1. Before this Court is the Summons for revocation of Grant dated 24 th March 2025 by which the Applicant ‘ PATRICK WANG’OMBE WACHIRA’ sought the following orders:-
“1. The grant of letters of administration intestate made on 25 th January 2022 in respect of the estate of the late THERU NDIRANGU be revoked and/or annulled on grounds of material non-disclosure of facts.
2. SPENT.
3. That this Honourable Court be pleased to issue an
order staying any ongoing subdivision, sale, transfer, or any other dealing with the estate properties pursuant to the subdivision of L.R AGUTHI/GATITU/8195, 8190, 8209, 8198 and 8212, pending the hearing and determination of this application.
4. That the costs of this application be provided for.”
2. The summons which was premised upon Section 76 (A) (B) and (C) of the Law of Succession Act (Cap 160) Laws of Kenya and Rule 44 of the Probate and Administration Rules was supported by the affidavit of even date as well as the supplementary Affidavit dated 30 th April 2025 both sworn by the Applicant.
3. The Respondent JOHN KAROGO NDIRANGU filed a replying affidavit dated 9 th June 2025 as well as a Further Affidavit dated 10 th February 2026 . One DAVID LWANGA GATHARA a beneficiary of the estate filed a Replying Affidavit dated 9 th June 2025 indicating his satisfaction with the mode of distribution of the estate as set out in the confirmed grant. The 3 rd Respondent ANTHONY KARURI NDIRANGU a beneficiary of the estate also filed a Replying Affidavit dated 6 th February 2026 in support of the summons for
revocation of Grant.
4. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated 14 th April 2026 whilst the Respondent relied on the written submissions dated 21 st April 2026 .
BACKGROUND
5. This succession cause relates to the estate of the late THERU
NDIRANGU alias THERU W/O NDIRANGU (hereinafter ‘the Deceased’) who died intestate on 30 th December 2006 . A copy of the Death certificate Serial No. 356232 is annexed to the summons for letters of Administration dated 14 th October 2008 . The Deceased was survived by the following persons;-
(a) Joseph Wang’ombe Ndirangu - Son
(b) Sebastian Wachria Ndirangu - Son
(Deceased)
(c) Anthony Karuri Ndirangu - Son
(d) Esther Njeri Ndirangu - Son
(e) John Karago Ndirangu - Son
6. The estate of the Deceased comprised of the following assets;-
(i) Parcel of land known as LR No. AGUTHI/GATITU
/1588
(ii) Parcel of Land known as LR. No. AGUTHI/GATITU
/1592
7. Following the demise of the deceased Grant of letters of Administration was on 25 th January 2022 made to her sons John Karago Ndirangu , Joseph Wang’ombe Ndirangu, Anthony Karuri Ndirangu and Sebastian Wachira Ndirangu . That Grant was duly confirmed on 25 th January 2022 . By virtue of the Certificate of confirmed grant the estate was to be distributed ‘ equally’ amongst all the beneficiaries. Following confirmation of the Grant subdivision has taken place and various sub-divisions have been derived from the original titles.
8. The Applicant herein Patrick Wang’ombe Wachira is the son of one
of the sons of the Deceased Sebastian Wachira Ndirangu who
unfortunately passed away in Nyeri on 1 st December 2017.
9. That the late ‘ Sebastian Wachira’ was survived by his widow Ann
Nyanjau Wachira and the following beneficiaries, who are also in
occupation of part of the estate land:
i. Patrick Wang’ombe Wachira Rose Ngima Wachira
ii. Catherine Nyambura Wachira
iii. Charity Wambui Wachria Bernard Kariuki Wachira
iv. Anthony Karuri Wachira Esther Njeri Wachira
v. Joyce Wairimu Wachira
10. Following the demise of Sebastian Wachira in December 2017
his widow Ann Nyanjau Wachira substituted her husband in this
succession cause. That the said widow Ann Nyanjau also passed
away on 14 th November 2019 leaving the estate of Sebastian
Wachira without representation. Thereafter the succession cause
proceeded with no representation from the family of Sebastian
Wachira . The Applicant complains that the confirmation of the grant
proceeded without the participation and/or involvement of the Applicant
and his siblings.
11. The Applicants complain that having obtained the grant fraudulently the
administrators are now intent on proceeding with the distribution of the
estate ignoring the rightful claim of the Application to the estate and
ignoring the fact that some of the beneficiaries of the estate of
Sebastian Wachira reside on the estate and have put up
developments thereon.
