https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12163

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **FAMILY APPEAL NO. E004 OF 2023** **IN THE MATTER OF THE ESTATE OF TERESIA MUMBI** **STEPHEN MUIRURI APPELLANT** **VERSUS** **TERESIA MUMBI MACHARIA 1ST RESPONDENT** **ATHI WATER WORKS DEVELOPMENT AGENCY 2ND RESPONDENT** **LAND REGISTRAR 3RD RESPONDENT** (***Being an appeal from the ruling of Hon, Njuguna Wanjiru, Resident Magistrate delivered on 17th August 2023 in the Chief Magistrates court at Kiambu Miscellaneous Succession Application No.E060 OF 2022)*** **RULING.** 1. The appellant seeks the following orders; a)That the appeal be allowed. b) That the ruling and orders of the lower court made on the 17th August 2023, be set aside and the honourable court be pleased to substitute it with the following orders:- 1. **That the Grant of Letters ad Litem issued on 11th August 2022 be annulled.** 2. **That all actions undertaken by the grantee with regard to the estate if the deceased. Subsequent to the grant of the impugned letters of Administration ad litem be declared null and void.** 3. **That the grantee be ordered to account for any proceeds of the estate received during the subsistence of the Grant of Letters of Administration Ad Litem dated 11th August 2022.** 4. **That the Land Registrar , Kiambu District Registry be directed to cancel any interests granted or registered by the Athi Water Works Development Agency on all that property known as Ndumberi/Ndumberi/2089.** 5. **That a permanent injunction do issue restraining the Athi Water Works Development Agency , its agents, servants or assignees from excavating, building or constructing on all that land known as Ndumberi/Ndumberi/2089.** 6. **That the Appellant be granted the costs of the application.** c) That the Appellant be granted the costs of this appeal. 2. The appeal is premised on the grounds that: ***i) The learned trial Magistrate erred in law and fact by failing to note that upon proof of fraud all actions undertaken pursuant to the grant of letters of Administration Ad Litem issued on the 11th August 2022 were a nullity.*** ***ii) The learned trial Magistrate erred in law and fact by failing to note that upon proof of fraud all actions undertaken pursuant to the Grant of Letters of Administration Ad Litem issued on 11th August, 2022 were a nullity.*** ***iii) The learned trial Magistrate erred in law and fact by failing to find that upon proof of fraud the Grant of Letters of Administration Ad Litem stood annulled.*** ***iv) The learned trial Magistrate erred in law and fact by finding that there was an existing succession cause No. E0061 of 2023 a fact that was not supported by evidence.*** ***v) The learned trial Magistrate erred in law and fact that she could not delve into matter regarding the Estate property that were within the jurisdiction of the Probate court.*** ***vi) The learned trial Magistrate erred in issuing a ruling against the weight of the evidence.*** 3. This case relates to the estate of Teresia Mumbi Macharia who died intestate on 10th March 2017. The Respondent Teresia Mumbi Macharia petitioned for limited Grant Ad litem for the purpose of signing a land Purchase agreement with the Government of Kenya for the project of construction of Kiambu-Ruaka water supply and sewerage Project Ruaka Trunk on Ndumberi/Ndumberi/2089. The letters were issued on 11th August 2022. 4. On the 30th January 2024, the applicant herein filed an application under certificate of urgency seeking for the revocation of the said grant, and further any way leave issued by the Grantee to the interested party be revoked and deemed null and void ab initio. That all the actions undertaken by the Grantee subsequent to the grant ad litem be declared null and void, and that the grantee be ordered to account for any proceeds received during the subsistence of the grant, and further the Land Registrar Kiambu do cease all its activities on the said property. 5. The application was opposed. The interested party filed its grounds of opposition and averred that the application had not met the threshold for granting an injunction as had been sought by the appellant herein, and that the application was only meant to delay the project works intended to benefit the resident of Kiambu and Ruaka areas. 6. In opposing the application, the respondent filed a replying affidavit dated 14th March 2023, and a further reply dated 15th March 2023. She stated that she was the only surviving granddaughter of the deceased and that there was typographical error in her petition. That she had prior to filing the special grant informed all the beneficiaries including the appellant herein. That upon issuances of the grant, she instructed her advocate to call the petitioner and issue him with a copy of the grant, which he did. It was her case that the limited grant issued lapsed in its legal effect on 11th January 2023 therefore the application herein is defective and devoid of merit and urged the court to strike it out with costs. 