1. The proceedings herein relate to the estate of Kenga Mwaduna Mwambire (the deceased) who died on 11.10.06. The record shows that he was survived by a widow, a brother and 7 children. A grant of letters of administration (the grant) was on 13.1.17 issued to Chenda Kenga Mwaduna and William Karisa (the Administrators) the deceased’s widow and brother respectively. The grant was confirmed on 17.4.18 and the estate was to be distributed amongst the named beneficiaries in equal shares.
2. By a summons dated 10.2.25, William Karisa, one of the Administrators seeks the following orders:
1. Spent.
2. That the grant of letters of administration issued to CHENDA KENGA MWADUNA and WILLIAM KARISA on the 13TH JANUARY, 2017 and confirmed on the 17th April, 2018 by the Court in Malindi High Court vide Succession cause No. 125 of 2016 be revoked and/or annulled.
3. THAT the Applicant herein has resigned as being an administrator of the estate with Chenda Kenga Mwaduna the 1st Respondent herein
4. That the Applicant be issued with the grant as the only beneficiary of the original deceased owner of the estate the late Mwaduna Kutsenga Mwmabire.
5. That the costs of this application be in the cause.
3. The grounds upon which the Application is premised are that the property comprising the estate of the deceased, namely Title No. Kilifi/Mbaraka Chembe/219 (the suit property) belonged to his father, the late Mwaduna Kutsenga Mwambire (Kutsenga), as the original owner; that upon the demise of Kutsenga, the deceased remained on the suit property; that when the adjudication officers came to Mbaraka Chembe for registration of the land, the deceased was registered as a trustee for Kutsenga’s family; that the Applicant is Kutsenga’s only surviving biological son; that the Applicant agreed with the Respondents to file the succession matter and distribute the property into two portions, one for him to share with his step sisters and the other portion to be taken by the Respondents; that the Respondents refused to participate in the subdivision and transmission of the suit property and that he stands to lose his father's property.
4. The Applicant further stated that he resigns from the entire process and seeks that the Court revokes the grant and the certificate of confirmation as the same was obtained through misrepresentation and concealment of material facts; that the Respondents tricked him into agreeing to be an administrator only to later turn against him by telling him that he cannot benefit from the estate; that the 1st Respondent's stepson Dickson Ndhundhi Mwambire has been issuing threats to him notwithstanding that he is a co-administrator with his mother; that he seeks to be appointed administrator of the estate upon revocation of the grant.
5. The Application is opposed by the Respondents vide a replying affidavit sworn on 12.5.25 by Dickson Ndhundhi Mwambire, the 3rd Respondent. He averred that he and his sister Agnes Dama Kenga were raised by the 1st Respondent after their mother Kachimbi Birya died when they were toddlers; that being the deceased’s last born brother, the Applicant has no capacity to inherit the suit property as the deceased was survived by a wife and children; that it is not true that at the demise of his father in 1973, the Applicant was a minor as he was born in 1945; that the deceased is the registered owner of the suit property and even if it were true, which is denied, that he held the same in trust, then the same is for all family and subject to equal distribution as agreed upon during the confirmation of grant; that all his siblings were born and raised at Kizingo and those who have died are buried in the suit property; that they are not aware that the deceased has a home in Jilore.
6. The Respondents further denied the allegations by the Applicant of their refusal to distribute the property. They further denied that the Applicant is the sole beneficiary or entitled to a half share of the suit property; that the Applicant took a loan from National Bank in 1979 and the deceased allowed hm to use the suit property as collateral and the title has been with the Bank since; that upon the demise of the deceased, they demanded that the Applicant return the title deed for the suit property; that the Applicant has used his position as local chairman community policing to endlessly summon the 3rd Respondent to the chief's office in a bid to stop him from demanding the said title and for equal distribution of the estate to all members; that in the application for confirmation of the grant, there is nothing that shows that the Applicant was to receive a larger share than the rest.
7. Parties filed their written submissions which I have duly considered.
8. The jurisdiction of this Court to revoke a grant of representation is set out in Section 76 of the Law of Succession Act (LSA) as follows:
76 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.
