1. The Applicant herein vide Summons dated 28 TH July 2025 seeks the following substantial orders -
a. Revocation of the Grant issued to John Njogu Thiru and Ruth Gathoni Thiru on 11 th November 2016 and all Orders emanating therefrom be annulled.
b. Thereafter Grant herein be issued to Sabine Kihumu and Fredrick Kungu Thiru
c. Further that the following assets of the deceased be distributed as follows-
i. KABETE/ KIBICHIKO/1219 to 1 st Beneficiary absolutely
ii. KABETE/ KIBICHIKO/1223 jointly to Samson Morgan Githimbu and Estate of Francis Mungai Thiru
2. The applicant seeks revocation on the basis that at the time of Petitioning for the grant the applicants failed to make material disclosures and concealed pertinent facts. They excluded her husband David Kihumbu (deceased), who was a son to the deceased herein and failed to make provision for grandchildren of the deceased. They also failed to disclose all the properties of the estate. Further the grant was obtained without securing the consents of all the beneficiaries. Further the administrator sought to fraudulently initiate another succession cause before the Chief Magistrate’s Court at Kiambu in respect of the same estate in 2024.
3. It is alleged that there is ongoing intermeddling with the estate of the deceased and third parties are on the deceased’s land namely KABETE/ KIBICHIKO/1219 (Otium Lounge & Grill Building) and KABETE/ KIBICHIKO/1223 (the German Bakehouse Limited) absent authority from the Court. Further the 3rd and 4 th Respondents have constructed rental units on KABETE/ KIBICHIKO/1223. It is further submitted that suitable arrangements have not been made for the 2 nd beneficiary who suffers from mental illness. As a consequence of the administrators’ actions and non-actions there has been a misdistribution of the estate of the deceased for instance with regard to the money K-Unity Account where some beneficiaries were excluded.
4. In her affidavit sworn on 25 th June 2024, the 1 st Applicant avers that she is a daughter in law to the deceased. Her husband is dead. They had one child David Thiru Kihumbu. She is the administrator of her deceased husband’s estate vide Grant issued on 3 rd August 1997. She was not informed about the initiation of the succession proceedings and it was her son who stumbled upon the gazette notice. She learnt that the Chief’s letter relied on for proof of next of kin did not include her husband among the children of the deceased. The letter also does not disclose the existence of Samuel Morgan Githumbi Thiru, the 2 nd Applicant who is also as son of the deceased.
5. It is her proposal that she be appointed administrator alongside Fredrick Kungu Thiru ( 4 th Applicant /Beneficiaries).
6. David Thiru Kihumbu has sworn affidavit on 25 th June 2024 in support of the Application. He is a son to the 1 st Applicant. He was not involved in the succession proceedings herein, he only stumbled upon the gazette notice in relation to the grant. His suspicions were aroused as the Petition was said to be in respect of a Parmence Thiru instead of the name his grandfather was known by, Perminus. His investigations revealed that the Chief’s Letter dated 15 th October 2015 did not include all the children of the deceased. The Summons for Partial Confirmation was done without the participation of the 1 st and 2 nd Beneficiaries. Neither was provision made for them.
7. He also discovered that the administrators sought to confirm the grant. Not all the beneficiaries were informed of this application, and provision was not made for all the beneficiaries. He takes issue that the proposed mode of Distribution is providing for individuals who are not beneficiaries and excluding the rightful beneficiaries. His suspicion regarding the conduct of the respondent was further raised by the proceedings before the Chief Magistrate’s Court at Kikuyu, initiated by the 6 th Respondent.
8. The 6 th Respondent has sworn affidavit in opposition to the application on 4 th September 2025. He contends that the spouse of the 1 st Applicant was allotted parcel no. KABETE/ KIBICHIKO/1220 by the deceased. His father PAUL KANIARU THIRU was gifted KABETE/ KIBICHIKO/1219 by the deceased in his lifetime. His mother, the 5 th Respondent, resides on the property. The 7 th Respondent is his sibling, and he also resides on the property. On his part he resided with the deceased on KABETE/ KIBICHIKO/1223 and he continues to live there even afer the death of the deceased.