7. In his supplementary affidavit, the appellant stated that the respondent had no claim over the estate of the deceased as she was a granddaughter, and her interest could only be passed through her mother Jane Nduta who died in the year 2002, having pre-deceased the mother. That the respondent had lied to the court when she stated that she was the only grandchild of the deceased, as the appellant has five children, and the sister Virginia Wanja has two children. 8. He maintained that the special grant had been obtained through material non-disclosure, and denied ever having given authority to the respondent to file for the letters. He further averred that while a grant for collection of assets of an estate may expire after six months, the grant herein was not for collection of assets or payment of debts. 9. After considering the application, and the submissions filed by the parties in the case, at paragraph 13 of her ruling , she went on to state that having gone through the petition, she found no indication to show that all the beneficiaries had consented to the issuance of the grant to the respondent. That it was evident that the appellant became aware of the existence of the Limited Grant upon being called to the advocate’s office. She went on to state that the respondent had presented herself as the only grandchild of the deceased, which was false. In her analysis, she found that it was enough reason for the court to revoke the grant, but went on to find that this being a limited grant, that the same does not follow the rules as in the case of a full grant such as consent as in the case of a full grant. She found that this was due to the urgency of the case and further that it can be considered at the discretion of the court. 10. In dismissing the application, the court ruled that there was an existing succession cause in respect of the estate of the deceased. She found that the issue of occupancy of the land could not be dealt with by the court at that stage, and the issue of accounts would be dealt with at the hearing of the full succession cause. **Analysis.** 11. The appeal was canvassed by way of written submission which I have considered. 12. The gravamen of the Appellant’s Application is predicated on grave allegations of material nondisclosure, fraudulent misrepresentation, and a gross abuse of the judicial process. The Appellant grievance being that the Respondent misrepresented to the court that she was the only grandchild of the deceased, and that she did not seek the consent of the other beneficiaries. 13. The Respondent on the other hand does not deny that the Grant Ad Litem was issued to her. She advances the argument that there was a typographical error in her petition, and that she has sought the consent of the other beneficiaries, and that upon issuance of the letters, she informed the appellant through her advocate. I have looked at the record of the court and I find no evidence of the existence of such consent. 14. The Court isolates the following primary, interlocking issues for determination: ***i. Whether the proceedings to obtain the Limited Grant of Letters of Administration ad Litem were fundamentally defective and marred by fraudulent concealment of material facts within the meaning of Section 76 of the Law of Succession Act.*** ***ii. Whether the scope of a Grant ad Litem permits the substantive administration of an estate, or whether it is strictly confined to purposive, temporary representation.*** ***iii. Whether the Limited Grant of Letters of Administration Ad Litem issued on 11th August 2022 ought to be revoked, and the ensuing legal and cost consequences thereof.*** Fraudulent Misrepresentation and Concealment of Material Facts 15. The statutory bedrock governing the revocation or annulment of a Grant of representation is section 76 of the Law of Succession Act. The provision is couched in clear, unambiguous language, stipulating that a Grant of representation, whether confirmed or not, may be revoked or annulled at any time if the Court decides that: (a) the proceedings to obtain the grant were defective in substance; (b) 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) 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. This position was elucidated in the case of **Jamleck Maina Njoroge –vs- Mary Wanjiru Mwangi (2015) eKLR** the court discussed circumstances when a grant can be revoked. The court observed: ***“11. The circumstances that can lead to the revocation of grant have been set out in Section 76 Law of Succession. For a grant to be revoked either on the Application of an interested party or on the court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.”