9. The Court has power to revoke a grant at any time, whether or not confirmed. A party seeking revocation of a grant of representation must demonstrate the existence of any of the grounds set out in Section 76 of the Act.
10. The Applicant’s grounds for seeking revocation of the grant are that first, the suit property belonged to his late father, Kutsenga and that he is the only surviving biological son. Second, that during adjudication, the deceased was registered as a trustee for Kutsenga’s family. Third, that he and the Respondents had agreed that the suit property would be distributed into 2 portions, one for him to share with his step sisters and the other portion for the Respondents. Fourth, that the Respondents have refused to participate in the subdivision and transmission of the suit property.
11. The Applicant contends that the grant and the certificate of confirmation were obtained through misrepresentation and concealment of material facts; that the Respondents tricked him into agreeing to be an administrator only to later turn against him by telling him that he cannot benefit from the estate. The Applicant claims that the 3rd Respondent has been threatening him. He thus seeks to be appointed administrator of the estate upon revocation of the grant. His claims are all denied by the Respondents.
12. The power of the Court to revoke a grant of representation is discretionary. Section 76 of the Act is not couched in mandatory terms. This discretion must however be exercised judicially, not losing sight of the fact that the ultimate goal is to arrive at a decision that meets the ends of justice. In In the Matter of the Estate of Elizabeth Wanjiku Munge (Deceased) [2015] eKLR, Musyoka, J. stated as follows, and I concur:
I note, however, that the power granted under Section 76 of the Act for revocation of grants is discretionary. Where a case is made out for revocation of a grant under Section 76, the court has the option to either revoke the grant or make other orders as may meet the ends of justice.
13. The Court notes that the application for the grant was made by both the Applicant and the 1st Respondent. They both signed the petition and affidavit in support thereof. Both were appointed administrators of the estate of the deceased vide the grant issued on 13.1.17. Additionally, the summons for confirmation of grant dated 13.6.17 and the affidavit in support thereof, were both signed by the Applicant and the 1st Respondent. The mode or distribution that was proposed by the Applicant and 1st Respondent as administrators of the estate was that the suit property was to be distributed to all beneficiaries in equal shares. At the hearing of the summons for confirmation of grant on 19.3.18, the Applicant was present in Court.
14. The Applicant, as one of the Administrators of the estate, fully participated in the process from inception to conclusion. He also swore as to the truth and correctness of the averments made on oath in the affidavits in support of the petition and the summons for confirmation. In light of this, the Applicant is estopped from claiming that the grant was obtained by concealment of material facts and misrepresentation. He is also precluded from asserting that there was a mode of distribution of the estate agreed upon, other than that proposed to the Court. This is the doctrine of estoppel, by which the Applicant is bound. My finding is fortified by the holding in Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR where the Court of Appeal stated:
The doctrine of estoppel operates as a principle of law which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person.
15. Further, at no point, whether in the affidavits filed or in Court when he appeared for confirmation of the grant, did the Applicant state or even suggest that the suit property was held by the deceased in trust for Kutsenga’s family. The Applicant now calls upon the Court to determine the existence of the alleged trust and in effect, ownership of the property.
16. Although Article 165(3) of the Constitution of Kenya, 2010 confers upon the High Court unlimited original jurisdiction in civil matters, that jurisdiction is limited by Article 165(5) as follows:
(5) The High Court shall not have jurisdiction in respect of matters—
(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
(b) falling within the jurisdiction of the courts contemplated in Article 162(2).
Article 162(2) provides:
(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
(a) …
(b) the environment and the use and occupation of, and title to, land.
17. By dint of Article 165(5) of the Constitution, this Court lacks the jurisdiction over matters to do with the use and occupation of, and title to, land. As such, the Court is incompetent to consider and make a determination of the existence or non-existence of a trust over the suit property. That jurisdiction is exclusively reserved for the Environment and Land Court under Article 162(2) of the Constitution.