9. He states that KABETE/ KIBICHIKO/1219 is not part of the estate as it was gifted to his father PAUL KANIARU THIRU (now deceased).
10. The assets available for distribution are therefore KABETE/ KIBICHIKO/1223 and the money at K-Unity Savings United Cooperative Society Limited. All the beneficiaries agreed to the distribution. He admits initiating the succession cause at Kikuyu Magistrate’s Court in relation to KABETE/ KIBICHIKO/1219. The applicants have filed objection to the grant issued to him in Succession Cause No. E094 of 2024. He now prays that the Summons for confirmation be amended to include KABETE/ KIBICHIKO/1219 and the same be allocated to his mother to hold in trust for her children.
11. The Summons was canvassed via written submissions, the applicant’s submissions are dated 9 th December 2025. It is submitted that the application is unopposed and on the authority of the decision in Shaneebal Limited v County Government of Machakos [2018] eKLR should be allowed as prayed.
12. It is submitted further that the Grant herein should be revoked and reference made to the decision in Re Estate of William Kamiri Ngeru ( Deceased)[2025] KEHC 9256(KLR).
13. The Applicants have also made proposals on distribution of the Estate, but I will not refer to this as it is premature at this stage, given that the application relates to revocation of grant and appointment of alternative administrators. I take note that the Applicant invokes the Court’s inherent discretion under Section 47 of the Law of Succession Act.
ANALYSIS AND DETERMIANTION
14. Having considered the pleadings and submissions filed herein and the relevant law, I deduce the issues for determination to be-
a. Should the Grant herein be revoked?
b. In the event the answer to (a) above is in the affirmative, what are the consequential orders?
15. Should the Grant herein be revoked?
It is common ground that the deceased died intestate and Grant of Letters of Administration Intestate herein was issued to JOHN NJOGU THIRU and RUTH GATHONI THIRU on 11 th November 2016. In support of the Petition, they swore a joint affidavit on 4 th December 2015, in which the beneficiaries of the estate of the deceased were enumerated at paragraph 4 to be-
Ruth Gathoni Thiru Daughter
Fredrick Kungu Thiru Son
John Njogu Thiru Son
Francis Mungai Thiru Son
Anne Mumbi Koigi Daughter in Law
Perminus Thiru Wairimu Grandson
16. This averment was corroborated by letter dated 15 th October 2015 from the Assistant Chief of Kibichiku Sub Location.
17. The Petition enumerated the assets of the deceased as being-
a. KABETE/ KIBICHIKO/1223
b. Funds in Account No. 0081-3718 with K-Unity Savings and Credit Co-operative Society Limited.
18. There has been no challenge to the assertion that the administrators have conducted the proceedings herein without the participation of the 1 st Applicant and the 2 nd Applicant/ Beneficiary Samuel Morgan Githumbi Thiru. There has been no challenge to the averment that the two are children of the deceased. There has been no challenge to the averment that Anne Mumbi Koigi is a daughter in law to the deceased and has no letters of administration in respect to the estate of her deceased husband. There is also no challenge that Keziah Wairimu Thiru is a daughter to the deceased and the mother of Perminus Thiru Wairimu who is listed as a beneficiary of the Estate.
19. Section 76 of the Law of Succession Act provides the circumstances under which a Court may revoke a grant either on its own motion or on the application of an interested party. It provides-
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.
20. It is evident that two children ( including the one represented by an Administrator) of the deceased have not participated or been involved in the proceedings leading to the grant of the letters of administration herein. This contrary to the express provisions of Section 51 of the Law of Succession Act which provides-
51. Application for grant
(1)Every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner.(2)An application shall include information as to—
(a)the full names of the deceased;
(b)the date and place of his death;
(c)his last known place of residence;
(d)the relationship (if any) of the applicant to the deceased;
(e)whether or not the deceased left a valid will;
(f)the present addresses of any executors appointed by any such valid will;
(g)i n cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;
(h) a full inventory of all the assets and liabilities of the deceased ; and
(i)such other matters as may be prescribed.
