'(Being an Appeal from the judgment and decree of the Hon. A.K. Ithuku, CM delivered on 25th July 2023 in Kerugoya Magistrate’s Court Succession Cause No. E167 of 1986 – In the Matter of the Estate of Nduiga Kaguima (Deceased)
Background
1. The appellants, Lawrence Muchiri Ndwiga, Nahashon Kagwima Ndwiga, Pauline Wacera Ndwiga, and the respondents herein, Njuri Gikotho, Muthoni Mutugi Machanga, Eunice Wanjira Ndwiga, Beatrice Wakini Mutugi together with Mary Wambui Mwangi are all children of the deceased, Ndwiga Kaguima who died on 6th December 1984 at Kianjanga.
2. The deceased had two wives, Janet Wanjiru and Jemima Gathu and at the time of his death he was survived by the two widows and all the children named above.
3. Janet Wanjira had five children with the deceased namely:
a. Lawrence Muchiri Ndwiga – son.
b. Eunice Wanjira Ndwiga – daughter.
c. Beatrice Wakini Mutugi – daughter.
d. Mary Wambui Mwangi – daughter.
e. Pauline Wacera Ndwiga – daughter.
4. Jemima Gathu had 3 children with the deceased namely:
a. Aurelia Muthoni Mutugi alias Muthoni Mutugi Machangia – daughter.
b. Njuri Kigotho – daughter.
c. Nahashon Kagwima Ndwiga – son.
The Grant of Letters of Administration and the Confirmation of Grant.
5. On 16th October 1986, Nahashon Kagwima Ndwiga, the 1st appellant herein filed a petition for Letters of Administration intestate for the estate of the deceased. He named the persons who had survived the deceased as the two widows Gemima Wagathu Ndwiga and Janet Wanjiru Ndwiga and the two sons, Nahashon Kagwima Ndwiga and Lawrence Muchiri Ndwiga.
6. On 27th October 1987, a grant of letters of administration intestate of the estate of the deceased was issued to the petitioner, Nahashon Kagwima Ndwiga.
7. On 1st February 1988, the administrator took out a summons for confirmation of grant and in the supporting affidavit sworn on an undisclosed date, he again named the two widows and the two sons of the deceased as the survivors/beneficiaries of the deceased.
8. Only one parcel of land No. Mwerua/Kiandai/16, measuring approximately 8.0 acres, was identified as forming the estate of the deceased and available for distribution to the beneficiaries. It was proposed that Gemima Wagathu Ndwiga and Nahashon Kagwima Ndwiga get 4.0 acres, while Janet Wanjiru Ndwiga and Lawrence Muchiri Ndwiga were to get the other 4.0 acres. Janet was however, uncomfortable with being registered jointly with her son Lawrence Muchiri Ndwiga on their portion. Therefore, the certificate of confirmation of grant issued on 12th April 1988 shows that Gemima and Nahashon were registered as joint proprietors of half a share of the estate being 4.0 acres while Janet got 21/2 acres and Lawrence Muchiri Ndwiga got 11/2 acres of the other half share of the estate. The parties were subsequently registered as such and title deeds issued accordingly.
The Revocation of Grant
9. On 22nd April 2021 (18th February 2022), Njuri Gikotho and Muthoni Mutugi Machangia, two of the deceased’s daughters, took out summons for revocation or annulment of grant issued and named Nahashon Kagwima Ndwiga as the respondent and Lawrence Muchiri Ndwiga and Pauline Wacera Ndwiga, one of the daughters of the deceased, as 1st and 2nd Interested Parties respectively. The summons for revocation of grant were based on grounds that:
a. The proceedings to obtain the grant were defective in substance,
b. 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. The grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, notwithstanding the allegation was made in ignorance or inadvertently
10. The applicants deposed in the supporting affidavit, sworn on 22nd April 2021, that they were sisters and daughters of the deceased and the respondent/administrator was their brother while the Interested Parties were their step-brother and step-sister respectively.
