1. Before this court for determination are two applications. The first is a Notice of Motion Application dated 18th July 2023 brought pursuant to Sections 29, 47, 70 of the Law of Succession Act and Rules 73, 17 (1), 40 (6), 44, 58 and 63 (1) of the Probate and Administration Rules. The application seeks, among others orders that;
a. Spent
b. That the grant issued on 25th July 2022 be revoked as the Petitioners obtained it by concealment of material facts which would not have been granted had the court been made aware.
c. That the grant was obtained fraudulently in that the Petitioners obtained it by concealment of material facts which would not have been granted had the court been made aware.
d. That the grant was obtained fraudulently in that the petitioners never sought the consent from the next of kin to the children of IMMACULATE NALIAKA SIMIYU who are the direct beneficiaries in the suit estate when the grant was issued.
e. That the grant was obtained by means of untrue allegations of facts essential in point of law to justify the grant in that the Respondents included assets which do not form part of the estate to the deceased.
f. That the proceeding to obtain the grant were defective and flawed in substance.
g. That the court invokes its inherent powers in making an order to revoke the letter of grant od administration issued to the Respondent and the subsequent confirmation on the abovementioned grounds.
h. Spent
i. Spent
j. That this matter be transferred to the High Court in Kajiado and be heard together with the succession cause No. 95 of 2019 in the Matter of the Estate of Immaculate Naliaka Miheso alias Immaculate Simiyu filed in the Chief Magistrates Court at Kajiado.
k. Costs of this application.
2. The application is supported by the grounds set out on its face and by an amended affidavit in protest to the summons for confirmation of grant dated 25th July 2022 sworn by Simiyu Edmunds David Wekesa on 24th July 2023. In the affidavit, the deponent states that he is the father of the late Immaculate Naliaka Simiyu and the maternal grandfather of Andrew Davids Ang’ute, Karen Kaleha Miheso and Lynn Mbone Miheso. He further depones that he is the guardian of the said children, who are dependants in the estate of the late Douglas Miheso Mwagwi.
3. The deponent further avers that following the demise of Douglas Miheso Mwagwi, who had been his co-administrator in the estate of Immaculate Naliaka Simiyu, he remains the sole administrator in Succession Cause No. 95 of 2019, In the Matter of the Estate of Immaculate Naliaka Miheso alias Immaculate Simiyu pending before the Chief Magistrate’s Court at Kajiado. He states that by virtue of his position, he bears responsibility for all matters relating to the estate of Immaculate Naliaka Simiyu and for safeguarding the interests of the deceased’s children.
4. The protestor states that the respondents petitioned for letters of administration intestate on 5th July 2022 and were issued with a grant on 25th July 2022. He avers that a consent dated 28th March 2022 was filed by Ann Iminza Douglas, Annet Mmbone Miheso and Hedrick Mwagwi Miheso, who purported to represent the children of the late Immaculate Naliaka Simiyu. He contends that as the legal guardian of the said children and administrator of their mother’s estate, his consent was mandatory prior to the filing of the petition, but the respondents proceeded without his knowledge or involvement.
5. The protestor further depones that the respondents included assets that do not form part of the estate of Douglas Miheso Mwagwi. In particular, he challenges the inclusion of Title Number KJD/KAPUTIEI-NORTH/50990, which was listed as asset number three. He avers that the said property was jointly owned by the deceased Douglas Miheso Mwagwi and Immaculate Naliaka Simiyu. Upon the death of Immaculate Naliaka Simiyu, her interest therein vested in Douglas Miheso Mwagwi only in trust for their children, namely Andrew Davids Ang’ute, Karen Kaleha Miheso and Lynn Mbone Miheso, and therefore the property ought to devolve exclusively to the said children.
6. The protestor also avers that the respondents concealed from the court the existence of Succession Cause No. 95 of 2019 relating to the estate of Immaculate Naliaka Simiyu, which remains pending before the Chief Magistrate’s Court at Kajiado. He states that the confirmation of grant has been delayed because the respondents have allegedly withheld crucial documents relating to the said estate. He particularizes the documents as including; title deeds and property documents relating to plots at Noonkopir Trading Centre (Plots Nos. 0633, 0634 and 0636), land parcels KJD/KAPUTIEI NORTH/69996 and KJD/KAPUTIEI-NORTH/50990, shares in Hazina Sacco and LAPD Fund, bank documents for accounts held at Standard Chartered Bank, Kenya Commercial Bank, and Kenya Women Finance Trust, logbooks for motor vehicles KBX 991J and KCA 183A, academic certificates and other personal documents of the late Immaculate Naliaka Simiyu, birth certificates and insurance policies for her children, the death certificate of Douglas Miheso Mwagwi., and any other relevant documents.
7. He further avers that the respondents, together with one David Omega, who is described in the petition as a guarantor, have facilitated intermeddling with the estate of Immaculate Naliaka Simiyu. He alleges that they unlawfully authorized Clintone Chotero Ngaye to take possession of and use motor vehicle KCA 183A, contrary to his authority as administrator of that estate and in disregard of a court order issued in Kajiado on 11 November 2021. He states that whenever he demands the surrender of the vehicle, Clintone Chotero refuses and claim that he was directed by David Omega to continue using it. The protestor maintains that he has never authorized Clintone Chotero, David Omega or any other person to manage or deal with the affairs of the estate of Immaculate Naliaka Simiyu.
8. He also contends that the respondents deliberately instituted the present succession proceedings in a different court instead of Kajiado, where the earlier succession cause relating to the estate of Immaculate Naliaka Simiyu is pending, with the intention of circumventing due process. He avers that had the court been aware of the existence of that succession cause and the surrounding circumstances, it would not have issued the grant to the respondents.
9. Further, the protestor states that the respondents have approached the court with unclean hands, having suppressed material information and misled the court while seeking confirmation of the grant. He adds that the respondents have refused to release title documents and other records relating to the estate of Immaculate Naliaka Simiyu, thereby frustrating the inclusion of additional assets and the eventual confirmation of the grant in Succession Cause No. 95 of 2019. He identifies properties that were allegedly omitted from that succession cause, including Plot Number KJD/KAPUTIEI-NORTH/50990, another plot at Noonkopir Trading Centre measuring approximately 0.045 hectares, and an additional property situated in Kitengela town next to Deliverance Church, together with other properties that may be disclosed in due course.