(3)....
(4) No omission of any information from an application shall affect the power of the court to entertain the application.
21. Further rules 26 and 27 of the Probate and Administration rules provide the procedural rules governing application for a grant. They read-
26. Grants of letters of administration
(1)Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant .(2)An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.
(3) Unless the court otherwise directs for reasons to be recorded, administration shall be granted to a living person in his own right in preference to the personal representative of a deceased person who would, if living, have been entitled in the same degree, and to a person not under disability in preference to an infant entitled in the same degree.
27. Exceptions to rules as to priority
Nothing in rule 26 shall operate to prevent a grant being made to any person to whom a grant may be made, or may be required to be made, under the Act.
22. The consequences of failure to comply with Section 51 of the Act and Rule 26 of the Rules was discussed in great detail in the decision in Re Estate of Patrick Lemeiruko Ole Marangura (Deceased) (Probate and Administration 1450 of 19910 [2024] KEHC 12028 (KLR)(Family)(4October2024) (Judgment). In that case the Court having noted that the provisions were mandatory proceeded to revoke the grant and invited the beneficiaries to nominate four Beneficiaries to be appointed as Administrators.
23. Having determined that the process led to issuance of the Grant herein ran afoul of the mandatory provisions, I will now consider what the consequential orders should be.
24. The next issue for determination is whether the grant issued to the respondents should be revoked ? It now well established that Courts in considering an application for revocation will exercise that discretion judiciously having regard to the best interests of the beneficiaries. See the decision in the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR), Mwita J. (as he then was) made pertinent remarks on principles for the revocation of a grant as follows:
[13] 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 wrongdoing 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.
25. I also make reference to the decision in re Estate of Mwaura Makuro (Deceased) [2021] eKLR where the Court noted that even where there are infractions that would result in the revocation of a Grant, the Court should consider the individual circumstances of each case. In the instant case, it is not in dispute that the current administrators are also children of the deceased. The deceased herein died in 2016. The matter should move towards an expedited conclusion. The interests of the beneficiaries who were excluded can be addressed by appointing an administrator and ensuring that the subdivision of estate factors their interest. Although the 1 st Applicant seeks to be appointed as Administrator, she does not fall within the closed list provided for Under Section 66 of the Law of Succession Act.
26. It is not disputed that property KABETE/ KIBICHIKO/1219 is registered in the name of the deceased, indeed the 6 th respondent in the impugned proceedings before the Kikuyu Chief Magistrate’s Court is seeking distribution of that estate in parallel succession proceedings. I have no hesitation in finding that it is an estate asset distributable under this cause.
27. From the following it goes without saying that absent transmission, the activities of the 1 st and 2 nd interested parties' amount to intermeddling and the beneficiaries who have benefitted from the rental income from the commercial undertakings on parcels KABETE/ KIBICHIKO/1219 and KABETE/ KIBICHIKO/1223 will have the same deducted from the eventual distribution. I also take note of the allegations with regard to KABETE/ KIBICHIKO/1220, if the same is established that will be considered in determining the share of the Estate of David Kihumbu.
