In re Estate of Kalii (Deceased) [2026] KEHC 16950 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 81 OF 1996

IN THE MATTER OF THE ESTATE OF JOHN MUIA KALII (DECEASED)

BETWEEN

JULIANA NZISA MUIYA.....................................................................1ST OBJECTOR

MBENGE MUIA………………………………………………………2ND OBJECTOR

MBENEKA KAMENGELE……………………………..………………3RD OBJECTOR

BARNABUS MWANGANGI MUIA………………………….………4TH OBJECTOR

MUTUKU MUIYA………………………………………..…………..5TH OBJECTOR

AND

ISAAC MAWEU MUIA……………………………………………..1ST RESPONDENT

CATHERINE MBANDU MUIA…………………………..………2ND RESPONDENT

FRANSCISCA MBATHA MUIA.....................................................3RD RESPONDENT

RULING

Introduction & Background

1. By way of the Summons dated 4th October 2025 made under section 76 of the Law of Succession Act and Rules 44, 49 & 73 of the Probate & Administration Rules, the Objectors seek the revocation and/or annulment of the Grant of Letters of Administration Intestate issued and confirmed on 23rd January 2025. The Summons is supported by grounds set out on its face and the affidavits of Objectors sworn on 4th October 2025, 5th January 2026 and 12th January 2026. It is opposed by the Respondents through the replying affidavit of the 1st Respondent sworn on 24th November 2025. The parties have also supplemented their arguments by filing written submissions which I have considered together with the pleadings and I will make relevant references to them in my analysis and determination below.

Analysis and Determination

2. From the submissions and pleadings, the court is being called to determine whether the Objectors have demonstrated sufficient grounds for revocation of the confirmed Grant. The parties agree that the grounds for revoking and/or annulling a Grant are set out 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.

3. 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.

4. 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 change of 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)]

5. The Objectors’ case is that the Grant was obtained fraudulently by the making of false statements or by concealment from the court of something material to the case and 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 may have been made in ignorance or inadvertently. Further, that the mode of distribution agreed by family members based on the family meeting held on 16th April 2024 and referenced in the joint affidavit in support of summons dated 2nd December 2024 by the Respondents and the 1st Objector is not the same mode of distribution on the Confirmation of Grant issued 23rd January 2025.

6. The Objectors also contend that the confirmed Grant left out many deserving family members who are rightful beneficiaries and that some of the signatures captured on the mode of distribution were not voluntarily issued. They also aver that properties that the Deceased transferred to some Objectors while alive have been listed as part of the estate and for distribution, thereby jeopardizing the peaceful and quiet possession of entire families based on the confirmed Grant, giving way for possible evictions. That an apparent error/misrepresentation and/or fraud is manifestly captured by the inclusion of properties of known individuals in the schedule of distribution as part of the Deceased's estate.

7. For these reasons, the Objectors state that if the Grant is not revoked, the Objectors and some beneficiaries stand to be greatly prejudiced and property not belonging to the estate faces the risk of distribution.

8. In response, the Respondents depone that the application is bad in law and incompetent, an abuse of the court process, ill-advised and unmeritorious and an attempt to further delay the finalization of administration of the cause. They state that the Grant was confirmed after a series of family meetings where all the Deceased's properties were shared out and that the family minutes were verbatim recorded in the schedule in the Summons for Confirmation of Grant, with the full participation of the 1st Objector.

9. The Respondents claim that the 2nd and 3rd Objectors are not children nor spouses of the Deceased and that the 3rd and 4th Objectors' interests are taken care of by the 2nd Respondent, who holds their entitlement in trust as per the Certificate of Confirmed Grant. That they are therefore well represented in the cause. The Respondents reiterate that during the confirmation of the Grant, the 1st Objector participated in drawing up the schedule of distribution, signed the affidavit and was represented by the firm of Messrs. Manthi Masika & Co. Advocates. That the schedule was read out to her and she gave her consent to confirmation and had she any issue, she would have communicated with her counsel or raised concerns in court on the day of confirmation.

10. The Respondents add that upon confirmation, the 1st Objector, together with the Respondents, began the process to execute the Grant, which commenced earnestly as the 1st Objector participated in the registration of title deeds from the Deceased's names to the administrators. That as per the schedule of distribution, 4 acres of the property Machakos/Ulu/113 were to be sold and proceeds used for survey, subdivision, transfer and other logistics. They claim that the 1st Objector, as an administrator, fully participated in the sale and receipt of the money.