11. Further that the succession cause was filed secretly and they were never informed or involved and their names were omitted from the list of beneficiaries. Upon confirmation of the grant, the land had been subdivided and registered as land parcel numbers Mwerua/Kiandai/954, Mwerua/Kiandai/955 and Mwerua/Kiandai/956 in the names of Nahashon Kagwima Ndwiga, Lawrence Muchiri Ndwiga and Pouline Wacera Ndwiga respectively thereby disinheriting them yet they had never renounced their rights to inherit. They had learned of the succession sometime in 2019 and when they demanded to know from their brother as the administrator why they had been left out of the succession as beneficiaries and demanded their respective shares the administrator refused to talk to them. They had since registered restrictions on the respective parcels of land.
12. They prayed that the title deeds issued pursuant to the impugned grant being land parcel numbers Mwerua/Kiandai/954, Mwerua/Kiandai/955 and Mwerua/Kiandai/956 be cancelled and the title to revert to the original title number Mwerua/Kiandai/16 in the name of Ndwiga Kagwima (deceased) for purposes of distribution afresh.
13. The respondent and the Interested Parties filed replying affidavits.
14. In his replying affidavit sworn on 7th April 2022, Nahashon Kagwima Ndwiga deposed that the summons filed by the first two applicants Njuri Gikotho and Muthoni Mutugi Machangia dated 22nd April 2021 was fatally defective for not being signed by the applicants or their advocate.
15. On the substance of the summons, the respondent deposed that the succession cause was conducted in an open manner and included the widows of the deceased Gemima Gathu and Janet Wanjiru Ndwiga, both now deceased, and representatives from the two houses. That, each of the two houses received their rightful share of the deceased’s estate comprised in land parcel No. L.R. Mwerua/Kiandai/16. Further that the estate of the deceased had been wound up in 1988 as per the certificate of confirmation of grant issued on 12th August 1988. Further that the estate was distributed to the lawful beneficiaries of the estate as per the certificate of confirmation of grant, that the land had been partitioned and the title closed on subdivision on 3rd February 1995 and there was no estate capable of being subjected to the proceedings for revocation or annulment of grant.
16. The respondent deposed further that the proceedings for revocation or annulment of the grant could not be instituted after such a long period of 33 years upon confirmation of the grant.
17. After about one year and a half, on 26th July 2022 the remaining daughters Eunice Wanjira Ndwiga, Beatrice Wakini Mutugi and Mary Wambui Mwangi also filed a summons of even date seeking to be joined to the summons for revocation of grant as 3rd, 4th and 5th applicants on the same grounds as the earlier applicants. The application was granted.
18. However, Mary Wambui Mwangi who was a party to the application for revocation later pulled out indicating that she had renounced her right to inheritance of the deceased’s estate.
19. The case proceeded by way of viva voce testimony by parties who gave evidence on the dispute.
20. PW 1, Njuri Gikotho and PW 2, Eunice Wanjira Ndwiga gave evidence for the applicants at the trial.
21. It was the evidence of the applicants that the petitioner/administrator did not involve them in the process of succession and that they were not aware of it until sometime in 2019. PW 1, Njuri Gikotho stated in cross-examination that she was not aware of the succession proceedings until after her mother had died. She was not sure when her mother died but thought it was sometime in 2012. She then lodged a caution over the parcels of land three years after she learnt of the succession cause. She said that she wanted 11/4 acres of the share of her household’s land. She said she was not aware how Pauline, her step-sister came to get her share of the land.
22. PW 2, Eunice Wanjiru said that her mother is Janet Wanjiru (deceased) and Lawrence Muchui Ndwiga, the 1St Interested Party, is her brother. She said that her brother had his parcel of land which he got from the clan different from that of their father. She said that she had not lived on her father’s land and that she could not tell whether her mother participated in the succession cause. She also said that at one time, their mother called them for blessings but she did not know whether Pauline, her sister, had received a share of the land even as she was aware that Pauline had constructed a stone house on the land. She said that the land was divided between the two houses and she wanted them to share their respective portions equally among the siblings.