12. The Applicant further avers that the deceased had during his lifetime
indicated how he wished his estate to be distributed through an
agreement dated 15 th February 2011 written in Kikuyu language.
That the mode of distribution of the estate has ignored the said wishes
of the deceased and ought to be set aside. That to proceed with the
distribution will create disharmony in the family. Hence the current
prayer for revocation of the grant.
13. The Respondent denied having obtained the grant fraudulently or by
concealment of material facts. The Respondent states that the
succession cause for their late mother proceeded during the lifetime of
their brother Sebastian Wachira and that the mode of distribution of
the estate was agreed upon way back in the year 2011 and Sebastian
Wachira who was still alive did not oppose the same.
14. The Respondent concedes that Sebastian Wachira passed away in
the year 2017 but asserts that the mode of distribution set out in the
confirmed grant dated 25 th January 2022 conforms fully with the
distribution as had been agreed by the beneficiaries including
Sebastian Wachira in the year 2011 .
15. The Respondent states that this application is nothing but a ploy by the
Applicant to stall and/or frustrate the distribution of the estate. That
the remaining beneficiaries are all satisfied with the mode of distribution
as set out in the confirmed grant and have collected their title
documents. That the share allocated to the late Sebastian Wachira
comprises of the following subdivisions – LR AGUTHI/GATITU/8195,
8209, 8190, 8198 and 8212 will be allocated to the beneficiaries of
Sebastian Wachira .
16. The Respondent denies that their late father ever indicated in writing
how he wished his estate to be divided. He denies all knowledge of the
alleged agreement written in Agikuyu and points out that the same
appears only to have been signed by Sebastian Wachira .
17. Finally the Respondent states that this Summons is nothing but an
attempt by the Respondents to litigate on behalf of the so called
purchaser whose attempt to be inclined as an interested party in this
succession cause was rejected by the court vide its ruling of 26 th July
2024 .
ANALYSIS AND DETERMINATION
18. I have carefully considered the summons before this court, the
Replying affidavits filed by the Respondents, as well as the written
submissions filed by both parties.
19. It is not in any dispute that the Deceased Theru Ndirangu passed on
30 th December 2006 . The name and identities of the beneficiaries to
the estate have not been disputed. It is not disputed that one of the
beneficiaries of the estate Sebastian Wachira Ndirangu passed away
on 1 st December 2017 . A copy of the Death Certificate Serial Number
0612729 appears as Annexture ‘ PWW-2’ to the supporting affidavit
dated 24 th March 2025.
20. The widow of Sebastian Wachira substituted him in this cause but
she too passed away on 14 th November 2019 . A copy of her Death
Certificate Serial No. 0793688 is annexed to the Supporting affidavit
(Annexture ‘PWW-4’ )
21. The Applicant who is the son of Sebastian Wachira holds a limited
Grant Ad Litem issued on 8 th November 2023 (Annexture ‘ PWW-1’ )
authorising him to substitute his late father in this succession cause
being Nyeri High Court Succession No. 547 of 2008 Estate of Theru
Ndirangu. A copy of the said Grant appears as Annexture ‘ PWW-1’ to
the Supporting affidavit.
22. The issues which arise for determination in this case are
(1) Whether the Grant should be revoked.
(2) How the estate should be distributed.
(i) Revocation of Grant
23. The grounds upon which a Grant may be revoked are set out in Section
76 of the Law of Succession Act which provides as follows:-
“76. Revocation or annulment of grant
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 .” [own emphasis]
24. This provision of the law was expounded upon by the court in the
case of RE ESTATE OF PRISCA ONG’AYA NANDE (Deceased)
2020 eKLR where it was held as follows:-
“A grant of 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 or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstance, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore becomes unqualified to hold any office of trust.”
25. The duties of a Probate Court were set out in the case of Priscilla
Ndubi Zipporah Mutiga vs Gerishon Gatobu Mbui, Meru
Succession Cause No. 720 of 2013 which established that the
primary duty of the probate court is to distribute the estate of the
deceased. It was held that:-
“The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property must be identified. Thus, where issues of ownership of the property of the estate are raised in a succession cause, they must be resolved before such property is distributed. And that is the very reason why rule 41 (3) of the Probate and Administration Rules was enacted so that claims which are prima facie valid should be determined before confirmation.”
26. The applicant complains that the estate of the deceased was distributed
without any regard to the stated wishes of the Deceased, which the
Applicant avers were contained in an Agreement written in Kikuyu. The
said agreement appears as Annexture ‘PWW6a’ to the applicants
supporting affidavit.
