REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
SUCCESSION CASE NUMBER 625 OF 2009
IN THE MATTER OF THE ESTATE OF DOMENICO DE MASI (DECEASED)
RULING
1. The application for determination is the Summons for Revocation of Grant dated 3 rd October 2025, presented under Sections 76(a),(b), (c) of the Law of Succession Act and Rules 63 and 73 of the Probate and Administration Rules. The Applicant Munyaka Kuna Co. Ltd seeks the following orders-
a. Spent
b. Spent
c. THAT the Court does review the certificate of Confirmation of Grant rectified on 8 th July 205 (sic)
d. THAT the name of Moses Maina Ngugi be struck out from the schedule of the beneficiaries to inherit assets of the deceased.
e. THAT the Court does expunge the name of Moses Maina Ngugi from the certificate of confirmation of grant rectified on 8 th July 2025.
f. That the administrator does comply with the order of this court issued on 11/11/ 2022 and surrender to the court the original title document of the property of the deceased LR 42/11
g. That the costs of this application be borne by the Administrator/ Respondent.
2. The application is based on the grounds of the face of the application and supported by the affidavit of JOSEPH KIMANI HERMAN, Director and Current Chairman of Munyaka Kuna Co. Limited, sworn on 3 rd October 2025.
3. It is averred that Moses Maina Ngugi is a stranger to the estate. The only lawful beneficiaries of the deceased are those enumerated in paragraph 4 of the supporting affidavit (that is, the siblings of the administrator). The inclusion of Moses Maina Ngugi contravenes previous rulings and judgments herein that revoked the grant, voided the administrator’s sale to Moses Maina Ngugi, and required the administrator to file a summons to transmit 6 acres carved out of LR NO 42/11 to the applicant. The applicant has attached the cited rulings, namely the ruling of Hon. Onyiego J on 23rd June 2020, the ruling of Hon. Lady Justice M. Odero on 1st October 2021, and the judgment of Hon. Maureen Odero J dated 11th November 2022.
4. The respondent/ administrator opposes the application and has an affidavit on 14 th November 2025. He does not deny that the applicant is entitled to 6 acres out of LRNO. 42/11. He, however, asserts that the applicant’s challenge to the inclusion of Moses Maina Ngugi is without merit.
5. The application was canvassed via written submissions. The applicant filed submissions dated 22 nd December 2025 and supplementary submissions dated 16 th February 2026.
6. The applicant frames the issue for determination to be-
a. Has the applicant established the grounds of the application for revocation?
7. It is submitted that the inclusion of Moses Maina Mwangi is an abuse of the court process. Reference is made to the decision in David Muriuki Mugambi v Jesse N. K. Mugambi & another [2015] KEHC 422 (KLR) for the assertion that this Court is vested with the mandate to revoke the ‘certificate of confirmation of grant’ and expunge the name of Moses Maina Mwangi. In the supplementary submissions, the applicant challenges what he deems to be the attempt by the respondent to adduce evidence by submissions and reference made to the decision in Githaiga v Mwangi (Civil Appeal E064 of 2022) [2024] KEHC 13449 (KLR) (30 October 2024) (Judgment)
8. The respondent’s submissions are dated 16 th February 2026. He frames the following as the issues for determination-
a. Whether the present application is res judicarta ( sic)
b. Whether this Court should entertain an application for review and expunge the name of Moses Maina from the distribution schedule.
9. On the first issue, it is submitted that the application is res judicata because the same issues were canvassed in the affidavit of protest dated 21st December 2022. In its ruling of 31st January 2025, the Court held that it lacked jurisdiction to adjudicate the protest.
10. On the 2nd issue, it is submitted that the current application in effect seeks a review of the orders dated 31st January 2025, and that the applicant has not brought themselves within the ambit of Section 80 of the Law of Succession Act and Order 45 of the Civil Procedure Rules. It is further submitted that the mode of distribution of the estate, as set out in the Certificate of Confirmation of Grant dated 8th July 2025, complies with the judgment in ELC 107 of 2011, as provision has been made for the respondent’s 6 acres. Reference is made to the decision in Re Estate of Dorcas Wanjiku (Deceased) [2014] eKLR.
ANALYSIS AND DETERMINATION
11. Having considered the pleadings herein, submissions filed, and the relevant law, I surmise the issues for determination to be
a. Whether the summons for revocation herein is competent
b. Arising from (a) above, what are the consequential orders?