23. The respondent Nahashon Kagwima Ndwiga, gave evidence as DW 1. He said that his sisters were aware of the succession cause. He conceded that he did not indicate their names in the petition as beneficiaries of the estate and as the administrator of the estate he did not give a share to his sisters. He also said that he got land from the clan and that is where he stays. He further said that they did not develop the land the subject of the dispute after the succession cause and that they had not sold it to outsiders. He also said that one of the widows, Janet gave her share of the estate to Pauline, one of her daughters and the other daughters were aware of this. He further said that it was not his father’s wish to give land to his daughters.
24. DW 2, Stephen Mbui testified as is material that Nahashon and Lawrence have their own parcels of land.
25. DW 3, Gakono Mbui did not have much to say in his evidence that would assist the court to resolve the dispute.
26. The Interested Parties in the application, Lawrence Muchiri Ndwiga and Pauline Wacera Ndwiga also testified. Lawrence said that he has his own land measuring 8 acres. He said further that his mother called all her daughters when she gave her share of the estate to the 2nd Interested Party, Pauline and that his sisters attended the Land Control Board (LCB) meetings for that exercise and they did not object.
27. On her part Pauline testified that she attended the succession cause proceedings and that their sisters/the applicants, were not involved and they did not get a share of their father’s estate. She also said that she was not involved in the succession proceedings and she did not object to the manner the land was subdivided because at the time girls were not involved in sharing land. She said she was the one living on the land and that she got it because she was the one who was taking care of their late mother, Janet Wanjira. She said that they went to the LCB with Beatrice and Eunice, PW 2 and they had no objection.
28. Upon hearing the application by viva voce evidence, the learned magistrate revoked the grant issued on 27th October 1987 and confirmed on 12th April 1988 and cancelled the ensuing title deeds for the various parcels of land on grounds that it was illegal to leave out the applicants and that defective could not be overlooked due to passage of time.
29. The appellants were dissatisfied with the trial court’s judgment and filed this appeal through a memorandum dated 9th August 2023. The record of appeal was filed on 19th February 2024 challenging that decision.
Grounds of appeal
30. The appeal to this court is based on some twelve grounds. Ostensibly, those grounds can be summarized into two, thus:
a. That the learned trial magistrate erred in both law and fact in finding that the respondents were not made aware of the administration of the deceased’s estate when in fact they were aware as their respective mothers had participated in the same and the respondents participated at the Land Control Board meetings during the transfer of the estate to the beneficiaries as per the certificate of confirmation of grant;
b. That the learned trial magistrate erred in both law and fact in failing to find that the respondents were guilty of delay or laches in initiating the process of revocation and annulment of the grant, doing so only after 36 years after the certificate of confirmation of grant had been issued thereby contravening the provisions of section 4(2) as read with section 26, section 4(4), section 7 as read with section 3(3) all of the Limitation of actions Act (Cap. 22) Laws of Kenya.
31. The appellants therefore pray that this court allow the appeal, the judgment of the trial court be set aside, vacated, and/varied and grant any other and/or further orders as this court may deem fit and just, and that costs of the appeal be granted to the appellant.
Submissions
32. The appeal was disposed of by way of written submissions filed by learned counsels for the parties.
33. The appellants through their learned counsel based their submissions largely on the issue of delay in filing the application for revocation of grant. They have cited section 4(4) of the Limitation of Actions Act which provides as follows:
“S. 4(4) An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.”
34. It is their submission that the judgment in the succession cause was delivered on 12th April 1988 and therefore time to bring any action based on that judgment has since expired.
35. The appellants submit further that even as the application for revocation was based on fraud, the respondents gave evidence that they discovered the alleged fraud after the passing of their respective mothers sometime in 2010 and 2012. Since they filed their application on 22nd April 2021, that was still ten years after the discovery of the alleged fraud and their action would still be caught up by limitation under section 4(2) as read with section 26 of the Limitation of Actions Act.
36. They submit further that the application for revocation of grant and redistribution of the estate is an action to recover land and this too is time barred under section 7 of the Limitation of Actions Act which provides that:
S. 7. An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.
37. The appellants submit that the respondents ought to have filed action to claim their respective portions of the estate before twelve years elapsed after confirmation of the grant.
38. The appellants submit that in any case, the respondents were indolent for 36 years after the court gave its judgment in the succession proceedings and their application should not have ben entertained by the trial court.