27. Firstly the deceased in this matter died intestate. There is no evidence
that the Deceased left behind a written or an oral will detailing her
wishes regarding the distribution of her estate. Secondly this so-called
agreement has only been signed by one beneficiary – the late
Sebastian Wachira . None of the other beneficiaries has appended
their signatures next to their names on the agreement. I reject the
attempt by the applicant to rely on this agreement as proof of the
deceaseds wishes. I find that the deceased died intestate and her estate
is subject to distribution as such.
28. The applicant submits that the grant was obtained fraudulently by
concealment of material facts as the existence of the beneficiaries to
Sebastian Wachira was not disclosed to the Court and they were
excluded in the distribution of the estate.
29. A close scrutiny of the record reveals that Sebastian Wachira
Ndirangu was in fact the initial petitioner in this matter and he was
issued with letters of Administration on 14 th April 2009 . On 11 th June
2010, Hon. Justice Sergon delivered a judgment in which he directed
that upon settlement of an outstanding debt the estate was to be
distributed equally between the beneficiaries.
30. Thereafter on 22 nd November 2022 the matter came up before Hon.
Lady Justice Muchemi for consideration of a summons dated 3 rd
November 2022 and which summons was allowed.
31. On 25 th January 2022 the matter came up again before Hon. Lady
Justice Muchemi who adopted the mode of distribution as set out in
the judgment of 11 th June 2021 i.e that the estate be distributed
equally between all the beneficiaries including Sebastian Wachira .
Thereafter a certificate of Confirmed Grant was issued on 25 th January
2022 . By that confirmed Grant it was indicated that the estate would
be distributed as follows;-
NAME
DESCRIPTION
OF PROPERTY
SHARE OF HEIRS
JOSEPH WANG’OMBE NDIRANGU
SEBASTIAN WACHIRA NDIRANGU
ANTHONY KARURI NDIRANGU
ESTHER NJERI
RICHARD GACHURA NDIRANGU
JOHN KARAGO NDIRANGU
L.R.
NO. AGUTHI/GATITU/1588
EQUAL SHARES
JOSEPH WANG’OMBE NDIRANGU
SEBASTIAN WACHIRA NDIRANGU
ESTHER NJERI
RICHARD GACHURA NDIRANGU
JOHN KARAGO NDIRANGU
L.R.
NO. AGUTHI/GATITU/1592
EQUAL SHARES
32. Accordingly I do I find that the confirmed grant did in fact include the
late Sebastian Wachira who was allocated an equal share of the
estate. Therefore the claim that the applicants father was excluded in
the administration of the estate is a blatant falsehood.
33. As stated earlier the applicant being a son to Sebastian Wachira
is a grandson to the Deceased in this cause. The Applicant and his
siblings would not qualify as direct beneficiaries to the estate but would
only be entitled to be allocated the share of the estate that had been
reserved for their late father.
34. Our courts are replete with decisions to the effect that grandchildren
can inherit from their grandparents only where their parents (the
beneficiaries) are also deceased. In the case of Re Estate of Florence
Mukami Kinyua (Deceased) (2018) eKLR Hon. Justice Matheka
stated as follows:-
“A grandchild is a direct heir to the estate of the grandparent where the parent predeceased the grandparent. The grandchildren get into the shoes of their deceased parents and take the parents’ share in the estate of the grandparents. This was stated in Re Estate of Wahome Njoki Wakagoto (2013) eKLR where it was held:- Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1 st July 1981. The argument is that such grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.” [Own emphasis]
35. The history of this matter reveals that following the death of Sebastian
Wachira his widow Ann Nyanjau Wachira obtained a Grant Ad Litem
in Succession Cause No. 17 of 2018 substituted him in this cause in
order to claim the share of the estate due to her late husband.
36. Following the demise of Ann Wanjau the Applicant obtained a Grant
ad litem in Succession Cause No. 62 of 2023 . In view of the demise
of their father I find that the applicant and his siblings are entitled to
directly inherit the share of the estate due to their late father. Regarding
the claim that the Grant was obtained through material non-disclosure
note that the Applicant obtained a Grant Ad Litem in respect to the
estate of his late father on 8 th November 2023 . This was about one
(1) year AFTER the Grant had been confirmed. The confirmed grant
identified the share of the estate due to the late Sebastian Wachira which share was set aside and allocated. Given that the Applicant obtained the Grant Ad litem in respect of the estate of his late father after the Grant had been already confirmed. I find that there was no ‘non-disclosure’ to warrant revocation of the Grant. All that is required is that the Confirmed Grant be rectified to include the name of the Applicant as the legal representative of the estate of his late father.
