Introduction & Background
1. It is common ground that on 7 th September 2011, a Grant of Letters of Administration intestate was issued to the Respondent in respect of the estate of Stephen Wambua Kanyeti(“the Deceased”) and that the same was confirmed through a Certificate of Confirmation of Grant issued on 18 th October 2023. The Applicants have now filed the Summons dated 4 th November 2024 seeking to revoke the Grant on the grounds that the proceedings were defective and that the same was obtained through fraud and concealment. They also seek orders that the Deceased's assets and properties be redistributed to include the Applicants as beneficiaries and that the 6 th Applicant be granted the property known as MACHAKOS/NGULUNI/2708 as he purchased it before these proceedings.
2. The Summons is supported by the affidavits of the 1 st and 6 th Applicants sworn on 4 th November 2024 and 20 th March 2025. It is opposed by the Respondent through his replying affidavit sworn on 14 th January 2025. 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
3. From the parties’ submissions, the court is being called to determine the following:
a) Whether the Grant was obtained through concealment of material facts and without consent of all beneficiaries.
b) Whether the subdivision and sale of Machakos/Nguluni/2708 was lawful.
c) Whether the 6 th Applicant has locus standi and if he was a creditor of the estate of the Deceased?
d) Whether the Applicants have met the threshold for revocation under section 76 of the Law of Succession Act .
e) Whether daughters of the deceased are entitled to equal inheritance
f) What are the appropriate remedies available
Whether the Grant was obtained through concealment of material facts and without consent of all beneficiaries.
4. The 1 st – 5 th Applicants submit that as daughters of the Deceased they were never involved in this proceedings and their consent was neither sought nor obtained before the Grant was issued or confirmed. They contend that they never relinquished their rights to participate in or inherit from their father’s estate, that the Respondent failed to consult or disclose all beneficiaries, constituting material non-disclosure under section 76(b) and (c) of the Law of Succession Act . They rely on a number of authorities including In re Estate of Ngune Kibako (Deceased) [2022] KEHC 9799 (KLR) to submit that concealing beneficiaries is fatal to the validity of a grant.
5. On his part, the Respondent submits that the 1 st to 5 th Applicants were aware when the succession cause was commenced in 2011 and waived their rights, acquiescing to the process for over 14 years. That the petition included the official Chief’s letter listing all beneficiaries entitled to the estate at the time of filing, including the Respondent’s mother and that the Applicants failed to annex any Chief’s letter to prove otherwise. He submits that the estate was confirmed in 2012 and the assets distributed and he submits that re-opening a fully distributed estate after such long delay causes injustice to those who relied on the distribution and that the court is functus officio .
6. He accuses the 1 st – 5 th Applicants of acting in bad faith as proxies, brought to court with unclean hands to sanitize an illegal land transaction for the 6 th Applicant and he submits that section 76 should not be used to reward indolence or aid a wrongdoer.
7. In re Estate of Ngune Kibako(supra) the court emphasized that section 51(2) (g) of the Law of Succession Act requires the petitioner for grant of letters of administration intestate to disclose all the surviving spouses and children of the deceased and that this provision is in mandatory terms. It is also not lost to me that under section 47 of the Law of Succession Act , this court is bestowed with jurisdiction to determine any dispute which comes before it in relation to an estate of the deceased and that under Rule 73 of the Probate and Administration Rules, the court has the inherent powers to make orders so as to make the ends of justice meet or to prevent abuse of the process of the court. Further, the law under Rule 26 (1) and (2) of the Rules provides as follows:
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.
8. Rule 26 of the Rules also requires consent to be obtained when the person whose consent is sought is entitled to petition in the same degree or in priority to the petitioner (see Jane Njeri Nderi v Rachel Wangari Nderi [2020] KECA 682 (KLR) ].
9. From the above, it is thus clear that all beneficiaries must be disclosed and consent must be obtained from those entitled in the same degree. The Respondent admitted in his deposition that the 1 st –5 th Applicants are his biological sisters. My perusal of the petition for the Grant shows that they were not listed as beneficiaries of the Deceased. The Respondent provided no evidence of either signed waivers, affidavits of consent, or renunciation forms to support his claim that the daughters waived their rights.
10. It is therefore my finding that the Respondent concealed material facts from the court and that consent was not obtained from all beneficiaries including the Applicants who possessed equal priority as the Respondent to obtain the Grant.
Subdivision and sale of Machakos/Nguluni/2708
11. The Applicants submit that this parcel is a prime property located within a municipality and that the Respondent and his brothers executed a further sale agreement with the 6 th Applicant for this property, but subsequently subdivided and resold it to a third party. That legitimate beneficiaries were entirely excluded from these dealings and the court should not be used to sanitize fraudulent transactions or illegalities as they contend that the purported subdivision and sale of Machakos/Nguluni/2708 is null and void. On his part, the Respondent submits that the property no longer exists as it was subdivided and sold to third-party buyers after the Grant was confirmed, that the buyers have developed the land and revoking the Grant would prejudice innocent third parties.
