HIGH COURT SUCCESSION CAUSE NO 789 of 2013
IN THE MATTER OF THE ESTATE OF DUNCAN MUNGE GIKONYO ALIAS DUNCAN MUNGE S/O GIKONYO (DECEASED)
ANN NKIROTE MUNGE ……………………………………PROTESTOR
VERSUS
PETER MANYI MUNGE………………………………..ADMINISTRATOR
JUDGEMENT
1. The Protestor herein ANN NKIROTE MUNGE has filed in Court a
Summons for Revocation of Grant dated 15 th November 2015 seeking
revocation of the Confirmed Grant issued to the Administrators on 20 th
November 2014.
2. The Administrator of the estate PETER MANYI MUNGE filed a Replying
Affidavit dated 4 th December 2015 opposing the summons for revocation. The matter was canvassed by way of oral evidence. At the close of hearing parties were invited to file their written submissions. The protestor filed the written submission dated 14 th April 2026 whilst
the Respondents relied upon their submissions dated 16 th April 2026 .
BACKGROUND
3. This succession cause relates to the estate of the late DUNCAN MUNGE
GIKONYO (hereinafter the Deceased’) who passed away on 19 th August 2013 . A copy of the Death Certificate Serial No. 0037189 is attached to the Petition for Letters of Administration dated 6 th November 2013.
4. In the said Petition it was indicated that the Deceased was survived by
the following persons
(a) Ann Nkirote - Widow.
(b) Elizabeth W. Ngumo - Daughter
(c) David Gikonyo Munge - Son
(d) Peter Manyi Munge - Son
(e) Mary Wanjiku Munge - Daughter
(f) Nancy Wakiru Munge - Daughter
(g) Rose Nyambura Munge - Daughter
(h) Joy Wangari Munge - Daughter
5. The estate of the Deceased comprised of the following assets
(i) Land Parcel CHINGA/GATHERA/0628
(ii) Land Parcel CHINGA/GATHERA 051019 (L)
(iii) Land Parcel CHINGA/GATHERA 589
(iv) Land Parcel Laikipia/Uwaso Narok/707
(v) Account No. 011111796101 held at Family Bank
(vi) 4030 shares with KTDA Chinga
6. Following the demise of the Deceased his son Peter Manyi Munge
petitioned for and was on 7 th January 2014 issued with letters of Administration Intestate. The Grant was duly confirmed on 20 th November 2014 . According to the Certificate of Confirmation of Grant the estate of the Deceased was to be distributed as follows:-
“NAME DESCRIPTION OF PROPERTY SHARE OF HEIRS
A. ANN NKIROTE - L.R NO. LAIKIPIA/UASO – NAROK/707 WHOLE
B. L.R NO. CHINGA/GATHERA S. 89 BE SHARED EQUALLY BY:-
1. PETER MANYI MUNGE
2. MARY WANJIKU MUNGE
3. LUCY NJOKI MUNGE
4. ROSE NYAMBURA MUNGE
C. L.R CHINGA/GATHERA – D. 628 BE SHARED EQUALLY BY:-
1. DAVID GIKONYO MUNGE
2. NANCY WAKIRU MUNGE
3. ELIZABETH WAKANYI MUNGE
D. CHINGA/GATHERA/D.510/9 (L) BE TRANSFERED TO DAVID GIKONYO MUNGE
E. K.T.D.A SHARES BE TRANSFERED TO PETER MANYI MUNGE AND NANCY WAKIRU MUNGE
F. FAMILY BANK A/C NO. 011111796101 TO NANCY WAKIRU MUNGE.”
7. The Protestor then filed this Summons for revocation of Grant on
account of her dissatisfaction with the mode of distribution of the
estate.
8. On his part the Respondent asserts that the estate was fairly
Distributed and that all beneficiaries were included in the said
distribution. He urges the Court to dismiss the summons in its
entirety.
THE EVIDENCE
9. The Protestor told the Court that she was the second wife of the Deceased. That she had one child and at the time of Deceased’s deaths she was pregnant with their second child. She states that she has always resided with the Deceased on the parcel of land known as LR Chinga/Gathera/89 and that during his lifetime the Deceased allocated to her 1,500 tea bushes to support her upkeep.
10. The Protestor complains that she was not informed when the summons
for confirmation of Grant came up for hearing. That she has been
completely left out of the distribution of the estate of the deceased that
the succession cause was commenced and proceeded without her
knowledge and/or import. That she was not served with the summons
for confirmation of Grant and the Protestor denies that she signed the
consent to that summons dated, 1 st July 2014 .