As such I dismiss the prayer for revocation of the Grant.
37. The applicant alleged that the grant was obtained by way of fraud but
no evidence to support this allegation has been tendered. In Kenyan
law allegations of fraud must be specifically pleaded and strictly proven.
In the case of KOINANGE & 13 Others -vs- CHARLES KARUGA
KOINANGE [1986] KLR the Court held that
“When fraud is alleged by the plaintiffs the onus is on the plaintiff to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy beyond reasonable doubt, something more than a balance of probabilities is required.”
I find that no evidence was adduced by the applicant to prove this
allegation of fraud.
38. The next issue for determination is whether the prayer for issuance of
temporary injunction is merited. The grounds upon which a temporary
injunction were set out in the case of GIELLA -vs- CASMAN BROWN
[1973] EA .
39. An applicant must demonstrate that they have a prima facie case
with a probability of success, demonstrate irreparable injury
which cannot be compensated by an award of damages if a
temporary injunction is not granted, and if the court is in doubt
show that the balance of convenience is in their favour .
40. In the case of Ngurman Limited Vs Jan Bonde Nielson & 2 Others
[2014] eKLR , the Court of Appeal expounded on this when it held that;
“In an interlocutory injunction application, the applicant
has to satisfy the triple requirements to;
a. establish his case only at a prima facie level,
b. demonstrate irreparable injury if a temporary injunction is not granted, and
c. ally any doubts as to (b) by showing that the balance of convenience is in his favour. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct, and logical hurdles that the applicant is expected to surmount sequentially.
41. In Nguruman (supra) the Court of Appeal reiterated that if he
applicant does not establish a prima facie case then irreparable injury
and balance of convenience do not require consideration. On the other
hand, if a prima facie case is established, then the court will consider
the other conditions. In Re Estate of Simon Kimendero
(Deceased) [2020] eKLR , the court noted that of specific
significance to preservatory order in respect of estate property is that:-
a. The applicant has an arguable case;
b. The property is estate property; and
c. The property is likely to be dissipated or wasted
away
42. The Court of Appeal in Mrao Ltd v First American Bank of Kenya
Limited and 2 Others [2003] eKLR explained that a prima facie case
as:,
“a case in which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.”
43. In my view the non-inclusion of the applicant in the certificate of
confirmed grant has not negatively prejudiced the applicant since the
confirmed grant did make provision for the allocation of a share of the
estate to his father Sebastian Wachira under whom the applicant is
claiming. Indeed in the Replying affidavit the Respondent at
Paragraph 8 stated that the applicant’s father has been allocated the
following parcels of land LR AGUTHI/GATITU/8195,8209,
8190,8198 and 8212 . Copies of Title deeds in the name of
Sebastian Wachira Ndirangu were annexed (Annextures JK 1(a)
to JK 1(e).
44. As such I find that no prima facie case warranting a temporary injunction
has been established. I further note that this is a very old succession
cause in which the Deceased died way back in the year 2006 - that is
twenty (20) years ago. None of the other beneficiaries has any
complaint. It would be counter-productive to reverse all that has been
done to transmit the estate when the only issue is the share due to the
applicant’s late father for which an allocation was in any event made. I
decline to allow this prayer for injunctive orders.
45. Finally and in conclusion this court makes the following orders:-
(1) The Certificate of Confirmed Grant issued on 25 th January
2022 be and is hereby rectified.
(2) The Grant to be re-issued to the Respondents and the
estate shall be distributed as follows:-
NAME
DESCRIPTION
OF PROPERTY
SHARE
OF HEIRS
JOSEPH WANG’OMBE NDIRANGU
ANTHONY KARURI NDIRANGU
ESTHER NJERI
RICHARD GACHURA NDIRANGU
JOHN KARAGO NDIRANGU
PATRICK WANG’OMBE WACHIRA (as trustee for the estate of the late Sebastian Wachira Ndirangu)
L.R.
NO. AGUTHI/GATITU/1588
EQUAL SHARES
JOSEPH WANG’OMBE NDIRANGU
ANTHONY KARURI NDIRANGU
ESTHER NJERI
RICHARD GACHURA NDIRANGU
JOHN KARAGO NDIRANGU
PATRICK WANG’OMBE WACHIRA (as trustee for the estate of the late Sebastian Wachira Ndirangu)
L.R.
NO. AGUTHI/GATITU/1592
EQUAL SHARES
(3) This being a family matter each party to meet their own
costs.
Dated in Nyeri this 31 st day of July 2026.
