Introduction & Background
1. The Applicant has filed a Summons before the Court seeking to revoke and/or annul a Limited Grant of Letters of Administration Ad Litem that was issued to the Respondent on 13 th February 2026. The Summons is supported by grounds on its face and the affidavits of the Applicant sworn on 6 th March 2026, 4 th May 2026 and 15 th May 2026. It is opposed by the Respondent through his affidavits sworn on 7 th April 2026, 11 th May 2026 and 22 nd May 2026. The Summons was canvassed by way of written submissions which are on record and together with the pleadings I will make relevant references to them in my analysis and determination below.
Analysis and Determination
2. From the parties’ submissions, the only issue for the court’s determination is whether the Grant ought to be revoked and/or annulled. The Applicant avers that he is a son and beneficiary of the Deceased’s estate and that the Respondent failed to disclose all the beneficiaries of the Deceased's estate leaving out several siblings, including John Kyalo Mutuku, Gratitude Nicholaus Mbatha and Victor Tumaini. That the Respondent misrepresented to the court that he was the only surviving beneficiary and he failed to notify other beneficiaries who rank equally with him.
3. The Applicant depones that the Grant is inappropriate for this situation as the underlying suit, ELC 169 of 2018 has already been determined and a judgment and decree have been issued. That the only remaining action is the execution of the decree which entails transferring land parcels Machakos/Mua Hills/1500 and 1501 to the Deceased's name. The Applicant contends that a Grant Ad Litem only allows a person to prosecute or defend a suit and does not grant authority for execution or any interference with property. He states that the Respondent should have petitioned for a full Grant of Letters of Administration, which would give him the authority to collect and administer the estate's properties.
4. The Applicant claims that the Deceased, had been acting as an attorney for Simon Mwaniki Kaunga in ELC 169 of 2018 and he states that the Special Power of Attorney was automatically revoked by law upon the death of the donor, that is Simon, on 7 th July 2020. Furthermore, that the Deceased’s subsequent death on 6 th October 2021 meant she could no longer be substituted and therefore, the Respondent is improperly seeking the Grant to step into a defunct legal authority and that the Grant is "useless and inoperative." The Applicant further claims the Respondent concealed material facts regarding the sale of land parcel Machakos/Mua Hills/1501 as the Respondent was a signatory and witness to the sale agreement of this land to third parties and a subsequent assignment to another party.
5. The Applicant states that since the Respondent willingly executed the agreement and did not claim fraud or coercion, the Respondent is estopped from using a Grant Ad Litem to now challenge the very transfer he facilitated. Additionally, the Applicant claims that the Deceased had wished to sell the land to pay for urgent medical treatment. The Applicant avers that him and other family members are apprehensive that the Respondent intends to misuse the grant to transfer the properties to his name, which would disinherit the other beneficiaries and go against the Deceased's wishes. The Applicant relies on section 76 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules , which allow the court to revoke a grant that was obtained fraudulently, through concealment of material facts, or where the proceedings were defective.
6. In response, the Respondent depones that the Summons is frivolous, an abuse of court process and a tactic by the Applicant to avoid legal consequences for his own unlawful actions. The Respondent denies concealing any material facts and that his Petition fully disclosed the list of all beneficiaries, which was based on the same Chief's letter that the Applicant himself later used. He claims that there are only seven surviving children and that the Applicant's complaint is merely about the inclusion of grandchildren in place of their deceased parents which he states is a matter for the full succession process.
7. The Respondent claims he sent a notice to all beneficiaries on 2 nd January 2026, notifying them of the succession proceedings and that the Applicant fundamentally misunderstands the nature of a Grant Ad Litem . He states that the Grant was properly issued under the law for the purpose of litigation, which includes execution of a decree.
8. He states that without this Grant, the decree in ELC 169 of 2018 would be rendered nugatory and he clarifies that the purpose of the Grant is strictly limited to pursuing execution of the decree, filing a fresh suit to cancel unlawfully transferred titles and instituting contempt proceedings. The Respondent denies any intention to misuse the Grant to transfer property to himself, stating he is aware of its legal limitations.
9. The Respondent further contends that the Applicant has unlawfully transferred land parcel Machakos/Mua Hills/1501 to a third party contrary to the court decree in ELC 169 of 2018 , that the Applicant is the defendant in ELC 169 of 2018 and the very person against whom the estate needs to take legal action for contempt and intermeddling. Therefore, that it is absurd to require the Respondent to notify the Applicant of a grant whose purpose is to sue him. The Respondent states that in ELC No. 221 of 2014 , the Applicant was restrained by an injunction from dealing with the suit property, yet he proceeded to sell it.