10. The protestor therefore avers that the respondents obtained the grant through concealment of material facts, including the existence of another succession cause involving overlapping interests. He further alleges that the respondents’ advocate, M/s Waithira Kamiti & Co. Advocates, was aware of the existence of the earlier succession proceedings, having previously represented Douglas Miheso Mwagwi in the Kajiado succession cause, but nonetheless proceeded with the petition without involving him. He contends that, as a matter of professional obligation, the advocate ought to have contacted him to inquire whether he wished to participate as a co-petitioner in order to safeguard the interests of the estate of Immaculate Naliaka Simiyu.
11. Finally, the protestor avers that the grant was obtained fraudulently, and without the consent of the children of Immaculate Naliaka Simiyu who are the rightful beneficiaries of Title Number KJD/KAPUTIEI-NORTH/50990 and on the basis of untrue allegations of fact essential to justify the grant. He further states that the proceedings leading to the issuance of the grant were defective and flawed in substance. Consequently, he urges the court to invoke its inherent powers to revoke the grant of letters of administration issued to the respondents together with the subsequent confirmation, and to decline confirmation in the interest of justice.
12. In response, the Respondent’s/Petitioners filed a Replying Affidavit sworn on 12th September 2023 by Linet Mmbone Mwagwi and Maxwell Aginga Mwagwi, the administrators of the estate of the late Douglas Miheso Mwagwi. They state that the Applicant lacks locus standi to lodge the protest as he is neither a beneficiary nor a dependant of the deceased within the meaning of the law, and that the protest is intended solely to delay the confirmation of the grant and obstruct the administration of the estate.
13. They depone that the late Douglas Miheso Mwagwi died intestate on 31st August 2021 while domiciled within the jurisdiction of the Court and was survived by his children as beneficiaries and his mother as a dependant. They state that they are related to the deceased as his biological mother and younger brother respectively. They further depose that both of the deceased’s wives, namely Mirriam Atayi Kanale and Immaculate Naliaka Miheso alias Immaculate Naliaka Simiyu, predeceased him on 2nd January 2020 and 31st December 2018 respectively. Each wife left three children. The children of the first wife’s children are Ann Iminza Douglas, John Mwenje Miheso and Peace Dodi Miheso, while those of the second wife are Andrew Davids Ang’ute, Karen Kaleha Miheso and Lynn Mmbone Miheso. They further state that the deceased had other known children, namely Annety Mmbone Miheso, Hedrick Mwagwi Miheso, Lynex Maua and Jabali Miheso, bringing the total number of beneficiaries to ten, with one dependant being the deceased’s mother.
14. The Respondents depone that following the death of the deceased, a meeting of the extended family was held on 24th October 2021 during which it was agreed that they would act as administrators of the estate, while David Omega Mwasiaji would act as one of the sureties. They state that they thereafter petitioned the Court for letters of administration intestate without any non-disclosure or misrepresentation. They add that the adult beneficiaries consented to their appointment as administrators so as to enable them represent the interests of the minor’s beneficiaries who lacked legal capacity to give consent. They further state that their appointment was also supported by a letter from the area Chief dated 25th October 2022 which listed the beneficiaries and the known assets of the deceased.
15. They aver that the Applicant, being the father-in-law of the deceased, does not qualify as a beneficiary or dependant under Section 29 of the Law of Succession Act, and that his consent was therefore not required prior to filing of the petition. They further state that shortly after the death of the deceased, the Applicant took custody of the deceased’s children, without obtaining any formal guardianship order from a Children’s court. They contend that although the Applicant claims to be the guardian of the children, he has failed to produce any lawful order appointing him as such. They add that the second Respondent obtained legal guardianship of two orphaned children of the deceased, namely John Mwenje Miheso and Peace Dodi Miheso, for purposes of providing care and attending to their welfare, including medical cover and school matters.
16. The Respondents further state that administration of an estate is distinct from guardianship and therefore the Applicant’s assertion that his consent ought to have been obtained has no basis in law. They add that although the Applicant claims to be the sole administrator of the estate of the late Immaculate Naliaka Miheso, that position does not entitle him to participate in the administration of the estate of Douglas Miheso Mwagwi. They emphasize that the two estates are separate and independent, notwithstanding the marital relationship between the two deceased persons.
17. The Respondent depone that in petitioning for letters of administration, they fully complied with the requirements of Section 51 of the Law of Succession Act. They state that they disclosed their relationship with the deceased, listed all known beneficiaries and assets, and obtained the requisite consent from the adult beneficiaries. They reiterate that the estate of Douglas Miheso Mwagwi is distinct from the estate of Immaculate Naliaka Miheso and cannot be merged merely because the two deceased persons were spouses.
18. They explain that the succession cause was filed before the High Court at Machakos because the deceased resided at Sofia in Mavoko Constituency where his matrimonial home was located and where his children continue to reside. They further state that the deceased died at Kenyatta National Hospital while domiciled in Mavoko and that the majority of his known properties are located within that jurisdiction. They aver that the approximate value of the estate is Kshs. 30,000,000, which exceeds the pecuniary jurisdiction of the subordinate court. Accordingly, they maintain that the High Court at Machakos was the proper forum to institute the succession proceedings.
19. The Respondents further depone that the late Immaculate Naliaka Miheso, was buried on land belonging to the deceased’s family in Vihiga County in accordance with Luhya customary law, given that she was married at the time of her death. They emphasize that they have never interfered with the estate of the late Immaculate Naliaka Miheso and have no interest therein. They also aver that Succession Cause No. 95 of 2019 relating to her estate was concluded and the grant confirmed on 10th June 2021 in the presence of the Applicant before Hon. B. Cheloti.
20. They contend that the Applicant therefore misled the Court by alleging that the grant in that cause had not been confirmed. The Respondents further state that the assets listed in paragraph 13 of the protest do not form part of the estate of Douglas Miheso Mwagwi. They assert that the only asset common to both estates is LR No. KJD/Kaputiei-North/50990, which was jointly owned by the deceased and his late wife Immaculate Naliaka Miheso. They aver that upon the death of Immaculate Naliaka Miheso on 31st December 2018, the property devolved to Douglas Miheso Mwagwi by operation of the doctrine of survivorship. Consequently, upon his subsequent death intestate, the property constituted part of his free estate and was properly included among the assets to be distributed in accordance with the intestacy provisions.