HIGH COURT SUCCESSION CAUSE NO. 547 OF 2008 JUDGEMENT Page 22 of 22
“1. The grant of letters of administration intestate made on 25 th January 2022 in respect of the estate of the late THERU NDIRANGU be revoked and/or annulled on grounds of material non-disclosure of facts.
2. SPENT.
3. That this Honourable Court be pleased to issue an
order staying any ongoing subdivision, sale, transfer, or any other dealing with the estate properties pursuant to the subdivision of L.R AGUTHI/GATITU/8195, 8190, 8209, 8198 and 8212, pending the hearing and determination of this application.
4. That the costs of this application be provided for.”
2. The summons which was premised upon Section 76 (A) (B) and (C) of the Law of Succession Act (Cap 160) Laws of Kenya and Rule 44 of the Probate and Administration Rules was supported by the affidavit of even date as well as the supplementary Affidavit dated 30 th April 2025 both sworn by the Applicant.
3. The Respondent JOHN KAROGO NDIRANGU filed a replying affidavit dated 9 th June 2025 as well as a Further Affidavit dated 10 th February 2026 . One DAVID LWANGA GATHARA a beneficiary of the estate filed a Replying Affidavit dated 9 th June 2025 indicating his satisfaction with the mode of distribution of the estate as set out in the confirmed grant. The 3 rd Respondent ANTHONY KARURI NDIRANGU a beneficiary of the estate also filed a Replying Affidavit dated 6 th February 2026 in support of the summons for
revocation of Grant.
4. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated 14 th April 2026 whilst the Respondent relied on the written submissions dated 21 st April 2026 .
BACKGROUND
5. This succession cause relates to the estate of the late THERU
NDIRANGU alias THERU W/O NDIRANGU (hereinafter ‘the Deceased’) who died intestate on 30 th December 2006 . A copy of the Death certificate Serial No. 356232 is annexed to the summons for letters of Administration dated 14 th October 2008 . The Deceased was survived by the following persons;-
(a) Joseph Wang’ombe Ndirangu - Son
(b) Sebastian Wachria Ndirangu - Son
(Deceased)
(c) Anthony Karuri Ndirangu - Son
(d) Esther Njeri Ndirangu - Son
(e) John Karago Ndirangu - Son
6. The estate of the Deceased comprised of the following assets;-
(i) Parcel of land known as LR No. AGUTHI/GATITU
/1588
(ii) Parcel of Land known as LR. No. AGUTHI/GATITU
/1592
7. Following the demise of the deceased Grant of letters of Administration was on 25 th January 2022 made to her sons John Karago Ndirangu , Joseph Wang’ombe Ndirangu, Anthony Karuri Ndirangu and Sebastian Wachira Ndirangu . That Grant was duly confirmed on 25 th January 2022 . By virtue of the Certificate of confirmed grant the estate was to be distributed ‘ equally’ amongst all the beneficiaries. Following confirmation of the Grant subdivision has taken place and various sub-divisions have been derived from the original titles.
8. The Applicant herein Patrick Wang’ombe Wachira is the son of one
of the sons of the Deceased Sebastian Wachira Ndirangu who
unfortunately passed away in Nyeri on 1 st December 2017.
9. That the late ‘ Sebastian Wachira’ was survived by his widow Ann
Nyanjau Wachira and the following beneficiaries, who are also in
occupation of part of the estate land:
i. Patrick Wang’ombe Wachira Rose Ngima Wachira
ii. Catherine Nyambura Wachira
iii. Charity Wambui Wachria Bernard Kariuki Wachira
iv. Anthony Karuri Wachira Esther Njeri Wachira
v. Joyce Wairimu Wachira
10. Following the demise of Sebastian Wachira in December 2017
his widow Ann Nyanjau Wachira substituted her husband in this
succession cause. That the said widow Ann Nyanjau also passed
away on 14 th November 2019 leaving the estate of Sebastian
Wachira without representation. Thereafter the succession cause
proceeded with no representation from the family of Sebastian
Wachira . The Applicant complains that the confirmation of the grant
proceeded without the participation and/or involvement of the Applicant
and his siblings.
11. The Applicants complain that having obtained the grant fraudulently the
administrators are now intent on proceeding with the distribution of the
estate ignoring the rightful claim of the Application to the estate and
ignoring the fact that some of the beneficiaries of the estate of
Sebastian Wachira reside on the estate and have put up
developments thereon.
12. The Applicant further avers that the deceased had during his lifetime
indicated how he wished his estate to be distributed through an
agreement dated 15 th February 2011 written in Kikuyu language.