11. The Protestor states that during his lifetime the Deceased had indicated
to the family how he wished his estate to be distributed. The Protestor
insists that the land in Laikipia had been given by the Deceased to her
mother as dowry when he married the Protestor. That the deceased
put up rental units for the protestors mother on said land. The Protestor
prays that the Grant be revoked.
12. PW2 STEPHEN GIKONYO WAITHAKA told the court that the
deceased was his cousin. PW2 stated that he knew the Protestor Ann
Nkirote as the second wife of the Deceased. That the deceased’s first
wife died in the year 2005 after which the deceased attempted to marry
one ‘ Mama Grace’ but his children vociferously opposed this plan and
the deceased abandoned the said ‘Mama Grace’ . PW2 states that the
deceased adamantly proceeded to marry the Protestor against the
wishes of his children. He states that the Protestor came into the
marriage with one daughter and that she was pregnant when the
deceased died.
13. PW2 stated that during his lifetime the deceased had indicated to
him how his properties were to be distributed. PW2 stated that the
land in Kieni - Laikipia had been given by deceased as dowry to the
mother of the protestor. Both the protestor and PW2 both oppose the
allocation of parcel of land known as LR No. Laikipia/Uwaso-
Narok/707 to the Protestor (as indicated in the confirmed grant).
They insist that this parcel of land belongs to the Protestors Mother who
received the same as dowry for her daughter.
14. The Respondent Peter Manyi Munge told the Court that he was a son
of the Deceased from the first wife. The Respondent states that his
mother who died in the year 2005 bore seven (7) children. He confirms
that he was appointed as administrator of the estate of his late father.
15. The Respondent vehemently denies the Protestors claim that she has
been excluded from this succession cause. He states that the Protestor
is not a wife of the deceased. That he only met her when deceased
was ailing at Outspan Hospital in Nyeri. According to the
Respondent after the demise of the deceased the family met and
they nevertheless included the Protestor as one of the beneficiaries of
the estate. He states that he has involved the Respondent each step
of the way and that she was aware of the confirmation of the grant
and even signed the consent.
16. According to the Respondent the deceased had settled the Protestor on
parcel of land LR Laikipia/Uaso-Narok/707 . That the Protestors
mother has been occupying the said parcel of land to date.
17. DW2 TITUS GICHERU GIKONYO told the Court that the deceased
was his elder brother. He stated that he only met the Protestor when
she accompanied the deceased to the home of DW2 to attend his
daughters wedding. He states that he does not know whether the
Deceased had married the Protestor as he never accompanied the
deceased for any cultural marriage rites. DW2 stated that after the
burial of the deceased he chaired a family meeting where it was agreed
how the estate should be distributed. He reiterates that the protestor
was a friend to the Deceased who lived with the Deceased after his
first wife died in the year 2005 .
18. DW3 MARY WANJIKU is a daughter of the deceased from the first
wife. DW1 states that the Protestor has been fully aware of this
succession cause from its inception and was an active participant in the
same. She states that when the family went to withdraw the funds from
the accounts held by deceased, the protestor accompanied them and
that she was even given a share of the money. DW3 state that the
deceased had settled the Protestor on his land in Laikipia where the
mother of the Protestor currently resides. Both the Respondent and
DW3 submit that the protest has no merit and urge the court to dismiss
the same.
ANALYSIS AND DETERMINATION
19. I have carefully considered the protest before this court, the reply
filed thereto, the evidence adduced by the various witnesses as well as the written submissions filed by both parties.
20. It is common ground that the Deceased in this matter passed away way back on 19 th August 2013 . The court was told that the Deceased had a first wife who having died in the year 2005 pre-deceased him. The Protestor claims to be the 2 nd wife of the Deceased. The question of whether or not the protestor was a wife of the deceased was not much contested by the Respondent. It seems that the Protestor was cohabiting with the Deceased at the time of his death and according to the protestor she was pregnant for deceased at the time of his death. It would appear that the family met and agreed to include the Protestor as a beneficiary to the estate.
21. The Protestor is seeking to have the grant issued to the Respondent
revoked. The grounds upon which a Grant may be revoked are set out
in Section 76 of the Law of Succession Act which provides 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 .” [own emphasis]
22. This provision of the law was expounded upon by the court in the
case of RE ESTATE OF PRISCA ONG’AYA MANDE (Deceased)
2020 eKLR where it was held as follows:-
“A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. 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 matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons. 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 circumstance, 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.”
23. The Protestor has in her Summons alleged that she was not made aware
of this succession cause at all and that she was not informed of the
hearing of the summons for confirmation of Grant. From the record this
allegation by the Protestor is a blatant lie. Both the Respondent and
DW2 confirm that the Protestor attended the family meetings and
accompanied them to the Chief’s office to get the introductory letter.