21. They state that as administrators they cannot lawfully allocate that property to a specific class of beneficiaries as demanded by the Applicant, since the deceased died intestate and all beneficiaries are entitled to equal consideration. They depone that among the deceased’s personal effects they recovered the death certificate and academic certificates of Immaculate Naliaka Miheso, birth certificates of her children, the logbook and possession of motor vehicle KCA 183A, letters of allotment for Noonkopir Trading Centre plots 0633, 0634 and 0636, the title deed for KJD/KAPUTIEI-NORTH/69996, receipts and correspondence with the County Council of Olekejuado, and certain sale agreements. They state that these are the only documents in their possession and that the Applicant is at liberty to collect them.
22. The Respondents deny the allegations of intermeddling with the estate of the Applicant’s daughter or concealed documents. They maintain that they have no knowledge of the whereabouts of the alleged assets and deny ever being served with any court order requiring them to surrender of motor vehicle KCA 183A. They state that if such an order existed, the Applicant ought to have pursued contempt proceedings. They further depone that properties arising from subdivisions of KAJIADO/ILDAMAT/6117 are currently subject of litigation in ELC Case No. E063 of 2023 and therefore do not form part of the assets available for distribution in the present succession cause.
23. The Respondents also contend that the allegations made against their advocate are misplaced, noting that an advocate is bound by advocate–client confidentiality and can only act upon instructions from her clients. They explain that the advocate had concluded her role in the succession cause relating to Immaculate Naliaka Miheso before the death of Douglas Miheso Mwagwi and that the two matters involve distinct estate and different clients. They aver that the Applicant has failed to demonstrate any misconduct on their part or any grounds warranting revocation of the grant under Section 76 of the Law of Succession Act. They further state that the grant was duly gazetted and no objection was raised within the statutory period.
24. Finally, the respondents state that several beneficiaries are minors who depend on the estate for their basic needs and education. They urge the Court to dismiss the protest and allow confirmation of the grant, or in the alternative permit partial confirmation excluding the disputed property KJD/KAPUTIEI-NORTH/50990, so that the remaining assets may be distributed for the benefit of the children in accordance with the law and the constitutional principles of access to justice and the best interests of the child.
25. The protestor subsequently filed a supplementary affidavit sworn on 30th September 2023, in which he reiterates that the petitioners irregularly included the children in the present succession cause and purported to obtain their consent despite their lack of legal capacity to consent, and without involving him as their next friend and guardian. He further avers that two of the children, Andrew Davids Angute and Karen Kaleha, were born out of his daughter’s first marriage to John Ochieng Angute and were not biological children of the deceased Douglas Miheso Mwagwi, and that their inclusion as beneficiaries was procedurally and legally improper.
26. The protestor further deposes that several assets listed in the petition do not form part of the free estate of the deceased, Douglas Miheso Mwagwi, but constitute property joint or commonly owned with his late daughter. He maintains that, such properties ought to devolve primarily to the children of Immaculate Naliaka Simiyu and should not be distributed among the wider beneficiaries of the deceased. He asserts that any property that devolved to Douglas Miheso Mwagwi upon the death of Immaculate Naliaka Simiyu did so under a resultant trust in favour of her children.
27. He further alleges that following the death of the deceased, the petitioners intermeddled with both estates by removing household items, personal effects, and other property from the matrimonial home at Noonkopir. He further alleges that motor vehicle registration number KCA 183A is unlawfully held by one Clintone Ngaye, a relative of the petitioners, in defiance of court orders. The protestor also claims that the petitioners have withheld crucial documents relating to the estate of Immaculate Naliaka Simiyu, including the children’s birth certificates and property documents, thereby hindering proper administration of that estate.
28. The protestor further states that Succession Cause No. 95 of 2019 relating to the estate of Immaculate Naliaka Simiyu remains pending due to the petitioners’ interference and failure to disclose all assets and liabilities of that estate. He contends that the two succession causes involve overlapping and jointly owned properties and that they ought therefore to be handled together or concurrently by the court in order to ensure a fair, coherent and comprehensive determination of competing interests.
29. In conclusion, the protestor reiterates that the grant issued in the present cause was obtained through concealment of material facts and through a process that was defective in substance. He particularly faults the failure to involve him as the next friend of the minor’s beneficiaries and the inclusion of assets that do not form part of the deceased’s free estate. He therefore urges the court to direct the filing of a full and accurate inventory of the deceased’s assets, to exclude or properly address jointly owned properties, to consider consolidation or concurrent handling of this cause with Succession Cause No. 95 of 2019, and to ensure that the interests of the three children of Immaculate Naliaka Simiyu are adequately safeguarded before any confirmation of grant is undertaken.
30. The Respondents subsequently filed a supplementary affidavit sworn on 7th February 2024 addressing the issues by the protestor. In summary, they averred that they are the duly gazetted administrators of the estate of the late Douglas Miheso Mwagwi and that they are the biological grandmother and uncle to most of the beneficiaries. They reiterated the contents of their earlier replying affidavit and maintained that the protestor’s allegations are unfounded. They further deposed that the only property jointly owned by the late Douglas Miheso Mwagwi and the late Immaculate Naliaka Miheso was Land Parcel No. KJD/Kaputiei-North/50990 which, by operation of the doctrine of survivorship, devolved to Douglas Miheso Mwagwi following the death of Immaculate Naliaka Miheso and therefore forms part of his estate.
31. The respondents further asserted that Douglas Miheso Mwagwi was domiciled within the jurisdiction of the High Court at Machakos and that the court therefore has proper jurisdiction to hear and determine the succession cause. They acknowledged that Immaculate Naliaka Simiyu had two children from a previous marriage but stated that Douglas Miheso Mwagwi accepted them as his own children and even caused the name of one child to be changed in her birth certificate to reflect him as the father. They maintained that the children lived under the care and support of the deceased until his death and only later went to live with the protestor during school holidays in 2022.
32. The respondents denied allegations that they unlawfully removed household items from the deceased’s homes, describing the accusations as malicious and unsupported by evidence. They further stated that the motor vehicle registration number KCA 183A and other documents that were previously in their possession were released to the protestor in compliance with court orders, thereby rendering those complaints overtaken by events.
