INTRODUCTION
1. The deceased herein died on 17 TH September 2009. Letters of administration were issued to Grace Njoki Kimani and David Mwangi Ndungu on 10 th May 2010, the grant was subsequently confirmed on 14 th June 2011 and estate distributed as per the certificate of confirmation of grant issued on 14 th June 2011.
2. The applicants in application dated 7 th July 2020 state that they are wife and son of the deceased, they seek the following orders-
a. THAT the grant of Letters of Administration issued to Grace Njoki Kimani and David Mwangi Ndungu on 10 th May 2010 and confirmed on 14 th day of June 2011 the respondents (sic) herein be revoked and or annulled.
b. THAT the title deeds for the parcels of land numbers DAGORETTI/ UTHIRU/ 1495; RUIRU EAT/ JUJA EAST BLOCK 2/ 1578; RUIRU/RUIRU EAST BLOCK 4/T.1954/ NYANDARUA/ SOUTH KINANGOP/ 7179; BARAKA MOLEN SELF HELP GROUP CERTIFICATE NO.373 in LR NO. 209/9366, be revoked and restored back to the Estate.
c. THAT motor vehicle registration Nos KBH 952P, KAX 675Y, KAKA 625W, KAL 579A and KAQ 530X be restored back to the Estate.
d. THAT the money held in consolidated Bank Ltd, Post office Bank and Family Bank do revert to the estate.
e. THAT the share in Safaricom Limited and Kengen (sic) do revert back to the estate.
f. THAT upon Annulment/ Revocation of the grant, this Honourable Court be pleased to direct the 1 st respondent and the Applicants to jointly file a fresh application for letters of administration providing correct and accurate names of all beneficiaries and assets and a fair distribution.
g. THAT this Honourable Court be pleased to issue any other and/or further orders as may be deemed expedient in the circumstances.
h. THAT costs of this application be in the cause.
3. The application is supported by the affidavit of the 1 st applicant, Salome Muthoni Nyaga sworn on the 7 th July 2020. She seeks the revocation of the grant as the grant was obtained fraudulently by making a false statement of facts, by the concealment of material facts from the Court and by the means of untrue allegations of facts essential in point of law to justify the grant.
4. She avers that the Administrators did not notify her of the proceedings notwithstanding they were aware that she was the 1 st wife of the deceased. Further the administrators failed to provide for her in the distribution of the estate and she is a beneficiary of the estate. Finally, the mode of distribution is unequal as it favours one of the beneficiaries at the expense of the others.
5. The administrators oppose the application and affidavit in opposition has been sworn by the 1 st Administrator, Grace Njoki on 10 th September 2020. She avers that she was the sole spouse to the deceased at the time of his death. At the time of her marriage to the deceased she was an aware that the deceased had separated with his 1 st wife (1 st Applicant). They had 2 children, Bernard Kariuki and Silvano Nyaga whom she raised. Her marriage with the deceased was formalised under Kikuyu custom in 2007.
6. When the deceased died, the applicant did not participate in the funeral arrangements and was not present at the funeral. She does not recognise the 1 st applicant as a beneficiary of the estate of the deceased. Provision was made for the sons of the deceased as beneficiaries in the mode of distribution.
7. She sold the motor vehicles for the upkeep of the children, including their education and other needs they had. She was prepared to transmit the estate to the beneficiaries but the 2 nd Applicant stated he wanted to wait until he completed university.
8. Silvano Nyaga Kimuyu, the younger son of the deceased and 1 st Applicant has also sworn an affidavit on 15 th March 2021. He states that he is satisfied with the mode of distribution.
9. The matter proceeded by way of viva voce evidence. OW1 is Salome Muthoni the 1 st Applicant. Her affidavit and witness statement were adopted as her evidence in Chief. She states that they cohabited as man and wife for a period of 15 years with the deceased. They separated in 2006. Her father died before they could hold the reconciliation meetings. She never went back as the deceased was living with another woman. The Petition for letters of Administration is premised on falsehoods, as it does not recognise as her spouse, failed to provide for her and the distribution is not on equal.
10. On Cross Examination she stated that she and the deceased married got married in 1995 and formalised the marriage under Kikuyu Custom. She did not have a record (minutes) of the ceremony and the witnesses were all dead. The union was blessed with two children. When they separated in 2002 she left the home, the children remained with their father.
11. She is aware that the 1 st Administrator was a wife of the deceased and they had a daughter. Currently she is staying with her elder son while the younger one lives on his own. She had contributed towards the education of the children. She contributed towards the acquisition of the property. She was not notified when the Petition was lodged.
12. She learnt of the mode of distribution at the hearing of her summons for revocation. The distribution of the estate favours the daughter of the 1 st Administrator. Her sons have not received their entitlement as set out in the certificate of confirmation of grant, she did not pursue division of matrimonial property in the life time of the deceased.
