https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10877

In re Estate of Gitau (Deceased) (Civil Appeal E118 of 2024) [2026] KEHC 10877 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10877 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E118 of 2024 KL Kandet, J July 17, 2026 IN THE MATTER OF THE ESTATE OF ESTHER WAMBUI GITAU (DECEASED) Between Peter Mugogo Gitau Appellant and Newton Gitau Mugogo 1st Respondent Stella Wanjiku Mugogo 2nd Respondent Boniface Kung'U Mugogo 3rd Respondent (Being an Appeal against the Ruling of Honourable Wanjiru Njuguna, Resident Magistrate delivered on 4th July 2024 in Kiambu Chief Magistrate's Court Succession Cause No.127 of 2020) Judgment 1.This is an appeal against the Ruling of the Honourable Wanjiru Njuguna, Resident Magistrate, delivered at the Chief Magistrate's Court, Kiambu on 4th July 2024 in Succession Cause No. 127 of 2020. The Ruling revoked the confirmed grant of Letters of Administration intestate issued to the Appellant on 12th January 2023, in respect of the estate of his late wife, Esther Wambui Gitau. 2.The deceased, Esther Wambui Gitau, died intestate on 14th July 2019. She was survived by the Appellant, (her husband), and four children, who are the 1st, 2nd and 3rd Respondents and one Robert Muuru Mugogo, who is not a party to these proceedings. 3.The Appellant petitioned for and was issued with Letters of Administration Intestate on 16th June 2020, gazetted vide Gazette Notice No. 3580, in respect of an estate comprising Land Parcel No. Ndumberi/Tinganga/1553, registered jointly with the deceased, and Motor Vehicle Registration No. KYZ 479. The 1st & 3rd Respondents and Robert Muuru Mugogo signed Form 38 pursuant to Section 26(2) of the Law of Succession Act consenting to the proposed mode of distribution. The grant was confirmed by the trial court on 12th January 2023 upon a finding that there was no objection to the proposed mode of distribution. 4.On 23rd August 2023, the 1st, 2nd and 3rd Respondents filed Summons for Revocation of Grant, premised on Section 76(b) of the Law of Succession Act (Cap 160), contending that the grant had been obtained fraudulently by the making of false statements and the concealment from the court of material facts. It was specifically averred that the 2nd Respondent, who was residing in the United States of America, was not served with notice of, nor consented to, the succession proceedings or the proposed mode of distribution, and that the supporting documents misrepresented the name of the 3rd Respondent as "Boniface Kamenderi Mugogo" rather than his correct name, Boniface Kung'u Mugogo. 5.The application for revocation was canvassed by way of affidavits. The 1st to 3rd Respondents relied on the Summons and supporting affidavit dated 23rd August 2023 and a Further Affidavit of the 3rd Respondent dated 22nd November 2023. The Appellant opposed the application vide a Replying Affidavit dated 1st September 2023 and a Further Replying Affidavit dated 4th December 2023, in which he maintained that all his children, including the 2nd Respondent who was kept briefed of the proceedings despite being out of the jurisdiction, were aware of and had consented to the succession proceedings and the mode of distribution. 6.By the Ruling delivered on 4th July 2024, the trial Court revoked the confirmed grant, holding, that the court was "not satisfied that the 2nd applicant consented to the mode of distribution, and further finding, at paragraph 12, that the deceased's assets had been distributed to the Appellant solely and were not held in trust for the other beneficiaries, contrary to law. 7.The Appellant filed the Record of Appeal and the Memorandum of Appeal dated 8th July 2024, raising the following six grounds:a.that the trial magistrate erred in law and in fact in holding that the 2nd Respondent was not aware of the succession proceedings involving the estate, thereby revoking the Grant dated 12th January 2023b.that the trial magistrate erred in law and in fact in holding that the Grant was obtained fraudulently while at the same time holding that the 3rd Respondent had not proved that the name Boniface Kamenderi Mugogo does not belong to him, resulting in a miscarriage of justicec.that the trial magistrate erred in law and in fact by failing to consider the Appellant's submissions and authorities on record in holding that the Respondents' children have a life interest in the estate of the deceasedd.that the trial magistrate erred in law and in fact by not considering that the surviving spouse of the deceased was entitled to the personal and household effects of the deceased absolutely, and a life interest in the whole of the residue of the net intestate estate, as provided under the Law of Succession Act (Cap 160)e.that the trial magistrate erred in fact and in law by failing to consider the distribution