39. The appellants called in the application of Kikuyu customary law contending that it is patrilineal and the deceased had made his wishes known before his death that his estate should devolve upon his wives and sons. Learned counsel appreciated that even as he was making that submission it would not hold any water and so I make no further comment on it because clearly the estate was administered under the LSA and not Kikuyu customary law.
40. The respondents through their learned counsel submit that there is no time limit for filing of an application for revocation of grant. They have cited several cases to support that submission. They also maintain that the respondents were not aware of the succession proceedings at all. Finally, they submit that the trial court was correct to allow the application for revocation of grant and the decision should be affirmed by this court.
Duty of appellate court on a first appeal
41. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
42. I am well guided by these principles in the consideration and determination of this appeal.
43. These issues are not new to succession disputes. They have been raised time without number, and courts have made pronouncements upon them. But they keep vexing parties who continue to advance the same arguments for the courts’ determination. This court will therefore restate the law as expounded by other superior courts of record before it.
44. The grounds for revocation of a grant are set out in section 76 of the LSA as follows:
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.
45. I have considered the grounds of appeal, the submissions by the parties in this appeal and reviewed the evidence tendered before and the judgment of the trial court. There are two issues for determination based on the grounds of appeal threshed out above:
a. Whether the trial court erred in both law and fact in failing to find that there was an inordinate delay by the respondents herein in filing the summons for revocation of grant in breach of the Limitation of Actions Act;
b. Whether the trial court erred in both law and fact in finding that the respondents were not made aware of the administration of the deceased’s estate.
46. The issue of inordinate delay in application for revocation of a grant is addressed by section 76 of the LSA, which provides that 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… (Emphasis mine). This provision needs no further explanation because it is in plain language. This finding is supported by the cases cited by learned counsel for the respondents in Patrick Mwangemi Wanjala & 3 others v Jackson Ngoda Jumwa [2016] KEHC 3023 (KLR) and Jane Wambui Wahuga & 4 others v Ruth Njoki Mwangi [2016] KEHC 8004 (KLR). In the case of In re Estate of Samuel Kimalel Tanui (Deceased) [2020] KEHC 1443 (KLR) the High Court stated that the doctrines of laches, acquiescence and estoppel are inapplicable within the context of proceedings for revocation of grant. In other words, an application for revocation of grant will not be defeated on the sole ground that there was inaction or inordinate delay in filing the same. Perhaps where there are other grounds underlying the issue, the same may be considered alongside the delay.
47. The issue of limitation of time has similarly been addressed by the courts and found that the Limitation of Actions Act does not apply to probate causes. In In re Estate of Nathu Khan (Deceased) [2020] KEHC 2651 (KLR) the High Court, while considering whether a summons for revocation or annulment of grant, had the following to say on the issue of the application being barred by the statute of limitations:
“The 2nd Respondent argues that this Application is caught up by the Statute of Limitations. As I understand it, the 2nd Respondent argues that by dint of section 83(e) of the Law of Succession Act, the Application should have been filed within six months of the grant of probate. He further argues that by dint of section 4(4) of the Limitations of Actions Act, the action should have been filed within 12 years of the grant of probate.
“The 2nd Respondent’s protestations on limitations are misplaced for two reasons. First, as our decisional law has consistently held, the Statute of Limitations does not apply to succession matters strictu sensu. See, for example, In re Estate of Devchand Lagdhir Shah (Deceased) [2018] eKLR; In re. Estate of Josephine Magdalena Motion (Deceased) [2016] eKLR and In re Estate of Charles Ngotho Gachunga (Deceased) [2015] eKLR.”
48. It follows from the foregoing decisions of the courts that an application for revocation of a grant cannot therefore be claimed to be time-barred. Thus, the applicants’ grounds for revocation of grant, as set out in the summons for the revocation or annulment of the grant, cannot be dismissed based only on the ground of limitation (see the case of Jane Wambui Wahuga & 4 others v Ruth Njoki Mwangi [2016] KEHC 8004 (KLR)).