33. The respondents also contended that the protestor lacks legal authority to act as a guardian of the minors, as no court order appointing him as such has been produced. They maintained that the consents filed in the succession cause were procedural requirements applicable only to adult beneficiaries and were not intended to bind the minors. They further stated that they are unaware of any other joint properties between Douglas Miheso Mwagwi and Immaculate Naliaka Miheso apart from the parcel of land already disclosed, and asserted that the protestor has failed to identify any additional assets to substantiate his allegations. They emphasized that the estate under administration strictly belongs to the late Douglas Miheso Mwagwi and does not overlap with the estate of Immaculate Naliaka Miheso.
34. In conclusion, the respondents denied allegations of concealment of material facts, intermeddling, or disinheritance of the children of Immaculate Naliaka Miheso. They asserted that the estate is being administered in accordance with the law governing intestate succession and urged the court to dismiss the protest on the ground that it is speculative, malicious, and intended solely to delay the administration and distribution of the estate.
35. When the matter came up for hearing and following consultations between the parties, a consent was recorded to the effect that;
a. The mode of distribution in respect of Land Parcel No Waitaluk/Kapkoi 4/Waitaluk/127 be registered in the name of Andrew Davids Angute, and Karen Kaleha Miheso to hold in trust for Lynn Mmbone Miheso in equal shares.
b. The issue whether Land Parcel No Kajaido /Kaputei North/50990 being alleged to be joint property between the deceased herein and Immaculate Naliaka Simiyu alias Immacula Naliaka Miheso form part of the estate to be determined by way of written submissions and documents.
36. The effect of the consent was that the protestor abandoned all the grounds raised in the application dated 18th July 2023, thereby allowing partial confirmation of the grant in respect of the uncontested assets. Consequently, the only issue remaining for determination was whether Land Parcel No. Kajiado/Kaputei North/50990 forms part of the free estate of Douglas Miheso Mwagwi. The issue was canvassed by way of written submissions. In the same vein, leave was granted to the Petitioners to file an amended mode of distribution, giving rise to the Summons for partial confirmation of grant dated 16th October 2025, seeking confirmation of the grant of letters of administration intestate issued on 25th July 2022 to Linet Mmbone Mwangwi and Maxwell Aginga Mwagwi as follows;
a.) North/Maragoli/Kegondi/105- 0.6 hectares to be registered in the name of Hedrick Mwagwi Miheso.
b.) North/Maragoli/Viyalo/1825- 0.40hectares to be registered in the name of Annety Mmbone Miheso for herself and to hold in trust for Lynn Mmbone Miheso in equal shares.
c.) North/Maragoli/Kegondi/2536- 0.42 hectares to be registered in the name of Ann Iminza Douglas and John Mwenje Miheso and to hold in trust for Peace Dodie Miheso in equal share for the three.
d.) Waitaluk/Kapkoi/Block4/Waitauk/127- 1 acre to be registered in the names of Andrew Davids Ang’ute, Karen Kaleha Miheso to hold in trust for Lynn Mmbone Miheso in equal shares.
e.) North/Maragoli/Kegondi/2497- 0.47hectares to be registered in the names of Linet Mmbone Mwagwi and Maxwell Aginga Mwagwi to hold in trust for Lynex Maua and Jabal Miheso equally.
f.) Land Reference No. Block 10426/23 Mavoko Municipality Plot 59- to be registered in the names of Linet Mmbone Mwagwi and Maxwell Aginga Mwagwi.
g.) Mavoko Municipality Sofia Plot No. 40- to be registered in the names of Linet Mmbone Mwagwi and Maxwell Aginga Mwagwi.
h.) Money in Standard Chartered Account No. 0100204353000- to be registered in the names of Linet Mmbone Mwagwi and Maxwell Aginga Mwagwi.
i.) Money in Cooperative Bank account No. 011090653789000022- to be registered in the names of Linet Mmbone Mwagwi and Maxwell Aginga Mwagwi.
j.) Money in National Bank Account No. 0103709558530- to be registered in the names of Linet Mmbone Mwagwi and Maxwell Aginga Mwagwi.
k.) NSSF Benefits- to be registered in the names of Linet Mmbone Mwagwi and Maxwell Aginga Mwagwi.
37. There being no objection to the partial confirmation of grant from any beneficiary, the summons for partial confirmation of grant dated 16th October 2025 is allowed as prayed.
38. Turning to the application dated 18th July 2023, parties canvassed the same by way of written submissions.
Protestor’s submissions
39. The protestor submitted that the protest initially raised several issues, including allegations that the petitioners fraudulently moved the court by purporting to obtain consent on behalf of the children of the late Immaculate Naliaka Simiyu, concealment of material facts by failing to disclose that two of Immaculate’s children were from a previous marriage, and included assets which were not capable of forming part of the free estate of the deceased, Douglas Miheso Mwagwi. He stated the protest was subsequently compromised by consent, pursuant to which he abandoned the other grounds and agreed to partial confirmation of the grant in respect of the uncontested assets. As a result, viva voce evidence was dispensed with leaving only one issue for determination whether Land Parcel No. KJD/KAPUTIEI-NORTH/50990 forms part of the free estate of Douglas Miheso Mwagwi. He noted that the property had been listed among the estate assets in the affidavit in support of the petition for letters of administration dated 28th March 2022.
40. The protestor contended that the said parcel of land, having been jointly acquired and registered in the names of Immaculate Naliaka Simiyu and Douglas Miheso Mwagwi, does not form part of the free estate and cannot be distributed under Section 40 of the Law of Succession Act, Cap 160. In support of this position, reliance was placed on the decision of the High Court in In the Matter of the Estate of Isaak Karanja (Deceased), Succession Cause No. 223 of 2014, Hannah Wairimu (Protestor) v Jane Wambui Karanja & Another and the case of Dorcas Wangari Macharia v Kenya Commercial Bank & 2 Others, Nairobi High Court Civil Case No. 18 of 2003 (O.S).
41. The protestor further submitted that the respondent’s argument that upon the death of Immaculate Naliaka Simiyu, her interest in the property was extinguished by survivorship, fails to take into account the settled principles of equity and trust law. He relied on the Court of Appeal decision in Rono v Rono & Another [2005] eKLR, and Echaria v Echaria [2007] eKLR, to argue that contributions towards the acquisition of matrimonial property must be considered and that resulting or constructive trusts may arise in determining proprietary interests of spouses.