*** 16. The circumstances in which a grant can be revoked were further discussed in the case of **In the Matter of the Estate of L.A.K. (Deceased) [2014] eKLR :-** **“Revocation of grants is governed by Section 76 of the Law of Succession Act. The relevant portions of Section 76 are paragraphs (a), (b) and (c) since the issues raised relate to the process of the making of a grant. A grant may be revoked where the proceedings leading up to its making were defective, or were attended by fraud and concealment of important matter, or was obtained by an untrue allegation of a fact essential to the point.”** 17. The standard and burden of proof provided by the [*Evidence Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1963/46) ought to be discharged; he who alleges must prove. Section 107 of the [*Evidence Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1963/46) places the burden of proof on the party that alleges. **In**[***Gatirau Peter Munya vs Dickson Mwenda Kithinji & 3 Others (2014) eKLR***](http://kenyalaw.org/caselaw/cases/view/96314/) the Supreme Court held inter alia; The person who makes such allegations must lead evidence to prove the fact. She or he bears the initial legal burden of proof, which she or he must discharge. The legal burden in this regard is not just a notion behind which any party can hide. It is a vital requirement of the law. On the other hand, the evidential burden is a shifting one, and is a requisite response to an already discharged initial burden. The evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence of a fact in issue. 18. The jurisprudence surrounding section 76 is unequivocal: probate proceedings operate in rem, meaning they bind the whole world. Consequently, the law demands the highest standard of utmost good faith from any individual petitioning the Court for a Grant of representation. The concealment of the existence of other beneficiaries, or the true historical nature of the estate constitutes a fatal breach of this foundational duty. 19. In the instant case, the Respondent swore an Affidavit in support of the Petition for the Grant ad Litem averring that the Deceased died intestate and that she was the only grandchild of the deceased. This statement is demonstrably, and factually, false. The documentary evidence presented by the appellant proves that there were other beneficiaries, a fact not disputed by the respondent. The Respondent's failure to disclose to the Court the existence of other beneficiaries constitutes a textbook example of concealment of material facts under section 76(b) of the Act. The materiality of this concealment cannot be overstated. 20. The courts have consistently adopted a zero-tolerance approach toward litigants who obtain Grants through non-disclosure. In the case of *Charles Mukonu Kiruki v Celina Nyai Kiruki [2017] eKLR,* the Court revoked a grant where an administrator deliberately concealed the existence of a widow and proceeded to file for succession independently. Similarly, in In re Estate of Nazir Khan Mohamed (Deceased) eKLR, it was held that any grant obtained by withholding critical information regarding the true state of affairs of an estate is inherently defective and must be struck down. Furthermore, in In re Estate of *M'mwongoKichiu [2022]eKLR*, the Court emphasized that the Court retains the inherent power to revoke even a confirmed grant if it is demonstrated that it was obtained through fraudulent misrepresentation or untrue allegations of fact regarding the status of the estate or its beneficiaries. 21. The Respondent's current contention that she disclosed all material facts is unsupported by the primary record herein. A Petition for a Grant must be evaluated on the face of the pleadings and supporting affidavits filed at the exact time of the application, not on retrospective, ex post facto justifications provided in subsequent revocation proceedings. Therefore, the foundational basis upon which the Grant Ad Litem was issued is irremediably tainted by nondisclosure and must fail. **The Nature and Scope of a Limited Grant Ad Litem** 22. The Respondent attempts to shield his actions by arguing that the Grant obtained was merely a Limited Grant ad Litem, issued specifically for the purpose of signing a the Kenyan Government Land Purchase Agreement. It is crucial to demystify the legal nature of an Ad Litem Grant to understand why its deployment in this context is inappropriate. 