10. The Respondent disputes the Applicant's claim that the Deceased wished to sell the land for medical treatment, noting that nearly five years have passed since her death and questioning who was seeking treatment in 2025. Regarding the alleged Will, the Respondent states he is not aware of any probate proceedings for such a Will and he appears to suggest that the Applicant is attempting to fabricate or forge a document.
11. The Respondent depones that the Applicant's allegations about his involvement in the sale are matters for the Environment and Land Court which is the court that issued the decree to determine, not the succession court. He claims the Applicant is misusing these proceedings to avoid facing contempt charges and that the Respondent has been subjected to hostility and threats from the Applicant and his siblings for objecting to the unlawful disposal of the estate. He avers that this was reported to the Directorate of Criminal Investigations (DCI). For the aforementioned reasons, the Respondent concludes that the threshold for revoking a Grant has not been met and he prays that the Summons be dismissed with costs for being frivolous, vexatious and an abuse of the court process.
12. As stated, the Grant intended to be revoked is a Limited Grant of Letters of Administration Ad Litem which was limited “…to the purpose of pursuing execution of the decree(ELC 169 of 2018) so that the subject land is duly transferred into the name of the deceased’s estate; filing a fresh suit seeking cancellation of any unlawfully transferred title in parcel 1501 …; and instituting contempt proceedings for disobedience of the decree were granted by this court to DANIEL KAUNGA SIMON …. ”. The court is aware that a limited grant could also be revoked if any or more of factors in section 76 of the Law of Succession Act are present including that the proceedings to obtain the grant were defective in substance; 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 and; 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.
13. Sections 54 and 55 of the Act also provide as follows:
54. Limited grants
A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act.
55. No distribution of capital before confirmation of grant
(1) No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any division of property, unless and until the grant has been confirmed as provided by section 71.
(2) The restriction on distribution under subsection (1) does not apply to the distribution or application before the grant of representation is confirmed of any income arising from the estate and received after the date of death whether the income arises in respect of a period wholly or partly before or after the date of death.
14. As cited by the Respondent, this court ( Kemei J.,) in Winrose Emmah Ndinda Kiamba v Agnes Nthambi Kasyoka [2021] KEHC 8519 (KLR) held as follows:
13. The above provisions are clear and that such a grant is normally issued due to the exigencies arising in relation to the estate and which could not wait for issuance of full grant through the normal way. It is also issued without prejudice to the right of any other person to apply for full grant of representation to the deceased. As such, limited grant may not be subjected to full and strict compliance with the requirements meant for, as if it is full grant of representation. Again, the person to whom the grant is so made undertakes to administer the estate according to the law but limited for the purpose for which the grant is issued until a further grant of representation is made by the court. I have perused the pleadings filed in the lower court and that the court was satisfied that the urgency warranted issuance of a limited grant which it issued on 10th July, 2020.
14. On the aspect of consent of the other beneficiaries, the Law of Succession Act that explicitly provides that, a court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act. The aforementioned, clearly depicts that the aspect of consent with regard to special limited grants of representation need not be mandatory and judging from the strained relationship between the Appellant/Applicant and the Respondent, the aspect of consent could not be attained as the same was for purposes of acquiring the locus standi for instituting a suit against the Respondent. Therefore, this Honourable Court notes that the action of the Lower Court in granting the Appellant/Applicant the Grant ad litem was at the discretion of that court and considering the circumstances of this particular case, I find that the grant was NOT obtained fraudulently. As such, I am NOT satisfied that the Respondent did not show any sufficient cause as to compel the lower court to revoke the limited Grant issued. The grant is still necessary for purposes of proceeding with the intended Appeal dated 6th October, 2020 filed in court.
15. First, whereas the Respondent raised a preliminary objection regarding the Applicant's locus standi, stating he failed to enter appearance under Rule 60 of the Probate and Administration Rules , I find that the Applicant, being a son of the Deceased and a beneficiary of the estate, has a recognizable stake in the matter. Section 76 of the Law of Succession Act allows an application for revocation to be brought by "any interested party” and the Court of Appeal in Matheka & another v Matheka [2005] KECA 316 (KLR)] affirmed that this provision is wide enough to include any person with a sufficient interest. In any event, I find that given that the court has discretion in such matters and the Applicant has clearly participated in the proceedings, the more substantive arguments against revocation carry far more weight than this technical point.