12. In determining this issue, I think it is important to lay out the chronological timelines of events. The Deceased died on 3 rd December 1997, the Grant was issued on 7 th September 2011 and the alleged sale of MACHAKOS/NGULUNI/2708 occurred on 19 th June 2005 which is 8 years after the Deceased's death and 6 years before the Grant was issued. Section 82(b)(ii) of the Law of Succession Act provides that Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers —…… (b)to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best: Provided that—….. (ii) no immovable property shall be sold before confirmation of the grant ;
13. In Rawiyo & another v Owino & another; Ochieng t/a Benorth Agencies & 7 others (Interested Parties) [2026] KEHC 4956 (KLR) this court (Kemei J.,) held as follows:
24……the Petitioners contend that Section 93 cannot sanitize transactions conducted by persons acting without authority of a confirmed grant nor can it validate titles emanating from a legal nullity fraud. That the Applicants therefore cannot cloak an unlawful ultra vires transaction with statutory protection that was never intended to shield acts undertaken in absence of representation. That in the premise, the Applicants’ invocation of Section 93 must fail for want of legal foundation. Reliance was placed reliance in the case of Mwai & Another v Mwai; Ndungu (Interested party) [2022] KEHC 9881 (KLR) the Court held that:
Section 93 cannot validate transactions founded on an invalid grant . That the position is supported by the Court of Appeal in Musa Nyaribari Gekone where the Court of Appeal upheld decisions of this court in the following terms’(and for the avoidance of doubt, I quote extensively from the said decision) Section 93 of the Law of Succession Act has been the subject of judicial interpretation in a number of cases. In a recent persuasive decision of Adrian Nyamu Kiugu v Elizabeth Karimi Kuugu and Ano. [2014] eKLR the High Court at Meru stated:
Whereas the above Section states that a transfer by person to whom representation has been granted shall be valid notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act, and that it is of the considered view that such transaction can only be relied upon where the legal representative is entitled to grant of representation but not where one is not and where one has obtained the grant fraudulently. The Petitioners have taken great exception at the conduct of the interested parties who now feign ignorance of this matter yet they come from the neighborhood of the Petitioners and beneficiaries and that it is not possible that they did not know about these proceedings. Indeed, several courts have ruled differently regarding the application of section 93 of the Law of Succession Act. In Jecinta Wanja Kamau Vs Rosemary Wanjiru Wanyoike and Another [2013] eKLR where the Appellant therein unsuccessfully sought protection under Section 93, the Court sitting in Nyeri stated: “Before the Appellant could seek protection as a purchaser under Section 93 of the Act she had first to prove that she is a purchaser. In any case, and as provided by Section 82 (b) (II) of the Act, it would have been illegal for Beatrice Njeri Magundu to sell the land before the confirmation of the grant. In Jane Gachoki Gathecha Vs. Priscilla Nyawira Gitungu & Another [2008] eKLR where a purchaser claimed that he was not aware of, and was not a party to, the fraudulent dealings with the title in issue and was therefore not only protected under Section 93 (1) of the law of Succession Act (Cap 60) but also Section 143 of the Registered land Act, this court sitting in Nyeri stated: “ we think, with respect that there is a fallacy in invoking and applying the provisions of Section 93(1) of the law of Succession Act and the superior court fell into error in reliance of it. The Section would only be applicable where, firstly, the is a “transfer of any interest in immoveable or moveable property.” Kabitau had no interest in plot 321 or any part thereof and therefore he could not transfer any. A thief acquires no right or interest which is transferable in stolen property . The transaction would be void ab initio and the property is traceable.” Again in Re Estate of Christopher Jude Adela (deceased) [2009] Eklr, K.H. Rawal, J (as she then was) had this to say in reference to Section 93 of the Law of Succession Act. The correct reading of the said provisions will indicate that the transfer to a purchaser, if shown to be either fraudulent and/or upon other serious defects and/or irregularities can be invalidated. Reading these provisions in the manner will be commensurate with provisions of Section 23 of the RTA (Cap 281) or any other provisions of law regarding proprietorship of an immovable property. It shall be a very weak or unfair system of law if it gives a Carte blanche of absolute immunity against challenges to transfer immovable properties of estate by a personal representative, it shall be simply against all notions of fairness and justice. No court can encourage such interpretation while a personal representative will be protected even while undertaking unethical or illegal action prejudicing the interests and rights or right beneficiaries of the estate . In short , I do not agree that Section 93 of the Act prohibits the discretion of the court to invalidate a fraudulent action by a personal representative. ” Those decisions support the position taken by the learned judge of the High Court in this matter when he stated that while under Section 93 o the Law of Succession Act, a revocation or variation of the grant does not invalidate a transfer by the personal representative, other considerations, such as the disposal of the property in contravention of the confirmed grant may invalidate the transfer. Having found as he did that the transfer of the property by the personal representative to himself, the 2nd Respondent and one Margaret Kerubo Orina was contrary to the provisions of the grant and having found evidence of fraud with regard to the representation in the application for grant and subsequent confirmation as the persons beneficially entitled to the deceased’s estate, the learned Judge was correct to take a view that Section 93 of the Law of Succession Act did not afford the 3rd Appellant protection. There is therefore no merit in the complaint that the learned Judge erred in revoking, nullifying and cancelling the transfer and registration of the suit property in favour of the 3rd Appellant in contravention of Section 93 of the Law of Succession Act. Similarly, in Re Estate of M’Marete (2018) eKLR, the Court affirmed that a purchaser cannot obtain good title from an administrator acting without lawful authority .