49. From the evidence adduced before the trial court, it is apparent as was found by the trial court that in the petition for letters of administration, the Petitioner, Nahashon Kagwima Ndwiga, the 1st appellant herein left out all the daughters of the deceased namely Njuri Gikotho, Muthoni Mutugi Machangia, Eunice Wanjira Ndwiga and Beatrice Wakini Mutugi the respondents herein as well as Mary Wambui Mwangi who was a party to the application for revocation but later pulled out indicating that she had renounced her inheritance and then Pauline Wacera Ndwiga who is the 3rd appellant herein. The estate was shared amongst the two widows and the two sons of the deceased. Pauline later got a share, not as a beneficiary of the estate but by way of a transfer from her mother. These issues are not in contest.
50. The issue is whether in failing to include the daughters in the succession cause and the distribution of the deceased’s estate, the proceedings to obtain the grant were defective in substance, 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 or that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, notwithstanding the allegation was made in ignorance or inadvertently.
51. I am not prepared to find that the grant was obtained fraudulently. It is apparent from the evidence that the administrator of the estate was all along working under the mistaken belief that daughters were not entitled to inherit their father’s property. All the appellants, including Pauline who is a daughter said so. That is why he left out of the succession proceedings Pauline, also a daughter of the deceased and who was not married.
52. I also find that the respondents were not entirely honest to allege that the succession proceedings were conducted behind their back. I am satisfied from the fact that their respective mothers were involved in the succession, to find that the respondents were very much aware of the succession proceedings and at that time, they were also under the mistaken belief that they were not entitled to inherit. It cannot be a coincidence that all the four of them knew absolutely nothing of what was happening.
53. I am satisfied and do find that the respondents have not only been privy to all the successions proceedings as active spectators.
54. It is however clear that, in the petition for letters of administration, the petitioner concealed the fact that there were other beneficiaries of the estate, a fact which was material to the case and also an untrue allegation of a fact essential in point of law to justify the grant. The concealment was however passive and not active, having found that the daughters were aware of the succession proceedings. However, the law provides that it is immaterial that the untrue allegation of fact was made in ignorance or inadvertently. Whichever way, the grant has to be revoked.
55. Consequently, I find that the learned trial magistrate did not err in law or in fact in finding that the applicants had proved their case on a balance of probability.
56. However, I note that upon revoking the grant, the learned trial magistrate did not give directions on how the proceedings would be conducted going forward.
57. It is a cardinal principle of law that litigation must come to an end.
58. The discretion on how the estate of a deceased person should be shared lies with the court. I do not think it would be fair to send back the parties to the drawing board given the age of this matter. I do not think the issues in this case are so difficult to resolve if the parties were to agree to sit down and share the property taking guidance from the court. However, attempts even by this court to have the parties agree to an out of court settlement have been flatly declined.
59. One of the issues the parties have to be aware of is that the estate will not necessarily be shared out equally. The court is the one to determine the fair mode of distribution of the estate. It has been determined in a myriad of cases beginning with Mary Rono v Jane Rono & another [2005] KECA 326 (KLR) that sections 38 and 40 of the LSA does not mean that the estate has to be subdivided equally among the beneficiaries. Similarly, in the case of Rahab Njeri Kariuki v Joyce Waruguru Kariuki & 2 Others [2016] e KLR, the court while interpreting the inference of Section 40 of the Law of Succession Act observed as follows: -
“The Learned Judges essentially espoused the principal of fairness and equity in distribution of a deceased’s estate between or amongst persons beneficiary entitled to such an estate in a polygamous family set-up. While the number of children in a particular house is an important factor in the determination of the share to be allocated to each house, it is not the only factor; neither is it the controlling factor. The share each house gets is not contingent upon the number of children in any particular house; there are other considerations which will guide the court’s discretion in the distribution of the estate; for instance, the age of the children and their station in life are factors that the court will necessarily take into account.”
60. Taking cue from the above decision, the factors which this court has taken into account in determining this issue are as follows:
61. First, all the parties agreed that their late father had sub-divided the land into two equal portions for each house. The houses were using their respective portions of the land as such at the time of his death. Therefore, the share of each house will remain as such and the children of that house will share their portion.