That the mode of distribution of the estate has ignored the said wishes
of the deceased and ought to be set aside. That to proceed with the
distribution will create disharmony in the family. Hence the current
prayer for revocation of the grant.
13. The Respondent denied having obtained the grant fraudulently or by
concealment of material facts. The Respondent states that the
succession cause for their late mother proceeded during the lifetime of
their brother Sebastian Wachira and that the mode of distribution of
the estate was agreed upon way back in the year 2011 and Sebastian
Wachira who was still alive did not oppose the same.
14. The Respondent concedes that Sebastian Wachira passed away in
the year 2017 but asserts that the mode of distribution set out in the
confirmed grant dated 25 th January 2022 conforms fully with the
distribution as had been agreed by the beneficiaries including
Sebastian Wachira in the year 2011 .
15. The Respondent states that this application is nothing but a ploy by the
Applicant to stall and/or frustrate the distribution of the estate. That
the remaining beneficiaries are all satisfied with the mode of distribution
as set out in the confirmed grant and have collected their title
documents. That the share allocated to the late Sebastian Wachira
comprises of the following subdivisions – LR AGUTHI/GATITU/8195,
8209, 8190, 8198 and 8212 will be allocated to the beneficiaries of
Sebastian Wachira .
16. The Respondent denies that their late father ever indicated in writing
how he wished his estate to be divided. He denies all knowledge of the
alleged agreement written in Agikuyu and points out that the same
appears only to have been signed by Sebastian Wachira .
17. Finally the Respondent states that this Summons is nothing but an
attempt by the Respondents to litigate on behalf of the so called
purchaser whose attempt to be inclined as an interested party in this
succession cause was rejected by the court vide its ruling of 26 th July
2024 .
ANALYSIS AND DETERMINATION
18. I have carefully considered the summons before this court, the
Replying affidavits filed by the Respondents, as well as the written
submissions filed by both parties.
19. It is not in any dispute that the Deceased Theru Ndirangu passed on
30 th December 2006 . The name and identities of the beneficiaries to
the estate have not been disputed. It is not disputed that one of the
beneficiaries of the estate Sebastian Wachira Ndirangu passed away
on 1 st December 2017 . A copy of the Death Certificate Serial Number
0612729 appears as Annexture ‘ PWW-2’ to the supporting affidavit
dated 24 th March 2025.
20. The widow of Sebastian Wachira substituted him in this cause but
she too passed away on 14 th November 2019 . A copy of her Death
Certificate Serial No. 0793688 is annexed to the Supporting affidavit
(Annexture ‘PWW-4’ )
21. The Applicant who is the son of Sebastian Wachira holds a limited
Grant Ad Litem issued on 8 th November 2023 (Annexture ‘ PWW-1’ )
authorising him to substitute his late father in this succession cause
being Nyeri High Court Succession No. 547 of 2008 Estate of Theru
Ndirangu. A copy of the said Grant appears as Annexture ‘ PWW-1’ to
the Supporting affidavit.
22. The issues which arise for determination in this case are
(1) Whether the Grant should be revoked.
(2) How the estate should be distributed.
(i) Revocation of Grant
23. The grounds upon which a Grant may be revoked are set out in Section
76 of the Law of Succession Act which provides as follows:-
“76. Revocation or annulment of grant
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 .” [own emphasis]
24. This provision of the law was expounded upon by the court in the
case of RE ESTATE OF PRISCA ONG’AYA NANDE (Deceased)
2020 eKLR where it was held as follows:-
“A grant of 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 or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstance, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore becomes unqualified to hold any office of trust.”
25. The duties of a Probate Court were set out in the case of Priscilla
Ndubi Zipporah Mutiga vs Gerishon Gatobu Mbui, Meru
Succession Cause No. 720 of 2013 which established that the
primary duty of the probate court is to distribute the estate of the
deceased. It was held that:-
“The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property must be identified. Thus, where issues of ownership of the property of the estate are raised in a succession cause, they must be resolved before such property is distributed. And that is the very reason why rule 41 (3) of the Probate and Administration Rules was enacted so that claims which are prima facie valid should be determined before confirmation.”
26. The applicant complains that the estate of the deceased was distributed
without any regard to the stated wishes of the Deceased, which the
Applicant avers were contained in an Agreement written in Kikuyu. The
said agreement appears as Annexture ‘PWW6a’ to the applicants
supporting affidavit.