13. On re-examination, she reiterated that she was a spouse to the deceased and that the distribution is unequal. She confirmed that the estate has not been transmitted.
14. OW2- is Bernard Kariuki Kimuyu he is the eldest son of the deceased. His witness statement and affidavit were admitted as his evidence in Chief. He confirmed that after the death of his father they continued living with the 1 st Administrator, she provided for their education alongside other needs. At some point the 1 st Administrator was not providing and so their mother stepped in.
15. On cross examination he stated that he was twelve years when the deceased died. His younger brother was 6 years old. He only became aware of the succession cause in 2020. The distribution is not proportionate. Not all the properties of the deceased are included in the Certificate of Confirmation of Grant. He did not have a valuation report however in his assessment the distribution was not equal. The transmission of the estate was stayed by court order issued in 2021.
16. The Administrator, Grace Njoki Kimani, testified as the sole witness for the respondent. Her affidavit, witness statement and list and bundle of documents were admitted as her evidence in Chief and Exhibits admitted and marked as Exhibit 1-8.
17. She and the deceased were married in 2004, he informed her that he had another wife, the 1 st applicant with whom he had since separated. The deceased had 3 children, 2 with the 1 st applicant and 1 with her. There is a court order barring her from transmitting the estate. The distribution is fair. She has utilised the rental income to educate all the 3 children.
18. On cross examination she conceded that the 1 st applicant is a wife of the deceased and that in the Petition she indicated she was the sole wife. She also conceded that the children are equal and entitled to an equal share of the estate. She continues to collect rental income from the properties (Molem and Uthiru). She holds the property in trust for the children of the deceased. She did not allocate any property to the 1 st wife because she is not entitled.
19. On re-examination, she stated that the 1 st applicant was not included as beneficiary in the Chief’s letter. The distribution is equal. The daughter was younger than the rest and therefore entitled to a larger share of the estate.
20. Parties were directed to file submissions. The applicant’s submissions are dated 27 th January 2026. She frames the following as the issues for determination-
a. Whether the 1 st Applicant was a wife of the deceased and as such, whether she was entitled to benefit from his estate.
b. Whether the Applicants have met the grounds for revocation/ annulment of the grant issued to the Respondents.
21. On the first issue it is submitted that the 1 st applicant is a wife for purposes of the Law of Succession Act and reference made to Sections 3 and 29 of the Law of Succession Act on the right of former wives and separated wives to be recognised as beneficiaries. Reference is made to the decisions in Re Estate of John Njeru Mucee (Deceased) (Succession Cause 3 of 2018) [2023] KEHC 2552 (KLR); re Estate of Aloise Rentare Nyamu (Deceased) (Succession Cause E002 of 2021) [2024] KEHC 4794 (KLR) and re Estate of Aloise Rentare Nyamu (Deceased) (Succession Cause E002 of 2021) [2024] KEHC 4794 (KLR)
22. Regarding the revocation or annulment of the grant, it is submitted that the circumstances of this case strictly satisfy the criteria under Section 76 of the Law of Succession Act. Consequently, the only appropriate outcome is the formal revocation of the Grant. Reference is made to the decisions in re Estate of Washiali Luvisia also known as Washiali Lubisia (Deceased) (Succession Cause 525 of 2006) [2022] KEHC 10405 (KLR); Re Estate of William Mbogo Njunu (Deceased) (Succession Cause 5 of 1999) [2022] KEHC 16613 (KLR); re Estate of Nthambi Kiilu Muange (Deceased) (Succession Cause 540 of 2008) [2023] KEHC 24400 (KLR) and re Estate of Saverio Ruri Njuiri (Deceased) [2021] KEHC 3851 (KLR)
ANALYSIS AND DETERMINATION
23. Having regard to the pleadings filed, evidence adduced, submissions filed alongside the relevant law, I discern the following to be the issues for determination-
a. Whether the grant herein ought to be revoked?
b. Arising from (a) above what are the consequential orders?
24. On the first issue the relevant provisions of the law are Section 76 (on revocation of grant), Section 29 (on dependants of a deceased person), Section and Section 51 (on application of Grant) of the Law of Succession Act. The Applicant submits that the respondents run afoul of the legal provisions relating to Petitioning for Grant and distribution of estate.
25. Section 51 of the Law of Succession Act is couched in mandatory terms and requires that –
Section 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)in 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.
26. It is conceded by the Administrators, that the applicant, although separated, remains a wife of the deceased. She therefore falls within the definition of a wife under Section 3 of the Law of Succession Act and is a dependant under Section 29 of the Act, necessitating that provision be made for her.