of the deceased's assets as per the law of intestacy andf.that the trial magistrate erred in finding that the deceased's assets were to be shared amongst the Appellant and his children and not held in trust by the Appellant, thereby misapplying Section 35(1) of the Law of Succession Act. 8.The Appellant remarried after the death of the deceased and has since taken steps towards the sale of the suit property, Land Parcel No. Ndumberi / Tinganga/1553, prompting the 3rd Respondent to register a restriction against the title. The Appellant thereafter instituted Kiambu ELC Case No. E010 of 2024 against the Land Registrar, the County Commissioner and the Attorney General, seeking removal of that restriction, and separately instituted Kiambu MCELC/E019/2023 against the 2nd Respondent concerning a different parcel, Land Parcel No. Ndumberi/Tinganga/1554. The Appellant's Submissions 9.Counsel for the Appellant identified the following issues for determination:a.whether the Respondents made a case before the trial court for revocation of the confirmed grant;b.whether the Appellant is entitled to a life interest in the estate of his deceased wife; andc.whether the appeal is merited. 10.On the first issue, Counsel submitted that Rule 26(1) of the Probate and Administration Rules, properly construed, does not require notice to be given to every beneficiary of an estate, but only to those beneficiaries entitled in the same degree as, or in priority to, the Applicant, relying on Sicily Gichuku Samwel v Abida Kina Njagi & 5 Others [2020] eKLR. It was contended that by dint of Section 66 of the Law of Succession Act, a surviving spouse ranks in priority above the children of the deceased for purposes of a grant, and that the Appellant, as the sole surviving spouse, was accordingly entitled to be issued with the grant in priority to the Respondents. Counsel submitted that all the Respondents, save the 2nd Respondent who was abroad but kept briefed of the proceedings, had signed Form 38 and had raised no protest before confirmation, and that the trial magistrate therefore erred in revoking the grant on the footing that the 2nd Respondent's consent was wanting. 11.On the second issue, Counsel relied on Section 35(1) of the Law of Succession Act and submitted that, having been the sole surviving spouse of the deceased, the Appellant was entitled to a life interest in the whole residue of the net intestate estate, and that the trial magistrate erred in law by treating the grant as defective on account of it having been issued to the Appellant as holder of a life interest. 12.It was submitted, that the trial court erred in fact and in law in revoking the grant where there were no sufficient grounds, nor sufficient evidence, to sustain revocation, and the Court was urged to allow the appeal, set aside the Ruling of 4th July 2024, and award costs to the Appellant. The Respondent’s Submissions 13.Counsel for the Respondents, identified the following issues for determination:(a)whether the trial court was right in revoking the grant of letters of administration issued on 16th June 2020; and(b)whether the Appellant's life interest in the estate entitles him to sell the suit property. 14.On the first issue, Counsel set out the grounds for revocation under Section 76 of the Law of Succession Act and the holding in Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] eKLR, to the effect that a grant may be revoked for the making of a false statement, concealment of a material fact, or the making of an untrue allegation. It was submitted that the signatures purporting to be those of the 2nd and 3rd Respondents on the affidavit in support of the petition and on the consent to the mode of distribution were forgeries: The 2nd Respondent was, at the material time, residing outside the country, while the 3rd Respondent's name was misrepresented in the documents as "Boniface Kamenderi Mugogo". It was submitted that the trial magistrate correctly found, at paragraph 11 of her Ruling, that she was not satisfied that the 2nd Respondent had consented to the mode of distribution, and correctly held the grant to have been fraudulently obtained. Reliance was placed on, the Estate of Nyamita Owala (Deceased), Succession Appeal E006 of 2022, where a grant issued to a nephew was revoked for failure to include a rightful beneficiary, and on Karuku v Karitu, Civil Appeal E021 of 2021, where a grant was revoked for failure to make full disclosure of material facts. 