https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8648

In re Estate of Ndungi alias Kairuri Ndungi (Deceased) (Succession Cause 6 of 2022) [2026] KEHC 8648 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8648 (KLR) Republic of Kenya In the High Court at Kiambu Succession Cause 6 of 2022 A Mshila, J June 19, 2026 IN THE MATTER OF THE ESTATE OF KAMAU NDUNGI alias KAIRURI NDUNGI alias KAMAU NDUNGU WAWERU alias KAMAU NDUNGI WERU (DECEASED) Between Patrick Kabah Kamau Applicant and Lucia Muthoni Manono Respondent Ruling 1.The Applicant herein Patrick Kabah Kamau filed the Summons for Revocation of Grant dated 6th June, 2019 and brought under Section 76 of the Law of Succession Act and Rule 44 (1) of the Probate & Administration Rules seeking orders that;-a.The Court be pleased to issue an order revoking the Grant of Letters of Administration intestate issued on 27th February, 2019 to Lusia Muthoni Manono.b.The Court be pleased to issue an order revoking all the dealings in the deceased’s estate flowing from the said grant. 2.In his affidavit in support of the Summons for Revocation of Grant, the Applicant deposed that he is the deceased’s biological son and a beneficiary of his estate. The grant was said to have been obtained fraudulently by making of a false statement as the Petitioner is a stranger and not the wife of the deceased as alleged as such not the proper person to be issued with the grant. The Petitioner has not demonstrated that she was married to the deceased under any form of marriage. No consent was obtained as the Petition was filed secretly and a letter from the chief was obtained on 28/1/2019 when he had already obtained one in 22/11/2018 and lastly, that the Petitioner obtained another death certificate so as to petition for letters of administration. 3.Lucia Muthoni Wanono filed her Replying Affidavit dated 5th July, 2019 where she deposed that she is the wife of the deceased having been married in 1964 until the death of the deceased hence as the widow she has priority to obtain the grant of letters of administration. She did not leave out any of the beneficiaries and these beneficiaries from the Objector’s house signed the consent and their interests were well taken care of. The Objector was invited but he refused to co-operate with the other beneficiaries. She denied that there was any fraud in obtaining the grant of letters of administration intestate herein as both houses have been included. She was present at the burial of the deceased together with her co-wife. She produced an agreement which shows that she was involved with the Objector and the other children of the deceased in the transfer of one of the deceased’s properties. A customary marriage is recognized as a legal marriage and that at the time of the death of the deceased she was residing at Kiambaa/Kihara/495 together with her co-wife. The Chief’s letter was not obtained secretly. She contended that the deceased had explained to all beneficiaries how he wanted his property to be shared out and that she has distributed the estate equally amongst the two houses. The court was urged to confirm the grant as per the schedule of distribution filed in court to enable transmission. 4.The Applicant filed a further affidavit dated 14th August, 2019 where he deposed that the Petitioner met the deceased in 1965 and the two cohabited until 1968 when the Petitioner abandoned the deceased and went to Webuye where she got married to Mr. Manono and they were blessed with five children who the Petitioner alleges are the children of the deceased and are listed as beneficiaries. The Petitioner showed up twenty-four (24) years later during the burial of the deceased. The Petitioner never had biological children with the deceased and that after the burial she again came back in 2013 to attend her son’s burial. Photographs were said not to be proof of existence of a marriage. The Petitioner was said to have been only a witness of the transfer agreement and not an occupier of Kiambaa/Kihara/495 as the Petitioner had been residing in Webuye with her husband and children. He averred that the deceased only had one wife being Faith Wambui Kamau. He denied that he lives with the Petitioner on the land belonging to the deceased and that he was not aware of the filing of this cause. He denied that the deceased had stated how he wished his estate to be distributed. He contended that the court should allow the application so that they are not disinherited by the Petitioner and her children. 5.Parties filed their witness statements and the matter was heard by way of viva voce evidence. 6.Patrick Kabah Kamau (PW1) wished to adopt his documents and pleadings as his evidence in chief. 7.In cross-examination he stated that his father never remarried in 1964. He was not aware of the succession proceedings herein. The Petitioner left her two sons a long time ago when she went back to Webuye in 1968 and the said sons became like adopted sons of the deceased. 8.Peris Wanjiru Ndungi (PW2) wished to adopt her witness statement as her evidence in chief. She stated that the Petitioner was never married to her father in law the deceased herein. 9.In cross examination she stated that she got married to the deceased’s eldest son in 1953 and they lived in Nakuru as such she wouldn’t know whether the deceased married the Petitioner. She stated that the Petitioner left but left her children behind. 