18. In the end, and in view of the foregoing, the Court makes a finding that the summons for revocation of grant dated 10.2.25, lacks merit and the same is dismissed. The circumstances herein do not call for an award of costs.
DATED, SIGNED and DELIVERED in MALINDI this 13th day of March 2026
2. By a summons dated 10.2.25, William Karisa, one of the Administrators seeks the following orders:
1. Spent.
2. That the grant of letters of administration issued to CHENDA KENGA MWADUNA and WILLIAM KARISA on the 13TH JANUARY, 2017 and confirmed on the 17th April, 2018 by the Court in Malindi High Court vide Succession cause No. 125 of 2016 be revoked and/or annulled.
3. THAT the Applicant herein has resigned as being an administrator of the estate with Chenda Kenga Mwaduna the 1st Respondent herein
4. That the Applicant be issued with the grant as the only beneficiary of the original deceased owner of the estate the late Mwaduna Kutsenga Mwmabire.
5. That the costs of this application be in the cause.
3. The grounds upon which the Application is premised are that the property comprising the estate of the deceased, namely Title No. Kilifi/Mbaraka Chembe/219 (the suit property) belonged to his father, the late Mwaduna Kutsenga Mwambire (Kutsenga), as the original owner; that upon the demise of Kutsenga, the deceased remained on the suit property; that when the adjudication officers came to Mbaraka Chembe for registration of the land, the deceased was registered as a trustee for Kutsenga’s family; that the Applicant is Kutsenga’s only surviving biological son; that the Applicant agreed with the Respondents to file the succession matter and distribute the property into two portions, one for him to share with his step sisters and the other portion to be taken by the Respondents; that the Respondents refused to participate in the subdivision and transmission of the suit property and that he stands to lose his father's property.
4. The Applicant further stated that he resigns from the entire process and seeks that the Court revokes the grant and the certificate of confirmation as the same was obtained through misrepresentation and concealment of material facts; that the Respondents tricked him into agreeing to be an administrator only to later turn against him by telling him that he cannot benefit from the estate; that the 1st Respondent's stepson Dickson Ndhundhi Mwambire has been issuing threats to him notwithstanding that he is a co-administrator with his mother; that he seeks to be appointed administrator of the estate upon revocation of the grant.
5. The Application is opposed by the Respondents vide a replying affidavit sworn on 12.5.25 by Dickson Ndhundhi Mwambire, the 3rd Respondent. He averred that he and his sister Agnes Dama Kenga were raised by the 1st Respondent after their mother Kachimbi Birya died when they were toddlers; that being the deceased’s last born brother, the Applicant has no capacity to inherit the suit property as the deceased was survived by a wife and children; that it is not true that at the demise of his father in 1973, the Applicant was a minor as he was born in 1945; that the deceased is the registered owner of the suit property and even if it were true, which is denied, that he held the same in trust, then the same is for all family and subject to equal distribution as agreed upon during the confirmation of grant; that all his siblings were born and raised at Kizingo and those who have died are buried in the suit property; that they are not aware that the deceased has a home in Jilore.
6. The Respondents further denied the allegations by the Applicant of their refusal to distribute the property. They further denied that the Applicant is the sole beneficiary or entitled to a half share of the suit property; that the Applicant took a loan from National Bank in 1979 and the deceased allowed hm to use the suit property as collateral and the title has been with the Bank since; that upon the demise of the deceased, they demanded that the Applicant return the title deed for the suit property; that the Applicant has used his position as local chairman community policing to endlessly summon the 3rd Respondent to the chief's office in a bid to stop him from demanding the said title and for equal distribution of the estate to all members; that in the application for confirmation of the grant, there is nothing that shows that the Applicant was to receive a larger share than the rest.
7. Parties filed their written submissions which I have duly considered.
8. The jurisdiction of this Court to revoke a grant of representation is set out in Section 76 of the Law of Succession Act (LSA) as follows:
76 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.
9. The Court has power to revoke a grant at any time, whether or not confirmed. A party seeking revocation of a grant of representation must demonstrate the existence of any of the grounds set out in Section 76 of the Act.