28. The beneficiaries of the estate of the deceased as are defined under Section 29 of the Law of Succcession Act and so in this instance are -
a. Estate of David Kihumbu
b. Samuel Morgan Githumbi Thiru
c. Keziah Wairimu Thiru
d. Ruth Gathoni Thiru
e. Fredrick Kungu Thiru
f. John Njogu Thiru
g. Anne Mumbi Koigi
h. Estate of Francis Mungai Thiru
29. The standing of daughters in-law and grandchildren in relation to deceased parents in law and grandparents respectively, is well established by legal precedent. In Re Estate of Cecilia Wanjiru Kibicho (Deceased) (2016) eKLR , the Court stated as follows:
[20].……... I should also add that a daughter-in-law is not listed in section 29(b) of the Act as being among persons who may move the court under section 26 for reasonable provision and who the court may declare to be a dependant.………………………………………………………
[26] The applicant in the confirmation application is a daughter-in-law of the deceased, by dint of her having married the deceased’s son, ……... She is not a blood relative of the deceased. S he, therefore, does not qualify to be among the survivors of the deceased as defined in Part V . She is, consequently, not entitled to a share in the deceased estate. However, her children with the deceased’s son would be blood relatives of the deceased in their capacity as grandchildren of the dead.
30. What then are the consequential orders?
a. The grant issued to John Njogu Thiru and Ruth Gathoni Thiru on 11 th November 2016 is revoked and a fresh grant will issue to John Njogu Thiru, Ruth Gathoni Thiru and Fredrick Kungu Thiru
b. The Estate properties Comprise-
i. KABETE/ KIBICHIKO/1223
ii. KABETE/ KIBICHIKO/1219
iii. Funds in Account No. 0081-3718 with K-Unity Savings and Credit Co-operative Society Limited. (already distributed)
c. The Amended Summons for Confirmation of Grant dated 19 th December 2019 is struck out. The Administrators will file fresh summons for confirmation of Grant compliant with Section 71 of the Law of Succession Act within 30 days from the date hereof.
d. In the event they are unable to agree, any of the Administrators will proceed to file the Summons and serve it on all the beneficiaries. Beneficiaries opposed to the mode of Distribution will file affidavit of protest within 14 days of service. With leave granted to the administrators to file further affidavit of service in response within 7 days of service.
e. The matter will be mentioned before the Deputy Registrar on 14th April 2026 to confirm compliance and take further directions.
31. This being a family matter there shall be no order as to costs.
32. Parties at Liberty to Appeal. Party exercising their right of appeal to do so within 30 days.
It is so ordered.
SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 20 th DAY OF FEBRUARY 2026.
a. Revocation of the Grant issued to John Njogu Thiru and Ruth Gathoni Thiru on 11 th November 2016 and all Orders emanating therefrom be annulled.
b. Thereafter Grant herein be issued to Sabine Kihumu and Fredrick Kungu Thiru
c. Further that the following assets of the deceased be distributed as follows-
i. KABETE/ KIBICHIKO/1219 to 1 st Beneficiary absolutely
ii. KABETE/ KIBICHIKO/1223 jointly to Samson Morgan Githimbu and Estate of Francis Mungai Thiru
2. The applicant seeks revocation on the basis that at the time of Petitioning for the grant the applicants failed to make material disclosures and concealed pertinent facts. They excluded her husband David Kihumbu (deceased), who was a son to the deceased herein and failed to make provision for grandchildren of the deceased. They also failed to disclose all the properties of the estate. Further the grant was obtained without securing the consents of all the beneficiaries. Further the administrator sought to fraudulently initiate another succession cause before the Chief Magistrate’s Court at Kiambu in respect of the same estate in 2024.
3. It is alleged that there is ongoing intermeddling with the estate of the deceased and third parties are on the deceased’s land namely KABETE/ KIBICHIKO/1219 (Otium Lounge & Grill Building) and KABETE/ KIBICHIKO/1223 (the German Bakehouse Limited) absent authority from the Court. Further the 3rd and 4 th Respondents have constructed rental units on KABETE/ KIBICHIKO/1223. It is further submitted that suitable arrangements have not been made for the 2 nd beneficiary who suffers from mental illness. As a consequence of the administrators’ actions and non-actions there has been a misdistribution of the estate of the deceased for instance with regard to the money K-Unity Account where some beneficiaries were excluded.