10.Geoffrey Muigai Muiruri (PW3) wished to adopt his witness statement as his evidence in chief. 11.In cross examination he stated that he was the deceased’s neighbour from 1960 and he has known the family for many years. The deceased only had one wife and four children. He only saw the Petitioner again in 2013 during the burial of the Petitioner’s son. 12.Lucia Muthoni Manono (DW1) wished to adopt her witness statement as her evidence in chief. She produced the funeral expense book, photographs, death certificate and burial permit as her exhibits. 13.In cross examination she stated that the deceased was her husband as she got married in 1964. Elders went to her home where there was a ceremony and they gave gifts, money and brew. The same was not written down and there are no living witnesses to the ceremony. She lived together with the deceased from 1964 to 1972 when she went to Webuye to look after her ailing sister and she bought land and lived there but the deceased used to visit her. She did not call any of her neighbours to testify as her witness. She denied that a Mr. Manono was her husband in Webuye. She stated that she had two children with the deceased Godfrey and Alex. She did not avail birth certificates for her children. 14.After a full hearing the parties were directed to file and exchange written submissions. Applicant’s Submissions 15.The Applicant submitted that the Petitioner did not prove that she was married to the deceased as she failed to produce any evidence as to the formalities required to show the existence of a customary marriage. There was no evidence of a ceremony, bride price or cohabitation. Reliance was placed on among other cases the case of In Re Estate of Gedion Manthi Nzioka (deceased) (2015) eKLR. It was submitted that the Petitioner obtained the Grant by indicating that she was the wife of the deceased which was said to be a false statement as the same was not proven. This makes the process of obtaining the grant defective in substance hence the grant should be revoked. Reliance was placed in the case of In Re Estate of John Gakunga Njoroge (deceased) (2015) eKLR. Further it was submitted that the Petitioner and her children are not dependants of the deceased’s estate and that the Petitioner’s children are not children of the deceased. In any case, it was submitted that the beneficiaries had not signed the consent form proving that the proceedings to obtain the grant were defective in substance. Petitioner’s Submissions 16.The Petitioner submitted that she was married to the deceased in 1964 under the Kikuyu Customary Law. The position was confirmed by the letter of the chief and the transfer agreement. The Petitioner cohabited with the deceased since 1964 and that the two carried themselves as husband and wife and that their union was blessed with five children. It was submitted that the union between the Petitioner and the deceased qualifies to be presumed as a marriage. Reliance was placed in the Court of Appeal case of Hortensiah Wanjiku Yahwe vs The Public Trustee Civil Appeal 13 of 1976. The Petitioner has the first priority, right and locus to obtain the grant of letters of administration being the only surviving spouse of the deceased. The Petitioner was said to have disclosed to all the beneficiaries as such no false statements were made at the time of filing the petition. The Applicant was said to have acknowledged the Petitioner as a wife in the transfer agreement as such he is prohibited by the doctrine of approbation and reprobation from alleging otherwise. The court was urged to dismiss the Summons for Revocation of Grant and the Petitioner be allowed to distribute the estate. Issues For Determination 17.Having considered the Summons, the Replying Affidavit and the parties’ submissions, the main issues arising for determination are;-a.Whether the Petitioner was the deceased’s wife;b.Whether the grant herein should be revoked; Analysis 18.The Law of Succession Act provides for revocation or annulment of grants under section 76, which states as follows:“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)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; or(ii)to proceed diligently with the administration of the estate; or(iii)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; or(e)that the grant has become useless and inoperative through subsequent circumstances.” 19.In re Estate of Prisca Ong’ayo Nande (Deceased) (2020) eKLR in expounding Section 76 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.” Whether the Petitioner was the deceased’s wife; 20.The Applicant contends that the Grant of Letters of Administration Intestate as obtained by the Petitioner is defective as the same was obtained by making of a false statement by the Petitioner that she was the wife of the deceased herein. 21.The Applicant avers that the Petitioner has failed to prove that she was married to the deceased as she claims as there was no evidence of a ceremony, bride price or cohabitation. 22.On the other hand, the Petitioner contends that in 1964 she went through the Kikuyu Customary marriage, that she had cohabited with the deceased since 1964 and that the two carried themselves as husband and wife. Further that their union was blessed with five children as such the union qualifies to be presumed as a marriage. 