27. By failing to disclose the 1st applicant’s interest despite knowing her relationship to the deceased, the administrators acted in breach of mandatory procedural rules (Section 51 & Rule 26), casting a fraudulent shadow over the resulting grant and consequential proceedings. In Re Estate of Prisca Onyango Nande (deceased) (2020) eKLR it was held that,
A grant 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 of letters of administration intestate was made instead of a grant of probate or vice versa (sic). It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second is where the grant was obtained procedurally but he administrator failed or fails to apply for confirmation of grant within the time allowed. The third is where the grant has become useless and inoperative following subsequent circumstances...
28. Which brings us to the application of Section 76 of the Law of Succession Act. The Court is vested with discretion in determining whether or not to revoke a grant. Section 76 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. (Emphasis Supplied)
29. In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR) Hon. Mwita J as he then was stated as follows-
Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not a 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 consider interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.
30. What follows from this interpretation therefore is that the Court is empowered but not compelled to revoke a grant, the factors to guide the Court in exercising this discretion include, interests of justice and equity, protection of innocent third parties, delay and laches, inconsequential irregularities and substantial compliance. The Court’s primary objective is to avoid inordinate delays and to bring finality to litigation and securing substantive justice for the beneficiaries of the estate.
31. In the instant case, the deceased died on 17 th September 2009, the grant was issued on 10 th May 2010 and subsequently confirmed on 14 th June 2011. 9 years after the confirmation of the grant this summons for revocation was presented, the estate is yet to be transmitted to the beneficiaries. The principal lament by the applicants is that the mode of distribution is not equal. Given the passage of time and mindful of the fact that at the end of the day the Court is concerned with the distribution of the estate among the rightful beneficiaries, it is my finding that the interests of the beneficiaries will be best made by determining whether the Certificate of Confirmation of Grant complies with Section 40 and 35 of the Law of Succession Act.
32. One glaring omission in the Certificate of Confirmation of grant is the failure to provide for the 1 st applicant. The application of the above cited provisions of the Act was discussed in detail in re Estate of Cheptoo Arap Koisum (Deceased) [2025] KEHC 6087 (KLR) as hereunder-
[11] Section 40 of the Law Succession Act deals with the distribution of the estate of a polygamous family and provide as follows: -
a. Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.
b. The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38.”
[12.] In Re Estate of Michael George Tendwa Said [Deceased] [2020] eKLR , Section 40 above is the applicable law where there is no agreement on distribution of the estate. He sated as follows:
any proposed mode of distribution ought to be compatible with and in accordance with the provision thereby leaving no room for distribution based on the whim of the holder of the grant or his/her sentimental feelings
[13.] Regarding “equality” in distribution as mentioned in Section 40 above, Court of Appeal in the case of Stephen Gitonga M’murithi v Faith Ngira Murithi [2015] eKLR , observed as follows:
Section 38 enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and whether married and comfortable in their marriage or unmarried. Section 40 on the other hand enjoins the inclusion of a surviving spouse as an additional unit to each house hold of a polygamous deceased. Applying the above principles …… it is our finding that the learned trial Judge fell into an error when he failed to accord equal distribution to all the children of the deceased in violation of section 38 of the Law of Succession Act by discriminating against the married daughters of the deceased…
[14]. Additionally, in the case of in Re Estate of John Musambayi Katumanga – [Deceased] [2014] eKLR Musyoka J stated as follows:
Under Section 40 of the Act, if the deceased had several wives, as opposed to households, the estate would devolve depending on the number of children. Ideally, the estate would be divided equally among all the members of the entire household, lumping the children and the surviving spouses together. After that the family members would retreat to their respective houses where Section 35 of the Act would be put into effect, so that if there was a surviving spouse in a house she would enjoy life interest over the property due to her children. The house without a surviving spouse would split its entitlement in terms of Section 38 of the Law of Succession Act, the children would divide the estate equally amongst themselves. Section 40 was not designed for the circumstances of the instant estate, but it would appear more appealing for the purpose of distribution of the said estate than Section 35. The spirit of Part V, especially Sections 35, 38 and 40, is equal distribution, of the intestate estate amongst the children of the deceased. There have been debates on whether the distribution should be equal or equitable. My reading of these provisions is that they envisage equal distribution for the word used in Sections 35[5] and 38 is “equally” as opposed to “equitably”. This is the plain language of the provisions. The provisions are in mandatory terms - the property “shall … be equally divided among the surviving children.” Equal distribution is envisaged regardless of the ages, gender and financial status of the children.