14. I am in agreement with the aforementioned holding and find that the persons who sold the property to the 6 th Applicant in 2005, that is the sons of the Deceased, including the Respondent were not yet personal representatives and they had no legal authority to transfer the property. The property still belonged to the estate of the Deceased and only a duly appointed administrator with a confirmed grant could deal with it. As stated above, section 93 that states that any transfer by a personal representative remains valid even if the grant is later revoked or varied, only applies to transfers by a personal representative who has a valid grant but in 2005, there was no personal representative as no Grant had been issued. The sellers were mere beneficiaries with no legal authority and it follows that the transaction was itself fraudulent at the time. The 2022 Further Sale Agreement which the Respondent signed does not cure the defect because in as much as he was already an administrator by then, he was selling property that had already been subdivided or was in the process of being distributed. He was also selling the same property twice; first in 2005, and again in 2022, while also proceeding to sell to third parties. The Respondent subdivided MACHAKOS/NGULUNI/2708 into MACHAKOS/NGULUNI/8365 and 8366 and these new parcels were sold to third parties. Whereas the subdivision and sale occurred after the Grant was confirmed in 2023, the Grant’s validity is in question because as I have found, it was obtained without consulting the daughters and while knowing of the 6 th Applicant's claim. As was held above, transactions founded on an invalid Grant are invalid and that it will be a very weak or unfair system of law if it gives a carte blanche of absolute immunity against challenges to transfer of immovable properties of an estate by a personal representative
15. I therefore hold that the sale of property MACHAKOS/NGULUNI/2708 by the Respondent and his brothers was void ab initio and that the subsequent subdivision was irregular and unlawful.
Locus standi of the 6 th Applicant
16. The Respondent has submitted that the 6 th Applicant is neither a son, lawful beneficiary, nor a creditor/liability of the estate and that he claims to have purchased land in 2000 and 2005 from individuals, not directly from the estate and thus, he lacks locus standi to swear the affidavit seeking revocation and that his remedy lies in a civil or the Environment and Land Court but not in a succession cause. As stated above, the 6 th Applicant has provided evidence of sale agreements and has demonstrated a significant interest in the property, MACHAKOS/NGULUNI/2708. However, I am inclined to agree with the Respondent that a succession court cannot determine this claim to ownership of this property arising from the 2005 sale and that his remedy lies elsewhere. In re Estate of M’mwongo Kichiu (Deceased) [2025] KEHC 2958 (KLR), this court (Muriithi J.,) held that “…the Succession Court will not deal with property rights claim by an interested party who claims to have purchased an estate land asset before the Confirmation of the Grant.”
17. As I found above, the 6 th Applicant claims to have purchased MACHAKOS /NGULUNI/2708 in 2005 which is long before the Grant was issued in 2011 and confirmed in 2023 and I agree that this court, as the succession court, cannot determine the validity of that purchase or declare him the owner. The 6 th Applicant is not a beneficiary of the estate but a purchaser claiming rights adverse to the estate and such claims must be determined in appropriate proceedings. The 6 th Applicant appears to have filed a case in the Magistrates Court at Kangundo against the Respondent and another and I find that this would be the appropriate forum for his claim. If he is decreed to have an interest in this property, then this succession court will in these proceedings give effect to the determination.
18. It therefore follows that the 6 th Applicant has no locus standi to challenge the Grant as he is not a beneficiary to the estate.
Revocation of the Grant
19. My findings above lead me to conclude that the concealment of the 1 st -5 th Applicants as beneficiaries of estate, the failure by the Respondent to obtain consents from them before petitioning the court for the Grant, the material non-disclosure of the 6 th Applicant's claim and the irregular subdivision and sale of estate property are sufficient grounds to revoke the Grant issued and confirmed.
Entitlement of the 1 st - 6 th Applicants to equal inheritance
20. The Applicants have submitted that under Article 27 on equality and non-discrimination and Article 40 on protection of the right to property of the Constitution, disinheriting daughters on account of gender is unconstitutional and that all children, regardless of gender, are entitled to inherit equally from their father's estate. They contend that the Respondent acted unilaterally, without consulting them and in bad faith, violating his fiduciary obligations as an administrator.
21. I am in agreement with the Applicants and find that the Court of Appeal, in M’Murithi v Murithi [2015] KECA 347 (KLR), emphasized that section 38 of the Law of Succession Act 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. I find that the exclusion of the Applicants for reasons that they are daughters of the Deceased violates their constitutional rights and constitutes discrimination.