The chief’s letter dated 13 th November 2013 names the Protestor Ann
Nkirote as a widow of the Deceased. Moreover the protestor has
appended her signature next to her name on that letter.
24. Secondly I note that the Protestor has signed the consent to making
of the Grant to the Respondent. That consent is dated 6 th November
2013 and once again the Protestor has appended her signature against
her name. The Protestor has not denied having signed any of the above
documents. It is clear therefore that the Protestor was aware and was
fully involved in this succession cause from its inception. In her evidence
the protestor admits that she did attend a meeting at the chief’s office.
25. The Protestor categorically denies having had knowledge of the
hearing of the summons for confirmation of Grant dated 1 st July 2014 . The record indicates that said summons was heard by Hon. Justice Ngaah on 20 th November 2014 . On that date the Respondent was in court in his capacity as the administrator of the estate. All the other beneficiaries save for the Protestor were said to be in court. The learned Judge considered the summons and noted that the Protestor Ann Nkirote had signed the consent and proceeded to confirm the grant notwithstanding the physical absence of the protestor.
26. I have perused the summons for confirmation of grant dated 1 st July
2014 as well as the consent to the summons which is also dated 1 st
July 2014 . I note that the Protestor has appended her signature
against her name on that consent as did all the other beneficiaries.
27. The Protestor vehemently denies having signed the consent dated 1 s t
July 2014 . She claims that her signature on the consent has been
forged. In her evidence the protestor says;-
“I did not sign the consent of the confirmation of the grant. The consent is dated 1/7/2014. I never went before advocate CM King’ori. The signature on this
consent is not mine. It is fake.”
28. The protestor invites the court to make a comparison of the signature
on that consent and her signature on all the other documents. This
court does not have the expertise of a document examiner and cannot
tell whether a signature is a forgery or not, simply by looking at it.
29. It is trite law that he who alleges must prove. It is a general proposition
of the law that the legal burden of proof lies upon the party who invokes
the aid of the law. Section 107(1) of the Evidence Act (Chapter 80
of the Laws of Kenya) provides as follows:-
“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
30. Sections 109 and 112 of the same Act provide that:
“109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie
on any particular person.“112. In civil proceedings,
when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”
31. The two provisions of the law were dealt with in the decision of Anne
Wambui Ndiritu -vs- Joseph Kiprono Ropkoi & Another [2005
1 EA 334 , in which the Court of Appeal held as follows:
“As a general proposition under Section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which
is captured in Sections 109 and 112 of the Act.”
32. Similarly in Gatirau Peter Munya vs Dickson Mwenda Kithinji & 3
Others (2014) eKLR the Supreme Court held inter alia:
“The person who makes such allegations must lead evidence to prove the fact. She or he bears the initial legal burden of proof, which she or he must discharge. The legal burden in this regard is not just a notion behind which any party can hide. It is a vital requirement of the law. On the other hand, the evidential burden is a shifting one, and is a requisite response to an already discharged initial burden. The evidential burden is the obligation to show if called upon to do so, that there is sufficient evidence to raise an issue as to the existence of a fact in issue.”
33. By denying her signature on the consent the Protestor is clearly alleging
that the confirmed grant was obtained by way of fraud being the forgery
of her signature on the consent. Firstly forgery is an offence under
Section 345 of the Penal Code Cap 63 Laws of Kenya . The
Protestor did not make any report regarding the forgery of her signature
to the police or indeed to any other authority.
34. Secondly a party seeking to rely on allegation of fraud must not only
plead but must also prove the alleged fraud. In the case of ARTHI
HIGHWAY DEVELOPERS LTD -VS- WEST END BUTCHERY LTD &
6 OTHERS [2015] eKLR the Court of Appeal held as follows:-
“As a serious allegation fraud ought to be specifically pleaded and proved on higher balance of probability but not beyond reasonable doubt………”
35. Proof of fraud requires clear and cogent proof. The standard of proof
on allegation of fraud was discussed in the case Urmila W/O
Mahendra Shah VS. Barclays Bank International Ltd & Another
(1979) eKLR thus:-
“As was said by this Court’s predecessor in RATILAL
GORDHANBHAI PATEL V LALJI MAKANJI [1957] EA 314, 317 :
“There is one preliminary observation which we must take on the learned judge’s treatment of this evidence: he does not anywhere….. expressly direct himself on the burden of proof or on the standard of proof required. Allegations of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required . There is no specific indication that the learned judge had this in mind:
there are some indications which suggest he had not.”