33. I would qualify the finding by Hon. Musyoka J as the emerging jurisprudence is that in distributing the estate the Court does not simply seek to attain mathematical precision in distributing the estate but has the overarching objective of securing substantive equality. This involves enquiring into the individual circumstances of each beneficiary and then making provision that ensures balance. Although the 1 st applicant submitted that she had contributed to the acquisition of the properties she did not substantiate her claim further. I agree with the 1 st applicant that the fact that the youngest child was an infant when the deceased died, is a matter for consideration in distributing the estate. This is the import of Sections 26, 27 and 28 of the Law of Succession Act. Section 28 in particular lays out the following guidelines-
(a)the nature and amount of the deceased's property;
(b)any past, present or future capital or income from any source of the dependant;
(c)the existing and future means and needs of the dependant;
(d)whether the deceased had made any advancement or other gift to the dependant during his lifetime;
(e)the conduct of the dependant in relation to the deceased;
(f)the situation and circumstances of the deceased's other dependants and the beneficiaries under any will;
(g)the general circumstances of the case, including, so far as can be ascertained, the testator's reasons for not making provision for the dependant
34. With these considerations in mind I vacate the orders of 14 th June 2011 on distribution of the estate and direct that the estate will be distributed as follows-
DESCRIPTION OF PROPERTY
BENEFICARIES
SHARES AND MODE OF DISTRIBUTION
Title No. Dagoretti/ Uthiru/ 1495 (Matrimonial Home)
GRACE NJOKI (widow)
Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son)
Beverly Lillian Waruga Kimuyu (Daughter)
The property will revert to the Estate. The 1 st Administrator will have life interest of surviving spouse. On expiry of life interest the property will vest in jointly in equal shares to
Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son)
Beverly Lillian Waruga Kimuyu (Daughter)
Ruiru/ East/ Juja East Block 2/1578
Salome Muthoni Nyaga (Spouse)
Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son)
Salome Muthoni Nyaga to hold in Trust for Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son) on expiry of her life interest, the same to vest in Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son) jointly in equal shares.
½ share Ruiru/ Ruiru East Block 4/ T. 1954 [1]
Beverly Lillian Waruga Kimuyu (Daughter)
To vest in Beverly Lillian Waruga Kimuyu absolutely.
Title No. Nyandarua/ South Kinangop/ 7179
Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son)
To vest in Bernard Kariuki Kimuyu
Silvano Nyaga Kimuyu in equal shares.
Baraka Molen Self Help Group Certificate No. 373
Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son)
To vest in Bernard Kariuki Kimuyu
Silvano Nyaga Kimuyu in equal shares.
Money Held in the following Bank Accounts
Consolidated Bank Account: No. 012/00/009314/00 and Account No. 0130015049100 totalling Kshs 141, 444.65
Post Office Bank Account No. 6012,496.00
Total Kshs 937,235.25
Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son)
Beverly Lillian Waruga Kimuyu (Daughter)
Bernard Kariuki Kimuyu – Kshs 250000
Silvano Nyaga Kimuyu – Kshs 250000
Beverly Lillian Waruga Kimuyu – Kshs 437, 235.25
Safaricom shares (48500)
Kengen Shares (6431)
Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son)
Beverly Lillian Waruga Kimuyu (Daughter)
To be distributed equally between-
Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son)
Beverly Lillian Waruga Kimuyu (Daughter
Motor Vehicles KBH 529P
Grace Njoki (Widow)
To be transferred to Grace Wanjiku Widow.
35. It transpired during the hearing that the following motor vehicles have since been sold, KAX 675Y and KAK 625W. The 1 st Administrator has also been collecting rental income from Dagoretti/ Uthiru/ 1495 and Baraka Molem Self-help Group (certificate of ownership 373). She will be required to give account of her dealings with the income.
36. The final and consequential orders are therefore as follows, the Summons dated 7 th July 2020 partially succeeds as follows-
a. The prayer to revoke the grant is denied.
b. The orders of 14 th June 2011 are varied and the estate is distributed in terms of paragraph 34 above.
c. All the assets available for distribution to revert to the estate for distribution in terms of paragraph 34 above, specifically Title No. Dagoretti/ Uthiru/ 1495 which has since been registered in the name of the 1 st Administrator.
d. The administrators will finalise transmission within 6 months from the date hereof.
e. The Administrators will submit to court accounts in accordance with Section 83 (i) of the Law of Succession within 6 months from the date hereof.
f. The matter will be mentioned on 28 th October 2026 to confirm compliance and take further directions
37. On account of the relationship between the parties there shall be no order as to costs.
38. Parties are at liberty to appeal, the Party exercising their right to do so within 30 days.
It is so ordered
SIGNED, DATED AND DELIVERED IN VIRTUAL COURT THIS 24 th DAY OF APRIL 2026.
FOOTNOTES
[1] The land is registered in joint names of Andrew Muturi Kariuki and Noah Kimuyu Kariuki. The estate of the deceased is therefore entitled to ½ of the land.