16. Second, as stated above, a Grant Ad Litem is a special purpose grant and is not subject to the same strict notification and consent requirements as a full grant of administration. Further, I agree that the consent of other beneficiaries is not mandatory for a limited Grant Ad Litem , especially in circumstances of urgency or hostility. The Grant issued herein was limited specifically to litigation purposes of pursuing execution of the decree, filing a suit to cancel an unlawfully transferred title and instituting contempt proceedings. It does not confer any power to distribute the estate or deal with its assets beyond these specific purposes and I find that the Respondent's disclosure, while perhaps not exhaustive, was substantial enough for the limited purpose for which the Grant was sought. The Applicant has not demonstrated that the Respondent deliberately concealed material facts to mislead the court.
17. Third, I have gone through the pleadings and I find that there appears to be continuous friction between the beneficiaries of the estate arising from the Grant which the Respondent is using as a weapon rather than a shield for the estate. Indeed, the fact that he was a witness to the sale agreement he now seeks to challenge undermines his claim that he is acting solely in the estate's best interest. The Respondent's primary purpose for obtaining the Grant is to challenge the transfer of land parcel 1501. However, as stated, the Applicant has demonstrated that the Respondent was a signatory and witness to the very sale agreement that led to that transfer. I find that the Respondent is estopped from challenging a transaction he facilitated and this fatal flaw strikes at the very heart of the Grant's purpose because if the main reason for the Grant is legally invalid, the Grant itself becomes a useless instrument, serving only as a means to harass the Applicant and other beneficiaries. It should not be lost that a court will not allow its processes to be used for oppression and the court can exercise its inherent power to revoke it to prevent an abuse of its own process, which is a paramount interest of justice. The revelation of the Respondent's direct participation in the transaction is a subsequent circumstance that renders the Grant's purpose moot and its continued existence a source of injustice.
Conclusion and Disposition
18. In the end, I find merit in the Summons by the Applicant dated 6 th March 2026 and order that the Limited Grant of Letters of Administration Ad Litem that was issued to the Respondent on 13 th February 2026 be and is hereby revoked, annulled and cancelled absolutely. There shall be no order as to costs.
DATED SIGNED AND DELIVERED virtually this 10 th DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Daniel Kaunga - the Applicant in person
2. Mr. Muli holding brief for Mr. Musyimi for the Respondent
3. Abdisalan- Court Assistant
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1. The Applicant has filed a Summons before the Court seeking to revoke and/or annul a Limited Grant of Letters of Administration Ad Litem that was issued to the Respondent on 13 th February 2026. The Summons is supported by grounds on its face and the affidavits of the Applicant sworn on 6 th March 2026, 4 th May 2026 and 15 th May 2026. It is opposed by the Respondent through his affidavits sworn on 7 th April 2026, 11 th May 2026 and 22 nd May 2026. The Summons was canvassed by way of written submissions which are on record and together with the pleadings I will make relevant references to them in my analysis and determination below.
Analysis and Determination
2. From the parties’ submissions, the only issue for the court’s determination is whether the Grant ought to be revoked and/or annulled. The Applicant avers that he is a son and beneficiary of the Deceased’s estate and that the Respondent failed to disclose all the beneficiaries of the Deceased's estate leaving out several siblings, including John Kyalo Mutuku, Gratitude Nicholaus Mbatha and Victor Tumaini. That the Respondent misrepresented to the court that he was the only surviving beneficiary and he failed to notify other beneficiaries who rank equally with him.
3. The Applicant depones that the Grant is inappropriate for this situation as the underlying suit, ELC 169 of 2018 has already been determined and a judgment and decree have been issued. That the only remaining action is the execution of the decree which entails transferring land parcels Machakos/Mua Hills/1500 and 1501 to the Deceased's name. The Applicant contends that a Grant Ad Litem only allows a person to prosecute or defend a suit and does not grant authority for execution or any interference with property. He states that the Respondent should have petitioned for a full Grant of Letters of Administration, which would give him the authority to collect and administer the estate's properties.
4. The Applicant claims that the Deceased, had been acting as an attorney for Simon Mwaniki Kaunga in ELC 169 of 2018 and he states that the Special Power of Attorney was automatically revoked by law upon the death of the donor, that is Simon, on 7 th July 2020. Furthermore, that the Deceased’s subsequent death on 6 th October 2021 meant she could no longer be substituted and therefore, the Respondent is improperly seeking the Grant to step into a defunct legal authority and that the Grant is "useless and inoperative." The Applicant further claims the Respondent concealed material facts regarding the sale of land parcel Machakos/Mua Hills/1501 as the Respondent was a signatory and witness to the sale agreement of this land to third parties and a subsequent assignment to another party.