11. The Respondents depone that they proceeded to subdivide the properties but encountered a setback when they received a letter authored by the 1st Objector’s advocates objecting to the Land Registrar using a duplicate title, since the original title deed had been lost. That when the Deceased's title deed for Machakos/Ulu/104 could not be found, the 1st Objector and the Respondents moved to the Land Registrar to gazette and reissue a fresh title deed together with a green card said to be missing. The Respondents claim that a look at the documents attached to the Registrar's letter shows clearly that the documents attached therein were forgeries, to wit, a title deed and a green card.

12. The Respondents state that thereafter, the 1st Objector became arrogant and refused to co-operate with the other administrators to have beneficiaries get their shares as per the confirmed Grant and that the Respondents repeatedly called her to execute documents, but she declined. That they ultimately had to summon her through the Chief, but she refused to co-operate and is therefore unsuitable to continue being an administrator.

13. The 1st Respondent depones that he applied for a green card from the Land Office on 25th March 2015, and a search was issued on 16th May 2017, which clearly shows the position. The Respondents aver that the allegation that some title deeds were transferred by the Deceased to the 1st Objector is false and misleading and an act of dishonesty. That even after the sale of 4 acres of Machakos/Ulu/113, the Respondents opened a joint bank account with the 1st Objector for purposes of facilitating survey and transfer of properties but the 1st Objector has declined to appear and have the money withdrawn to facilitate the transfers and refused to sign the transfer documents. For these reasons, the Respondents urge the court to dismiss the Summons.

14. I have carefully considered the pleadings and submissions of the parties. I note that the Objectors are primarily relying on the ground that the process of obtaining the Grant was defective in substance due to fraud, concealment, misrepresentation, inclusion of non-estate property and exclusion of beneficiaries. The Objectors submit that the mode of distribution filed in the Court Tracking System (CTS) on 2nd December 2024 and confirmed on 4th December 2024 did not include Parcel No. Machakos/Ulu/104. However, the Certificate extracted on 23rd January 2025 includes Parcel No. 104 and materially varies from the court record. The Objectors also allege that a letter dated 26th May 2025, purportedly signed by all administrators including the 1st Objector, was used to procure 10 certified copies of the Grant and the 1st Objector categorically states on oath that she did not sign this letter and that the signature is a forgery.

15. The 1st Objector deponed that she attended an Advocate's office at the instance of the 1st Respondent and was presented with documents to sign. She was informed and genuinely believed that the documents related solely to subdivision and sale of 4 acres from Parcel No. 113 and to register a caution in Parcel No. 105. She claims she was never informed that the documents would be used to gazette or subdivide Parcel No. 104, list it as free property, or procure a Certificate of Confirmation distributing it. The Objectors also stated that the Respondents concealed from the court the fact that the 2nd, 3rd, 4th and 5th Objectors had not participated in the alleged family meeting and that no consensus existed.

16. The Respondents deny all allegations of fraud and maintain that the Grant was confirmed after a series of family meetings with full participation of all, including the 1st Objector. They claim she signed the schedule of distribution and gave her consent and that she is the one who has refused to cooperate and has resorted to forgery herself. In my view and assessment, I find that the Objectors have raised serious and specific allegations of fraud, forgery and misrepresentation. The 1st Objector’s sworn statement that she did not sign the letter dated 26th May 2025 and that her signature was forged is a material fact that has not been substantially denied. Further, the alleged variance between the CTS record and the extracted Certificate is also a material discrepancy that goes to the heart of the integrity of the confirmation process. The Respondents have not provided a satisfactory explanation for the variance or the alleged forgery and their general denials do not adequately rebut the specific allegations supported by the 1st Objector's sworn testimony. It is for these reasons that I find that the Objectors have established a prima facie case of fraud and misrepresentation and the threshold under section 76(b) of the Law of Succession Act appears to be met.

17. In any event, on the Parcel No. 104, I note that in the court’s (Lenaola J., as he was then) Ruling of 12th November 2008, this property is not listed among the assets of the estate therein. The ruling distributed the estate properties among the seven widows/houses but did not include Parcel 104 as part of the estate. The court’s (Nyamweya J.,) Ruling of 13th December 2016 made the following express finding:

"Machakos / ULU /104 is shown as having been registered in the name of the deceased until 23rd June 1993 when it was transferred to the 1st Petitioner. The said transfer took place during the lifetime of the deceased, who died on 8th March 1995.