1
1. The deceased herein died on 17 TH September 2009. Letters of administration were issued to Grace Njoki Kimani and David Mwangi Ndungu on 10 th May 2010, the grant was subsequently confirmed on 14 th June 2011 and estate distributed as per the certificate of confirmation of grant issued on 14 th June 2011.
2. The applicants in application dated 7 th July 2020 state that they are wife and son of the deceased, they seek the following orders-
a. THAT the grant of Letters of Administration issued to Grace Njoki Kimani and David Mwangi Ndungu on 10 th May 2010 and confirmed on 14 th day of June 2011 the respondents (sic) herein be revoked and or annulled.
b. THAT the title deeds for the parcels of land numbers DAGORETTI/ UTHIRU/ 1495; RUIRU EAT/ JUJA EAST BLOCK 2/ 1578; RUIRU/RUIRU EAST BLOCK 4/T.1954/ NYANDARUA/ SOUTH KINANGOP/ 7179; BARAKA MOLEN SELF HELP GROUP CERTIFICATE NO.373 in LR NO. 209/9366, be revoked and restored back to the Estate.
c. THAT motor vehicle registration Nos KBH 952P, KAX 675Y, KAKA 625W, KAL 579A and KAQ 530X be restored back to the Estate.
d. THAT the money held in consolidated Bank Ltd, Post office Bank and Family Bank do revert to the estate.
e. THAT the share in Safaricom Limited and Kengen (sic) do revert back to the estate.
f. THAT upon Annulment/ Revocation of the grant, this Honourable Court be pleased to direct the 1 st respondent and the Applicants to jointly file a fresh application for letters of administration providing correct and accurate names of all beneficiaries and assets and a fair distribution.
g. THAT this Honourable Court be pleased to issue any other and/or further orders as may be deemed expedient in the circumstances.
h. THAT costs of this application be in the cause.
3. The application is supported by the affidavit of the 1 st applicant, Salome Muthoni Nyaga sworn on the 7 th July 2020. She seeks the revocation of the grant as the grant was obtained fraudulently by making a false statement of facts, by the concealment of material facts from the Court and by the means of untrue allegations of facts essential in point of law to justify the grant.
4. She avers that the Administrators did not notify her of the proceedings notwithstanding they were aware that she was the 1 st wife of the deceased. Further the administrators failed to provide for her in the distribution of the estate and she is a beneficiary of the estate. Finally, the mode of distribution is unequal as it favours one of the beneficiaries at the expense of the others.
5. The administrators oppose the application and affidavit in opposition has been sworn by the 1 st Administrator, Grace Njoki on 10 th September 2020. She avers that she was the sole spouse to the deceased at the time of his death. At the time of her marriage to the deceased she was an aware that the deceased had separated with his 1 st wife (1 st Applicant). They had 2 children, Bernard Kariuki and Silvano Nyaga whom she raised. Her marriage with the deceased was formalised under Kikuyu custom in 2007.
6. When the deceased died, the applicant did not participate in the funeral arrangements and was not present at the funeral. She does not recognise the 1 st applicant as a beneficiary of the estate of the deceased. Provision was made for the sons of the deceased as beneficiaries in the mode of distribution.
7. She sold the motor vehicles for the upkeep of the children, including their education and other needs they had. She was prepared to transmit the estate to the beneficiaries but the 2 nd Applicant stated he wanted to wait until he completed university.
8. Silvano Nyaga Kimuyu, the younger son of the deceased and 1 st Applicant has also sworn an affidavit on 15 th March 2021. He states that he is satisfied with the mode of distribution.
9. The matter proceeded by way of viva voce evidence. OW1 is Salome Muthoni the 1 st Applicant. Her affidavit and witness statement were adopted as her evidence in Chief. She states that they cohabited as man and wife for a period of 15 years with the deceased. They separated in 2006. Her father died before they could hold the reconciliation meetings. She never went back as the deceased was living with another woman. The Petition for letters of Administration is premised on falsehoods, as it does not recognise as her spouse, failed to provide for her and the distribution is not on equal.
10. On Cross Examination she stated that she and the deceased married got married in 1995 and formalised the marriage under Kikuyu Custom. She did not have a record (minutes) of the ceremony and the witnesses were all dead. The union was blessed with two children. When they separated in 2002 she left the home, the children remained with their father.
11. She is aware that the 1 st Administrator was a wife of the deceased and they had a daughter. Currently she is staying with her elder son while the younger one lives on his own. She had contributed towards the education of the children. She contributed towards the acquisition of the property. She was not notified when the Petition was lodged.
12. She learnt of the mode of distribution at the hearing of her summons for revocation. The distribution of the estate favours the daughter of the 1 st Administrator. Her sons have not received their entitlement as set out in the certificate of confirmation of grant, she did not pursue division of matrimonial property in the life time of the deceased.
