https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12540

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT SUCCESSION CAUSE NO. 547 OF 2008** **IN THE MATTER OF THE ESTATE OF THERU NDIRANGU** **(DECEASED)** **PATRICK WANG’OMBE WACHIRA…………………..APPLICANT** **VERSUS** **JOHN KAROGO NDIRANGU……………………….RESPONDENT** **JUDGEMENT** 1. Before this Court is the Summons for revocation of Grant dated **24th March** **2025** by which the Applicant ‘**PATRICK WANG’OMBE WACHIRA’** sought the following orders:- **“1. The grant of letters of administration intestate made on 25th January 2022 in respect of the estate of the late THERU NDIRANGU be revoked and/or annulled on grounds of material non-disclosure of facts.** **2. SPENT.** **3. That this Honourable Court be pleased to issue an** **order staying any ongoing subdivision, sale, transfer, or any other dealing with** **the estate properties pursuant to the subdivision of L.R AGUTHI/GATITU/8195, 8190, 8209, 8198 and 8212, pending the hearing and determination of this application.** **4. That the costs of this application be provided for.”** 2. The summons which was premised upon **Section 76 (A) (B) and (C) of the Law of Succession Act (Cap 160) Laws of Kenya and Rule 44 of the Probate and Administration Rules** was supported by the affidavit of even date as well as the supplementary Affidavit dated **30th April 2025** both sworn by the Applicant. 3. The Respondent **JOHN KAROGO NDIRANGU** filed a replying affidavit dated **9th June 2025** as well as a Further Affidavit dated **10th** **February 2026**. One **DAVID LWANGA GATHARA** a beneficiary of the estate filed a Replying Affidavit dated **9th June 2025** indicating his satisfaction with the mode of distribution of the estate as set out in the confirmed grant. The 3rd Respondent **ANTHONY KARURI** **NDIRANGU** a beneficiary of the estate also filed a Replying Affidavit dated **6th February 2026** in support of the summons for revocation of Grant. 4. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated **14th April 2026** whilst the Respondent relied on the written submissions dated **21st April 2026**. **BACKGROUND** 5. This succession cause relates to the estate of the late **THERU** **NDIRANGU alias THERU W/O NDIRANGU** (hereinafter ‘the Deceased’) who died intestate on **30th December 2006**. A copy of the Death certificate Serial No. **356232** is annexed to the summons for letters of Administration dated **14th October 2008**. The Deceased was survived by the following persons;- **(a) Joseph Wang’ombe Ndirangu - Son** **(b) Sebastian Wachria Ndirangu - Son** **(Deceased)** **(c) Anthony Karuri Ndirangu - Son** **(d) Esther Njeri Ndirangu - Son** **(e) John Karago Ndirangu - Son** 6. The estate of the Deceased comprised of the following assets;- **(i) Parcel of land known as LR No. AGUTHI/GATITU** **/1588** **(ii) Parcel of Land known as LR. No. AGUTHI/GATITU** **/1592** 7. Following the demise of the deceased Grant of letters of Administration was on **25th January 2022** made to her sons **John Karago Ndirangu**, **Joseph Wang’ombe Ndirangu, Anthony Karuri Ndirangu** and **Sebastian Wachira Ndirangu**. That Grant was duly confirmed on **25th January 2022**. By virtue of the Certificate of confirmed grant the estate was to be distributed ‘**equally’** amongst all the beneficiaries. Following confirmation of the Grant subdivision has taken place and various sub-divisions have been derived from the original titles. 8. The Applicant herein **Patrick Wang’ombe Wachira** is the son of one of the sons of the Deceased **Sebastian Wachira Ndirangu** who unfortunately passed away in Nyeri on **1st December 2017.** 9. That the late ‘**Sebastian Wachira’** was survived by his widow **Ann** **Nyanjau Wachira** and the following beneficiaries, who are also in occupation of part of the estate land: **i. Patrick Wang’ombe Wachira Rose Ngima Wachira** **ii. Catherine Nyambura Wachira** **iii. Charity Wambui Wachria Bernard Kariuki Wachira** **iv. Anthony Karuri Wachira Esther Njeri Wachira** **v. Joyce Wairimu Wachira** 10. Following the demise of **Sebastian Wachira** in **December 2017** his widow **Ann Nyanjau Wachira** substituted her husband in this succession cause. That the said widow **Ann Nyanjau** also passed away on **14th November 2019** leaving the estate of **Sebastian** **Wachira** without representation. Thereafter the succession cause proceeded with no representation from the family of **Sebastian** **Wachira**. The Applicant complains that the confirmation of the grant proceeded without the participation and/or involvement of the Applicant and his siblings. 11. The Applicants complain that having obtained the grant fraudulently the administrators are now intent on proceeding with the distribution of the estate ignoring the rightful claim of the Application to the estate and ignoring the fact that some of the beneficiaries of the estate of **Sebastian Wachira** reside on the estate and have put up developments thereon. 