4. In her affidavit sworn on 25 th June 2024, the 1 st Applicant avers that she is a daughter in law to the deceased. Her husband is dead. They had one child David Thiru Kihumbu. She is the administrator of her deceased husband’s estate vide Grant issued on 3 rd August 1997. She was not informed about the initiation of the succession proceedings and it was her son who stumbled upon the gazette notice. She learnt that the Chief’s letter relied on for proof of next of kin did not include her husband among the children of the deceased. The letter also does not disclose the existence of Samuel Morgan Githumbi Thiru, the 2 nd Applicant who is also as son of the deceased.
5. It is her proposal that she be appointed administrator alongside Fredrick Kungu Thiru ( 4 th Applicant /Beneficiaries).
6. David Thiru Kihumbu has sworn affidavit on 25 th June 2024 in support of the Application. He is a son to the 1 st Applicant. He was not involved in the succession proceedings herein, he only stumbled upon the gazette notice in relation to the grant. His suspicions were aroused as the Petition was said to be in respect of a Parmence Thiru instead of the name his grandfather was known by, Perminus. His investigations revealed that the Chief’s Letter dated 15 th October 2015 did not include all the children of the deceased. The Summons for Partial Confirmation was done without the participation of the 1 st and 2 nd Beneficiaries. Neither was provision made for them.
7. He also discovered that the administrators sought to confirm the grant. Not all the beneficiaries were informed of this application, and provision was not made for all the beneficiaries. He takes issue that the proposed mode of Distribution is providing for individuals who are not beneficiaries and excluding the rightful beneficiaries. His suspicion regarding the conduct of the respondent was further raised by the proceedings before the Chief Magistrate’s Court at Kikuyu, initiated by the 6 th Respondent.
8. The 6 th Respondent has sworn affidavit in opposition to the application on 4 th September 2025. He contends that the spouse of the 1 st Applicant was allotted parcel no. KABETE/ KIBICHIKO/1220 by the deceased. His father PAUL KANIARU THIRU was gifted KABETE/ KIBICHIKO/1219 by the deceased in his lifetime. His mother, the 5 th Respondent, resides on the property. The 7 th Respondent is his sibling, and he also resides on the property. On his part he resided with the deceased on KABETE/ KIBICHIKO/1223 and he continues to live there even afer the death of the deceased.
9. He states that KABETE/ KIBICHIKO/1219 is not part of the estate as it was gifted to his father PAUL KANIARU THIRU (now deceased).
10. The assets available for distribution are therefore KABETE/ KIBICHIKO/1223 and the money at K-Unity Savings United Cooperative Society Limited. All the beneficiaries agreed to the distribution. He admits initiating the succession cause at Kikuyu Magistrate’s Court in relation to KABETE/ KIBICHIKO/1219. The applicants have filed objection to the grant issued to him in Succession Cause No. E094 of 2024. He now prays that the Summons for confirmation be amended to include KABETE/ KIBICHIKO/1219 and the same be allocated to his mother to hold in trust for her children.
11. The Summons was canvassed via written submissions, the applicant’s submissions are dated 9 th December 2025. It is submitted that the application is unopposed and on the authority of the decision in Shaneebal Limited v County Government of Machakos [2018] eKLR should be allowed as prayed.
12. It is submitted further that the Grant herein should be revoked and reference made to the decision in Re Estate of William Kamiri Ngeru ( Deceased)[2025] KEHC 9256(KLR).
13. The Applicants have also made proposals on distribution of the Estate, but I will not refer to this as it is premature at this stage, given that the application relates to revocation of grant and appointment of alternative administrators. I take note that the Applicant invokes the Court’s inherent discretion under Section 47 of the Law of Succession Act.
ANALYSIS AND DETERMIANTION
14. Having considered the pleadings and submissions filed herein and the relevant law, I deduce the issues for determination to be-
a. Should the Grant herein be revoked?
b. In the event the answer to (a) above is in the affirmative, what are the consequential orders?