42. According to the protestor, jointly acquired matrimonial property creates beneficial interests which do not automatically terminate upon the death of one spouse. He relied on Section 6 of the Matrimonial Property Act, No. 49 of 2
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a. Spent
b. That the grant issued on 25th July 2022 be revoked as the Petitioners obtained it by concealment of material facts which would not have been granted had the court been made aware.
c. That the grant was obtained fraudulently in that the Petitioners obtained it by concealment of material facts which would not have been granted had the court been made aware.
d. That the grant was obtained fraudulently in that the petitioners never sought the consent from the next of kin to the children of IMMACULATE NALIAKA SIMIYU who are the direct beneficiaries in the suit estate when the grant was issued.
e. That the grant was obtained by means of untrue allegations of facts essential in point of law to justify the grant in that the Respondents included assets which do not form part of the estate to the deceased.
f. That the proceeding to obtain the grant were defective and flawed in substance.
g. That the court invokes its inherent powers in making an order to revoke the letter of grant od administration issued to the Respondent and the subsequent confirmation on the abovementioned grounds.
h. Spent
i. Spent
j. That this matter be transferred to the High Court in Kajiado and be heard together with the succession cause No. 95 of 2019 in the Matter of the Estate of Immaculate Naliaka Miheso alias Immaculate Simiyu filed in the Chief Magistrates Court at Kajiado.
k. Costs of this application.
2. The application is supported by the grounds set out on its face and by an amended affidavit in protest to the summons for confirmation of grant dated 25th July 2022 sworn by Simiyu Edmunds David Wekesa on 24th July 2023. In the affidavit, the deponent states that he is the father of the late Immaculate Naliaka Simiyu and the maternal grandfather of Andrew Davids Ang’ute, Karen Kaleha Miheso and Lynn Mbone Miheso. He further depones that he is the guardian of the said children, who are dependants in the estate of the late Douglas Miheso Mwagwi.
3. The deponent further avers that following the demise of Douglas Miheso Mwagwi, who had been his co-administrator in the estate of Immaculate Naliaka Simiyu, he remains the sole administrator in Succession Cause No. 95 of 2019, In the Matter of the Estate of Immaculate Naliaka Miheso alias Immaculate Simiyu pending before the Chief Magistrate’s Court at Kajiado. He states that by virtue of his position, he bears responsibility for all matters relating to the estate of Immaculate Naliaka Simiyu and for safeguarding the interests of the deceased’s children.
4. The protestor states that the respondents petitioned for letters of administration intestate on 5th July 2022 and were issued with a grant on 25th July 2022. He avers that a consent dated 28th March 2022 was filed by Ann Iminza Douglas, Annet Mmbone Miheso and Hedrick Mwagwi Miheso, who purported to represent the children of the late Immaculate Naliaka Simiyu. He contends that as the legal guardian of the said children and administrator of their mother’s estate, his consent was mandatory prior to the filing of the petition, but the respondents proceeded without his knowledge or involvement.
5. The protestor further depones that the respondents included assets that do not form part of the estate of Douglas Miheso Mwagwi. In particular, he challenges the inclusion of Title Number KJD/KAPUTIEI-NORTH/50990, which was listed as asset number three. He avers that the said property was jointly owned by the deceased Douglas Miheso Mwagwi and Immaculate Naliaka Simiyu. Upon the death of Immaculate Naliaka Simiyu, her interest therein vested in Douglas Miheso Mwagwi only in trust for their children, namely Andrew Davids Ang’ute, Karen Kaleha Miheso and Lynn Mbone Miheso, and therefore the property ought to devolve exclusively to the said children.
6. The protestor also avers that the respondents concealed from the court the existence of Succession Cause No. 95 of 2019 relating to the estate of Immaculate Naliaka Simiyu, which remains pending before the Chief Magistrate’s Court at Kajiado. He states that the confirmation of grant has been delayed because the respondents have allegedly withheld crucial documents relating to the said estate. He particularizes the documents as including; title deeds and property documents relating to plots at Noonkopir Trading Centre (Plots Nos. 0633, 0634 and 0636), land parcels KJD/KAPUTIEI NORTH/69996 and KJD/KAPUTIEI-NORTH/50990, shares in Hazina Sacco and LAPD Fund, bank documents for accounts held at Standard Chartered Bank, Kenya Commercial Bank, and Kenya Women Finance Trust, logbooks for motor vehicles KBX 991J and KCA 183A, academic certificates and other personal documents of the late Immaculate Naliaka Simiyu, birth certificates and insurance policies for her children, the death certificate of Douglas Miheso Mwagwi., and any other relevant documents.
7. He further avers that the respondents, together with one David Omega, who is described in the petition as a guarantor, have facilitated intermeddling with the estate of Immaculate Naliaka Simiyu. He alleges that they unlawfully authorized Clintone Chotero Ngaye to take possession of and use motor vehicle KCA 183A, contrary to his authority as administrator of that estate and in disregard of a court order issued in Kajiado on 11 November 2021. He states that whenever he demands the surrender of the vehicle, Clintone Chotero refuses and claim that he was directed by David Omega to continue using it. The protestor maintains that he has never authorized Clintone Chotero, David Omega or any other person to manage or deal with the affairs of the estate of Immaculate Naliaka Simiyu.
8. He also contends that the respondents deliberately instituted the present succession proceedings in a different court instead of Kajiado, where the earlier succession cause relating to the estate of Immaculate Naliaka Simiyu is pending, with the intention of circumventing due process. He avers that had the court been aware of the existence of that succession cause and the surrounding circumstances, it would not have issued the grant to the respondents.
9. Further, the protestor states that the respondents have approached the court with unclean hands, having suppressed material information and misled the court while seeking confirmation of the grant. He adds that the respondents have refused to release title documents and other records relating to the estate of Immaculate Naliaka Simiyu, thereby frustrating the inclusion of additional assets and the eventual confirmation of the grant in Succession Cause No. 95 of 2019. He identifies properties that were allegedly omitted from that succession cause, including Plot Number KJD/KAPUTIEI-NORTH/50990, another plot at Noonkopir Trading Centre measuring approximately 0.045 hectares, and an additional property situated in Kitengela town next to Deliverance Church, together with other properties that may be disclosed in due course.
