In re Estate of James (Deceased) [2026] KEHC 16949 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. E004 OF 2024

IN THE MATTER OF THE ESTATE OF BENJAMIN WAMBUA JAMES (DECEASED)

BETWEEN

JANE MUTHEU WAMBUA..............................................................1ST PETITIONER

BERNARD KIMEU WAMBUA…………………………..................2ND PETITIONER

AND

JENNIFER KATUKU PHILIP..............................................PROTESTOR/OBJECTOR

AND

FREDRICK MAINGI WAMBUA…………………………………….1ST APPLICANT

NORRAH KATILE WAMBUA……………………………………..2ND APPLICANT

RULING

Introduction & Background

1. The Applicants have filed the Summons dated 29th October 2025 under sections 47 & 76 of the Law of Succession Act and Rule 49 of the Probate & Administration Rules seeking to remove the 1st Petitioner (“Jane”) as an Administrator of the estate of the Deceased and that that upon removal of Jane, a fresh Grant of Letters of Administration be issued jointly to the 2nd Petitioner (“Bernard”) and the Applicants.

2. The Summons is supported by the affidavits of the 1st Applicant (“Fredrick”) sworn on 29th October 2025 and 26th March 2026 and it is opposed by the Protestor (“Jennifer”) through the affidavits sworn on 19th February 2026 (erroneously dated 2025) and 7th April 2026. Jane has also opposed the Summons through her replying affidavit sworn on 23rd March 2026. The Summons were canvassed by way of written submissions which are on record and together with the pleadings I will make relevant references to them in my analysis and determination below.

Analysis and Determination

3. Upon careful consideration of the pleadings and rival submissions I note that the issue that arise for the court’s determination is whether Jane should be removed as an Administrator of the estate of the Deceased and whether upon her removal, a fresh Grant of Letters of Administration should be issued jointly to Bernard and the Applicants. It is common ground that a Grant of Letters of Administration was issued to Jane and Bernard on 5th June 2024 and a partial confirmation of the Grant was made on 18th September 2025. Essentially, the Applicants seek the revocation of this Grant which is provided for under section 76 of the Law of Succession Act 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—

(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.

4. From the above provision, 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 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 material facts, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons.

5. 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 (see In re Estate of Gabriel Onyango Rawayo (Deceased) [2026] KEHC 1000 (KLR)]

6. The Applicants’ case is that two land titles, that is Machakos/Nguluni/7491 and Machakos/Nguluni/7492 were left out of the partial confirmation and that by consent, all beneficiaries agreed to discuss their distribution. That since 18th September 2025, Jane has deliberately refused to meet with the other beneficiaries to discuss the distribution of the two properties and she is accused of exhibiting "contempt traits and arrogance" and being "hell-bent on frustrating the completion of the distribution." They claim that all beneficiaries, except the Petitioners, have agreed that the two properties be transmitted to one Oliver Ndungu Chege. The Applicants note that Jennifer alleges she purchased a portion within land title Machakos/Nguluni/6114 from the Deceased and has annexed a sale agreement dated 31st March 2022, however, they depone that this property is not listed in the schedule of proposed distribution of the estate in the Summons for Confirmation of Grant dated 2nd July 2025 filed by the Petitioners. They assert that Jennifer's allegation that Machakos/Nguluni/6114 was subdivided into Machakos /Nguluni/7491 and 7492 is not true and they claim the two land titles are subdivisions of Machakos/Nguluni/7051 and not Parcel 6114 Therefore, they contend that Jennifer's alleged claim should be over Machakos/Nguluni/6114 and not over Machakos/Nguluni/7491 and 7492. They also state that they were not aware that Machakos/Nguluni/6114 comprises part of the estate of the Deceased and they deny writing any letter withdrawing the present Summons as alleged by Jane.