13. On re-examination, she reiterated that she was a spouse to the deceased and that the distribution is unequal. She confirmed that the estate has not been transmitted.
14. OW2- is Bernard Kariuki Kimuyu he is the eldest son of the deceased. His witness statement and affidavit were admitted as his evidence in Chief. He confirmed that after the death of his father they continued living with the 1 st Administrator, she provided for their education alongside other needs. At some point the 1 st Administrator was not providing and so their mother stepped in.
15. On cross examination he stated that he was twelve years when the deceased died. His younger brother was 6 years old. He only became aware of the succession cause in 2020. The distribution is not proportionate. Not all the properties of the deceased are included in the Certificate of Confirmation of Grant. He did not have a valuation report however in his assessment the distribution was not equal. The transmission of the estate was stayed by court order issued in 2021.
16. The Administrator, Grace Njoki Kimani, testified as the sole witness for the respondent. Her affidavit, witness statement and list and bundle of documents were admitted as her evidence in Chief and Exhibits admitted and marked as Exhibit 1-8.
17. She and the deceased were married in 2004, he informed her that he had another wife, the 1 st applicant with whom he had since separated. The deceased had 3 children, 2 with the 1 st applicant and 1 with her. There is a court order barring her from transmitting the estate. The distribution is fair. She has utilised the rental income to educate all the 3 children.
18. On cross examination she conceded that the 1 st applicant is a wife of the deceased and that in the Petition she indicated she was the sole wife. She also conceded that the children are equal and entitled to an equal share of the estate. She continues to collect rental income from the properties (Molem and Uthiru). She holds the property in trust for the children of the deceased. She did not allocate any property to the 1 st wife because she is not entitled.
19. On re-examination, she stated that the 1 st applicant was not included as beneficiary in the Chief’s letter. The distribution is equal. The daughter was younger than the rest and therefore entitled to a larger share of the estate.
20. Parties were directed to file submissions. The applicant’s submissions are dated 27 th January 2026. She frames the following as the issues for determination-
a. Whether the 1 st Applicant was a wife of the deceased and as such, whether she was entitled to benefit from his estate.
b. Whether the Applicants have met the grounds for revocation/ annulment of the grant issued to the Respondents.
21. On the first issue it is submitted that the 1 st applicant is a wife for purposes of the Law of Succession Act and reference made to Sections 3 and 29 of the Law of Succession Act on the right of former wives and separated wives to be recognised as beneficiaries. Reference is made to the decisions in Re Estate of John Njeru Mucee (Deceased) (Succession Cause 3 of 2018) [2023] KEHC 2552 (KLR); re Estate of Aloise Rentare Nyamu (Deceased) (Succession Cause E002 of 2021) [2024] KEHC 4794 (KLR) and re Estate of Aloise Rentare Nyamu (Deceased) (Succession Cause E002 of 2021) [2024] KEHC 4794 (KLR)
22. Regarding the revocation or annulment of the grant, it is submitted that the circumstances of this case strictly satisfy the criteria under Section 76 of the Law of Succession Act. Consequently, the only appropriate outcome is the formal revocation of the Grant. Reference is made to the decisions in re Estate of Washiali Luvisia also known as Washiali Lubisia (Deceased) (Succession Cause 525 of 2006) [2022] KEHC 10405 (KLR); Re Estate of William Mbogo Njunu (Deceased) (Succession Cause 5 of 1999) [2022] KEHC 16613 (KLR); re Estate of Nthambi Kiilu Muange (Deceased) (Succession Cause 540 of 2008) [2023] KEHC 24400 (KLR) and re Estate of Saverio Ruri Njuiri (Deceased) [2021] KEHC 3851 (KLR)
ANALYSIS AND DETERMINATION
23. Having regard to the pleadings filed, evidence adduced, submissions filed alongside the relevant law, I discern the following to be the issues for determination-
a. Whether the grant herein ought to be revoked?
b. Arising from (a) above what are the consequential orders?
24. On the first issue the relevant provisions of the law are Section 76 (on revocation of grant), Section 29 (on dependants of a deceased person), Section and Section 51 (on application of Grant) of the Law of Succession Act. The Applicant submits that the respondents run afoul of the legal provisions relating to Petitioning for Grant and distribution of estate.
25. Section 51 of the Law of Succession Act is couched in mandatory terms and requires that –
Section 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)in 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.
26. It is conceded by the Administrators, that the applicant, although separated, remains a wife of the deceased. She therefore falls within the definition of a wife under Section 3 of the Law of Succession Act and is a dependant under Section 29 of the Act, necessitating that provision be made for her.