10. The protestor therefore avers that the respondents obtained the grant through concealment of material facts, including the existence of another succession cause involving overlapping interests. He further alleges that the respondents’ advocate, M/s Waithira Kamiti & Co. Advocates, was aware of the existence of the earlier succession proceedings, having previously represented Douglas Miheso Mwagwi in the Kajiado succession cause, but nonetheless proceeded with the petition without involving him. He contends that, as a matter of professional obligation, the advocate ought to have contacted him to inquire whether he wished to participate as a co-petitioner in order to safeguard the interests of the estate of Immaculate Naliaka Simiyu.
11. Finally, the protestor avers that the grant was obtained fraudulently, and without the consent of the children of Immaculate Naliaka Simiyu who are the rightful beneficiaries of Title Number KJD/KAPUTIEI-NORTH/50990 and on the basis of untrue allegations of fact essential to justify the grant. He further states that the proceedings leading to the issuance of the grant were defective and flawed in substance. Consequently, he urges the court to invoke its inherent powers to revoke the grant of letters of administration issued to the respondents together with the subsequent confirmation, and to decline confirmation in the interest of justice.
12. In response, the Respondent’s/Petitioners filed a Replying Affidavit sworn on 12th September 2023 by Linet Mmbone Mwagwi and Maxwell Aginga Mwagwi, the administrators of the estate of the late Douglas Miheso Mwagwi. They state that the Applicant lacks locus standi to lodge the protest as he is neither a beneficiary nor a dependant of the deceased within the meaning of the law, and that the protest is intended solely to delay the confirmation of the grant and obstruct the administration of the estate.
13. They depone that the late Douglas Miheso Mwagwi died intestate on 31st August 2021 while domiciled within the jurisdiction of the Court and was survived by his children as beneficiaries and his mother as a dependant. They state that they are related to the deceased as his biological mother and younger brother respectively. They further depose that both of the deceased’s wives, namely Mirriam Atayi Kanale and Immaculate Naliaka Miheso alias Immaculate Naliaka Simiyu, predeceased him on 2nd January 2020 and 31st December 2018 respectively. Each wife left three children. The children of the first wife’s children are Ann Iminza Douglas, John Mwenje Miheso and Peace Dodi Miheso, while those of the second wife are Andrew Davids Ang’ute, Karen Kaleha Miheso and Lynn Mmbone Miheso. They further state that the deceased had other known children, namely Annety Mmbone Miheso, Hedrick Mwagwi Miheso, Lynex Maua and Jabali Miheso, bringing the total number of beneficiaries to ten, with one dependant being the deceased’s mother.
14. The Respondents depone that following the death of the deceased, a meeting of the extended family was held on 24th October 2021 during which it was agreed that they would act as administrators of the estate, while David Omega Mwasiaji would act as one of the sureties. They state that they thereafter petitioned the Court for letters of administration intestate without any non-disclosure or misrepresentation. They add that the adult beneficiaries consented to their appointment as administrators so as to enable them represent the interests of the minor’s beneficiaries who lacked legal capacity to give consent. They further state that their appointment was also supported by a letter from the area Chief dated 25th October 2022 which listed the beneficiaries and the known assets of the deceased.
15. They aver that the Applicant, being the father-in-law of the deceased, does not qualify as a beneficiary or dependant under Section 29 of the Law of Succession Act, and that his consent was therefore not required prior to filing of the petition. They further state that shortly after the death of the deceased, the Applicant took custody of the deceased’s children, without obtaining any formal guardianship order from a Children’s court. They contend that although the Applicant claims to be the guardian of the children, he has failed to produce any lawful order appointing him as such. They add that the second Respondent obtained legal guardianship of two orphaned children of the deceased, namely John Mwenje Miheso and Peace Dodi Miheso, for purposes of providing care and attending to their welfare, including medical cover and school matters.
16. The Respondents further state that administration of an estate is distinct from guardianship and therefore the Applicant’s assertion that his consent ought to have been obtained has no basis in law. They add that although the Applicant claims to be the sole administrator of the estate of the late Immaculate Naliaka Miheso, that position does not entitle him to participate in the administration of the estate of Douglas Miheso Mwagwi. They emphasize that the two estates are separate and independent, notwithstanding the marital relationship between the two deceased persons.
17. The Respondent depone that in petitioning for letters of administration, they fully complied with the requirements of Section 51 of the Law of Succession Act. They state that they disclosed their relationship with the deceased, listed all known beneficiaries and assets, and obtained the requisite consent from the adult beneficiaries. They reiterate that the estate of Douglas Miheso Mwagwi is distinct from the estate of Immaculate Naliaka Miheso and cannot be merged merely because the two deceased persons were spouses.
18. They explain that the succession cause was filed before the High Court at Machakos because the deceased resided at Sofia in Mavoko Constituency where his matrimonial home was located and where his children continue to reside. They further state that the deceased died at Kenyatta National Hospital while domiciled in Mavoko and that the majority of his known properties are located within that jurisdiction. They aver that the approximate value of the estate is Kshs. 30,000,000, which exceeds the pecuniary jurisdiction of the subordinate court. Accordingly, they maintain that the High Court at Machakos was the proper forum to institute the succession proceedings.
19. The Respondents further depone that the late Immaculate Naliaka Miheso, was buried on land belonging to the deceased’s family in Vihiga County in accordance with Luhya customary law, given that she was married at the time of her death. They emphasize that they have never interfered with the estate of the late Immaculate Naliaka Miheso and have no interest therein. They also aver that Succession Cause No. 95 of 2019 relating to her estate was concluded and the grant confirmed on 10th June 2021 in the presence of the Applicant before Hon. B. Cheloti.
20. They contend that the Applicant therefore misled the Court by alleging that the grant in that cause had not been confirmed. The Respondents further state that the assets listed in paragraph 13 of the protest do not form part of the estate of Douglas Miheso Mwagwi. They assert that the only asset common to both estates is LR No. KJD/Kaputiei-North/50990, which was jointly owned by the deceased and his late wife Immaculate Naliaka Miheso. They aver that upon the death of Immaculate Naliaka Miheso on 31st December 2018, the property devolved to Douglas Miheso Mwagwi by operation of the doctrine of survivorship. Consequently, upon his subsequent death intestate, the property constituted part of his free estate and was properly included among the assets to be distributed in accordance with the intestacy provisions.