7. In their responses, Jane denies refusing to sit down with her siblings to discuss distribution of the two remaining parcels after the partial confirmation of Grant on 18th September 2025. She depones that the partial confirmation occurred because beneficiaries needed time to discuss the objection of Jennifer who bought land from the Deceased and that Jennifer wanted Jane's allocated parcel Machakos/Nguluni/7491 and the beneficiaries needed to agree on how Jennifer would get 40ft by 100ft of that parcel. On Oliver Ndugu Chege, Jane alleges that he illegally purchased land before confirmation of grant which was not for discussion because she could not relinquish her parcel to him, as that would disinherit her. She asserts the beneficiaries who sold land to Oliver Chege should bear the consequences, as they knew they were intermeddling with the estate. Jane claims the Applicants seek her removal so that new administrators can frustrate enforcement of the Confirmed Grant and force her to relinquish her allocated parcel to Oliver Chege.

8. Jane avers that she has not committed any offence warranting removal, unlike the proposed new administrators who allegedly sold land to Oliver Chege without leave of court and failed to disclose this during the confirmation application. She agrees to exchange her parcel with Jennifer so that Jennifer is to take 40ft by 100ft of Machakos/Nguluni/7491, with the remainder registered in the administrators' names, while Jane accepts registration in parcel Machakos/Nguluni/7492 which had been given to Jennifer in the Summons for Confirmation. Jane contends that beneficiaries have sold the largest part of the estate to Top Care Limited, so revocation would only hamper implementation of the partially confirmed grant. For these reasons, she urges the court to dismiss the Summons.

9. On her part, Jennifer depones that she purchased a portion of land measuring 100ft by 40ft from the Deceased before his death, from land parcel Machakos/Nguluni/6114 and that parcel was later subdivided by the Administrators into Machakos/Nguluni/7491 and Machakos/Nguluni/7492 which are the two titles now in dispute. She contends that the two titles were left out of the confirmation of grant because of her protest claiming an interest and that the land was lawfully sold to her by the Deceased before his death, so the property constitutes a liability of the estate and she has a beneficial and equitable interest as a purchaser for value. That at the time of confirmation, her claim was fully acknowledged and undisputed.

10. Jeniffer depones that following court directions, her Counsel engaged the Administrators' counsel to resolve the dispute and a joint visit to the two parcels took place, where it was agreed she could choose which parcel her purchased portion would be excised from and she chose Machakos/Nguluni/7492. That on 13th October 2025, parties confirmed to the court that an agreement had been reached to resolve the protest through a consent that she was to receive 100ft by 40ft from Machakos/Nguluni/7492 and the court advised that a written consent be prepared and filed for formal adoption on 11th November 2025. That on 11th November 2025, when the matter came up for recording the consent, the Applicants had filed the present application for revocation of grant and she asserts a consent had already been reached, with only formal adoption remaining.

11. Jenniffer claims the present Summons is malicious, overtaken by events, brought in bad faith, unmerited and an abuse of the court process. She alleges the Applicants have joined hands with an intermeddler, the said Oliver Chege, who purports to have purchased the land illegally without any valid authority or grant of representation, contravening section 45 of the Law of Succession Act. That the attempt by the Applicants to revoke the Grant and appoint themselves as new administrators to dispose of the parcels amounts to intermeddling with the estate and any dealings with estate property without a valid Grant are null and void. Jennifer contends that all liabilities and certified debts of the estate must be settled before distribution to beneficiaries and the purported sale by the proposed new administrators to a third party after the Deceased's demise is unlawful intermeddling and invalid ab initio. For these reasons, she urges the court to dismiss the Summons, uphold the transaction between herself and the Deceased before his demise and adopt the consent between the Administrators and herself.

12. Having gone through the Summons, the various responses, the submissions and the principles for revoking a grant under section 76 of the Law of Succession Act, I find that the Applicants have not made out a case for revoking the grant and issuing a fresh one for a number of reasons. One, I note that the Applicants rely primarily on section 76(d)(ii) of the Act that Jane has failed to proceed diligently with the administration of the estate. However, going through the evidence, Jane deponed that she is willing to swap parcels with Jennifer so that Jennifer can take 40ft by 100ft of Machakos/Nguluni/7491, while Jane takes Machakos/Nguluni/7492 which had been given to Jennifer in the Summons for Confirmation. This, in my view, demonstrates that Jane was actively engaged in resolving the objection of Jennifer, which was the very reason the two parcels were deferred. The Applicants' claim that she refused to meet is not supported by the evidence.