[Emphasis added]
36. In the case Kuria Kiarie & 2 Others Vs. Sammy Magera (2018)
eKLR in quoting Vijay Morjaria Vs Nansingh Madhusingh Darbar
& Another [2000] eKLR the court of Appeal also confirmed standard
of proof for fraud as follows:-
“It is well established that fraud must be specifically
pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts .’ [Emphasis added]
37. Finally on this issue in the case of KOINANGE & 13 Others -vs-
CHARLES KARUGA KOINANGE [1986] KLR the Court held that
“When fraud is alleged by the plaintiffs the onus is on the plaintiff to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy beyond reasonable doubt, something more than a balance of probabilities is required.”
38. It is one thing to throw about allegations of fraud but quite another
thing altogether to prove said allegations. The Protestor has made no
effort whatsoever to prove the allegation of fraud. No evidence was
tabled from a document examiner to confirm whether or not the
signature on the consent was that of the Protestor. The consent was
executed before a commissioner of Oaths Advocate CM King’ori . The
Protestor did not call this advocate as a witness to support her
contention that she never appeared before him to sign the consent.
39. As it is therefore the Protestors denial of her signature against her name
on the consent dated 1 st July 2014 remains a mere denial. The
protestor has not proved the fraud which she alleges. In the
circumstances I find and hold that the protestor did sign the consent
dated 1 st July 2014 , thereby giving her consent to the confirmation of
the grant as well as to the mode of distribution of the estate proposed
therein. Having so consented to the confirmation of Grant and the mode
of distribution of the estate the Protestor cannot now purport to renege
on that consent.
40. The Protestor objects to the allocation to herself of the Parcel of
land known as Laikipia/Uaso-Narok/707 . The Protestor and her
witness PW2 claim that the allocation runs counter to the expressed
wishes of the Deceased. It must be remembered that the deceased
died intestate. No written will left by the deceased was produced by
the protestor and no oral will was proved. Therefore any wishes
the deceased may have had regarding the distribution of his estate
have not been properly proved in this case.
41. The Protestor claims that the Laikipia land was given to her mother by
the deceased as dowry when he married the protestor. Dowry
negotiations are not conducted in secret. The protestor has not called
any witness to confirm that indeed the Deceased gave out this parcel
of land to her mother as dowry. There is no document signed by the
Deceased indicating that he had given out this parcel of land as dowry.
A copy of a search certificate dated 10 th September 2013 reveals that
LR Laikipia/Uaso-Narok/707 was still registered in the name of
Duncan Munge Gikonyo (the Deceased herein) at the time of his
demise. If the deceased truly intended to relinquish this parcel of land
as dowry he would have transferred the same to the protestor’s mother.
Why would the deceased retain in his own name a parcel of land which
he had given out as dowry. It is not lost on the court that the protestor
did not even call her own mother who is said to be still residing on the
land to testify as to whether or not the same was given to her as a
dowry payment.
42. Accordingly I reject this claim that the Laikipia Land had been given to
a third party as a pure fabrication. I find and hold that LR Laikipia
/Uaso-Narok/707 belonged to the Deceased at the time of his death.
The said parcel of land forms part of the estate of the deceased and is
available for distribution to the beneficiaries.
43. The Protestor claimed that she and her children were not provided for
in the distribution of the estate and states that they have been
effectively disinherited. Again this is a blatant lie. The certificate of
confirmed grant issued on 20 th November 2014 clearly indicates that
the entire Laikipia parcel of land was allocated to the Protestor. The
Respondent and DW2 testify that it was agreed during the family
meeting that this Laikipia land be allocated to the Protestor and the
Protestor accepted this. The Protestor was certainly not left out or
excluded in the distribution of the estate as she claimed.
44. Finally I note that the Grant herein was confirmed in November 2014.
This application was filed a year later in November 2015 . If the
Protestor (who this court already found was fully involved in this
Succession cause) was truly aggrieved by the mode of distribution of the
Estate why did she not take action much sooner. In my view this
summons for revocation of grant is a mere afterthought.
45. Notably, the power to revoke or uphold a grant is a discretionary one.
This principle was enunciated in the persuasive decision in Albert
Imbuga Kisigwa vs Recho Kavai Kisigwa Succession Cause No.
158 of 2000 where Mwita J stated:-
“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.” [Own Emphasis]
46. The protestor has failed to prove any of the allegations of wrongdoing
made against the Respondent. There is no evidence of any infraction
of Section 76 of the Law of Succession Act to warrant the
annulment of the Grant issued to the Respondent on 6 th January
2014 . This is a very old succession cause in which the Deceased died
in the year 2013 - over a decade ago. It is time to put this matter to
rest.
47. Based on the foregoing I find no merit in the summons for revocation
of grant dated 15 th November 2015 . The same is hereby dismissed
in its entirety. This being a family matter each side will bear their own
costs.
Dated in Nyeri this 11 th day of August 2026.