27. Firstly the deceased in this matter died intestate. There is no evidence
that the Deceased left behind a written or an oral will detailing her
wishes regarding the distribution of her estate. Secondly this so-called
agreement has only been signed by one beneficiary – the late
Sebastian Wachira . None of the other beneficiaries has appended
their signatures next to their names on the agreement. I reject the
attempt by the applicant to rely on this agreement as proof of the
deceaseds wishes. I find that the deceased died intestate and her estate
is subject to distribution as such.
28. The applicant submits that the grant was obtained fraudulently by
concealment of material facts as the existence of the beneficiaries to
Sebastian Wachira was not disclosed to the Court and they were
excluded in the distribution of the estate.
29. A close scrutiny of the record reveals that Sebastian Wachira
Ndirangu was in fact the initial petitioner in this matter and he was
issued with letters of Administration on 14 th April 2009 . On 11 th June
2010, Hon. Justice Sergon delivered a judgment in which he directed
that upon settlement of an outstanding debt the estate was to be
distributed equally between the beneficiaries.
30. Thereafter on 22 nd November 2022 the matter came up before Hon.
Lady Justice Muchemi for consideration of a summons dated 3 rd
November 2022 and which summons was allowed.
31. On 25 th January 2022 the matter came up again before Hon. Lady
Justice Muchemi who adopted the mode of distribution as set out in
the judgment of 11 th June 2021 i.e that the estate be distributed
equally between all the beneficiaries including Sebastian Wachira .
Thereafter a certificate of Confirmed Grant was issued on 25 th January
2022 . By that confirmed Grant it was indicated that the estate would
be distributed as follows;-
NAME
DESCRIPTION
OF PROPERTY
SHARE OF HEIRS
JOSEPH WANG’OMBE NDIRANGU
SEBASTIAN WACHIRA NDIRANGU
ANTHONY KARURI NDIRANGU
ESTHER NJERI
RICHARD GACHURA NDIRANGU
JOHN KARAGO NDIRANGU
L.R.
NO. AGUTHI/GATITU/1588
EQUAL SHARES
JOSEPH WANG’OMBE NDIRANGU
SEBASTIAN WACHIRA NDIRANGU
ESTHER NJERI
RICHARD GACHURA NDIRANGU
JOHN KARAGO NDIRANGU
L.R.
NO. AGUTHI/GATITU/1592
EQUAL SHARES
32. Accordingly I do I find that the confirmed grant did in fact include the
late Sebastian Wachira who was allocated an equal share of the
estate. Therefore the claim that the applicants father was excluded in
the administration of the estate is a blatant falsehood.
33. As stated earlier the applicant being a son to Sebastian Wachira
is a grandson to the Deceased in this cause. The Applicant and his
siblings would not qualify as direct beneficiaries to the estate but would
only be entitled to be allocated the share of the estate that had been
reserved for their late father.
34. Our courts are replete with decisions to the effect that grandchildren
can inherit from their grandparents only where their parents (the
beneficiaries) are also deceased. In the case of Re Estate of Florence
Mukami Kinyua (Deceased) (2018) eKLR Hon. Justice Matheka
stated as follows:-
“A grandchild is a direct heir to the estate of the grandparent where the parent predeceased the grandparent. The grandchildren get into the shoes of their deceased parents and take the parents’ share in the estate of the grandparents. This was stated in Re Estate of Wahome Njoki Wakagoto (2013) eKLR where it was held:- Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1 st July 1981. The argument is that such grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.” [Own emphasis]
35. The history of this matter reveals that following the death of Sebastian
Wachira his widow Ann Nyanjau Wachira obtained a Grant Ad Litem
in Succession Cause No. 17 of 2018 substituted him in this cause in
order to claim the share of the estate due to her late husband.
36. Following the demise of Ann Wanjau the Applicant obtained a Grant
ad litem in Succession Cause No. 62 of 2023 . In view of the demise
of their father I find that the applicant and his siblings are entitled to
directly inherit the share of the estate due to their late father. Regarding
the claim that the Grant was obtained through material non-disclosure
note that the Applicant obtained a Grant Ad Litem in respect to the
estate of his late father on 8 th November 2023 . This was about one
(1) year AFTER the Grant had been confirmed. The confirmed grant
identified the share of the estate due to the late Sebastian Wachira which share was set aside and allocated. Given that the Applicant obtained the Grant Ad litem in respect of the estate of his late father after the Grant had been already confirmed. I find that there was no ‘non-disclosure’ to warrant revocation of the Grant. All that is required is that the Confirmed Grant be rectified to include the name of the Applicant as the legal representative of the estate of his late father.
As such I dismiss the prayer for revocation of the Grant.