….

The Objectors did not demonstrate the deceased's interest in the said property, neither did they provide evidence of any other property sold by the 1st Petitioner."

18. As such, the court expressly acknowledged that Machakos/Ulu/104 was transferred to the 1st Objector on 23rd June 1993, the transfer took place during the lifetime of the Deceased who died on 8th March 1995 and that the objectors at that time did not demonstrate the Deceased's interest in the property. This ruling fortifies the Objectors’ position in the present Summons that the Court already found that Parcel No. 104 was transferred to the 1st Objector during the Deceased's lifetime and that this is a finding of fact that has never been appealed, reviewed, or set aside and it is binding on all parties.

19. Property transferred inter vivos ceases to be free property of the estate. Under section 3 of the Law of Succession Act, "free property" means property of which the deceased was legally competent freely to dispose during his lifetime. Once Parcel No. 104 was transferred to the 1st Objector in 1993, it ceased to be part of the Deceased's free property and could not be distributed in succession proceedings. It therefore follows that the inclusion of Parcel 104 in the confirmed grant of 23rd January 2025 is therefore unlawful and contrary to the Court's own finding and the Respondents are estopped from re-litigating a matter already settled by the Court. Therefore, the court’s ruling of 2016 supports the Objectors' contention that Parcel No. 104 is non-estate property and its inclusion in the confirmed grant renders the Grant defective in substance under section 76(a) of the Law of Succession Act.

20. My findings above also lead me to conclude that the Objectors have established that the Grant was obtained by means of an untrue allegation of a fact essential in point of law and the threshold under section 76(c) has been met.

21. On the status of the 2nd and 3rd Objectors as beneficiaries of the estate, the Ruling of 12th November 2008 is unequivocal at para. 2 that: "As regards the deceased's survivors, the learned judge found that after hearing viva voce evidence on the subject, one Mbeneka Muia and one Mbenge Muia together with their children are beneficiaries of the deceased and are entitled to benefit from his estate. The ruling then reproduced the orders of this court (Mwera, J., as he was then) of 14th November 2002 where it was stated as follows:

"a. all the widows of the late Muia Kalii to be joint administrators of his estate including Mbandu in place of her deceased mother, Wausi. A grant to that effect to issue in 30 days.

b. all his children to feature along their mothers as beneficiaries
c. the list of all beneficiaries to be as was promised to be typed, signed and filed

d. Mbeneka and Mbenge to be co-administrators and their children to be beneficiaries also.

e. assets as per P&A 5 filed in the petition.

f. both parties to appoint a valuer as agreed at the beginning of this hearing. g. there has been a chaotic reception and use of rental income

h. there was no evidence to prove intermeddling or to point to one person in that regard

i. No sanction related to any intermeddling

j. The two advocates arrange how rents should be collected and disbursed - at a small or reasonable commission.

k. The costs against the estate."

22. The Ruling of 13th December 2016 further reinforces the status of the 2nd and 3rd Objectors. The Court noted "It was also averred that the Objectors have never accepted that Mbenge Muia and Mbeneka Muia are widows of the deceased, and that the other beneficiaries have accepted the court's judgment and would like to have it implemented." The Court then made the following findings: "I note in this regard that it is alleged that there are 7 widows of the deceased, six of whom are surviving. In light of the limit placed by the law as to four administrators in respect of any estate of a deceased person, the parties will need to agree which of the six surviving widows shall be the administrators, failing which the Court shall then apply the law in resolving the dispute."

23. It is therefore clear that the court’s aforementioned rulings strongly fortify the position of the 2nd and 3rd Objectors as beneficiaries of the estate. The Respondents' claim that the 2nd and 3rd Objectors are not widows or beneficiaries is directly contradicted by the court record and their reliance on a Chief's letter to disinherit them is illegal, partisan and incapable of overriding a court ruling. It is therefore my finding that the exclusion of the 2nd and 3rd Objectors from the confirmation process is a serious procedural defect that renders the grant liable to revocation under section 76(a) of the Law of Succession Act.

24. The Objectors have also submitted that the Grant has become useless and inoperative through subsequent circumstances. The 1st Objector has refused to cooperate with the other administrators due to the fraudulent process, the joint bank account has been rendered useless because the 1st Objector cannot sign for the release of funds to facilitate a distribution rooted in fraud and exclusion and the Respondents have proceeded to subdivide and distribute properties without the consent of all administrators. On their part, the Respondents blame the 1st Objector for the delay and claim she is the impediment.