Appropriate remedies
22. In the end, I find that the remedies that commend themselves to all parties in the interest of justice and towards the full and final determination of the issues between them is the revocation of the Grant, re-issuance of a fresh Grant with one of the Applicants as a co-administrator, preservation of the estate property, fresh distribution of the estate property and referral of the 6 th Applicant to the Magistrates Court in Kagundo for the hearing and determination of his claim.
Disposition
23. The Court now makes the following final orders:
1) The Grant of Letters of Administration Intestate issued to JOSEPHAT KANYETI WAMBUA on 7 th September 2011, and the Rectified Confirmed Grant dated 18 th October 2023, together with the Certificate of Confirmation of Grant issued on 18 th October 2023, are hereby revoked, set aside and annulled
2) All consequential transmissions, transfers, registrations, subdivisions, and any other dealings whatsoever undertaken pursuant to the revoked Certificate of Confirmation of Grant dated 18 th October 2023, including but not limited to the subdivision of MACHAKOS /NGULUNI/2708 into MACHAKOS/NGULUNI/ 8365 and 8366;All transmissions and registrations of the said subdivided parcels and; All transfers to third-party purchasers; are hereby vacated, set aside, and declared null and void ab initio .
3) A caveat/inhibition is hereby placed on all properties comprised in the estate of the deceased, including but not limited to MACHAKOS / NGULUNI / 2708; MACHAKOS/ NGULUNI/ 8365 and 8366 and ;all other properties listed in the Schedule to the Confirmed Grant.
4) No further dealings including but not limited to sale, transfer, charge, lease, subdivision, construction, or development shall be undertaken on any of the estate properties pending the fresh administration of the estate and the determination of the 6th Applicant's claim as set out herein.
5) The Respondent, JOSEPHAT KANYETI WAMBUA, shall within forty-five (45) days of the date hereof file a fresh summons for confirmation of grant supported by:
a) Full and complete disclosure of all beneficiaries of the estate, including but not limited to the 1 st to 5 th Applicants being the daughters of the Deceased, the sons of the Deceased, and any other dependants or beneficiaries entitled to inherit under the Law of Succession Act.
b) A full and accurate inventory of all assets and liabilities comprising the estate of the deceased, including all landed properties, and an explanation of the current status of each asset.
c) A proposed mode of distribution that includes the 1 st to 5 th Applicants as equal beneficiaries alongside the sons of the deceased, in accordance with the Law of Succession Act
d) A written consent or explanation for the absence of consent from all persons entitled in the same degree as or in priority to the Applicant, as required by Rule 26 of the Probate and Administration Rules.
6) The 1 st Applicant, ROSEMARY WANZA MAINGI is hereby appointed as a co-administrator of the estate of the Deceased, to act jointly with the Respondent, JOSEPHAT KANYETI WAMBUA, pending the fresh confirmation of the grant.
7) The Co-Administrators shall consult and obtain the consent of all beneficiaries before filing the fresh Summons for Confirmation of Grant.
8) The claim by the 6 th Applicant, BENARD MUNYAO ALICE, to ownership of MACHAKOS/NGULUNI/2708 or any portion thereof shall not be determined in these succession proceedings as the succession court lacks jurisdiction to determine claims by purchasers of estate property before confirmation of the grant;
9) The 6 th Applicant shall pursue his claim in the Magistrates Court at Kangundo under ELCC No. E025 of 2023 already filed therein and that pending the determination of the 6 th Applicant's claim, the status quo on MACHAKOS/NGULUNI/2708 and its subdivisions shall be maintained in that no further construction, development, or alienation shall take place on the said property; The Respondent and all other parties shall preserve the property and not interfere with the 6 th Applicant's possession or occupation, if any, pending the determination.
10) Upon the determination of the 6 th Applicant's claim, the succession court shall give effect to that determination in the final distribution of the estate.
11) Any third-party purchasers of MACHAKOS/ NGULUNI/ 8365 and 8366 or any other estate property who acquired interest pursuant to the revoked Certificate of Confirmation shall have their rights determined in accordance with the law, including Section 93 of the Law of Succession Act noting that the court cannot sanitize transactions conducted by persons acting without lawful authority; The purchasers are at liberty to pursue such remedies as they may be advised against the Respondent for breach of contract or fraud
12) The Respondent shall be liable to account for all proceeds of sale received from such purchasers, which shall form part of the estate for redistribution to all beneficiaries.
13) The court hereby declares that the 1 st to 5 th Applicants are biological daughters and lawful beneficiaries of the estate of STEPHEN WAMBUA KANYETI (Deceased) and any distribution that excludes them on the basis of gender is discriminatory, unconstitutional and contrary to Articles 27 and 40 of the Constitution. The daughters are entitled to inherit equally with the sons of the deceased from the estate, in accordance with the Law of Succession Act and settled jurisprudence
14) Given that this is a family dispute concerning the estate of a deceased person and noting the Respondent's conduct in concealing material facts and dealing with estate property without authority, the court orders that the Respondent shall bear the costs of this Summons
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Guda holding for Mr. Nzyuko for the Objectors/Applicants
2. N/A for the Respondent
3. Abdisalan- Court Assistant
2 | Page
1. It is common ground that on 7 th September 2011, a Grant of Letters of Administration intestate was issued to the Respondent in respect of the estate of Stephen Wambua Kanyeti(“the Deceased”) and that the same was confirmed through a Certificate of Confirmation of Grant issued on 18 th October 2023. The Applicants have now filed the Summons dated 4 th November 2024 seeking to revoke the Grant on the grounds that the proceedings were defective and that the same was obtained through fraud and concealment. They also seek orders that the Deceased's assets and properties be redistributed to include the Applicants as beneficiaries and that the 6 th Applicant be granted the property known as MACHAKOS/NGULUNI/2708 as he purchased it before these proceedings.