21. They state that as administrators they cannot lawfully allocate that property to a specific class of beneficiaries as demanded by the Applicant, since the deceased died intestate and all beneficiaries are entitled to equal consideration. They depone that among the deceased’s personal effects they recovered the death certificate and academic certificates of Immaculate Naliaka Miheso, birth certificates of her children, the logbook and possession of motor vehicle KCA 183A, letters of allotment for Noonkopir Trading Centre plots 0633, 0634 and 0636, the title deed for KJD/KAPUTIEI-NORTH/69996, receipts and correspondence with the County Council of Olekejuado, and certain sale agreements. They state that these are the only documents in their possession and that the Applicant is at liberty to collect them.
22. The Respondents deny the allegations of intermeddling with the estate of the Applicant’s daughter or concealed documents. They maintain that they have no knowledge of the whereabouts of the alleged assets and deny ever being served with any court order requiring them to surrender of motor vehicle KCA 183A. They state that if such an order existed, the Applicant ought to have pursued contempt proceedings. They further depone that properties arising from subdivisions of KAJIADO/ILDAMAT/6117 are currently subject of litigation in ELC Case No. E063 of 2023 and therefore do not form part of the assets available for distribution in the present succession cause.
23. The Respondents also contend that the allegations made against their advocate are misplaced, noting that an advocate is bound by advocate–client confidentiality and can only act upon instructions from her clients. They explain that the advocate had concluded her role in the succession cause relating to Immaculate Naliaka Miheso before the death of Douglas Miheso Mwagwi and that the two matters involve distinct estate and different clients. They aver that the Applicant has failed to demonstrate any misconduct on their part or any grounds warranting revocation of the grant under Section 76 of the Law of Succession Act. They further state that the grant was duly gazetted and no objection was raised within the statutory period.
24. Finally, the respondents state that several beneficiaries are minors who depend on the estate for their basic needs and education. They urge the Court to dismiss the protest and allow confirmation of the grant, or in the alternative permit partial confirmation excluding the disputed property KJD/KAPUTIEI-NORTH/50990, so that the remaining assets may be distributed for the benefit of the children in accordance with the law and the constitutional principles of access to justice and the best interests of the child.
25. The protestor subsequently filed a supplementary affidavit sworn on 30th September 2023, in which he reiterates that the petitioners irregularly included the children in the present succession cause and purported to obtain their consent despite their lack of legal capacity to consent, and without involving him as their next friend and guardian. He further avers that two of the children, Andrew Davids Angute and Karen Kaleha, were born out of his daughter’s first marriage to John Ochieng Angute and were not biological children of the deceased Douglas Miheso Mwagwi, and that their inclusion as beneficiaries was procedurally and legally improper.
26. The protestor further deposes that several assets listed in the petition do not form part of the free estate of the deceased, Douglas Miheso Mwagwi, but constitute property joint or commonly owned with his late daughter. He maintains that, such properties ought to devolve primarily to the children of Immaculate Naliaka Simiyu and should not be distributed among the wider beneficiaries of the deceased. He asserts that any property that devolved to Douglas Miheso Mwagwi upon the death of Immaculate Naliaka Simiyu did so under a resultant trust in favour of her children.
27. He further alleges that following the death of the deceased, the petitioners intermeddled with both estates by removing household items, personal effects, and other property from the matrimonial home at Noonkopir. He further alleges that motor vehicle registration number KCA 183A is unlawfully held by one Clintone Ngaye, a relative of the petitioners, in defiance of court orders. The protestor also claims that the petitioners have withheld crucial documents relating to the estate of Immaculate Naliaka Simiyu, including the children’s birth certificates and property documents, thereby hindering proper administration of that estate.
28. The protestor further states that Succession Cause No. 95 of 2019 relating to the estate of Immaculate Naliaka Simiyu remains pending due to the petitioners’ interference and failure to disclose all assets and liabilities of that estate. He contends that the two succession causes involve overlapping and jointly owned properties and that they ought therefore to be handled together or concurrently by the court in order to ensure a fair, coherent and comprehensive determination of competing interests.
29. In conclusion, the protestor reiterates that the grant issued in the present cause was obtained through concealment of material facts and through a process that was defective in substance. He particularly faults the failure to involve him as the next friend of the minor’s beneficiaries and the inclusion of assets that do not form part of the deceased’s free estate. He therefore urges the court to direct the filing of a full and accurate inventory of the deceased’s assets, to exclude or properly address jointly owned properties, to consider consolidation or concurrent handling of this cause with Succession Cause No. 95 of 2019, and to ensure that the interests of the three children of Immaculate Naliaka Simiyu are adequately safeguarded before any confirmation of grant is undertaken.
30. The Respondents subsequently filed a supplementary affidavit sworn on 7th February 2024 addressing the issues by the protestor. In summary, they averred that they are the duly gazetted administrators of the estate of the late Douglas Miheso Mwagwi and that they are the biological grandmother and uncle to most of the beneficiaries. They reiterated the contents of their earlier replying affidavit and maintained that the protestor’s allegations are unfounded. They further deposed that the only property jointly owned by the late Douglas Miheso Mwagwi and the late Immaculate Naliaka Miheso was Land Parcel No. KJD/Kaputiei-North/50990 which, by operation of the doctrine of survivorship, devolved to Douglas Miheso Mwagwi following the death of Immaculate Naliaka Miheso and therefore forms part of his estate.
31. The respondents further asserted that Douglas Miheso Mwagwi was domiciled within the jurisdiction of the High Court at Machakos and that the court therefore has proper jurisdiction to hear and determine the succession cause. They acknowledged that Immaculate Naliaka Simiyu had two children from a previous marriage but stated that Douglas Miheso Mwagwi accepted them as his own children and even caused the name of one child to be changed in her birth certificate to reflect him as the father. They maintained that the children lived under the care and support of the deceased until his death and only later went to live with the protestor during school holidays in 2022.
32. The respondents denied allegations that they unlawfully removed household items from the deceased’s homes, describing the accusations as malicious and unsupported by evidence. They further stated that the motor vehicle registration number KCA 183A and other documents that were previously in their possession were released to the protestor in compliance with court orders, thereby rendering those complaints overtaken by events.