25. I take the view that indeed, the Grant has become useless and inoperative because the administrators are deadlocked. The 1st Objector, a co-administrator, has refused to cooperate due to the alleged fraud. The Respondents have proceeded unilaterally, which is contrary to the fiduciary duty of administrators to act jointly and in the best interests of all beneficiaries. It is therefore my finding that the Objectors have established that the Grant has become useless and inoperative and the threshold under section 76(e) has been met.

26. In summary, I find that the Objectors have established multiple grounds under section 76 of the Law of Succession Act as the confirmation process excluded lawful beneficiaries including the 2nd , 3rd , 4th and 5th Objectors) and was based on minutes of a meeting that did not include all beneficiaries. The Grant was obtained through material misrepresentation and concealment, including the alleged forgery of the letter dated 26thMaRCH 2025 and the material variance between the CTS record and the extracted Certificate. The Grant was obtained by means of untrue allegations, including the false claim that Parcel No. Machakos/Ulu/104 was free property of the estate and that all beneficiaries had agreed to the mode of distribution. The Grant has become useless and inoperative due to the deadlock between the administrators and the unilateral actions of the Respondents.

27. The Respondents' denials and counter-allegations do not adequately rebut the specific, sworn evidence adduced by the Objectors. The court record, that is, the previous rulings, support the Objectors' position that the 2nd and 3rd Objectors are recognized widows and that Parcel No. 104 was transferred to the 1st Objector in 1993. It is therefore the court’s finding that the interests of justice demand that the confirmed Grant be revoked and a fresh, transparent and all-inclusive process be undertaken for the benefit of all beneficiaries, including the 2nd , 3rd , 4th and 5th Objectors.

Disposition

28. The Court now makes the following final orders:

1)  The Grant of Letters of Administration Intestate issued to ISAAC MAWEU MUIA, CATHERINE MBANDU MUIA, FRANCISCA MBATHA MUIA and JULIANA NZISA MUIYA on 4th December 2024 and confirmed on 23rd January 2025 be and is hereby revoked and/or annulled.

2) The beneficiaries of the estate of the Deceased shall, within sixty (60) days from the date of this Order, agree on four (4) administrators of the estate and file a signed consent of all beneficiaries to the said agreement in this Court. In default of compliance with the foregoing, this Court shall proceed to appoint four (4) administrators in accordance with the law.

3) The new administrators, once appointed, shall file a fresh Summons for Confirmation of Grant, convene an all-inclusive family meeting involving all beneficiaries of the estate, including the 2nd, 3rd, 4th and 5th Objectors to agree on the mode of distribution of the free property of the estate. The new administrators shall file in Court the minutes of the said meeting, signed by all beneficiaries present and ensure that the mode of distribution filed in Court is faithfully and accurately reflected in any Certificate of Confirmation subsequently extracted.

4) Pending the appointment of new administrators and the issuance of a fresh grant, all parties, their agents, servants, employees and/or assigns are hereby restrained from; Selling, transferring, leasing, charging, subdividing, alienating or in any manner whatsoever disposing of any property or asset belonging to the estate of the deceased; Interfering with the current occupation and possession of any property or asset of the estate by any beneficiary; Registering, gazetting, subdividing or issuing any title deed in respect of Land Parcel No. Machakos/Ulu/104 or Land Parcel No. Machakos/Ulu/105 and; Using any forged, unauthorized or irregularly obtained document to procure any order, certificate or extract from this Court.

5) An order of Inhibition be and is hereby issued restraining any dealings whatsoever on the entire estate of the deceased, including but not limited to Land Parcel No. Machakos/Ulu/104 and Land Parcel No. Machakos/Ulu/105, pending the appointment of new administrators and the issuance of a fresh grant.

6) Because of the relationship of the parties, there shall be no order as to costs and any party is at liberty to apply to this Court for such further directions or orders as may be necessary for the proper administration of the estate.

DATED SIGNED AND DELIVERED virtually this 26th DAY OF OCTOBER

2026

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

J W W MONGARE

JUDGE

In the presence of;

1. The Objectors- Present in open Court in person

2. Mr. Kamolo for the Respondents

3. Mr. Manyolo for a new objector - Martha Kalekye Paul

4. Abdisalan- Court Assistant