27. By failing to disclose the 1st applicant’s interest despite knowing her relationship to the deceased, the administrators acted in breach of mandatory procedural rules (Section 51 & Rule 26), casting a fraudulent shadow over the resulting grant and consequential proceedings. In Re Estate of Prisca Onyango Nande (deceased) (2020) eKLR it was held that,
A grant 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 of letters of administration intestate was made instead of a grant of probate or vice versa (sic). It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second is where the grant was obtained procedurally but he administrator failed or fails to apply for confirmation of grant within the time allowed. The third is where the grant has become useless and inoperative following subsequent circumstances...
28. Which brings us to the application of Section 76 of the Law of Succession Act. The Court is vested with discretion in determining whether or not to revoke a grant. Section 76 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. (Emphasis Supplied)
29. In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR) Hon. Mwita J as he then was stated as follows-
Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not a 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 consider interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.
30. What follows from this interpretation therefore is that the Court is empowered but not compelled to revoke a grant, the factors to guide the Court in exercising this discretion include, interests of justice and equity, protection of innocent third parties, delay and laches, inconsequential irregularities and substantial compliance. The Court’s primary objective is to avoid inordinate delays and to bring finality to litigation and securing substantive justice for the beneficiaries of the estate.
31. In the instant case, the deceased died on 17 th September 2009, the grant was issued on 10 th May 2010 and subsequently confirmed on 14 th June 2011. 9 years after the confirmation of the grant this summons for revocation was presented, the estate is yet to be transmitted to the beneficiaries. The principal lament by the applicants is that the mode of distribution is not equal. Given the passage of time and mindful of the fact that at the end of the day the Court is concerned with the distribution of the estate among the rightful beneficiaries, it is my finding that the interests of the beneficiaries will be best made by determining whether the Certificate of Confirmation of Grant complies with Section 40 and 35 of the Law of Succession Act.
32. One glaring omission in the Certificate of Confirmation of grant is the failure to provide for the 1 st applicant. The application of the above cited provisions of the Act was discussed in detail in re Estate of Cheptoo Arap Koisum (Deceased) [2025] KEHC 6087 (KLR) as hereunder-
[11] Section 40 of the Law Succession Act deals with the distribution of the estate of a polygamous family and provide as follows: -
a. Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.
b. The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38.”
[12.] In Re Estate of Michael George Tendwa Said [Deceased] [2020] eKLR , Section 40 above is the applicable law where there is no agreement on distribution of the estate. He sated as follows:
any proposed mode of distribution ought to be compatible with and in accordance with the provision thereby leaving no room for distribution based on the whim of the holder of the grant or his/her sentimental feelings
[13.] Regarding “equality” in distribution as mentioned in Section 40 above, Court of Appeal in the case of Stephen Gitonga M’murithi v Faith Ngira Murithi [2015] eKLR , observed as follows:
Section 38 enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and whether married and comfortable in their marriage or unmarried. Section 40 on the other hand enjoins the inclusion of a surviving spouse as an additional unit to each house hold of a polygamous deceased. Applying the above principles …… it is our finding that the learned trial Judge fell into an error when he failed to accord equal distribution to all the children of the deceased in violation of section 38 of the Law of Succession Act by discriminating against the married daughters of the deceased…
[14]. Additionally, in the case of in Re Estate of John Musambayi Katumanga – [Deceased] [2014] eKLR Musyoka J stated as follows:
Under Section 40 of the Act, if the deceased had several wives, as opposed to households, the estate would devolve depending on the number of children. Ideally, the estate would be divided equally among all the members of the entire household, lumping the children and the surviving spouses together. After that the family members would retreat to their respective houses where Section 35 of the Act would be put into effect, so that if there was a surviving spouse in a house she would enjoy life interest over the property due to her children. The house without a surviving spouse would split its entitlement in terms of Section 38 of the Law of Succession Act, the children would divide the estate equally amongst themselves. Section 40 was not designed for the circumstances of the instant estate, but it would appear more appealing for the purpose of distribution of the said estate than Section 35. The spirit of Part V, especially Sections 35, 38 and 40, is equal distribution, of the intestate estate amongst the children of the deceased. There have been debates on whether the distribution should be equal or equitable. My reading of these provisions is that they envisage equal distribution for the word used in Sections 35[5] and 38 is “equally” as opposed to “equitably”. This is the plain language of the provisions. The provisions are in mandatory terms - the property “shall … be equally divided among the surviving children.” Equal distribution is envisaged regardless of the ages, gender and financial status of the children.