2. The Summons is supported by the affidavits of the 1 st and 6 th Applicants sworn on 4 th November 2024 and 20 th March 2025. It is opposed by the Respondent through his replying affidavit sworn on 14 th January 2025. 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
3. From the parties’ submissions, the court is being called to determine the following:
a) Whether the Grant was obtained through concealment of material facts and without consent of all beneficiaries.
b) Whether the subdivision and sale of Machakos/Nguluni/2708 was lawful.
c) Whether the 6 th Applicant has locus standi and if he was a creditor of the estate of the Deceased?
d) Whether the Applicants have met the threshold for revocation under section 76 of the Law of Succession Act .
e) Whether daughters of the deceased are entitled to equal inheritance
f) What are the appropriate remedies available
Whether the Grant was obtained through concealment of material facts and without consent of all beneficiaries.
4. The 1 st – 5 th Applicants submit that as daughters of the Deceased they were never involved in this proceedings and their consent was neither sought nor obtained before the Grant was issued or confirmed. They contend that they never relinquished their rights to participate in or inherit from their father’s estate, that the Respondent failed to consult or disclose all beneficiaries, constituting material non-disclosure under section 76(b) and (c) of the Law of Succession Act . They rely on a number of authorities including In re Estate of Ngune Kibako (Deceased) [2022] KEHC 9799 (KLR) to submit that concealing beneficiaries is fatal to the validity of a grant.
5. On his part, the Respondent submits that the 1 st to 5 th Applicants were aware when the succession cause was commenced in 2011 and waived their rights, acquiescing to the process for over 14 years. That the petition included the official Chief’s letter listing all beneficiaries entitled to the estate at the time of filing, including the Respondent’s mother and that the Applicants failed to annex any Chief’s letter to prove otherwise. He submits that the estate was confirmed in 2012 and the assets distributed and he submits that re-opening a fully distributed estate after such long delay causes injustice to those who relied on the distribution and that the court is functus officio .
6. He accuses the 1 st – 5 th Applicants of acting in bad faith as proxies, brought to court with unclean hands to sanitize an illegal land transaction for the 6 th Applicant and he submits that section 76 should not be used to reward indolence or aid a wrongdoer.
7. In re Estate of Ngune Kibako(supra) the court emphasized that section 51(2) (g) of the Law of Succession Act requires the petitioner for grant of letters of administration intestate to disclose all the surviving spouses and children of the deceased and that this provision is in mandatory terms. It is also not lost to me that under section 47 of the Law of Succession Act , this court is bestowed with jurisdiction to determine any dispute which comes before it in relation to an estate of the deceased and that under Rule 73 of the Probate and Administration Rules, the court has the inherent powers to make orders so as to make the ends of justice meet or to prevent abuse of the process of the court. Further, the law under Rule 26 (1) and (2) of the Rules provides as follows:
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.
8. Rule 26 of the Rules also requires consent to be obtained when the person whose consent is sought is entitled to petition in the same degree or in priority to the petitioner (see Jane Njeri Nderi v Rachel Wangari Nderi [2020] KECA 682 (KLR) ].
9. From the above, it is thus clear that all beneficiaries must be disclosed and consent must be obtained from those entitled in the same degree. The Respondent admitted in his deposition that the 1 st –5 th Applicants are his biological sisters. My perusal of the petition for the Grant shows that they were not listed as beneficiaries of the Deceased. The Respondent provided no evidence of either signed waivers, affidavits of consent, or renunciation forms to support his claim that the daughters waived their rights.
10. It is therefore my finding that the Respondent concealed material facts from the court and that consent was not obtained from all beneficiaries including the Applicants who possessed equal priority as the Respondent to obtain the Grant.
Subdivision and sale of Machakos/Nguluni/2708
11. The Applicants submit that this parcel is a prime property located within a municipality and that the Respondent and his brothers executed a further sale agreement with the 6 th Applicant for this property, but subsequently subdivided and resold it to a third party. That legitimate beneficiaries were entirely excluded from these dealings and the court should not be used to sanitize fraudulent transactions or illegalities as they contend that the purported subdivision and sale of Machakos/Nguluni/2708 is null and void. On his part, the Respondent submits that the property no longer exists as it was subdivided and sold to third-party buyers after the Grant was confirmed, that the buyers have developed the land and revoking the Grant would prejudice innocent third parties.