12. The Summons is presented under Section 76 from the prayers sought and the supporting affidavit. It is apparent that the applicant seeks a ‘ revocation of the rectified certificate of confirmation of grant dated 8 th July 2025’. The applicant is not seeking revocation of the grant but rather contests the inclusion of Moses Maina Mwangi in the certificate of Confirmation of Grant. Section 76 of the Law of Succession Act provides for the revocation of grants, not the certificate of confirmation of a grant. This important distinction is well established by judicial precedent, including in the decision of In re Estate of Juma Omwanda (Deceased) [2025] KEHC 9837 (KLR), where Hon. Musyoka J stated-
[6]. A certificate of confirmation of grant is a court paper, which extracts the orders that the court makes, under Section 71 of the Law of Succession Act, after hearing and allowing a summons for confirmation of grant. It is a certificate, mined from the orders of confirmation of the grant, specifying the terms of the distribution of the estate approved by the court. It is, by no means, not the grant contemplated in section 76. It is not available for revocation in the manner envisaged by section 76.
13. The summons as presented is therefore incompetent; the orders as sought cannot issue.
14. What then are the consequential orders that will issue? Article 159 of the Constitution requires that the Court, in adjudicating over matters, secures substantive justice for the parties. When parties approach the Court, they seek a resolution of the issue they present, as well as elucidation of the applicable law.
15. The succession cause has been pending before the Court since 2009. The mandate of this probate Court is limited to distributing the estate of the deceased amongst the rightful beneficiaries. The above position was reiterated in the case of re Estate of Mbai Wainaina (Deceased) [2015] eKLR, where the court stated as follows :
….The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determine issues of ownership of property and declarations of trusts. It is not a matter of the probate court being incompetent to deal with such issues, but rather that the provisions of the Law of Succession Act and the relevant subsidiary legislation do not provide a convenient mechanism for the determination of such issues. A party who wishes to have such matters resolved ought to file a substantive suit to be determined by the Environment and Land Court.
16. The applicant disputes the transmission of a portion of the estate of the deceased to Moses Maina Mwangi. The basis of the challenge is the Court's previous decisions holding the administrator in contempt, as well as Moses Maina Mwangi. He also relies on the fact that the Court had earlier revoked the grant.
17. I have carefully considered the record of the Court, and what emerges is that initially the applicant herein moved to challenge a confirmed grant that did not provide for his interest in the estate of the deceased. The Court did revoke the grant and directed that the administrator present a summons that provided for the applicant's interest (6 acres at LR No. 42/11).
18. The administrator did not act in accordance with the orders of the Court, and this prompted applications citing him and Moses Maina Mwangi for contempt. Those applications were successful. Concurrently, Moses Maina Mwangi apparently filed a suit challenging the applicant's interest; that suit was struck out. The pleadings were not provided, so it is not possible to discern the subject matter and cause of action in that matter. The previous challenges were based on the claim that, absent a confirmed grant, the administrator lacked the capacity to deal with the assets of the estate, either by sale or transfer. Consequently, the titles arising from the impugned sales were cancelled, and the title was revoked in favour of the estate.
19. The administrator armed with a confirmed grant now has the capacity to transfer the estate to purchasers ( such as Moses Maina Mwangi) and decree holders ( such as the applicant).
20. If the applicant seeks to challenge the transaction between the respondent and Moses Maina Mwangi, they must lodge that challenge before the Environment and Land Court.
21. Be that as it may, it is common ground that the applicant is entitled to 6 acres, and this has been reflected in the summons for confirmation of the grant. If the applicant is challenging the section being hived off, that is a matter to be determined by either the Environment and Land Court or the Land Registrar, not the Probate Court.
22. Having dismissed the Summons dated 3 rd October 2025, I find that the Certificate of Confirmation of Grant dated 8 th July 2025 presents the mode of distribution of the estate of the deceased. The Probate Court is now functus officio, and the appropriate order is to close this file.
23. Each party will bear their own costs.
24. Parties are at Liberty to appeal, the party exercising their right of appeal to do so within 30 days.
It is so ordered
Dated, Signed and Delivered online via Microsoft Teams in Nairobi, this 14th day of May, 2026.
………….…………….