15. Should the Grant herein be revoked?
It is common ground that the deceased died intestate and Grant of Letters of Administration Intestate herein was issued to JOHN NJOGU THIRU and RUTH GATHONI THIRU on 11 th November 2016. In support of the Petition, they swore a joint affidavit on 4 th December 2015, in which the beneficiaries of the estate of the deceased were enumerated at paragraph 4 to be-
Ruth Gathoni Thiru Daughter
Fredrick Kungu Thiru Son
John Njogu Thiru Son
Francis Mungai Thiru Son
Anne Mumbi Koigi Daughter in Law
Perminus Thiru Wairimu Grandson
16. This averment was corroborated by letter dated 15 th October 2015 from the Assistant Chief of Kibichiku Sub Location.
17. The Petition enumerated the assets of the deceased as being-
a. KABETE/ KIBICHIKO/1223
b. Funds in Account No. 0081-3718 with K-Unity Savings and Credit Co-operative Society Limited.
18. There has been no challenge to the assertion that the administrators have conducted the proceedings herein without the participation of the 1 st Applicant and the 2 nd Applicant/ Beneficiary Samuel Morgan Githumbi Thiru. There has been no challenge to the averment that the two are children of the deceased. There has been no challenge to the averment that Anne Mumbi Koigi is a daughter in law to the deceased and has no letters of administration in respect to the estate of her deceased husband. There is also no challenge that Keziah Wairimu Thiru is a daughter to the deceased and the mother of Perminus Thiru Wairimu who is listed as a beneficiary of the Estate.
19. Section 76 of the Law of Succession Act provides the circumstances under which a Court may revoke a grant either on its own motion or on the application of an interested party. It provides-
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.
20. It is evident that two children ( including the one represented by an Administrator) of the deceased have not participated or been involved in the proceedings leading to the grant of the letters of administration herein. This contrary to the express provisions of Section 51 of the Law of Succession Act which provides-
51. Application for grant
(1)Every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner.(2)An application shall include information as to—
(a)the full names of the deceased;
(b)the date and place of his death;
(c)his last known place of residence;
(d)the relationship (if any) of the applicant to the deceased;
(e)whether or not the deceased left a valid will;
(f)the present addresses of any executors appointed by any such valid will;
(g)i n cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;
(h) a full inventory of all the assets and liabilities of the deceased ; and
(i)such other matters as may be prescribed.
(3)....
(4) No omission of any information from an application shall affect the power of the court to entertain the application.
21. Further rules 26 and 27 of the Probate and Administration rules provide the procedural rules governing application for a grant. They read-
26. Grants of letters of administration
(1)Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant .(2)An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.
(3) Unless the court otherwise directs for reasons to be recorded, administration shall be granted to a living person in his own right in preference to the personal representative of a deceased person who would, if living, have been entitled in the same degree, and to a person not under disability in preference to an infant entitled in the same degree.
27. Exceptions to rules as to priority
Nothing in rule 26 shall operate to prevent a grant being made to any person to whom a grant may be made, or may be required to be made, under the Act.
22. The consequences of failure to comply with Section 51 of the Act and Rule 26 of the Rules was discussed in great detail in the decision in Re Estate of Patrick Lemeiruko Ole Marangura (Deceased) (Probate and Administration 1450 of 19910 [2024] KEHC 12028 (KLR)(Family)(4October2024) (Judgment). In that case the Court having noted that the provisions were mandatory proceeded to revoke the grant and invited the beneficiaries to nominate four Beneficiaries to be appointed as Administrators.
23. Having determined that the process led to issuance of the Grant herein ran afoul of the mandatory provisions, I will now consider what the consequential orders should be.
24. The next issue for determination is whether the grant issued to the respondents should be revoked ? It now well established that Courts in considering an application for revocation will exercise that discretion judiciously having regard to the best interests of the beneficiaries. See the decision in the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR), Mwita J. (as he then was) made pertinent remarks on principles for the revocation of a grant as follows:
[13] 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 wrongdoing 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.