5. The Applicant states that since the Respondent willingly executed the agreement and did not claim fraud or coercion, the Respondent is estopped from using a Grant Ad Litem to now challenge the very transfer he facilitated. Additionally, the Applicant claims that the Deceased had wished to sell the land to pay for urgent medical treatment. The Applicant avers that him and other family members are apprehensive that the Respondent intends to misuse the grant to transfer the properties to his name, which would disinherit the other beneficiaries and go against the Deceased's wishes. The Applicant relies on section 76 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules , which allow the court to revoke a grant that was obtained fraudulently, through concealment of material facts, or where the proceedings were defective.
6. In response, the Respondent depones that the Summons is frivolous, an abuse of court process and a tactic by the Applicant to avoid legal consequences for his own unlawful actions. The Respondent denies concealing any material facts and that his Petition fully disclosed the list of all beneficiaries, which was based on the same Chief's letter that the Applicant himself later used. He claims that there are only seven surviving children and that the Applicant's complaint is merely about the inclusion of grandchildren in place of their deceased parents which he states is a matter for the full succession process.
7. The Respondent claims he sent a notice to all beneficiaries on 2 nd January 2026, notifying them of the succession proceedings and that the Applicant fundamentally misunderstands the nature of a Grant Ad Litem . He states that the Grant was properly issued under the law for the purpose of litigation, which includes execution of a decree.
8. He states that without this Grant, the decree in ELC 169 of 2018 would be rendered nugatory and he clarifies that the purpose of the Grant is strictly limited to pursuing execution of the decree, filing a fresh suit to cancel unlawfully transferred titles and instituting contempt proceedings. The Respondent denies any intention to misuse the Grant to transfer property to himself, stating he is aware of its legal limitations.
9. The Respondent further contends that the Applicant has unlawfully transferred land parcel Machakos/Mua Hills/1501 to a third party contrary to the court decree in ELC 169 of 2018 , that the Applicant is the defendant in ELC 169 of 2018 and the very person against whom the estate needs to take legal action for contempt and intermeddling. Therefore, that it is absurd to require the Respondent to notify the Applicant of a grant whose purpose is to sue him. The Respondent states that in ELC No. 221 of 2014 , the Applicant was restrained by an injunction from dealing with the suit property, yet he proceeded to sell it.
10. The Respondent disputes the Applicant's claim that the Deceased wished to sell the land for medical treatment, noting that nearly five years have passed since her death and questioning who was seeking treatment in 2025. Regarding the alleged Will, the Respondent states he is not aware of any probate proceedings for such a Will and he appears to suggest that the Applicant is attempting to fabricate or forge a document.
11. The Respondent depones that the Applicant's allegations about his involvement in the sale are matters for the Environment and Land Court which is the court that issued the decree to determine, not the succession court. He claims the Applicant is misusing these proceedings to avoid facing contempt charges and that the Respondent has been subjected to hostility and threats from the Applicant and his siblings for objecting to the unlawful disposal of the estate. He avers that this was reported to the Directorate of Criminal Investigations (DCI). For the aforementioned reasons, the Respondent concludes that the threshold for revoking a Grant has not been met and he prays that the Summons be dismissed with costs for being frivolous, vexatious and an abuse of the court process.
12. As stated, the Grant intended to be revoked is a Limited Grant of Letters of Administration Ad Litem which was limited “…to the purpose of pursuing execution of the decree(ELC 169 of 2018) so that the subject land is duly transferred into the name of the deceased’s estate; filing a fresh suit seeking cancellation of any unlawfully transferred title in parcel 1501 …; and instituting contempt proceedings for disobedience of the decree were granted by this court to DANIEL KAUNGA SIMON …. ”. The court is aware that a limited grant could also be revoked if any or more of factors in section 76 of the Law of Succession Act are present including that the proceedings to obtain the grant were defective in substance; 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 and; 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.
13. Sections 54 and 55 of the Act also provide as follows:
54. Limited grants
A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act.
55. No distribution of capital before confirmation of grant
(1) No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any division of property, unless and until the grant has been confirmed as provided by section 71.
(2) The restriction on distribution under subsection (1) does not apply to the distribution or application before the grant of representation is confirmed of any income arising from the estate and received after the date of death whether the income arises in respect of a period wholly or partly before or after the date of death.
