https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7744

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **FAMILY DIVISION MILIMANI** **SUCCESSION CAUSE NO. 1482 OF 1998** **IN THE MATTER OF THE ESTATE OF SAMUEL NDEGWA RUHIU-DECEASED** **WANJIRU MUGO ……………………………………...………. APPLICANT** **VERSUS** **TABITHA WANJIRU RUHIU *(Sued as the Administrator of the Estate of Margaret Wambui Ruhiu)*………………………………….. RESPONDENT** **JUDGMENT** 1. **Samuel Ndegwa Ruhiu** (deceased) died on 19th January, 1984 and Margaret Wambui Ruhiu (deceased) was appointed an administrator on 6th October, 1998 pursuant to the petition she filed for Letters of Administration intestate. The Grant was confirmed on 27th May, 1999. 2. The matter has been reactivated by Wanjiru Mugo, who has filed summons dated 5th September, 2025 seeking revocation of the Grant. The prayers are outlined as follows; 3. ***The application be certified as urgent in the first instance;*** 4. ***THAT the proceedings in Githunguri Chief Magistrate’s Court, Succession Cause No. 065 of 2023 be and are hereby stayed pending the hearing and determination the application herein;*** 5. ***THAT the Grant of Letters of Administration issued to the Administrator and confirmed on 27th May, 1999 in this matter be revoked and/or be annulled;*** 6. ***An order do issue compelling the Administrator/Respondents to surrender the titles Nos. Title Nos. L.R. Komothai/IGI/402 and L.R. Komothai/IGI/403 to the Kiambu Land Registrar for cancellation;*** 7. ***THAT Title Nos. L.R Komothai/IGI/402 and L.R Komothai/IGI/403 be and are hereby cancelled and the property reverts to L.R Komothai/IGI/46 in the names of Samuel Ndegwa Ruhiu, the deceased;*** 8. ***THAT the Land Registrar Kiambu is hereby ordered to effect the cancellations and amend the register accordingly;*** 9. ***THAT succession in respect to the estate of Samuel Ndegwa Ruhiu to commence afresh;*** 10. ***THAT eviction orders do and are hereby issued to the occupants on L.R Komothai/IGI/402 and L.R Komothai/IGI/403;*** 11. ***THAT the OCS and/or Officer In-charge of Kiambu Police Station to enforce the orders;*** 12. ***THAT costs of this application be in the cause;*** 13. ***THAT this honourable court do grant any other reliefs it may deem fit and just to grant.*** 14. Margaret passed on and Tabitha Wanjiru Ruhiu, her legal representative, is sued as the Respondent. She filed a replying affidavit sworn on 3rd November, 2025 in which she opposed the application. **The Applicant’s case** 1. The Applicant is the daughter of Samuel Ndegwa Ruhiu (deceased). She asserts that Margaret (deceased), the wife of her late brother John Ruhiu Ndegwa, clandestinely moved the Court in the succession cause and that she has been disinherited. 2. She stated that the Grant was obtained fraudulently by Margaret, who falsely stated that she was the widow of Samuel and concealed the existence of other dependants to the estate who were entitled to it. 3. She further stated that Margaret had subdivided the estate asset L.R. Komothai/IGI/46 into two portions, L.R. Komothai/IGI/402 and L.R. Komothai/IGI/403, the latter being the subject of **Githunguri Succession Cause No. E065 of 2023 (Estate of Margaret Wambui Ruhiu),** where the Respondent is an administrator. The Applicant asked the Court to cancel the two titles following the subdivision and to have the property revert to its original number. **The respondent’s case** 1. The Respondent is the daughter of John Ruhiu Ndegwa and Margaret Ruhiu and is also the administrator of the estate of Margaret. 2. She asserts that Samuel, her grandfather, had subdivided the property and allocated L.R. Komothai/IGI/403 to her father (John) and her mother (Margaret) had filed probate because John had passed away before the property had been transferred to him during the deceased’s lifetime. 3. She argued that her mother’s succession was only for parcel 403 and did not include 402. She faulted the Applicant for failing to involve David Wanyutu Wainaina in the application, even though he is said to have benefited from parcel 402. **Analysis and determination** 1. The Court has considered the application, the affidavits in support, the replying affidavit and the parties’ submissions. The issue for determination is **whether the Applicant has presented sufficient evidence to warrant revocation or annulment of the Grant.** 2. **Section 76** of the **Law of Succession Act** gives the Court the powers to revoke a Grant provided the conditions stipulated therein have been met. It states that: **“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: -** 3. ***That the proceedings to obtain the grant were defective in substance;*** 4. ***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;*** 5. ***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;*** 6. ***That the person to whom the grant was made has failed, after due notice and without reasonable cause either: -*** 7. ***To apply for confirmation of the grant within one year from the date thereof, or such longer period as the court has ordered or allowed; or*** 8. ***To proceed diligently with the administration of the estate; or*** 9. ***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*** 10. ***The grant has become useless and inoperative through subsequent circumstances.