25. I also make reference to the decision in re Estate of Mwaura Makuro (Deceased) [2021] eKLR where the Court noted that even where there are infractions that would result in the revocation of a Grant, the Court should consider the individual circumstances of each case. In the instant case, it is not in dispute that the current administrators are also children of the deceased. The deceased herein died in 2016. The matter should move towards an expedited conclusion. The interests of the beneficiaries who were excluded can be addressed by appointing an administrator and ensuring that the subdivision of estate factors their interest. Although the 1 st Applicant seeks to be appointed as Administrator, she does not fall within the closed list provided for Under Section 66 of the Law of Succession Act.
26. It is not disputed that property KABETE/ KIBICHIKO/1219 is registered in the name of the deceased, indeed the 6 th respondent in the impugned proceedings before the Kikuyu Chief Magistrate’s Court is seeking distribution of that estate in parallel succession proceedings. I have no hesitation in finding that it is an estate asset distributable under this cause.
27. From the following it goes without saying that absent transmission, the activities of the 1 st and 2 nd interested parties' amount to intermeddling and the beneficiaries who have benefitted from the rental income from the commercial undertakings on parcels KABETE/ KIBICHIKO/1219 and KABETE/ KIBICHIKO/1223 will have the same deducted from the eventual distribution. I also take note of the allegations with regard to KABETE/ KIBICHIKO/1220, if the same is established that will be considered in determining the share of the Estate of David Kihumbu.
28. The beneficiaries of the estate of the deceased as are defined under Section 29 of the Law of Succcession Act and so in this instance are -
a. Estate of David Kihumbu
b. Samuel Morgan Githumbi Thiru
c. Keziah Wairimu Thiru
d. Ruth Gathoni Thiru
e. Fredrick Kungu Thiru
f. John Njogu Thiru
g. Anne Mumbi Koigi
h. Estate of Francis Mungai Thiru
29. The standing of daughters in-law and grandchildren in relation to deceased parents in law and grandparents respectively, is well established by legal precedent. In Re Estate of Cecilia Wanjiru Kibicho (Deceased) (2016) eKLR , the Court stated as follows:
[20].……... I should also add that a daughter-in-law is not listed in section 29(b) of the Act as being among persons who may move the court under section 26 for reasonable provision and who the court may declare to be a dependant.………………………………………………………
[26] The applicant in the confirmation application is a daughter-in-law of the deceased, by dint of her having married the deceased’s son, ……... She is not a blood relative of the deceased. S he, therefore, does not qualify to be among the survivors of the deceased as defined in Part V . She is, consequently, not entitled to a share in the deceased estate. However, her children with the deceased’s son would be blood relatives of the deceased in their capacity as grandchildren of the dead.
30. What then are the consequential orders?
a. The grant issued to John Njogu Thiru and Ruth Gathoni Thiru on 11 th November 2016 is revoked and a fresh grant will issue to John Njogu Thiru, Ruth Gathoni Thiru and Fredrick Kungu Thiru
b. The Estate properties Comprise-
i. KABETE/ KIBICHIKO/1223
ii. KABETE/ KIBICHIKO/1219
iii. Funds in Account No. 0081-3718 with K-Unity Savings and Credit Co-operative Society Limited. (already distributed)
c. The Amended Summons for Confirmation of Grant dated 19 th December 2019 is struck out. The Administrators will file fresh summons for confirmation of Grant compliant with Section 71 of the Law of Succession Act within 30 days from the date hereof.
d. In the event they are unable to agree, any of the Administrators will proceed to file the Summons and serve it on all the beneficiaries. Beneficiaries opposed to the mode of Distribution will file affidavit of protest within 14 days of service. With leave granted to the administrators to file further affidavit of service in response within 7 days of service.
e. The matter will be mentioned before the Deputy Registrar on 14th April 2026 to confirm compliance and take further directions.
31. This being a family matter there shall be no order as to costs.
32. Parties at Liberty to Appeal. Party exercising their right of appeal to do so within 30 days.
It is so ordered.
SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 20 th DAY OF FEBRUARY 2026.