23. Under Section 54 of the Act and Rule 73 of the Probate and Administration Rules, the Court is empowered to issue Grants tailored to urgent or exceptional situations. A Grant ad Litem is a purposive, temporary, and highly restricted instrument. It is designed solely to enable a person to represent the estate of a deceased in legal proceedings, either as a plaintiff or defendant, where no full grant of representation has yet been issued or where the substantive administrator is unable to act. 24. However, the issuance of a Grant ad Litem presupposes that the estate is otherwise unrepresented in the specific capacity required. As elucidated by the Court in In Re the estate of Helena Wangechi Njoroge (Deceased) [2015]eKLR,a Grant ad litem does not confer the substantive powers set out in Section 82 of the Act, nor does it allow the discharge of duties under Section 83, which are reserved for the holder of a full, substantive grant. Furthermore, as held in *Virginia Wangari Ndindi V Ann Ngima Mari & Another [2017]eKLR,* the suit envisaged to be filed on the strength of an Ad Litem grant is a civil suit, not an interlocutory application within a succession case. 25. In *Lydia Ntembi Kairanya & Another v Attorney General [2009] eKLR,* the Court eloquently summarized the restrictive nature of limited grants, stating that if an applicant asks for limited letters of administration, they must be ready to operate strictly within that limited power—metaphorically noting that "if you ask for a quarter bread, expect just that and no more". 26. In the present scenario, the Respondent utilized the Grant ad Litem not as a temporary bridge to preserve an unrepresented estate, but as a backdoor mechanism to bypass the substantive procedural requirements of signing a contract for land purchase agreement with the Government of Kenya. **Revocation, Locus Standi, and Legal Consequences** 27. Having established that the Limited Grant of Letters of Administration Ad Litem was obtained through the active concealment of material facts and that the Respondent has subsequently engaged in the unlawful delegation of her fiduciary duties, the inevitable conclusion is that the Grant cannot be allowed to stand. 28. When a Grant is revoked, the legal authority of the personal representative to deal with the estate is instantly extinguished. The revocation operates to invalidate the mandate that empowered the Respondent to sign a land Purchase agreement with the Government of Kenya for the project of construction of Kiambu-Ruaka water supply and sewerage Project Riara Trunk on Ndumberi/Ndumberi/2089. 29. However, a noble end does not justify legally deficient and fraudulent means. The sanctity of the probate process cannot be sacrificed at the altar of expediency. As the equitable maxim states, no cause of action arises from a base or illegal act—a principle highly relevant when an applicant seeks equitable or legal relief based on a foundational misrepresentation. The Respondent cannot benefit from a Grant obtained through deceit. 30. Lastly, on the issue of costs, the Respondent’s conduct in filing for grant of Letter ad Litem while concealing the existence of other beneficiries, constitutes a severe abuse of the court process. In succession matters, while courts are generally hesitant to penalize family members seeking to protect an estate, deliberate misrepresentation warrants a sharp departure from this leniency. The Respondent’s actions have forced a third party to incur substantial expenses and possible delay in implementing a public project. 31. Consequently, and in the exercise of the powers conferred by section 76 (a), (b), and (c) of the Act, this Court makes the following orders: The Application dated 30th January 2023 is hereby allowed in its entirety and as such the appeal succeds. 1. **That the Grant of Letters ad Litem issued on 11th August 2022 be annulled.** 2. **That all actions undertaken by the grantee with regard to the estate if the deceased. Subsequent to the grant of the impugned letters of Administration ad litem be declared null and void.** 3. **That the grantee be ordered to account for any proceeds of the estate received during the subsistence of the Grant of Letters of Administration Ad Litem dated 11th August 2022.** 4. **That the Land Registrar , Kiambu District Registry be directed to cancel any interests granted or registered by the Athi Water Works Development Agency on all that property known as Ndumberi/Ndumberi/2089.** 5. **That a permanent injunction do issue restraining the Athi Water Works Development Agency , its agents, servants or assignees from excavating, building or constructing on all that land known as Ndumberi/Ndumberi/2089.** 6. **That the Appellant be granted the costs of the application.** 7. ***The costs of this application shall be borne personally by the 1st Respondent*** **DELIVERED, DATED AND SIGNED AT ON 30TH DAY OF JULY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.** **MARTHA MUTUKU** **JUDGE** **In the presence of: -** **N/A Appellant** **Mr. Kihara for the Respondent** **Court Assistant – Mr. Kibet**