12. In determining this issue, I think it is important to lay out the chronological timelines of events. The Deceased died on 3 rd December 1997, the Grant was issued on 7 th September 2011 and the alleged sale of MACHAKOS/NGULUNI/2708 occurred on 19 th June 2005 which is 8 years after the Deceased's death and 6 years before the Grant was issued. Section 82(b)(ii) of the Law of Succession Act provides that Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers —…… (b)to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best: Provided that—….. (ii) no immovable property shall be sold before confirmation of the grant ;
13. In Rawiyo & another v Owino & another; Ochieng t/a Benorth Agencies & 7 others (Interested Parties) [2026] KEHC 4956 (KLR) this court (Kemei J.,) held as follows:
24……the Petitioners contend that Section 93 cannot sanitize transactions conducted by persons acting without authority of a confirmed grant nor can it validate titles emanating from a legal nullity fraud. That the Applicants therefore cannot cloak an unlawful ultra vires transaction with statutory protection that was never intended to shield acts undertaken in absence of representation. That in the premise, the Applicants’ invocation of Section 93 must fail for want of legal foundation. Reliance was placed reliance in the case of Mwai & Another v Mwai; Ndungu (Interested party) [2022] KEHC 9881 (KLR) the Court held that:
Section 93 cannot validate transactions founded on an invalid grant . That the position is supported by the Court of Appeal in Musa Nyaribari Gekone where the Court of Appeal upheld decisions of this court in the following terms’(and for the avoidance of doubt, I quote extensively from the said decision) Section 93 of the Law of Succession Act has been the subject of judicial interpretation in a number of cases. In a recent persuasive decision of Adrian Nyamu Kiugu v Elizabeth Karimi Kuugu and Ano. [2014] eKLR the High Court at Meru stated:
Whereas the above Section states that a transfer by person to whom representation has been granted shall be valid notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act, and that it is of the considered view that such transaction can only be relied upon where the legal representative is entitled to grant of representation but not where one is not and where one has obtained the grant fraudulently. The Petitioners have taken great exception at the conduct of the interested parties who now feign ignorance of this matter yet they come from the neighborhood of the Petitioners and beneficiaries and that it is not possible that they did not know about these proceedings. Indeed, several courts have ruled differently regarding the application of section 93 of the Law of Succession Act. In Jecinta Wanja Kamau Vs Rosemary Wanjiru Wanyoike and Another [2013] eKLR where the Appellant therein unsuccessfully sought protection under Section 93, the Court sitting in Nyeri stated: “Before the Appellant could seek protection as a purchaser under Section 93 of the Act she had first to prove that she is a purchaser. In any case, and as provided by Section 82 (b) (II) of the Act, it would have been illegal for Beatrice Njeri Magundu to sell the land before the confirmation of the grant. In Jane Gachoki Gathecha Vs. Priscilla Nyawira Gitungu & Another [2008] eKLR where a purchaser claimed that he was not aware of, and was not a party to, the fraudulent dealings with the title in issue and was therefore not only protected under Section 93 (1) of the law of Succession Act (Cap 60) but also Section 143 of the Registered land Act, this court sitting in Nyeri stated: “ we think, with respect that there is a fallacy in invoking and applying the provisions of Section 93(1) of the law of Succession Act and the superior court fell into error in reliance of it. The Section would only be applicable where, firstly, the is a “transfer of any interest in immoveable or moveable property.” Kabitau had no interest in plot 321 or any part thereof and therefore he could not transfer any. A thief acquires no right or interest which is transferable in stolen property . The transaction would be void ab initio and the property is traceable.” Again in Re Estate of Christopher Jude Adela (deceased) [2009] Eklr, K.H. Rawal, J (as she then was) had this to say in reference to Section 93 of the Law of Succession Act. The correct reading of the said provisions will indicate that the transfer to a purchaser, if shown to be either fraudulent and/or upon other serious defects and/or irregularities can be invalidated. Reading these provisions in the manner will be commensurate with provisions of Section 23 of the RTA (Cap 281) or any other provisions of law regarding proprietorship of an immovable property. It shall be a very weak or unfair system of law if it gives a Carte blanche of absolute immunity against challenges to transfer immovable properties of estate by a personal representative, it shall be simply against all notions of fairness and justice. No court can encourage such interpretation while a personal representative will be protected even while undertaking unethical or illegal action prejudicing the interests and rights or right beneficiaries of the estate . In short , I do not agree that Section 93 of the Act prohibits the discretion of the court to invalidate a fraudulent action by a personal representative. ” Those decisions support the position taken by the learned judge of the High Court in this matter when he stated that while under Section 93 o the Law of Succession Act, a revocation or variation of the grant does not invalidate a transfer by the personal representative, other considerations, such as the disposal of the property in contravention of the confirmed grant may invalidate the transfer. Having found as he did that the transfer of the property by the personal representative to himself, the 2nd Respondent and one Margaret Kerubo Orina was contrary to the provisions of the grant and having found evidence of fraud with regard to the representation in the application for grant and subsequent confirmation as the persons beneficially entitled to the deceased’s estate, the learned Judge was correct to take a view that Section 93 of the Law of Succession Act did not afford the 3rd Appellant protection. There is therefore no merit in the complaint that the learned Judge erred in revoking, nullifying and cancelling the transfer and registration of the suit property in favour of the 3rd Appellant in contravention of Section 93 of the Law of Succession Act. Similarly, in Re Estate of M’Marete (2018) eKLR, the Court affirmed that a purchaser cannot obtain good title from an administrator acting without lawful authority .
