https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9409

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **SUCCESSION CAUSE APPEAL NO. E013 OF 2024** **NJENGA PETER WANYOIKE ........................................................ APPELLANT** **VERSUS** **MARY WAMBUI KARANJA ................................................... 1ST RESPONDENT** **MIRIAM WAITHIRA WANYOIKE ........................................... 2ND RESPONDENT** *(Being an appeal from the Judgement of the Honorable D. MILIMU (S.R.M) delivered on the 20TH of MAY 2024 in the Chief Magistrates Court at Thika SUCC CAUSE NO. 332 OF 2011)* **JUDGMENT** 1. Where there is a will there is a relative, but in cases of intestacy, where there is property, there is invariably a protracted family feud. A family dispute over inheritance is sometimes seen as a fire that consumes the very legacy it seeks to claim, often unearthing grievances long after the primary actors have exited the stage of life. 2. Yet, the fact that there is a dispute is not necessarily a bad thing. The word dispute has an etymology from the Latin *disputare* and connotes weighing and examining apart or distinct issues. In effect, there are two different positions that need to be weighed by a third party being a judicial officer. This Court is called upon to weigh the positions taken by different parties and untangle the web of familial discord that has culminated in the present appeal. 3. This is a first appeal arising from the Judgment of the Honorable D. Milimu (S.R.M), delivered on the 20th of May 2024 at the Chief Magistrate's Court at Thika in Succession Cause No. 332 of 2011. 4. In the impugned judgment, the learned Trial Magistrate allowed an application by the 1st Respondent herein, Mary Wambui Karanja and revoked the Grant of Letters of Administration Intestate issued to the Appellant, Njenga Peter Wanyoike and the 2nd Respondent, Miriam Waithira Wanyoike, on the 25th of April 2011. **BACKGROUND** 1. The genesis of this dispute traces back to the estate of the late Dawson Karuma Karuma alias Danson Karuma Karuna alias Wanyoike Karuma (hereinafter "the Deceased"), who died intestate on the 10th of February 2011. 2. Following his demise, the Appellant and the 2nd Respondent (his mother) petitioned the subordinate court for Letters of Administration, which were granted on 25th April 2011 and subsequently confirmed on 25th April 2012. 3. Over a decade later, on 1st November 2022, the 1st Respondent acting as the widow and on behalf of the estate of her late husband, Joseph Karuma Karanja (a son of the Deceased who passed away on 16th March 2021) filed Summons for Revocation of the Grant. 4. She alleged that the grant was obtained fraudulently through the concealment of material facts, specifically that her late husband was disenfranchised and that his signature on the consent forms had been forged. 1. The Appellant vehemently opposed the application, asserting that his late brother, Joseph Karuma Karanja, was fully involved in the succession process, had signed the requisite consents and was physically present in court when the grant was confirmed. 2. The Appellant contended that the 1st Respondent's application was an afterthought brought only after her husband's demise, devoid of any expert evidence to prove forgery. 3. The learned trial magistrate found favor with the 1st Respondent’s application. She concluded that there were glaring disparities in the signatures purportedly belonging to the late Joseph Karuma Karanja and found it implausible that he would relinquish his rights to the estate, given that he had undertaken active developments on the suit property, Ruiru East Block 1 Githunguri 537. Consequently, the grant was revoked. **THE APPEAL** 1. Aggrieved by this decision, the Appellant filed the present appeal citing seven grounds, which can be summarized as follows: 2. *The learned trial magistrate erred in fact and in law when she determined that the Grant of Letters of Administration issued to MIRIAM WAITHERA WANYOIKE and NJENGA PETER WANYOIKE on the 25th of April 2011 was defective in substance and that the same was obtained by untrue allegation of facts.* 3. *The Learned Trial Magistrate erred in fact and in law when she determined that the Grant of Letters of Administration issued to MIRIAM WAITHERA WANYOIKE and NJENGA PETER WANYOIKE on the 25th of April 2011 be revoked.* 4. *The Learned Trial Magistrate erred in fact and in law when she determined that the interests of all beneficiaries in the estate herein were never taken into account.* 5. *The Learned Trial Magistrate erred in fact and in law when she raised doubts as to whether the consent and involvement of one JOSEPH KARUMA WANYOIKE (now deceased) was sought during the Administration proceedings.* 6. *The Learned Trial Magistrate erred in fact and in law by determining that the confirmation of grant proceedings did not specifically indicate that the 1st Respondent's husband was specifically present and has relinquished his right as a beneficiary to the estate of the deceased despite the fact that the proceedings confirm that all beneficiaries were present on the date of confirmation of grant.* 7. *The Learned Trial Magistrate erred in fact and in law when she disregarded the Appellant's case and thereby failed to arrive to a fair judgement.* 8. *The Learned Trial Magistrate erred in law by failing to uphold the doctrine of precedent.* **DUTY OF THE FIRST APPELLATE COURT** 1. Before delving into the merits of the appeal, it is imperative to outline the mandate of this Court as a first appellate court. It is trite law that a first appellate court is obligated to re-evaluate the evidence adduced at the trial court and draw its own independent conclusions, while bearing in mind that it did not have the advantage of seeing or hearing the witnesses testify. 1. This principle was firmly restated by the High Court in **Ezy Ventures Limited v Mutiso (Suing in his capacity as the administrator and legal representative of the Estate of Joshua Mutinda Mbithi – Deceased) [2022] KEHC 14436 (KLR)** relying on the locus classicus of **Selle vs. Associated Motor Boat Co. [1968] EA 123,** wherein it was held: **"An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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 the 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..."