13. Two, the Applicants allege that all beneficiaries, except the Petitioners, agreed that the two properties be transmitted to Oliver Ndungu Chege. Jane opposes this, arguing that Oliver Chege illegally purchased land during the pendency of the succession proceedings, which amounts to intermeddling under section 45 of the Law of Succession Act. Indeed, Jane’s position is supported by law in that Section 82(b)(ii) of the Law of Succession Act provides that “Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers —…… (b)to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best: Provided that—….. (ii) no immovable property shall be sold before confirmation of the grant;

14. This court has always held that neither a petitioner nor any beneficiary had authority to sell the deceased's property before confirmation of the grant and any purported sale amounts to intermeddling and is null and void and that a buyer who purchases property from an administrator without authority acquires no interest, as the seller had no title to pass (see In re Estate of Wachira Githinji (Deceased) [2018] KEHC 5714 (KLR)]  and In the Matter of the estate of Veronica Njoki Wakagoto (Deceased) [2013] KEHC 1930 (KLR)]. The said Oliver Chege allegedly bought land on 31st January 2025 which was during the pendency of the succession proceedings and before confirmation of the grant. This is a clear case of intermeddling and Jane cannot be faulted for refusing to relinquish her allocated parcel to someone who acquired it illegally.

15. Three, the Applicants rely on a consent signed by five beneficiaries supporting Jane's removal. However, this consent does not bind the court as the court must be satisfied that the statutory grounds for revocation under section 76 of the Act have been met. Four, the Applicants allege that Jane has exhibited "contempt traits and arrogance." However, no evidence of contempt proceedings or specific acts of disobedience to court orders has been provided and I hold that mere allegations of attitude do not meet the threshold for revocation under section 76.

16. Lastly, I find that Jennifer is a purchaser for value who bought land from the Deceased during his lifetime and her interest ranks as a liability against the estate, which must be settled before distribution. A consensus had already been reached that she would get 100ft by 40ft from Machakos/Nguluni/7492 and only formal adoption of the consent remained.

17. In the end, I find that the Applicants have failed to establish any of the grounds under section 76 of the Law of Succession Act as no defect in the proceedings to obtain the grant has been shown, no fraud or concealment of material facts has been demonstrated as Jane disclosed Jennifer's interest, which is why the two parcels were deferred, no untrue allegation of a fact essential in law has been proven, no failure to proceed diligently has been established as Jane has been actively engaged in negotiations regarding Jennifer's objection and that she is willing to swap parcels with Jennifer. The delay has been caused by the need to resolve Jennifer's claim and the illegal claim of Oliver Chege. I also find that the Grant has not become useless or inoperative as the real dispute is not about Jane's suitability as an administrator, but about the illegal sale of estate land to Oliver Chege during the pendency of the succession proceedings. The Applicants are using the revocation application as a tool to force Jane to relinquish her allocated parcel to Oliver Chege, which would be contrary to law.

Conclusion and Disposition

18. The Summons for Revocation of Grant dated 29th October 2025 now stands dismissed but with no order as to costs considering the relationship of the parties. The Administrators are directed to complete the administration of the estate in accordance with the law, including settling the Objector’s claim as a liability of the estate and distributing the net estate to the beneficiaries.

DATED SIGNED AND DELIVERED virtually this 26th DAY OF OCTOBER

2026

............................................................................

J W W MONGARE

JUDGE

In the presence of

1. Ms. Otto Nduva holding brief for Mr. Kitonga for the Applicants

2. N/A for the Petitioner

3. Mr. Odhiambo for the 1st Objector

4. Abdisalan- Court Assistant