33. The respondents also contended that the protestor lacks legal authority to act as a guardian of the minors, as no court order appointing him as such has been produced. They maintained that the consents filed in the succession cause were procedural requirements applicable only to adult beneficiaries and were not intended to bind the minors. They further stated that they are unaware of any other joint properties between Douglas Miheso Mwagwi and Immaculate Naliaka Miheso apart from the parcel of land already disclosed, and asserted that the protestor has failed to identify any additional assets to substantiate his allegations. They emphasized that the estate under administration strictly belongs to the late Douglas Miheso Mwagwi and does not overlap with the estate of Immaculate Naliaka Miheso.
34. In conclusion, the respondents denied allegations of concealment of material facts, intermeddling, or disinheritance of the children of Immaculate Naliaka Miheso. They asserted that the estate is being administered in accordance with the law governing intestate succession and urged the court to dismiss the protest on the ground that it is speculative, malicious, and intended solely to delay the administration and distribution of the estate.
35. When the matter came up for hearing and following consultations between the parties, a consent was recorded to the effect that;
a. The mode of distribution in respect of Land Parcel No Waitaluk/Kapkoi 4/Waitaluk/127 be registered in the name of Andrew Davids Angute, and Karen Kaleha Miheso to hold in trust for Lynn Mmbone Miheso in equal shares.
b. The issue whether Land Parcel No Kajaido /Kaputei North/50990 being alleged to be joint property between the deceased herein and Immaculate Naliaka Simiyu alias Immacula Naliaka Miheso form part of the estate to be determined by way of written submissions and documents.
36. The effect of the consent was that the protestor abandoned all the grounds raised in the application dated 18th July 2023, thereby allowing partial confirmation of the grant in respect of the uncontested assets. Consequently, the only issue remaining for determination was whether Land Parcel No. Kajiado/Kaputei North/50990 forms part of the free estate of Douglas Miheso Mwagwi. The issue was canvassed by way of written submissions. In the same vein, leave was granted to the Petitioners to file an amended mode of distribution, giving rise to the Summons for partial confirmation of grant dated 16th October 2025, seeking confirmation of the grant of letters of administration intestate issued on 25th July 2022 to Linet Mmbone Mwangwi and Maxwell Aginga Mwagwi as follows;
a.) North/Maragoli/Kegondi/105- 0.6 hectares to be registered in the name of Hedrick Mwagwi Miheso.
b.) North/Maragoli/Viyalo/1825- 0.40hectares to be registered in the name of Annety Mmbone Miheso for herself and to hold in trust for Lynn Mmbone Miheso in equal shares.
c.) North/Maragoli/Kegondi/2536- 0.42 hectares to be registered in the name of Ann Iminza Douglas and John Mwenje Miheso and to hold in trust for Peace Dodie Miheso in equal share for the three.
d.) Waitaluk/Kapkoi/Block4/Waitauk/127- 1 acre to be registered in the names of Andrew Davids Ang’ute, Karen Kaleha Miheso to hold in trust for Lynn Mmbone Miheso in equal shares.
e.) North/Maragoli/Kegondi/2497- 0.47hectares to be registered in the names of Linet Mmbone Mwagwi and Maxwell Aginga Mwagwi to hold in trust for Lynex Maua and Jabal Miheso equally.
f.) Land Reference No. Block 10426/23 Mavoko Municipality Plot 59- to be registered in the names of Linet Mmbone Mwagwi and Maxwell Aginga Mwagwi.
g.) Mavoko Municipality Sofia Plot No. 40- to be registered in the names of Linet Mmbone Mwagwi and Maxwell Aginga Mwagwi.
h.) Money in Standard Chartered Account No. 0100204353000- to be registered in the names of Linet Mmbone Mwagwi and Maxwell Aginga Mwagwi.
i.) Money in Cooperative Bank account No. 011090653789000022- to be registered in the names of Linet Mmbone Mwagwi and Maxwell Aginga Mwagwi.
j.) Money in National Bank Account No. 0103709558530- to be registered in the names of Linet Mmbone Mwagwi and Maxwell Aginga Mwagwi.
k.) NSSF Benefits- to be registered in the names of Linet Mmbone Mwagwi and Maxwell Aginga Mwagwi.
37. There being no objection to the partial confirmation of grant from any beneficiary, the summons for partial confirmation of grant dated 16th October 2025 is allowed as prayed.
38. Turning to the application dated 18th July 2023, parties canvassed the same by way of written submissions.
Protestor’s submissions
39. The protestor submitted that the protest initially raised several issues, including allegations that the petitioners fraudulently moved the court by purporting to obtain consent on behalf of the children of the late Immaculate Naliaka Simiyu, concealment of material facts by failing to disclose that two of Immaculate’s children were from a previous marriage, and included assets which were not capable of forming part of the free estate of the deceased, Douglas Miheso Mwagwi. He stated the protest was subsequently compromised by consent, pursuant to which he abandoned the other grounds and agreed to partial confirmation of the grant in respect of the uncontested assets. As a result, viva voce evidence was dispensed with leaving only one issue for determination whether Land Parcel No. KJD/KAPUTIEI-NORTH/50990 forms part of the free estate of Douglas Miheso Mwagwi. He noted that the property had been listed among the estate assets in the affidavit in support of the petition for letters of administration dated 28th March 2022.
40. The protestor contended that the said parcel of land, having been jointly acquired and registered in the names of Immaculate Naliaka Simiyu and Douglas Miheso Mwagwi, does not form part of the free estate and cannot be distributed under Section 40 of the Law of Succession Act, Cap 160. In support of this position, reliance was placed on the decision of the High Court in In the Matter of the Estate of Isaak Karanja (Deceased), Succession Cause No. 223 of 2014, Hannah Wairimu (Protestor) v Jane Wambui Karanja & Another and the case of Dorcas Wangari Macharia v Kenya Commercial Bank & 2 Others, Nairobi High Court Civil Case No. 18 of 2003 (O.S).
41. The protestor further submitted that the respondent’s argument that upon the death of Immaculate Naliaka Simiyu, her interest in the property was extinguished by survivorship, fails to take into account the settled principles of equity and trust law. He relied on the Court of Appeal decision in Rono v Rono & Another [2005] eKLR, and Echaria v Echaria [2007] eKLR, to argue that contributions towards the acquisition of matrimonial property must be considered and that resulting or constructive trusts may arise in determining proprietary interests of spouses.
42. According to the protestor, jointly acquired matrimonial property creates beneficial interests which do not automatically terminate upon the death of one spouse. He relied on Section 6 of the Matrimonial Property Act, No. 49 of 2
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