*** 11. In order to determine the issue at hand, there must be proof that any of the circumstances described under **section 76** of the**Law of Succession Act**has occurred. 12. In this case, the applicant has alleged that the administrator obtained the grant fraudulently by making a false statement and/or concealing material facts from the court. 13. In the case of **Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR),** Mwita J. made pertinent remarks on principles for the revocation of a grant as follows: ***“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”*** 1. I have examined the petition and the affidavit in support thereof. The petition was filed by Margaret in person. The applicant faults Margaret for presenting herself as Samuel’s widow. However, paragraph 4 of the affidavit shows that Margaret indicated John’s name and, below it, her name and her two daughters. An affidavit sworn on 24th July, 1998 was filed on the same date as the petition, and it also mentions the relationship between Margaret and John. In the consent dated 26th July, 1998, Alice and Tabitha (Respondent) also clearly indicated that they had consented to their mother following up the succession on their behalf, and the parcel 403 was mentioned. The chief’s letter dated 22nd July, 1998 also indicates that Margaret was pursuing the succession as John’s widow and mother to the deceased’s grandchildren. The isolated mention of ‘wife’ is in the petition. However, after reviewing all the pleadings mentioned above in their entirety, I conclude that Margaret disclosed her status as John’s widow, and I find no evidence that she intended to mislead the Court into believing she was Samuel’s widow. 2. The Applicant acknowledged that she relocated in 1969 after her marriage. The deceased died in 1984. She asserts that she was not informed of the succession proceedings regarding her father’s estate. However, after careful consideration of her affidavits, I am not convinced that she was genuinely unaware of these proceedings. First, she does not dispute the status quo of the asset’s occupation and use (403), including parcel 402, even after her father’s demise. Secondly, she acknowledges the registration under David Wanyutu Wainaina for parcel 402 (which was not the subject of this succession cause) and has not even onboarded him to the current proceedings, even though the orders may affect him as she seeks the cancellation of this title. 3. The title for Komothai/191/46 was issued in 1981. Whereas the Applicant argues that the subdivision was in 1995, the green card shows that the subdivision process concluded in 1985. The Applicant has not led evidence that the subdivision was not commenced by the deceased prior to his passing, particularly since portion 403 remained under his name, while portion 402 was transferred to David Wanyutu Wainaina. It is not enough to allege or cast aspersions; it is incumbent upon the Applicant to furnish substantial evidence regarding her claims, particularly in view of the fact that her brother and his wife are now both deceased - the Respondent is their daughter. 4. Further, the extensive period of over 40 years since the deceased Samuel passed on must be taken into account when evaluating the Applicant’s claims that she was not aware of or involved in the succession proceedings. 5. No doubt she is a dependant within the meaning of the Law of Succession Act, but the acknowledgement of relocation in the year 1969 and the significant steps that have taken place since then under the Applicant’s watch lend credence to the Respondent’s assertion that the Applicant was aware of the succession and division of the estate property, accepted the status quo, and that her sudden interest in the estate is fuelled by other motives. Equity does not aid the indolent. 6. The grandchildren mandated their mother, Margaret, to represent them and their interests. They signed a consent. The transmission of the property into Margaret’s name is in trust for the eventual beneficiaries. The evidence presented does not establish that the Grant was obtained fraudulently. 7. The Applicant’s interest appears to have been ignited by the Githunguri Succession proceedings, which she has requested the Court to stay. In paragraph 8 of the supporting affidavit, she has disguised her interest as that of Kamau Ruhiu and Nduta Ruhiu. Her current concern in the succession, therefore, seems less about her interest in her late father’s estate and more about her sister-in-law Margaret’s estate. 8. The Applicant argues that the Respondent, who is the administrator, has failed to include other dependants (Kamau Ruhiu and Nduta Ruhiu) in the succession case currently before the Court at Githunguri **(CM P&A E065 of 2023).** The appropriate forum to litigate the exclusion of these dependants, if any, is in that cause. 9. Given the circumstances of this case, I find that it is in the interests of justice to uphold the validity of the Grant issued in this succession cause. 10. The Summons dated 5th September, 2025 is not merited and is dismissed with no order as to costs. 11. Orders accordingly. **DATED, DELIVERED** and **SIGNED** at **NAIROBI** through the Microsoft Teams Online Platform on 25TH MAY 2026. **……………………………** **C. KENDAGOR** **JUDGE** **In the presence of:** Court Assistant: Beryl Advocate for Appellant: Mr. Mokaya Advocate for Respondent: Ms. Mwenda