14. I am in agreement with the aforementioned holding and find that the persons who sold the property to the 6 th Applicant in 2005, that is the sons of the Deceased, including the Respondent were not yet personal representatives and they had no legal authority to transfer the property. The property still belonged to the estate of the Deceased and only a duly appointed administrator with a confirmed grant could deal with it. As stated above, section 93 that states that any transfer by a personal representative remains valid even if the grant is later revoked or varied, only applies to transfers by a personal representative who has a valid grant but in 2005, there was no personal representative as no Grant had been issued. The sellers were mere beneficiaries with no legal authority and it follows that the transaction was itself fraudulent at the time. The 2022 Further Sale Agreement which the Respondent signed does not cure the defect because in as much as he was already an administrator by then, he was selling property that had already been subdivided or was in the process of being distributed. He was also selling the same property twice; first in 2005, and again in 2022, while also proceeding to sell to third parties. The Respondent subdivided MACHAKOS/NGULUNI/2708 into MACHAKOS/NGULUNI/8365 and 8366 and these new parcels were sold to third parties. Whereas the subdivision and sale occurred after the Grant was confirmed in 2023, the Grant’s validity is in question because as I have found, it was obtained without consulting the daughters and while knowing of the 6 th Applicant's claim. As was held above, transactions founded on an invalid Grant are invalid and that it will be a very weak or unfair system of law if it gives a carte blanche of absolute immunity against challenges to transfer of immovable properties of an estate by a personal representative
15. I therefore hold that the sale of property MACHAKOS/NGULUNI/2708 by the Respondent and his brothers was void ab initio and that the subsequent subdivision was irregular and unlawful.
Locus standi of the 6 th Applicant
16. The Respondent has submitted that the 6 th Applicant is neither a son, lawful beneficiary, nor a creditor/liability of the estate and that he claims to have purchased land in 2000 and 2005 from individuals, not directly from the estate and thus, he lacks locus standi to swear the affidavit seeking revocation and that his remedy lies in a civil or the Environment and Land Court but not in a succession cause. As stated above, the 6 th Applicant has provided evidence of sale agreements and has demonstrated a significant interest in the property, MACHAKOS/NGULUNI/2708. However, I am inclined to agree with the Respondent that a succession court cannot determine this claim to ownership of this property arising from the 2005 sale and that his remedy lies elsewhere. In re Estate of M’mwongo Kichiu (Deceased) [2025] KEHC 2958 (KLR), this court (Muriithi J.,) held that “…the Succession Court will not deal with property rights claim by an interested party who claims to have purchased an estate land asset before the Confirmation of the Grant.”
17. As I found above, the 6 th Applicant claims to have purchased MACHAKOS /NGULUNI/2708 in 2005 which is long before the Grant was issued in 2011 and confirmed in 2023 and I agree that this court, as the succession court, cannot determine the validity of that purchase or declare him the owner. The 6 th Applicant is not a beneficiary of the estate but a purchaser claiming rights adverse to the estate and such claims must be determined in appropriate proceedings. The 6 th Applicant appears to have filed a case in the Magistrates Court at Kangundo against the Respondent and another and I find that this would be the appropriate forum for his claim. If he is decreed to have an interest in this property, then this succession court will in these proceedings give effect to the determination.
18. It therefore follows that the 6 th Applicant has no locus standi to challenge the Grant as he is not a beneficiary to the estate.
Revocation of the Grant
19. My findings above lead me to conclude that the concealment of the 1 st -5 th Applicants as beneficiaries of estate, the failure by the Respondent to obtain consents from them before petitioning the court for the Grant, the material non-disclosure of the 6 th Applicant's claim and the irregular subdivision and sale of estate property are sufficient grounds to revoke the Grant issued and confirmed.
Entitlement of the 1 st - 6 th Applicants to equal inheritance
20. The Applicants have submitted that under Article 27 on equality and non-discrimination and Article 40 on protection of the right to property of the Constitution, disinheriting daughters on account of gender is unconstitutional and that all children, regardless of gender, are entitled to inherit equally from their father's estate. They contend that the Respondent acted unilaterally, without consulting them and in bad faith, violating his fiduciary obligations as an administrator.
21. I am in agreement with the Applicants and find that the Court of Appeal, in M’Murithi v Murithi [2015] KECA 347 (KLR), emphasized that section 38 of the Law of Succession Act 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. I find that the exclusion of the Applicants for reasons that they are daughters of the Deceased violates their constitutional rights and constitutes discrimination.