15.On the second issue, it was submitted that the Appellant and the 3rd Respondent reside on the suit property, that the Appellant remarried and has since sought to sell the suit property, prompting the 3rd Respondent to lodge a restriction, which the Appellant has in turn sought to remove through Kiambu ELC Case No. E010 of 2024. Counsel submitted that Section 35(1) of the Law of Succession Act confers on a surviving spouse only a life interest, not absolute ownership, and while noting that Section 35(1)(b) had been found unconstitutional in Ripples International v Attorney General & Another; FIDA, Constitutional Petition E017 of 2021, for discriminating between widows and widowers in the treatment of the remarriage proviso, submitted that on either possible construction following that decision, a life interest of a surviving spouse whether widow or widower continues to subsist and does not translate into an absolute or unfettered right of disposal. 16.Reliance was placed on the holding in Tau Kakungi v Margrethe Thorning Katungi & Another [2014] eKLR, for the proposition that the effect of Section 35(1) is that children of the deceased are not entitled to access the net intestate estate so long as there is a surviving spouse, but that the surviving spouse's interest is a limited one by virtue of Section 37 of the Act, a surviving spouse cannot, during the subsistence of the life interest, dispose of any property subject to that interest without the consent of all the adult children, co-trustees and the court, the life interest thereby operating as a trust for the benefit of the surviving children. Reliance was further placed on Re Estate of John Musambayi Katumanga (Deceased) [2014] eKLR, and Re Estate of Walter Kiplangat Arap Chamdany (Deceased) [2021] eKLR, both to similar effect. 17.It was submitted, that the Appellant came to court with unclean hands, having obtained the grant through forged signatures with the sole aim of selling estate property and disinheriting the other beneficiaries, and the Court was urged to uphold the Ruling of the trial magistrate and dismiss the appeal with costs. Analysis and Determination 18.Having considered the Memorandum of Appeal, the written submissions and the Record of Appeal, I find that the following issues would arise for determination:a.whether the trial magistrate erred in revoking the confirmed grant issued to the Appellant on 12th January 2023 on the ground that it was procured fraudulentlyb.whether the trial magistrate's findings on fraud, between the 2nd and 3rd Respondents was validc.the legal scope of the Appellant's asserted life interest in the estate, and whether it entitles him to sell or otherwise dispose of the suit property andd.whether the appeal is merited, and what orders should issue. 19.On the first issue, Rule 26(1) of the Probate and Administration Rules does not require notice to every beneficiary, only to those in the same degree as, or in priority to, the applicant. As the surviving spouse, the Appellant ranked above the Respondents under Section 66 of the Law of Succession Act.So want of notice to them on its own would not have invalidated the grant. The Respondents' case, upheld by the trial magistrate, was that the signatures of the 2nd and 3rd Respondents on the supporting affidavit and consent to distribution were forged. 20.It is not disputed that the 2nd Respondent was in the United States of America at the material time. The Appellant's explanation that she was merely kept briefed by other family members, does not show that she personally signed the consent form. As such the trial court was entitled to find that her consent was not proved. 21.On the second issue, there is no contradiction in finding the fraud proved as against the 2nd Respondent's consent while finding it not proved as against the 3rd Respondent's name. That the allegation was not established as such the finding was properly made, which alone was sufficient to sustain revocation. Grounds 1 and 2 of the appeal therefore fail. 22.On the third issue, Section 35(1) of the Law of Succession Act entitles the Appellant, as surviving spouse, to the personal and household effects of the deceased absolutely and a life interest in the residue of the estate. A life interest is not the same as absolute ownership. By Section 37 of the Act, the Appellant cannot sell or otherwise dispose of estate property during the subsistence of that interest without the consent of all the adult children. 23.The Appellant's attempt to sell the suit property, which prompted the 3rd Respondent to register a restriction, confirms why this limitation matters in practice. Grounds 3, 4, 5 and 6 of the appeal, insofar as they suggest the Appellant may deal with the estate free of the interests of the other beneficiaries, accordingly fail. 24.On the fourth issue, having found no merit in any of the six grounds of appeal, I find that the appeal is not merited. 25.Consequently, this appeal is hereby dismissed. Each party shall bear own costs of the appeal. DATED, SIGNED AND DELIVERED AT NAIROBI, THIS 17TH DAY OF JULY, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn The Presence Of:Kihara For The ApplicantMs Murugu Hb For Muibu For The RespondentCourt Assistant: Jael Nosim