HIGH COURT SUCCESSION CAUSE NO. 789 OF 2013 JUDGEMENT Page 8 of 24
IN THE MATTER OF THE ESTATE OF DUNCAN MUNGE GIKONYO ALIAS DUNCAN MUNGE S/O GIKONYO (DECEASED)
ANN NKIROTE MUNGE ……………………………………PROTESTOR
VERSUS
PETER MANYI MUNGE………………………………..ADMINISTRATOR
JUDGEMENT
1. The Protestor herein ANN NKIROTE MUNGE has filed in Court a
Summons for Revocation of Grant dated 15 th November 2015 seeking
revocation of the Confirmed Grant issued to the Administrators on 20 th
November 2014.
2. The Administrator of the estate PETER MANYI MUNGE filed a Replying
Affidavit dated 4 th December 2015 opposing the summons for revocation. The matter was canvassed by way of oral evidence. At the close of hearing parties were invited to file their written submissions. The protestor filed the written submission dated 14 th April 2026 whilst
the Respondents relied upon their submissions dated 16 th April 2026 .
BACKGROUND
3. This succession cause relates to the estate of the late DUNCAN MUNGE
GIKONYO (hereinafter the Deceased’) who passed away on 19 th August 2013 . A copy of the Death Certificate Serial No. 0037189 is attached to the Petition for Letters of Administration dated 6 th November 2013.
4. In the said Petition it was indicated that the Deceased was survived by
the following persons
(a) Ann Nkirote - Widow.
(b) Elizabeth W. Ngumo - Daughter
(c) David Gikonyo Munge - Son
(d) Peter Manyi Munge - Son
(e) Mary Wanjiku Munge - Daughter
(f) Nancy Wakiru Munge - Daughter
(g) Rose Nyambura Munge - Daughter
(h) Joy Wangari Munge - Daughter
5. The estate of the Deceased comprised of the following assets
(i) Land Parcel CHINGA/GATHERA/0628
(ii) Land Parcel CHINGA/GATHERA 051019 (L)
(iii) Land Parcel CHINGA/GATHERA 589
(iv) Land Parcel Laikipia/Uwaso Narok/707
(v) Account No. 011111796101 held at Family Bank
(vi) 4030 shares with KTDA Chinga
6. Following the demise of the Deceased his son Peter Manyi Munge
petitioned for and was on 7 th January 2014 issued with letters of Administration Intestate. The Grant was duly confirmed on 20 th November 2014 . According to the Certificate of Confirmation of Grant the estate of the Deceased was to be distributed as follows:-
“NAME DESCRIPTION OF PROPERTY SHARE OF HEIRS
A. ANN NKIROTE - L.R NO. LAIKIPIA/UASO – NAROK/707 WHOLE
B. L.R NO. CHINGA/GATHERA S. 89 BE SHARED EQUALLY BY:-
1. PETER MANYI MUNGE
2. MARY WANJIKU MUNGE
3. LUCY NJOKI MUNGE
4. ROSE NYAMBURA MUNGE
C. L.R CHINGA/GATHERA – D. 628 BE SHARED EQUALLY BY:-
1. DAVID GIKONYO MUNGE
2. NANCY WAKIRU MUNGE
3. ELIZABETH WAKANYI MUNGE
D. CHINGA/GATHERA/D.510/9 (L) BE TRANSFERED TO DAVID GIKONYO MUNGE
E. K.T.D.A SHARES BE TRANSFERED TO PETER MANYI MUNGE AND NANCY WAKIRU MUNGE
F. FAMILY BANK A/C NO. 011111796101 TO NANCY WAKIRU MUNGE.”
7. The Protestor then filed this Summons for revocation of Grant on
account of her dissatisfaction with the mode of distribution of the
estate.
8. On his part the Respondent asserts that the estate was fairly
Distributed and that all beneficiaries were included in the said
distribution. He urges the Court to dismiss the summons in its
entirety.
THE EVIDENCE
9. The Protestor told the Court that she was the second wife of the Deceased. That she had one child and at the time of Deceased’s deaths she was pregnant with their second child. She states that she has always resided with the Deceased on the parcel of land known as LR Chinga/Gathera/89 and that during his lifetime the Deceased allocated to her 1,500 tea bushes to support her upkeep.
10. The Protestor complains that she was not informed when the summons
for confirmation of Grant came up for hearing. That she has been
completely left out of the distribution of the estate of the deceased that
the succession cause was commenced and proceeded without her
knowledge and/or import. That she was not served with the summons
for confirmation of Grant and the Protestor denies that she signed the
consent to that summons dated, 1 st July 2014 .
11. The Protestor states that during his lifetime the Deceased had indicated
to the family how he wished his estate to be distributed. The Protestor
insists that the land in Laikipia had been given by the Deceased to her
mother as dowry when he married the Protestor. That the deceased
put up rental units for the protestors mother on said land. The Protestor
prays that the Grant be revoked.