Appropriate remedies
22. In the end, I find that the remedies that commend themselves to all parties in the interest of justice and towards the full and final determination of the issues between them is the revocation of the Grant, re-issuance of a fresh Grant with one of the Applicants as a co-administrator, preservation of the estate property, fresh distribution of the estate property and referral of the 6 th Applicant to the Magistrates Court in Kagundo for the hearing and determination of his claim.
Disposition
23. The Court now makes the following final orders:
1) The Grant of Letters of Administration Intestate issued to JOSEPHAT KANYETI WAMBUA on 7 th September 2011, and the Rectified Confirmed Grant dated 18 th October 2023, together with the Certificate of Confirmation of Grant issued on 18 th October 2023, are hereby revoked, set aside and annulled
2) All consequential transmissions, transfers, registrations, subdivisions, and any other dealings whatsoever undertaken pursuant to the revoked Certificate of Confirmation of Grant dated 18 th October 2023, including but not limited to the subdivision of MACHAKOS /NGULUNI/2708 into MACHAKOS/NGULUNI/ 8365 and 8366;All transmissions and registrations of the said subdivided parcels and; All transfers to third-party purchasers; are hereby vacated, set aside, and declared null and void ab initio .
3) A caveat/inhibition is hereby placed on all properties comprised in the estate of the deceased, including but not limited to MACHAKOS / NGULUNI / 2708; MACHAKOS/ NGULUNI/ 8365 and 8366 and ;all other properties listed in the Schedule to the Confirmed Grant.
4) No further dealings including but not limited to sale, transfer, charge, lease, subdivision, construction, or development shall be undertaken on any of the estate properties pending the fresh administration of the estate and the determination of the 6th Applicant's claim as set out herein.
5) The Respondent, JOSEPHAT KANYETI WAMBUA, shall within forty-five (45) days of the date hereof file a fresh summons for confirmation of grant supported by:
a) Full and complete disclosure of all beneficiaries of the estate, including but not limited to the 1 st to 5 th Applicants being the daughters of the Deceased, the sons of the Deceased, and any other dependants or beneficiaries entitled to inherit under the Law of Succession Act.
b) A full and accurate inventory of all assets and liabilities comprising the estate of the deceased, including all landed properties, and an explanation of the current status of each asset.
c) A proposed mode of distribution that includes the 1 st to 5 th Applicants as equal beneficiaries alongside the sons of the deceased, in accordance with the Law of Succession Act
d) A written consent or explanation for the absence of consent from all persons entitled in the same degree as or in priority to the Applicant, as required by Rule 26 of the Probate and Administration Rules.
6) The 1 st Applicant, ROSEMARY WANZA MAINGI is hereby appointed as a co-administrator of the estate of the Deceased, to act jointly with the Respondent, JOSEPHAT KANYETI WAMBUA, pending the fresh confirmation of the grant.
7) The Co-Administrators shall consult and obtain the consent of all beneficiaries before filing the fresh Summons for Confirmation of Grant.
8) The claim by the 6 th Applicant, BENARD MUNYAO ALICE, to ownership of MACHAKOS/NGULUNI/2708 or any portion thereof shall not be determined in these succession proceedings as the succession court lacks jurisdiction to determine claims by purchasers of estate property before confirmation of the grant;
9) The 6 th Applicant shall pursue his claim in the Magistrates Court at Kangundo under ELCC No. E025 of 2023 already filed therein and that pending the determination of the 6 th Applicant's claim, the status quo on MACHAKOS/NGULUNI/2708 and its subdivisions shall be maintained in that no further construction, development, or alienation shall take place on the said property; The Respondent and all other parties shall preserve the property and not interfere with the 6 th Applicant's possession or occupation, if any, pending the determination.
10) Upon the determination of the 6 th Applicant's claim, the succession court shall give effect to that determination in the final distribution of the estate.
11) Any third-party purchasers of MACHAKOS/ NGULUNI/ 8365 and 8366 or any other estate property who acquired interest pursuant to the revoked Certificate of Confirmation shall have their rights determined in accordance with the law, including Section 93 of the Law of Succession Act noting that the court cannot sanitize transactions conducted by persons acting without lawful authority; The purchasers are at liberty to pursue such remedies as they may be advised against the Respondent for breach of contract or fraud
12) The Respondent shall be liable to account for all proceeds of sale received from such purchasers, which shall form part of the estate for redistribution to all beneficiaries.
13) The court hereby declares that the 1 st to 5 th Applicants are biological daughters and lawful beneficiaries of the estate of STEPHEN WAMBUA KANYETI (Deceased) and any distribution that excludes them on the basis of gender is discriminatory, unconstitutional and contrary to Articles 27 and 40 of the Constitution. The daughters are entitled to inherit equally with the sons of the deceased from the estate, in accordance with the Law of Succession Act and settled jurisprudence
14) Given that this is a family dispute concerning the estate of a deceased person and noting the Respondent's conduct in concealing material facts and dealing with estate property without authority, the court orders that the Respondent shall bear the costs of this Summons
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Guda holding for Mr. Nzyuko for the Objectors/Applicants
2. N/A for the Respondent
3. Abdisalan- Court Assistant
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