12. The Applicant further avers that the deceased had during his lifetime indicated how he wished his estate to be distributed through an agreement dated **15th February 2011** written in Kikuyu language. That the mode of distribution of the estate has ignored the said wishes of the deceased and ought to be set aside. That to proceed with the distribution will create disharmony in the family. Hence the current prayer for revocation of the grant. 13. The Respondent denied having obtained the grant fraudulently or by concealment of material facts. The Respondent states that the succession cause for their late mother proceeded during the lifetime of their brother **Sebastian Wachira** and that the mode of distribution of the estate was agreed upon way back in the year **2011** and **Sebastian** **Wachira** who was still alive did not oppose the same. 14. The Respondent concedes that **Sebastian Wachira** passed away in the year **2017** but asserts that the mode of distribution set out in the confirmed grant dated **25th January 2022** conforms fully with the distribution as had been agreed by the beneficiaries including **Sebastian** **Wachira** in the year **2011**. 15. The Respondent states that this application is nothing but a ploy by the Applicant to stall and/or frustrate the distribution of the estate. That the remaining beneficiaries are all satisfied with the mode of distribution as set out in the confirmed grant and have collected their title documents. That the share allocated to the late Sebastian Wachira comprises of the following subdivisions – **LR AGUTHI/GATITU/8195,** **8209, 8190, 8198 and 8212** will be allocated to the beneficiaries of **Sebastian Wachira**. 16. The Respondent denies that their late father ever indicated in writing how he wished his estate to be divided. He denies all knowledge of the alleged agreement written in Agikuyu and points out that the same appears only to have been signed by **Sebastian Wachira**. 17. Finally the Respondent states that this Summons is nothing but an attempt by the Respondents to litigate on behalf of the so called purchaser whose attempt to be inclined as an interested party in this succession cause was rejected by the court vide its ruling of **26th July** **2024**. **ANALYSIS AND DETERMINATION** 18. I have carefully considered the summons before this court, the Replying affidavits filed by the Respondents, as well as the written submissions filed by both parties. 19. It is not in any dispute that the Deceased **Theru Ndirangu** passed on **30th December 2006**. The name and identities of the beneficiaries to the estate have not been disputed. It is not disputed that one of the beneficiaries of the estate **Sebastian Wachira Ndirangu** passed away on **1st December 2017**. A copy of the Death Certificate Serial Number **0612729** appears as Annexture ‘**PWW-2’** to the supporting affidavit dated **24th March 2025.** 20. The widow of **Sebastian Wachira** substituted him in this cause but she too passed away on **14th November 2019**. A copy of her Death Certificate Serial No. **0793688** is annexed to the Supporting affidavit (Annexture **‘PWW-4’**) 21. The Applicant who is the son of **Sebastian Wachira** holds a limited Grant Ad Litem issued on **8th November 2023** (Annexture ‘**PWW-1’**) authorising him to substitute his late father in this succession cause being Nyeri High Court Succession No. 547 of 2008 Estate of Theru Ndirangu. A copy of the said Grant appears as Annexture ‘**PWW-1’** to the Supporting affidavit. 22. The issues which arise for determination in this case are **(1)** **Whether the Grant should be revoked.** **(2) How the estate should be distributed.** **(i) Revocation of Grant** 23. The grounds upon which a Grant may be revoked are set out in **Section** **76** of the **Law of Succession Act** which provides as follows:- **“76. Revocation or annulment of grant** **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 –** 1. **that the proceedings to obtain the grant were defective in substance;** 2. **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;** 3. **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;** 4. **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** 1. **that the grant has become useless and inoperative through subsequent circumstances.” [own emphasis]** 24. This provision of the law was expounded upon by the court in the case of **RE ESTATE OF PRISCA ONG’AYA NANDE (Deceased)** **2020 eKLR** where it was held as follows:- **“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 circumstance, 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.”** 25. The duties of a Probate Court were set out in the case of **Priscilla** **Ndubi Zipporah Mutiga vs Gerishon Gatobu Mbui, Meru** **Succession Cause No. 720 of 2013** which established that the primary duty of the probate court is to distribute the estate of the deceased. It was held that:- **“The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property must be identified. Thus, where issues of ownership of the property of the estate are raised in a succession** **cause, they must be resolved before such property is distributed. And that is the very reason why rule 41 (3) of the Probate and Administration Rules was enacted so that claims which are prima facie valid should be determined before confirmation.”