or conceal material facts. 11.On behalf of the 2nd to 4th Appellants, Counsel submitted that they were bona fide purchasers for value, having purchased portions of the suit property pursuant to a sale agreement entered into by the deceased during his lifetime. It was contended that their equitable interests had crystallized before the deceased's death and were protected under the doctrines of constructive trust and proprietary estoppel, as well as Article 40 of the Constitution. The revocation of the grant was therefore said to have unjustifiably prejudiced their accrued proprietary interests 12.Lastly, Counsel submitted that the learned magistrate improperly invoked Article 159 of the Constitution to override the clear provisions of the Law of Succession Act. They argued that revocation of grants must remain confined to the statutory grounds under Section 76, and that allowing collateral grievances to justify revocation would undermine certainty and finality in succession proceedings. The Appellants therefore urged the Court to allow the appeal, set aside the ruling of 18th January 2024, dismiss the application for revocation, and award them costs. Analysis and Determination 13.The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the Appellants. This being a first appeal, the duty of this Court is well settled. The Court of Appeal for East Africa set out the duty of the first appellate court in Selle v Associated Motor Boat Co. [1968] EA 123 in the following terms:“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” 14.An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & Another vs Duncan Mw 15.The Court is equally guided by the principle in Mbogo & Another v Shah that an appellate court will not interfere with the exercise of judicial discretion unless it is satisfied that the court misdirected itself in law, took into account matters it ought not to have considered, failed to consider relevant matters, or arrived at a decision that is plainly wrong. 16.Having considered the Record of Appeal, the proceedings before the trial court and the submissions by the parties, the issue that falls for determination is whether the learned trial magistrate erred in revoking the Grant of Letters of Administration issued to the 1st Appellant and Anthony Njenga Njenga. 17.The power of the Court to revoke or annul a grant of representation is conferred by Section 76 of the Law of Succession Act, which provides:“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—i.to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court has ordered or allowed; 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." 18.In Matheka & Another v Matheka, the Court of Appeal held that a grant may only be revoked where the circumstances contemplated under Section 76 have been established and that the court's jurisdiction must be exercised strictly within the confines of the statute. 19.In the present appeal, the Respondent sought revocation principally on the ground that the grant had been obtained through the concealment of a material fact, namely the existence of a consent order recorded on 18th October 2019 before Hon. Z.W Gichana, Senior Resident Magistrate requiring representatives from both sides to institute the succession proceedings. Although the consent order itself does not form part of the Record of Appeal, both parties acknowledge its existence and are ad idem that paragraph 3 thereof provided:“That after burial two representatives from both sides in the suit be appointed to file succession cause over the deceased estate."This Court will therefore proceed on the basis of the common position adopted by the parties regarding the contents of that particular clause. 20.The legal effect of a consent order is no longer in doubt. In Flora N. Wasike v Destimo Wamboko, adopting the principles enunciated in Brooke Bond Liebig (T) Ltd v Mallya, the Court of Appeal held that a consent judgment has contractual effect and remains binding upon the parties unless set aside on grounds that would justify the setting aside of a contract. It follows that neither party was at liberty to disregard the consent merely because its implementation had become difficult or inconvenient. 21.The Appellants do not dispute that they were aware of the consent order. Indeed, the 1st Appellant admitted before the trial court that she participated in recording the consent but explained that subsequent attempts to involve the Respondent in filing the succession proceedings were frustrated by the Respondent's hostility. It was on that basis that the Appellants proceeded to petition for the grant without the Respondent's participation. 22.That explanation deserved consideration. Equally, however, the law provides mechanisms for addressing situations where a beneficiary refuses or declines to participate in succession proceedings. Where a party encounters difficulty in implementing a subsisting court order, the proper recourse is to seek appropriate directions, variation or other relief from the court rather than unilaterally departing from the terms of the order. More importantly, where succession proceedings are thereafter instituted, the existence of such an order and the circumstances surrounding the inability to comply with it constitute material facts which ought to be disclosed to the succession court to enable it determine the appropriate course to take. 23.Succession proceedings are founded on the duty of utmost good faith. A petitioner is under an obligation to make full and honest disclosure of all material facts relevant to the administration of the estate. Had the Succession Court been informed that there existed a subsisting court order requiring representatives from both sides to institute the succession proceedings, together with the Appellants' assertion that the Respondent had declined to cooperate, the court would have been placed in a position to determine whether compliance ought to be dispensed with, whether further directions were necessary, or whether the Respondent ought to have been summoned before the grant is issued. 24.The Appellants submitted that the 1st Appellant, being the widow of the deceased, ranked in priority under Sections 29 and 66 of the Law of Succession Act and was therefore entitled to petition for the grant without the Respondent's participation. While it is true that Section 66 accords the surviving spouse priority in the order of preference for the grant of representation, that statutory preference did not absolve the Appellants from their duty to disclose the existence of the subsisting consent order. The issue before the succession court was not merely who ranked first in priority, but whether there existed a prior court order regulating the manner in which the succession proceedings were to be commenced. 25.The learned trial magistrate considered the explanation advanced by the Appellants that the Respondent frustrated implementation of the consent and expressly rejected it, holding that even if the Respondent had been uncooperative, the Appellants ought to have moved the court appropriately instead of proceeding without disclosing the existence of the consent order. The court further found that the omission to disclose the order demonstrated ill motive and amounted to the concealment of a material fact. 26.This Court has reconsidered the record and the reasoning of the learned trial magistrate. It cannot be said that the learned magistrate ignored the Appellants' explanation or failed to evaluate it. On the contrary, the explanation was expressly addressed before being rejected for reasons that were set out in the ruling. The question for this Court is therefore whether that conclusion was unsupported by the evidence or founded upon an erroneous application of the law. 27.Having independently evaluated the record, this Court is unable to arrive at that conclusion. The Appellants admitted knowledge of the consent order. They equally admitted that they instituted the succession proceedings without the Respondent's participation and without bringing the existence of the consent to the attention of the Succession Court. Whether or not the Respondent had frustrated implementation of the consent, the existence of that order remained a material fact which ought to have been disclosed. The omission denied the Succession Court an opportunity to determine the effect of the consent and to issue such directions as may have been appropriate in the circumstances. 28.The Appellants further argued that the Respondent failed to lodge an objection after the petition was gazetted and that the grant was therefore regularly obtained. While that fact forms part of the chronology of events, it does not, standing alone, defeat an application for revocation. Section 76 of the Law of Succession Act expressly permits the revocation of a grant "at any time" where any of the statutory grounds are established. Consequently, the Respondent's failure to object during the gazettement process did not preclude her from subsequently seeking revocation if the grant had been obtained through the concealment of a material fact. 29.In the result, this Court finds that the learned trial magistrate properly exercised the jurisdiction conferred under Section 76 of the Law of Succession Act. 30.Accordingly, the appeal lacks merit and is hereby dismissed. The orders made by the learned trial magistrate on 18th January 2024 revoking the Grant of Letters of Administration issued to Mary Wanjiku Njenga and Anthony Njenga Njenga are upheld. 31.Each party shall bear their own costs of the appeal. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn The Presence OfMbogo HB For Njoroge For The AppellantNo Appearance For The RespondentCourt Assistant: Jael Nosim