23.For this court to determine whether or not to revoke the Grant of Letters of Administration Intestate issued on 27th February, 2019, the issue of whether the Petitioner was a wife of the deceased has to be determined first. 24.He who alleges the existence of a marriage, must prove it. This position was taken in the case of Hortensiah Wanjiku Yawe vs Public Trustee (1976) KLR 318 where the Court of Appeal held that a customary marriage must be proved by evidence. 25.The Petitioner claims that she was married to the deceased in 1964 hence by dint of being the widow of the deceased she ranks higher in priority to apply for the grant of letters of administration intestate for the estate of the deceased herein. 26.Further, that the position that she is a wife of the deceased is proved by the Chief’s letter and the transfer agreement. 27.The matter herein was heard by way of viva voce evidence, when called upon to testify, the Petitioner stated that elders went to her home where there was a ceremony and gifts, money and brew were exchanged. She did not call witnesses to testify to this effect. 28.In the case of In Re estate of M’Marete M’Mboroki (deceased) (2004 eKLR the court stated that customary marriages must be proved by evidence of the applicable customary rites having been performed. 29.The Petitioner herein has failed to adduce evidence of the essential rites of a Kikuyu Customary marriage which includes negotiations and payment of dowry. There is also no evidence adduced of cohabitation and there is no evidence that the Petitioner lived with the deceased for a short period then she moved to Webuye. The Petitioner did not call any witness to support the existence of the purported marriage hence public repute as husband and wife has not been established. 30.In the circumstances therefore, this Court is satisfied that the existence of the marriage has not been proved on a balance of probabilities and the Petitioner cannot therefore be deemed to have been recognized as a wife of the deceased. Whether the grant herein should be revoked; 31.What then is the effect of the Petitioner having not been considered by this Court as a wife of the deceased? 32.On 27th February, 2019 the Petitioner was issued with the Grant of Letters of Administration Intestate over the estate belonging to the deceased. The said grant was issued on the basis that the Petitioner had stated that she was the deceased’s wife. 33.The Applicant herein submits that the Grant of Letters of Administration Intestate should be revoked as the Petitioner is a stranger to the estate and if allowed to proceed the rightful heirs of the deceased’s estate will be disinherited by the Petitioner and her children. 34.This Court having found that the Petitioner, is not a wife of the deceased, then it goes without saying that the said grant was obtained fraudulently by making of a false statement and/or on the basis of an untrue allegation of a fact essential in law. 35.Refer to the case of In Re Estate of Charles Njoroge Njoroge (Deceased)(2015) eKLR where the Court revoked a grant where the Petitioner had obtained it on the basis that she was the widow of the deceased, but failed to prove the alleged customary marriage. 36.Similarly, the case of In Re Estate of Mwaura Mutungi alias Mwaura Gichina (Deceased) (2019) eKLR where the Petitioner could not rank as a widow for purposes of administration of the estate having failed to prove a valid marriage to the deceased. 37.There is no evidence that the Petitioner’s children are the biological children of the deceased. There is also no evidence that the said children were being maintained by the deceased during his lifetime and/or prior to his death. This court therefore, is satisfied that the Petitioner and her children are not beneficiaries of the estate of the deceased for purposes of this Succession proceedings. 38.In the upshot, this court is satisfied that the Grant was obtained in a manner that renders it defective as it was obtained through concealment and fraudulent misrepresentation of material facts. Findings And Determinations 39.In the light of the forgoing this court makes the following findings and determinations;i.The application for Revocation of the Grant is found to have merit and it is hereby allowed.ii.This court finds that the Grant was obtained in a manner that renders it defective as it was obtained through concealment and fraudulent misrepresentation of material facts.iii.This Court hereby revokes the Grant herein issued on 27th February, 2019 to Lusia Muthoni Manono.iv.All consequential transactions and in particular those touching on or relating to the estate of the deceased undertaken by the Letters of Administration be and are hereby cancelled and the properties to revert to the original form.v.Parties at liberty to apply for further directions;vi.This being a family matter each party shall bear their own costs;vii.Mention 13/10/2026 before Presiding Judge for directionsviii.Mention Notice to Issue to the Applicants Advocate It is so ordered accordingly. DATED, SIGNED AND DELIVERED via TEAMS AT VOI THIS 19TH DAY OF JUNE, 2026.A. MSHILAJUDGEIn the presence of;Sanja/Trizah – Court AssistantsN/A – for the ApplicantGathira h/b for Kamotho – for the Petitioner/Respondent