** 26. The applicant complains that the estate of the deceased was distributed without any regard to the stated wishes of the Deceased, which the Applicant avers were contained in an Agreement written in Kikuyu. The said agreement appears as Annexture **‘PWW6a’** to the applicants supporting affidavit. 27. Firstly the deceased in this matter died intestate. There is no evidence that the Deceased left behind a written or an oral will detailing her wishes regarding the distribution of her estate. Secondly this so-called agreement has only been signed by one beneficiary – the late **Sebastian** **Wachira**. None of the other beneficiaries has appended their signatures next to their names on the agreement. I reject the attempt by the applicant to rely on this agreement as proof of the deceaseds wishes. I find that the deceased died intestate and her estate is subject to distribution as such. 28. The applicant submits that the grant was obtained fraudulently by concealment of material facts as the existence of the beneficiaries to **Sebastian Wachira** was not disclosed to the Court and they were excluded in the distribution of the estate. 29. A close scrutiny of the record reveals that **Sebastian Wachira** **Ndirangu** was in fact the initial petitioner in this matter and he was issued with letters of Administration on **14th April 2009**. On **11th June** **2010,** **Hon. Justice Sergon** delivered a judgment in which he directed that upon settlement of an outstanding debt the estate was to be distributed equally between the beneficiaries. 30. Thereafter on **22nd November 2022** the matter came up before **Hon.** **Lady Justice Muchemi** for consideration of a summons dated **3rd** **November 2022** and which summons was allowed. 31. On **25th January 2022** the matter came up again before **Hon. Lady** **Justice** **Muchemi** who adopted the mode of distribution as set out in the judgment of **11th June 2021** i.e that the estate be distributed equally between all the beneficiaries including **Sebastian Wachira**. Thereafter a certificate of Confirmed Grant was issued on **25th January** **2022**. By that confirmed Grant it was indicated that the estate would be distributed as follows;- | | | | | --- | --- | --- | | **NAME** | **DESCRIPTION** **OF PROPERTY** | **SHARE OF HEIRS** | | JOSEPH WANG’OMBE NDIRANGU SEBASTIAN WACHIRA NDIRANGU ANTHONY KARURI NDIRANGU ESTHER NJERI RICHARD GACHURA NDIRANGU JOHN KARAGO NDIRANGU | L.R. NO. AGUTHI/GATITU/1588 | EQUAL SHARES | | JOSEPH WANG’OMBE NDIRANGU SEBASTIAN WACHIRA NDIRANGU ESTHER NJERI RICHARD GACHURA NDIRANGU JOHN KARAGO NDIRANGU | L.R. NO. AGUTHI/GATITU/1592 | EQUAL SHARES | 32. Accordingly I do I find that the confirmed grant did in fact include the late **Sebastian Wachira** who was allocated an equal share of the estate. Therefore the claim that the applicants father was excluded in the administration of the estate is a blatant falsehood. 33. As stated earlier the applicant being a son to **Sebastian Wachira** is a grandson to the Deceased in this cause. The Applicant and his siblings would not qualify as direct beneficiaries to the estate but would only be entitled to be allocated the share of the estate that had been reserved for their late father. 34. Our courts are replete with decisions to the effect that grandchildren can inherit from their grandparents only where their parents (the beneficiaries) are also deceased. In the case of **Re Estate of Florence** **Mukami Kinyua (Deceased) (2018) eKLR Hon. Justice Matheka** stated as follows:- **“A grandchild is a direct heir to the estate of the grandparent where the parent predeceased the grandparent. The grandchildren get into the shoes of their deceased parents and take the parents’ share in the estate of the grandparents. This was stated in Re Estate of Wahome** **Njoki Wakagoto (2013) eKLR where it was held:- Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the** **grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.” [Own emphasis]** 35. The history of this matter reveals that following the death of **Sebastian** **Wachira** his widow **Ann Nyanjau Wachira** obtained a Grant Ad Litem in **Succession Cause No. 17 of 2018** substituted him in this cause in order to claim the share of the estate due to her late husband. 36. Following the demise of **Ann Wanjau** the Applicant obtained a Grant ad litem in **Succession Cause No. 62 of 2023**. In view of the demise of their father I find that the applicant and his siblings are entitled to directly inherit the share of the estate due to their late father. Regarding the claim that the Grant was obtained through material non-disclosure note that the Applicant obtained a Grant Ad Litem in respect to the estate of his late father on **8th November 2023**. This was about one 1. year **AFTER** the Grant had been confirmed. The confirmed grant identified the share of the estate due to the late **Sebastian Wachira** which share was set aside and allocated. Given that the Applicant obtained the Grant Ad litem in respect of the estate of his late father **after** the Grant had been already confirmed. I find that there was no ‘non-disclosure’ to warrant revocation of the Grant. All that is required is that the Confirmed Grant be rectified to include the name of the Applicant as the legal representative of the estate of his late father. As such I dismiss the prayer for revocation of the Grant. 