P. NYAUNDI
JUDGE
In the presence of:
Fardosa Court Assistant
…………………………… . for the Applicant
................................. for the Respondent
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
SUCCESSION CASE NUMBER 625 OF 2009
IN THE MATTER OF THE ESTATE OF DOMENICO DE MASI (DECEASED)
RULING
1. The application for determination is the Summons for Revocation of Grant dated 3 rd October 2025, presented under Sections 76(a),(b), (c) of the Law of Succession Act and Rules 63 and 73 of the Probate and Administration Rules. The Applicant Munyaka Kuna Co. Ltd seeks the following orders-
a. Spent
b. Spent
c. THAT the Court does review the certificate of Confirmation of Grant rectified on 8 th July 205 (sic)
d. THAT the name of Moses Maina Ngugi be struck out from the schedule of the beneficiaries to inherit assets of the deceased.
e. THAT the Court does expunge the name of Moses Maina Ngugi from the certificate of confirmation of grant rectified on 8 th July 2025.
f. That the administrator does comply with the order of this court issued on 11/11/ 2022 and surrender to the court the original title document of the property of the deceased LR 42/11
g. That the costs of this application be borne by the Administrator/ Respondent.
2. The application is based on the grounds of the face of the application and supported by the affidavit of JOSEPH KIMANI HERMAN, Director and Current Chairman of Munyaka Kuna Co. Limited, sworn on 3 rd October 2025.
3. It is averred that Moses Maina Ngugi is a stranger to the estate. The only lawful beneficiaries of the deceased are those enumerated in paragraph 4 of the supporting affidavit (that is, the siblings of the administrator). The inclusion of Moses Maina Ngugi contravenes previous rulings and judgments herein that revoked the grant, voided the administrator’s sale to Moses Maina Ngugi, and required the administrator to file a summons to transmit 6 acres carved out of LR NO 42/11 to the applicant. The applicant has attached the cited rulings, namely the ruling of Hon. Onyiego J on 23rd June 2020, the ruling of Hon. Lady Justice M. Odero on 1st October 2021, and the judgment of Hon. Maureen Odero J dated 11th November 2022.
4. The respondent/ administrator opposes the application and has an affidavit on 14 th November 2025. He does not deny that the applicant is entitled to 6 acres out of LRNO. 42/11. He, however, asserts that the applicant’s challenge to the inclusion of Moses Maina Ngugi is without merit.
5. The application was canvassed via written submissions. The applicant filed submissions dated 22 nd December 2025 and supplementary submissions dated 16 th February 2026.
6. The applicant frames the issue for determination to be-
a. Has the applicant established the grounds of the application for revocation?
7. It is submitted that the inclusion of Moses Maina Mwangi is an abuse of the court process. Reference is made to the decision in David Muriuki Mugambi v Jesse N. K. Mugambi & another [2015] KEHC 422 (KLR) for the assertion that this Court is vested with the mandate to revoke the ‘certificate of confirmation of grant’ and expunge the name of Moses Maina Mwangi. In the supplementary submissions, the applicant challenges what he deems to be the attempt by the respondent to adduce evidence by submissions and reference made to the decision in Githaiga v Mwangi (Civil Appeal E064 of 2022) [2024] KEHC 13449 (KLR) (30 October 2024) (Judgment)
8. The respondent’s submissions are dated 16 th February 2026. He frames the following as the issues for determination-
a. Whether the present application is res judicarta ( sic)
b. Whether this Court should entertain an application for review and expunge the name of Moses Maina from the distribution schedule.
9. On the first issue, it is submitted that the application is res judicata because the same issues were canvassed in the affidavit of protest dated 21st December 2022. In its ruling of 31st January 2025, the Court held that it lacked jurisdiction to adjudicate the protest.
10. On the 2nd issue, it is submitted that the current application in effect seeks a review of the orders dated 31st January 2025, and that the applicant has not brought themselves within the ambit of Section 80 of the Law of Succession Act and Order 45 of the Civil Procedure Rules. It is further submitted that the mode of distribution of the estate, as set out in the Certificate of Confirmation of Grant dated 8th July 2025, complies with the judgment in ELC 107 of 2011, as provision has been made for the respondent’s 6 acres. Reference is made to the decision in Re Estate of Dorcas Wanjiku (Deceased) [2014] eKLR.
ANALYSIS AND DETERMINATION
11. Having considered the pleadings herein, submissions filed, and the relevant law, I surmise the issues for determination to be
a. Whether the summons for revocation herein is competent
b. Arising from (a) above, what are the consequential orders?