10. The Applicant’s grounds for seeking revocation of the grant are that first, the suit property belonged to his late father, Kutsenga and that he is the only surviving biological son. Second, that during adjudication, the deceased was registered as a trustee for Kutsenga’s family. Third, that he and the Respondents had agreed that the suit property would be distributed into 2 portions, one for him to share with his step sisters and the other portion for the Respondents. Fourth, that the Respondents have refused to participate in the subdivision and transmission of the suit property.
11. The Applicant contends that the grant and the certificate of confirmation were obtained through misrepresentation and concealment of material facts; that the Respondents tricked him into agreeing to be an administrator only to later turn against him by telling him that he cannot benefit from the estate. The Applicant claims that the 3rd Respondent has been threatening him. He thus seeks to be appointed administrator of the estate upon revocation of the grant. His claims are all denied by the Respondents.
12. The power of the Court to revoke a grant of representation is discretionary. Section 76 of the Act is not couched in mandatory terms. This discretion must however be exercised judicially, not losing sight of the fact that the ultimate goal is to arrive at a decision that meets the ends of justice. In In the Matter of the Estate of Elizabeth Wanjiku Munge (Deceased) [2015] eKLR, Musyoka, J. stated as follows, and I concur:
I note, however, that the power granted under Section 76 of the Act for revocation of grants is discretionary. Where a case is made out for revocation of a grant under Section 76, the court has the option to either revoke the grant or make other orders as may meet the ends of justice.
13. The Court notes that the application for the grant was made by both the Applicant and the 1st Respondent. They both signed the petition and affidavit in support thereof. Both were appointed administrators of the estate of the deceased vide the grant issued on 13.1.17. Additionally, the summons for confirmation of grant dated 13.6.17 and the affidavit in support thereof, were both signed by the Applicant and the 1st Respondent. The mode or distribution that was proposed by the Applicant and 1st Respondent as administrators of the estate was that the suit property was to be distributed to all beneficiaries in equal shares. At the hearing of the summons for confirmation of grant on 19.3.18, the Applicant was present in Court.
14. The Applicant, as one of the Administrators of the estate, fully participated in the process from inception to conclusion. He also swore as to the truth and correctness of the averments made on oath in the affidavits in support of the petition and the summons for confirmation. In light of this, the Applicant is estopped from claiming that the grant was obtained by concealment of material facts and misrepresentation. He is also precluded from asserting that there was a mode of distribution of the estate agreed upon, other than that proposed to the Court. This is the doctrine of estoppel, by which the Applicant is bound. My finding is fortified by the holding in Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR where the Court of Appeal stated:
The doctrine of estoppel operates as a principle of law which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person.
15. Further, at no point, whether in the affidavits filed or in Court when he appeared for confirmation of the grant, did the Applicant state or even suggest that the suit property was held by the deceased in trust for Kutsenga’s family. The Applicant now calls upon the Court to determine the existence of the alleged trust and in effect, ownership of the property.
16. Although Article 165(3) of the Constitution of Kenya, 2010 confers upon the High Court unlimited original jurisdiction in civil matters, that jurisdiction is limited by Article 165(5) as follows:
(5) The High Court shall not have jurisdiction in respect of matters—
(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
(b) falling within the jurisdiction of the courts contemplated in Article 162(2).
Article 162(2) provides:
(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
(a) …
(b) the environment and the use and occupation of, and title to, land.
17. By dint of Article 165(5) of the Constitution, this Court lacks the jurisdiction over matters to do with the use and occupation of, and title to, land. As such, the Court is incompetent to consider and make a determination of the existence or non-existence of a trust over the suit property. That jurisdiction is exclusively reserved for the Environment and Land Court under Article 162(2) of the Constitution.
18. In the end, and in view of the foregoing, the Court makes a finding that the summons for revocation of grant dated 10.2.25, lacks merit and the same is dismissed. The circumstances herein do not call for an award of costs.
DATED, SIGNED and DELIVERED in MALINDI this 13th day of March 2026