12. PW2 STEPHEN GIKONYO WAITHAKA told the court that the
deceased was his cousin. PW2 stated that he knew the Protestor Ann
Nkirote as the second wife of the Deceased. That the deceased’s first
wife died in the year 2005 after which the deceased attempted to marry
one ‘ Mama Grace’ but his children vociferously opposed this plan and
the deceased abandoned the said ‘Mama Grace’ . PW2 states that the
deceased adamantly proceeded to marry the Protestor against the
wishes of his children. He states that the Protestor came into the
marriage with one daughter and that she was pregnant when the
deceased died.
13. PW2 stated that during his lifetime the deceased had indicated to
him how his properties were to be distributed. PW2 stated that the
land in Kieni - Laikipia had been given by deceased as dowry to the
mother of the protestor. Both the protestor and PW2 both oppose the
allocation of parcel of land known as LR No. Laikipia/Uwaso-
Narok/707 to the Protestor (as indicated in the confirmed grant).
They insist that this parcel of land belongs to the Protestors Mother who
received the same as dowry for her daughter.
14. The Respondent Peter Manyi Munge told the Court that he was a son
of the Deceased from the first wife. The Respondent states that his
mother who died in the year 2005 bore seven (7) children. He confirms
that he was appointed as administrator of the estate of his late father.
15. The Respondent vehemently denies the Protestors claim that she has
been excluded from this succession cause. He states that the Protestor
is not a wife of the deceased. That he only met her when deceased
was ailing at Outspan Hospital in Nyeri. According to the
Respondent after the demise of the deceased the family met and
they nevertheless included the Protestor as one of the beneficiaries of
the estate. He states that he has involved the Respondent each step
of the way and that she was aware of the confirmation of the grant
and even signed the consent.
16. According to the Respondent the deceased had settled the Protestor on
parcel of land LR Laikipia/Uaso-Narok/707 . That the Protestors
mother has been occupying the said parcel of land to date.
17. DW2 TITUS GICHERU GIKONYO told the Court that the deceased
was his elder brother. He stated that he only met the Protestor when
she accompanied the deceased to the home of DW2 to attend his
daughters wedding. He states that he does not know whether the
Deceased had married the Protestor as he never accompanied the
deceased for any cultural marriage rites. DW2 stated that after the
burial of the deceased he chaired a family meeting where it was agreed
how the estate should be distributed. He reiterates that the protestor
was a friend to the Deceased who lived with the Deceased after his
first wife died in the year 2005 .
18. DW3 MARY WANJIKU is a daughter of the deceased from the first
wife. DW1 states that the Protestor has been fully aware of this
succession cause from its inception and was an active participant in the
same. She states that when the family went to withdraw the funds from
the accounts held by deceased, the protestor accompanied them and
that she was even given a share of the money. DW3 state that the
deceased had settled the Protestor on his land in Laikipia where the
mother of the Protestor currently resides. Both the Respondent and
DW3 submit that the protest has no merit and urge the court to dismiss
the same.
ANALYSIS AND DETERMINATION
19. I have carefully considered the protest before this court, the reply
filed thereto, the evidence adduced by the various witnesses as well as the written submissions filed by both parties.
20. It is common ground that the Deceased in this matter passed away way back on 19 th August 2013 . The court was told that the Deceased had a first wife who having died in the year 2005 pre-deceased him. The Protestor claims to be the 2 nd wife of the Deceased. The question of whether or not the protestor was a wife of the deceased was not much contested by the Respondent. It seems that the Protestor was cohabiting with the Deceased at the time of his death and according to the protestor she was pregnant for deceased at the time of his death. It would appear that the family met and agreed to include the Protestor as a beneficiary to the estate.
21. The Protestor is seeking to have the grant issued to the Respondent
revoked. The grounds upon which a Grant may be revoked are set out
in Section 76 of the Law of Succession Act which provides 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 .” [own emphasis]
22. This provision of the law was expounded upon by the court in the
case of RE ESTATE OF PRISCA ONG’AYA MANDE (Deceased)
2020 eKLR where it was held as follows:-
“A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. 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 matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons. 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 circumstance, 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.”
23. The Protestor has in her Summons alleged that she was not made aware
of this succession cause at all and that she was not informed of the
hearing of the summons for confirmation of Grant. From the record this
allegation by the Protestor is a blatant lie. Both the Respondent and
DW2 confirm that the Protestor attended the family meetings and
accompanied them to the Chief’s office to get the introductory letter.
The chief’s letter dated 13 th November 2013 names the Protestor Ann
Nkirote as a widow of the Deceased. Moreover the protestor has
appended her signature next to her name on that letter.