12. The Summons is presented under Section 76 from the prayers sought and the supporting affidavit. It is apparent that the applicant seeks a ‘ revocation of the rectified certificate of confirmation of grant dated 8 th July 2025’. The applicant is not seeking revocation of the grant but rather contests the inclusion of Moses Maina Mwangi in the certificate of Confirmation of Grant. Section 76 of the Law of Succession Act provides for the revocation of grants, not the certificate of confirmation of a grant. This important distinction is well established by judicial precedent, including in the decision of In re Estate of Juma Omwanda (Deceased) [2025] KEHC 9837 (KLR), where Hon. Musyoka J stated-
[6]. A certificate of confirmation of grant is a court paper, which extracts the orders that the court makes, under Section 71 of the Law of Succession Act, after hearing and allowing a summons for confirmation of grant. It is a certificate, mined from the orders of confirmation of the grant, specifying the terms of the distribution of the estate approved by the court. It is, by no means, not the grant contemplated in section 76. It is not available for revocation in the manner envisaged by section 76.
13. The summons as presented is therefore incompetent; the orders as sought cannot issue.
14. What then are the consequential orders that will issue? Article 159 of the Constitution requires that the Court, in adjudicating over matters, secures substantive justice for the parties. When parties approach the Court, they seek a resolution of the issue they present, as well as elucidation of the applicable law.
15. The succession cause has been pending before the Court since 2009. The mandate of this probate Court is limited to distributing the estate of the deceased amongst the rightful beneficiaries. The above position was reiterated in the case of re Estate of Mbai Wainaina (Deceased) [2015] eKLR, where the court stated as follows :
….The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determine issues of ownership of property and declarations of trusts. It is not a matter of the probate court being incompetent to deal with such issues, but rather that the provisions of the Law of Succession Act and the relevant subsidiary legislation do not provide a convenient mechanism for the determination of such issues. A party who wishes to have such matters resolved ought to file a substantive suit to be determined by the Environment and Land Court.
16. The applicant disputes the transmission of a portion of the estate of the deceased to Moses Maina Mwangi. The basis of the challenge is the Court's previous decisions holding the administrator in contempt, as well as Moses Maina Mwangi. He also relies on the fact that the Court had earlier revoked the grant.
17. I have carefully considered the record of the Court, and what emerges is that initially the applicant herein moved to challenge a confirmed grant that did not provide for his interest in the estate of the deceased. The Court did revoke the grant and directed that the administrator present a summons that provided for the applicant's interest (6 acres at LR No. 42/11).
18. The administrator did not act in accordance with the orders of the Court, and this prompted applications citing him and Moses Maina Mwangi for contempt. Those applications were successful. Concurrently, Moses Maina Mwangi apparently filed a suit challenging the applicant's interest; that suit was struck out. The pleadings were not provided, so it is not possible to discern the subject matter and cause of action in that matter. The previous challenges were based on the claim that, absent a confirmed grant, the administrator lacked the capacity to deal with the assets of the estate, either by sale or transfer. Consequently, the titles arising from the impugned sales were cancelled, and the title was revoked in favour of the estate.
19. The administrator armed with a confirmed grant now has the capacity to transfer the estate to purchasers ( such as Moses Maina Mwangi) and decree holders ( such as the applicant).
20. If the applicant seeks to challenge the transaction between the respondent and Moses Maina Mwangi, they must lodge that challenge before the Environment and Land Court.
21. Be that as it may, it is common ground that the applicant is entitled to 6 acres, and this has been reflected in the summons for confirmation of the grant. If the applicant is challenging the section being hived off, that is a matter to be determined by either the Environment and Land Court or the Land Registrar, not the Probate Court.
22. Having dismissed the Summons dated 3 rd October 2025, I find that the Certificate of Confirmation of Grant dated 8 th July 2025 presents the mode of distribution of the estate of the deceased. The Probate Court is now functus officio, and the appropriate order is to close this file.
23. Each party will bear their own costs.
24. Parties are at Liberty to appeal, the party exercising their right of appeal to do so within 30 days.
It is so ordered
Dated, Signed and Delivered online via Microsoft Teams in Nairobi, this 14th day of May, 2026.
………….…………….
P. NYAUNDI
JUDGE
In the presence of:
Fardosa Court Assistant
…………………………… . for the Applicant
................................. for the Respondent