** **ANALYSIS AND DETERMINATION** 1. Having perused the Record of Appeal, the impugned judgment and the submissions by the parties, the singular overarching issue for determination is whether the learned Trial Magistrate misdirected herself in the exercise of her discretion to revoke the confirmed Grant of Letters of Administration under Section 76 of the Law of Succession Act. 2. Section 76 of the Law of Succession Act confers upon the court a discretionary power to revoke or annul a grant on specific grounds, including that the proceedings were defective in substance, or that the grant was obtained fraudulently by the making of a false statement or by concealment of material facts. 3. It is a well-settled principle of our jurisprudence that an appellate court should be slow to interfere with the exercise of discretion by a trial judge. The threshold for such interference is high. In **Trident Insurance Company v Dennis Mutwiri [2021] KEHC 7109 (KLR),** the court, citing the celebrated case of **Mbogo v. Shah (1968) EA 93**, held: **“A Court of Appeal should not interfere with the exercise of discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and as a result there has been misjustice.”** 1. Did the Trial Magistrate misdirect herself? To answer this, one must scrutinize the grounds upon which the revocation was anchored. The 1st Respondent's primary contention was that her late husband, Joseph Karuma Karanja, was excluded from the estate and that his signature on the consent documents was forged. Consequently, the grant was allegedly tainted by fraud. 2. It is a trite principle of law that he who alleges fraud must strictly prove it. As was held in **Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] KECA 223 (KLR),** **"** **It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading... it is not allowable to leave fraud to be inferred from facts."** 1. In dealing with the allegation of forgery, the learned trial magistrate stated: *"even a layman will without any doubt note the huge disparity in the purported signature."* 2. With the utmost respect to the trial court, this conclusion constitutes a severe misdirection in law. The burden of proving forgery rests squarely on the person making the allegation. It is not sufficient to cast aspersions based on visual discrepancies noted by the untrained eye. 3. To properly displace the presumption of regularity of court documents, expert evidence from a qualified document examiner is an absolute necessity. The failure by the 1st Respondent to adduce forensic evidence of forgery was fatal to her application. 4. Secondly, the element of time and acquiescence looms large over this dispute. Equity aids the vigilant, not those who slumber on their rights. The grant herein was confirmed on the 25th of April 2012. The late Joseph Karuma Karanja lived for a full nine years thereafter, until his demise in 2021. 5. Throughout his lifetime, he did not file a single protest, nor did he apply to revoke the grant, despite the 1st Respondent's own admission that they had active possession and were developing the suit property. Safe to say, the deceased slept on his rights, if any were indeed breached. 6. It is conceptually and legally problematic for a widow to wait until her husband is interred to resurrect grievances regarding an estate distribution that the husband himself had seemingly accepted or at least tolerated during his lifetime. The 1st Respondent's application, filed over a decade after the grant was confirmed, reeks of an afterthought. 7. By failing to appreciate the weight of this inordinate delay and the deceased husband's acquiescence, the trial court went plainly wrong. 8. The record of the trial court indicates that the proceedings for the confirmation of the grant were procedurally sound. All statutory notices were published and the court recorded that there were no objections. 9. The 1st Respondent failed to meet the rigorous threshold required under Section 76 to unseat a confirmed grant that has governed the administration of the estate for over a decade. 10. The learned Trial Magistrate failed to take account of these material circumstances namely, the 10-year delay, the presumption of regularity of the 2012 court proceedings and the absolute lack of expert forensic evidence to prove forgery. In doing so, the trial court arrived at a conclusion that is plainly wrong and occasioned a miscarriage of justice. 11. In **Systemedia Technologies Limited v Matheka & 3 others [2023] KEELC 18488 (KLR)** the court stated: **“This court sitting of Appeal is only entitled to interfere if one or more of the following matters are established; first, that the court misdirected himself in law; secondly, that the court misapprehended the facts; thirdly, that the court took account of considerations of which he should not have taken account; fourthly, that the court failed to take account of considerations of which he should have taken account, or fifthly, that the court’s decision, albeit a discretionary one, is plainly wrong.”** 1. It therefore follows that this Court is entitled to interfere where a trial court has misapprehended the facts or failed to take account of considerations which it should have taken into account. **DETERMINATION** 1. The sanctity of confirmed grants must be protected against whimsical and belated attacks, especially those mounted without strict proof of the alleged defects or fraud. A revocation under Section 76 of the Law of Succession Act is not a weapon to be wielded lightly to unravel concluded administrations based on posthumous familial dissatisfaction. 2. The learned Trial Magistrate misdirected herself in fact and in law by revoking the Grant of Letters of Administration without the requisite standard of proof for fraud and in blatant disregard of the official court record of the confirmation proceedings. The first appellate duty compels this Court to right this wrong. 3. I find that the Appellant's appeal has merit. Consequently, I make the following orders: 4. *The Appeal is hereby allowed.* 5. *The Judgment and subsequent orders of the Honorable D. Milimu (S.R.M) delivered on the 20th of May 2024 in Thika Succession Cause No. 332 of 2011 are hereby set aside in their entirety.* 6. *The confirmed Grant of Letters of Administration Intestate issued to Njenga Peter Wanyoike and Miriam Waithira Wanyoike is hereby reinstated.* 7. *Given that this is a dispute among family members, each party shall bear their own costs of this Appeal.* **IT IS SO ORDERED.** **Dated and delivered at Nairobi this 2nd day of July, 2026.** **BENARD WAFULA MURUNGA** **JUDGE OF THE HIGH COURT** **Delivered on virtual platform in the presence of:** *In the presence of:* *Mburu instructed by Mburu Ndung’u for the Appellant* *(N/A) Wangui Kuria for the Respondents* *Kevin Babu - Court Assistant*