24. Secondly I note that the Protestor has signed the consent to making
of the Grant to the Respondent. That consent is dated 6 th November
2013 and once again the Protestor has appended her signature against
her name. The Protestor has not denied having signed any of the above
documents. It is clear therefore that the Protestor was aware and was
fully involved in this succession cause from its inception. In her evidence
the protestor admits that she did attend a meeting at the chief’s office.
25. The Protestor categorically denies having had knowledge of the
hearing of the summons for confirmation of Grant dated 1 st July 2014 . The record indicates that said summons was heard by Hon. Justice Ngaah on 20 th November 2014 . On that date the Respondent was in court in his capacity as the administrator of the estate. All the other beneficiaries save for the Protestor were said to be in court. The learned Judge considered the summons and noted that the Protestor Ann Nkirote had signed the consent and proceeded to confirm the grant notwithstanding the physical absence of the protestor.
26. I have perused the summons for confirmation of grant dated 1 st July
2014 as well as the consent to the summons which is also dated 1 st
July 2014 . I note that the Protestor has appended her signature
against her name on that consent as did all the other beneficiaries.
27. The Protestor vehemently denies having signed the consent dated 1 s t
July 2014 . She claims that her signature on the consent has been
forged. In her evidence the protestor says;-
“I did not sign the consent of the confirmation of the grant. The consent is dated 1/7/2014. I never went before advocate CM King’ori. The signature on this
consent is not mine. It is fake.”
28. The protestor invites the court to make a comparison of the signature
on that consent and her signature on all the other documents. This
court does not have the expertise of a document examiner and cannot
tell whether a signature is a forgery or not, simply by looking at it.
29. It is trite law that he who alleges must prove. It is a general proposition
of the law that the legal burden of proof lies upon the party who invokes
the aid of the law. Section 107(1) of the Evidence Act (Chapter 80
of the Laws of Kenya) provides as follows:-
“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
30. Sections 109 and 112 of the same Act provide that:
“109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie
on any particular person.“112. In civil proceedings,
when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”
31. The two provisions of the law were dealt with in the decision of Anne
Wambui Ndiritu -vs- Joseph Kiprono Ropkoi & Another [2005
1 EA 334 , in which the Court of Appeal held as follows:
“As a general proposition under Section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which
is captured in Sections 109 and 112 of the Act.”
32. Similarly in Gatirau Peter Munya vs Dickson Mwenda Kithinji & 3
Others (2014) eKLR the Supreme Court held inter alia:
“The person who makes such allegations must lead evidence to prove the fact. She or he bears the initial legal burden of proof, which she or he must discharge. The legal burden in this regard is not just a notion behind which any party can hide. It is a vital requirement of the law. On the other hand, the evidential burden is a shifting one, and is a requisite response to an already discharged initial burden. The evidential burden is the obligation to show if called upon to do so, that there is sufficient evidence to raise an issue as to the existence of a fact in issue.”
33. By denying her signature on the consent the Protestor is clearly alleging
that the confirmed grant was obtained by way of fraud being the forgery
of her signature on the consent. Firstly forgery is an offence under
Section 345 of the Penal Code Cap 63 Laws of Kenya . The
Protestor did not make any report regarding the forgery of her signature
to the police or indeed to any other authority.
34. Secondly a party seeking to rely on allegation of fraud must not only
plead but must also prove the alleged fraud. In the case of ARTHI
HIGHWAY DEVELOPERS LTD -VS- WEST END BUTCHERY LTD &
6 OTHERS [2015] eKLR the Court of Appeal held as follows:-
“As a serious allegation fraud ought to be specifically pleaded and proved on higher balance of probability but not beyond reasonable doubt………”
35. Proof of fraud requires clear and cogent proof. The standard of proof
on allegation of fraud was discussed in the case Urmila W/O
Mahendra Shah VS. Barclays Bank International Ltd & Another
(1979) eKLR thus:-
“As was said by this Court’s predecessor in RATILAL
GORDHANBHAI PATEL V LALJI MAKANJI [1957] EA 314, 317 :
“There is one preliminary observation which we must take on the learned judge’s treatment of this evidence: he does not anywhere….. expressly direct himself on the burden of proof or on the standard of proof required. Allegations of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required . There is no specific indication that the learned judge had this in mind:
there are some indications which suggest he had not.”