37. The applicant alleged that the grant was obtained by way of fraud but no evidence to support this allegation has been tendered. In Kenyan law allegations of fraud must be specifically pleaded and strictly proven. In the case of **KOINANGE & 13 Others -vs- CHARLES KARUGA** **KOINANGE [1986] KLR** the Court held that **“When fraud is alleged by the plaintiffs the onus is on the plaintiff to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy beyond reasonable doubt, something more than a balance of probabilities is required.”** I find that no evidence was adduced by the applicant to prove this allegation of fraud. 38. The next issue for determination is whether the prayer for issuance of temporary injunction is merited. The grounds upon which a temporary injunction were set out in the case of **GIELLA -vs- CASMAN BROWN** **[1973] EA**. 39. An applicant must demonstrate that they have a **prima facie case** **with** **a probability of success, demonstrate irreparable injury** **which cannot be compensated by an award of damages if a** **temporary injunction is not granted, and if the court is in doubt** **show that the balance of convenience is in their favour**. 40. In the case of **Ngurman Limited Vs Jan Bonde Nielson & 2 Others** **[2014] eKLR**, the Court of Appeal expounded on this when it held that; **“In an interlocutory injunction application, the applicant** **has to satisfy the triple requirements to;** 1. **establish his case only at a prima facie level,** 2. **demonstrate irreparable injury if a temporary injunction is not granted, and** 3. **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 of 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 that the applicant is expected to surmount sequentially.** 41. In **Nguruman (supra)** the Court of Appeal reiterated that if he applicant does not establish a prima facie case then irreparable injury and balance of convenience do not require consideration. On the other hand, if a prima facie case is established, then the court will consider the other conditions. In **Re Estate of Simon Kimendero** **(Deceased) [2020] eKLR**, the court noted that of specific significance to preservatory order in respect of estate property is that:- **a. The applicant has an arguable case;** **b. The property is estate property; and** **c. The property is likely to be dissipated or wasted** **away** 42. The Court of Appeal in **Mrao Ltd v First American Bank of Kenya** **Limited and 2 Others [2003] eKLR** explained that a prima facie case as:, **“a case in which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.”** 43. In my view the non-inclusion of the applicant in the certificate of confirmed grant has not negatively prejudiced the applicant since the confirmed grant did make provision for the allocation of a share of the estate to his father **Sebastian Wachira** under whom the applicant is claiming. Indeed in the Replying affidavit the Respondent at **Paragraph 8** stated that the applicant’s father has been allocated the following parcels of land **LR AGUTHI/GATITU/8195,8209,** **8190,8198 and 8212**. Copies of Title deeds in the name of **Sebastian** **Wachira Ndirangu** were annexed (Annextures **JK 1(a)** **to JK 1(e).** 44. As such I find that no prima facie case warranting a temporary injunction has been established. I further note that this is a very old succession cause in which the Deceased died way back in the year **2006** - that is **twenty (20)** years ago. None of the other beneficiaries has any complaint. It would be counter-productive to reverse all that has been done to transmit the estate when the only issue is the share due to the applicant’s late father for which an allocation was in any event made. I decline to allow this prayer for injunctive orders. 45. Finally and in conclusion this court makes the following orders:- **(1) The Certificate of Confirmed Grant issued on 25th January** **2022 be and is hereby rectified.** **(2) The Grant to be re-issued to the Respondents and the** **estate shall be distributed as follows:-** | | | | | --- | --- | --- | | **NAME** | **DESCRIPTION** **OF PROPERTY** | **SHARE** **OF HEIRS** | | JOSEPH WANG’OMBE NDIRANGU ANTHONY KARURI NDIRANGU ESTHER NJERI RICHARD GACHURA NDIRANGU JOHN KARAGO NDIRANGU PATRICK WANG’OMBE WACHIRA **(as trustee for the estate of the late Sebastian Wachira Ndirangu)** | L.R. NO. AGUTHI/GATITU/1588 | EQUAL SHARES | | JOSEPH WANG’OMBE NDIRANGU ANTHONY KARURI NDIRANGU ESTHER NJERI RICHARD GACHURA NDIRANGU JOHN KARAGO NDIRANGU PATRICK WANG’OMBE WACHIRA **(as trustee for the estate of the late Sebastian Wachira Ndirangu)** | L.R. NO. AGUTHI/GATITU/1592 | EQUAL SHARES | **(3) This being a family matter each party to meet their own** **costs.** **Dated in Nyeri this 31st day of July 2026.** **……………………………** **MAUREEN A. ODERO** **JUDGE**