33. I would qualify the finding by Hon. Musyoka J as the emerging jurisprudence is that in distributing the estate the Court does not simply seek to attain mathematical precision in distributing the estate but has the overarching objective of securing substantive equality. This involves enquiring into the individual circumstances of each beneficiary and then making provision that ensures balance. Although the 1 st applicant submitted that she had contributed to the acquisition of the properties she did not substantiate her claim further. I agree with the 1 st applicant that the fact that the youngest child was an infant when the deceased died, is a matter for consideration in distributing the estate. This is the import of Sections 26, 27 and 28 of the Law of Succession Act. Section 28 in particular lays out the following guidelines-
(a)the nature and amount of the deceased's property;
(b)any past, present or future capital or income from any source of the dependant;
(c)the existing and future means and needs of the dependant;
(d)whether the deceased had made any advancement or other gift to the dependant during his lifetime;
(e)the conduct of the dependant in relation to the deceased;
(f)the situation and circumstances of the deceased's other dependants and the beneficiaries under any will;
(g)the general circumstances of the case, including, so far as can be ascertained, the testator's reasons for not making provision for the dependant
34. With these considerations in mind I vacate the orders of 14 th June 2011 on distribution of the estate and direct that the estate will be distributed as follows-
DESCRIPTION OF PROPERTY
BENEFICARIES
SHARES AND MODE OF DISTRIBUTION
Title No. Dagoretti/ Uthiru/ 1495 (Matrimonial Home)
GRACE NJOKI (widow)
Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son)
Beverly Lillian Waruga Kimuyu (Daughter)
The property will revert to the Estate. The 1 st Administrator will have life interest of surviving spouse. On expiry of life interest the property will vest in jointly in equal shares to
Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son)
Beverly Lillian Waruga Kimuyu (Daughter)
Ruiru/ East/ Juja East Block 2/1578
Salome Muthoni Nyaga (Spouse)
Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son)
Salome Muthoni Nyaga to hold in Trust for Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son) on expiry of her life interest, the same to vest in Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son) jointly in equal shares.
½ share Ruiru/ Ruiru East Block 4/ T. 1954 [1]
Beverly Lillian Waruga Kimuyu (Daughter)
To vest in Beverly Lillian Waruga Kimuyu absolutely.
Title No. Nyandarua/ South Kinangop/ 7179
Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son)
To vest in Bernard Kariuki Kimuyu
Silvano Nyaga Kimuyu in equal shares.
Baraka Molen Self Help Group Certificate No. 373
Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son)
To vest in Bernard Kariuki Kimuyu
Silvano Nyaga Kimuyu in equal shares.
Money Held in the following Bank Accounts
Consolidated Bank Account: No. 012/00/009314/00 and Account No. 0130015049100 totalling Kshs 141, 444.65
Post Office Bank Account No. 6012,496.00
Total Kshs 937,235.25
Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son)
Beverly Lillian Waruga Kimuyu (Daughter)
Bernard Kariuki Kimuyu – Kshs 250000
Silvano Nyaga Kimuyu – Kshs 250000
Beverly Lillian Waruga Kimuyu – Kshs 437, 235.25
Safaricom shares (48500)
Kengen Shares (6431)
Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son)
Beverly Lillian Waruga Kimuyu (Daughter)
To be distributed equally between-
Bernard Kariuki Kimuyu (Son)
Silvano Nyaga Kimuyu (Son)
Beverly Lillian Waruga Kimuyu (Daughter
Motor Vehicles KBH 529P
Grace Njoki (Widow)
To be transferred to Grace Wanjiku Widow.
35. It transpired during the hearing that the following motor vehicles have since been sold, KAX 675Y and KAK 625W. The 1 st Administrator has also been collecting rental income from Dagoretti/ Uthiru/ 1495 and Baraka Molem Self-help Group (certificate of ownership 373). She will be required to give account of her dealings with the income.
36. The final and consequential orders are therefore as follows, the Summons dated 7 th July 2020 partially succeeds as follows-
a. The prayer to revoke the grant is denied.
b. The orders of 14 th June 2011 are varied and the estate is distributed in terms of paragraph 34 above.
c. All the assets available for distribution to revert to the estate for distribution in terms of paragraph 34 above, specifically Title No. Dagoretti/ Uthiru/ 1495 which has since been registered in the name of the 1 st Administrator.
d. The administrators will finalise transmission within 6 months from the date hereof.
e. The Administrators will submit to court accounts in accordance with Section 83 (i) of the Law of Succession within 6 months from the date hereof.
f. The matter will be mentioned on 28 th October 2026 to confirm compliance and take further directions
37. On account of the relationship between the parties there shall be no order as to costs.
38. Parties are at liberty to appeal, the Party exercising their right to do so within 30 days.
It is so ordered
SIGNED, DATED AND DELIVERED IN VIRTUAL COURT THIS 24 th DAY OF APRIL 2026.
FOOTNOTES
[1] The land is registered in joint names of Andrew Muturi Kariuki and Noah Kimuyu Kariuki. The estate of the deceased is therefore entitled to ½ of the land.
1