[Emphasis added]
36. In the case Kuria Kiarie & 2 Others Vs. Sammy Magera (2018)
eKLR in quoting Vijay Morjaria Vs Nansingh Madhusingh Darbar
& Another [2000] eKLR the court of Appeal also confirmed standard
of proof for fraud as follows:-
“It is well established that fraud must be specifically
pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts .’ [Emphasis added]
37. Finally on this issue in the case of KOINANGE & 13 Others -vs-
CHARLES KARUGA KOINANGE [1986] KLR the Court held that
“When fraud is alleged by the plaintiffs the onus is on the plaintiff to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy beyond reasonable doubt, something more than a balance of probabilities is required.”
38. It is one thing to throw about allegations of fraud but quite another
thing altogether to prove said allegations. The Protestor has made no
effort whatsoever to prove the allegation of fraud. No evidence was
tabled from a document examiner to confirm whether or not the
signature on the consent was that of the Protestor. The consent was
executed before a commissioner of Oaths Advocate CM King’ori . The
Protestor did not call this advocate as a witness to support her
contention that she never appeared before him to sign the consent.
39. As it is therefore the Protestors denial of her signature against her name
on the consent dated 1 st July 2014 remains a mere denial. The
protestor has not proved the fraud which she alleges. In the
circumstances I find and hold that the protestor did sign the consent
dated 1 st July 2014 , thereby giving her consent to the confirmation of
the grant as well as to the mode of distribution of the estate proposed
therein. Having so consented to the confirmation of Grant and the mode
of distribution of the estate the Protestor cannot now purport to renege
on that consent.
40. The Protestor objects to the allocation to herself of the Parcel of
land known as Laikipia/Uaso-Narok/707 . The Protestor and her
witness PW2 claim that the allocation runs counter to the expressed
wishes of the Deceased. It must be remembered that the deceased
died intestate. No written will left by the deceased was produced by
the protestor and no oral will was proved. Therefore any wishes
the deceased may have had regarding the distribution of his estate
have not been properly proved in this case.
41. The Protestor claims that the Laikipia land was given to her mother by
the deceased as dowry when he married the protestor. Dowry
negotiations are not conducted in secret. The protestor has not called
any witness to confirm that indeed the Deceased gave out this parcel
of land to her mother as dowry. There is no document signed by the
Deceased indicating that he had given out this parcel of land as dowry.
A copy of a search certificate dated 10 th September 2013 reveals that
LR Laikipia/Uaso-Narok/707 was still registered in the name of
Duncan Munge Gikonyo (the Deceased herein) at the time of his
demise. If the deceased truly intended to relinquish this parcel of land
as dowry he would have transferred the same to the protestor’s mother.
Why would the deceased retain in his own name a parcel of land which
he had given out as dowry. It is not lost on the court that the protestor
did not even call her own mother who is said to be still residing on the
land to testify as to whether or not the same was given to her as a
dowry payment.
42. Accordingly I reject this claim that the Laikipia Land had been given to
a third party as a pure fabrication. I find and hold that LR Laikipia
/Uaso-Narok/707 belonged to the Deceased at the time of his death.
The said parcel of land forms part of the estate of the deceased and is
available for distribution to the beneficiaries.
43. The Protestor claimed that she and her children were not provided for
in the distribution of the estate and states that they have been
effectively disinherited. Again this is a blatant lie. The certificate of
confirmed grant issued on 20 th November 2014 clearly indicates that
the entire Laikipia parcel of land was allocated to the Protestor. The
Respondent and DW2 testify that it was agreed during the family
meeting that this Laikipia land be allocated to the Protestor and the
Protestor accepted this. The Protestor was certainly not left out or
excluded in the distribution of the estate as she claimed.
44. Finally I note that the Grant herein was confirmed in November 2014.
This application was filed a year later in November 2015 . If the
Protestor (who this court already found was fully involved in this
Succession cause) was truly aggrieved by the mode of distribution of the
Estate why did she not take action much sooner. In my view this
summons for revocation of grant is a mere afterthought.
45. Notably, the power to revoke or uphold a grant is a discretionary one.
This principle was enunciated in the persuasive decision in Albert
Imbuga Kisigwa vs Recho Kavai Kisigwa Succession Cause No.
158 of 2000 where Mwita J stated:-
“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.” [Own Emphasis]
46. The protestor has failed to prove any of the allegations of wrongdoing
made against the Respondent. There is no evidence of any infraction
of Section 76 of the Law of Succession Act to warrant the
annulment of the Grant issued to the Respondent on 6 th January
2014 . This is a very old succession cause in which the Deceased died
in the year 2013 - over a decade ago. It is time to put this matter to
rest.
47. Based on the foregoing I find no merit in the summons for revocation
of grant dated 15 th November 2015 . The same is hereby dismissed
in its entirety. This being a family matter each side will bear their own
costs.
Dated in Nyeri this 11 th day of August 2026.
HIGH COURT SUCCESSION CAUSE NO. 789 OF 2013 JUDGEMENT Page 8 of 24