37. The applicant alleged that the grant was obtained by way of fraud but
no evidence to support this allegation has been tendered. In Kenyan
law allegations of fraud must be specifically pleaded and strictly proven.
In the case of KOINANGE & 13 Others -vs- CHARLES KARUGA
KOINANGE [1986] KLR the Court held that
“When fraud is alleged by the plaintiffs the onus is on the plaintiff to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy beyond reasonable doubt, something more than a balance of probabilities is required.”
I find that no evidence was adduced by the applicant to prove this
allegation of fraud.
38. The next issue for determination is whether the prayer for issuance of
temporary injunction is merited. The grounds upon which a temporary
injunction were set out in the case of GIELLA -vs- CASMAN BROWN
[1973] EA .
39. An applicant must demonstrate that they have a prima facie case
with a probability of success, demonstrate irreparable injury
which cannot be compensated by an award of damages if a
temporary injunction is not granted, and if the court is in doubt
show that the balance of convenience is in their favour .
40. In the case of Ngurman Limited Vs Jan Bonde Nielson & 2 Others
[2014] eKLR , the Court of Appeal expounded on this when it held that;
“In an interlocutory injunction application, the applicant
has to satisfy the triple requirements to;
a. establish his case only at a prima facie level,
b. demonstrate irreparable injury if a temporary injunction is not granted, and
c. ally any doubts as to (b) by showing that the balance of convenience is in his favour. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct, and logical hurdles that the applicant is expected to surmount sequentially.
41. In Nguruman (supra) the Court of Appeal reiterated that if he
applicant does not establish a prima facie case then irreparable injury
and balance of convenience do not require consideration. On the other
hand, if a prima facie case is established, then the court will consider
the other conditions. In Re Estate of Simon Kimendero
(Deceased) [2020] eKLR , the court noted that of specific
significance to preservatory order in respect of estate property is that:-
a. The applicant has an arguable case;
b. The property is estate property; and
c. The property is likely to be dissipated or wasted
away
42. The Court of Appeal in Mrao Ltd v First American Bank of Kenya
Limited and 2 Others [2003] eKLR explained that a prima facie case
as:,
“a case in which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.”
43. In my view the non-inclusion of the applicant in the certificate of
confirmed grant has not negatively prejudiced the applicant since the
confirmed grant did make provision for the allocation of a share of the
estate to his father Sebastian Wachira under whom the applicant is
claiming. Indeed in the Replying affidavit the Respondent at
Paragraph 8 stated that the applicant’s father has been allocated the
following parcels of land LR AGUTHI/GATITU/8195,8209,
8190,8198 and 8212 . Copies of Title deeds in the name of
Sebastian Wachira Ndirangu were annexed (Annextures JK 1(a)
to JK 1(e).
44. As such I find that no prima facie case warranting a temporary injunction
has been established. I further note that this is a very old succession
cause in which the Deceased died way back in the year 2006 - that is
twenty (20) years ago. None of the other beneficiaries has any
complaint. It would be counter-productive to reverse all that has been
done to transmit the estate when the only issue is the share due to the
applicant’s late father for which an allocation was in any event made. I
decline to allow this prayer for injunctive orders.
45. Finally and in conclusion this court makes the following orders:-
(1) The Certificate of Confirmed Grant issued on 25 th January
2022 be and is hereby rectified.
(2) The Grant to be re-issued to the Respondents and the
estate shall be distributed as follows:-
NAME
DESCRIPTION
OF PROPERTY
SHARE
OF HEIRS
JOSEPH WANG’OMBE NDIRANGU
ANTHONY KARURI NDIRANGU
ESTHER NJERI
RICHARD GACHURA NDIRANGU
JOHN KARAGO NDIRANGU
PATRICK WANG’OMBE WACHIRA (as trustee for the estate of the late Sebastian Wachira Ndirangu)
L.R.
NO. AGUTHI/GATITU/1588
EQUAL SHARES
JOSEPH WANG’OMBE NDIRANGU
ANTHONY KARURI NDIRANGU
ESTHER NJERI
RICHARD GACHURA NDIRANGU
JOHN KARAGO NDIRANGU
PATRICK WANG’OMBE WACHIRA (as trustee for the estate of the late Sebastian Wachira Ndirangu)
L.R.
NO. AGUTHI/GATITU/1592
EQUAL SHARES
(3) This being a family matter each party to meet their own
costs.
Dated in Nyeri this 31 st day of July 2026.
HIGH COURT SUCCESSION CAUSE NO. 547 OF 2008 JUDGEMENT Page 22 of 22