14. As cited by the Respondent, this court ( Kemei J.,) in Winrose Emmah Ndinda Kiamba v Agnes Nthambi Kasyoka [2021] KEHC 8519 (KLR) held as follows:
13. The above provisions are clear and that such a grant is normally issued due to the exigencies arising in relation to the estate and which could not wait for issuance of full grant through the normal way. It is also issued without prejudice to the right of any other person to apply for full grant of representation to the deceased. As such, limited grant may not be subjected to full and strict compliance with the requirements meant for, as if it is full grant of representation. Again, the person to whom the grant is so made undertakes to administer the estate according to the law but limited for the purpose for which the grant is issued until a further grant of representation is made by the court. I have perused the pleadings filed in the lower court and that the court was satisfied that the urgency warranted issuance of a limited grant which it issued on 10th July, 2020.
14. On the aspect of consent of the other beneficiaries, the Law of Succession Act that explicitly provides that, a court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act. The aforementioned, clearly depicts that the aspect of consent with regard to special limited grants of representation need not be mandatory and judging from the strained relationship between the Appellant/Applicant and the Respondent, the aspect of consent could not be attained as the same was for purposes of acquiring the locus standi for instituting a suit against the Respondent. Therefore, this Honourable Court notes that the action of the Lower Court in granting the Appellant/Applicant the Grant ad litem was at the discretion of that court and considering the circumstances of this particular case, I find that the grant was NOT obtained fraudulently. As such, I am NOT satisfied that the Respondent did not show any sufficient cause as to compel the lower court to revoke the limited Grant issued. The grant is still necessary for purposes of proceeding with the intended Appeal dated 6th October, 2020 filed in court.
15. First, whereas the Respondent raised a preliminary objection regarding the Applicant's locus standi, stating he failed to enter appearance under Rule 60 of the Probate and Administration Rules , I find that the Applicant, being a son of the Deceased and a beneficiary of the estate, has a recognizable stake in the matter. Section 76 of the Law of Succession Act allows an application for revocation to be brought by "any interested party” and the Court of Appeal in Matheka & another v Matheka [2005] KECA 316 (KLR)] affirmed that this provision is wide enough to include any person with a sufficient interest. In any event, I find that given that the court has discretion in such matters and the Applicant has clearly participated in the proceedings, the more substantive arguments against revocation carry far more weight than this technical point.
16. Second, as stated above, a Grant Ad Litem is a special purpose grant and is not subject to the same strict notification and consent requirements as a full grant of administration. Further, I agree that the consent of other beneficiaries is not mandatory for a limited Grant Ad Litem , especially in circumstances of urgency or hostility. The Grant issued herein was limited specifically to litigation purposes of pursuing execution of the decree, filing a suit to cancel an unlawfully transferred title and instituting contempt proceedings. It does not confer any power to distribute the estate or deal with its assets beyond these specific purposes and I find that the Respondent's disclosure, while perhaps not exhaustive, was substantial enough for the limited purpose for which the Grant was sought. The Applicant has not demonstrated that the Respondent deliberately concealed material facts to mislead the court.
17. Third, I have gone through the pleadings and I find that there appears to be continuous friction between the beneficiaries of the estate arising from the Grant which the Respondent is using as a weapon rather than a shield for the estate. Indeed, the fact that he was a witness to the sale agreement he now seeks to challenge undermines his claim that he is acting solely in the estate's best interest. The Respondent's primary purpose for obtaining the Grant is to challenge the transfer of land parcel 1501. However, as stated, the Applicant has demonstrated that the Respondent was a signatory and witness to the very sale agreement that led to that transfer. I find that the Respondent is estopped from challenging a transaction he facilitated and this fatal flaw strikes at the very heart of the Grant's purpose because if the main reason for the Grant is legally invalid, the Grant itself becomes a useless instrument, serving only as a means to harass the Applicant and other beneficiaries. It should not be lost that a court will not allow its processes to be used for oppression and the court can exercise its inherent power to revoke it to prevent an abuse of its own process, which is a paramount interest of justice. The revelation of the Respondent's direct participation in the transaction is a subsequent circumstance that renders the Grant's purpose moot and its continued existence a source of injustice.
Conclusion and Disposition
18. In the end, I find merit in the Summons by the Applicant dated 6 th March 2026 and order that the Limited Grant of Letters of Administration Ad Litem that was issued to the Respondent on 13 th February 2026 be and is hereby revoked, annulled and cancelled absolutely. There shall be no order as to costs.
DATED SIGNED AND DELIVERED virtually this 10 th DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Daniel Kaunga - the Applicant in person
2. Mr. Muli holding brief for Mr. Musyimi for the Respondent
3. Abdisalan- Court Assistant
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