62. Secondly, the court has considered that some of the children are already endowed with property in one way or the other, either through marriage for the daughters or being given property by the clan, for the sons. The court has also considered that one of the beneficiaries, Pauline has no other property other than what was bequeathed to her by their mother Janet and that she was taking care of their mother all along until her demise in 2010.
63. Finally, one of the daughters, Mary renounced her right to inherit, thereby leaving her share to the others to share.
64. In that case, I find that the most equitable way to share out the property would be as follows:
a. In the first house Nahashon Kagwima will cede two acres so that one acre for each will go to each of his sisters Muthoni Mutugi and Njuri Gikotho.
b. In the second house:
i. Pauline will cede half an acre bequeathed to her by their mother.
ii. Lawrence will also cede half acre of his share.
iii. The one acre arising from Pauline’s share and Lawrence’s share will be divided equally between Beatrice Wakini Mutugi and Eunice Wanjira Ndwiga.
65. Consequently, the appeal is determined on the terms above. The certificate of confirmation of grant will be rectified to provide for this mode of distribution.
66. This being a family dispute, there shall be no orders for costs.
67. Orders accordingly.
Dated, signed, and delivered on the Virtual Platform, Teams, this 6th day of October 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Gitau Kahiga for the Appellants.
Kamau holding brief for Murigu for the Respondents
Ummu holding brief for Job:
[...truncated]
Background
1. The appellants, Lawrence Muchiri Ndwiga, Nahashon Kagwima Ndwiga, Pauline Wacera Ndwiga, and the respondents herein, Njuri Gikotho, Muthoni Mutugi Machanga, Eunice Wanjira Ndwiga, Beatrice Wakini Mutugi together with Mary Wambui Mwangi are all children of the deceased, Ndwiga Kaguima who died on 6th December 1984 at Kianjanga.
2. The deceased had two wives, Janet Wanjiru and Jemima Gathu and at the time of his death he was survived by the two widows and all the children named above.
3. Janet Wanjira had five children with the deceased namely:
a. Lawrence Muchiri Ndwiga – son.
b. Eunice Wanjira Ndwiga – daughter.
c. Beatrice Wakini Mutugi – daughter.
d. Mary Wambui Mwangi – daughter.
e. Pauline Wacera Ndwiga – daughter.
4. Jemima Gathu had 3 children with the deceased namely:
a. Aurelia Muthoni Mutugi alias Muthoni Mutugi Machangia – daughter.
b. Njuri Kigotho – daughter.
c. Nahashon Kagwima Ndwiga – son.
The Grant of Letters of Administration and the Confirmation of Grant.
5. On 16th October 1986, Nahashon Kagwima Ndwiga, the 1st appellant herein filed a petition for Letters of Administration intestate for the estate of the deceased. He named the persons who had survived the deceased as the two widows Gemima Wagathu Ndwiga and Janet Wanjiru Ndwiga and the two sons, Nahashon Kagwima Ndwiga and Lawrence Muchiri Ndwiga.
6. On 27th October 1987, a grant of letters of administration intestate of the estate of the deceased was issued to the petitioner, Nahashon Kagwima Ndwiga.
7. On 1st February 1988, the administrator took out a summons for confirmation of grant and in the supporting affidavit sworn on an undisclosed date, he again named the two widows and the two sons of the deceased as the survivors/beneficiaries of the deceased.
8. Only one parcel of land No. Mwerua/Kiandai/16, measuring approximately 8.0 acres, was identified as forming the estate of the deceased and available for distribution to the beneficiaries. It was proposed that Gemima Wagathu Ndwiga and Nahashon Kagwima Ndwiga get 4.0 acres, while Janet Wanjiru Ndwiga and Lawrence Muchiri Ndwiga were to get the other 4.0 acres. Janet was however, uncomfortable with being registered jointly with her son Lawrence Muchiri Ndwiga on their portion. Therefore, the certificate of confirmation of grant issued on 12th April 1988 shows that Gemima and Nahashon were registered as joint proprietors of half a share of the estate being 4.0 acres while Janet got 21/2 acres and Lawrence Muchiri Ndwiga got 11/2 acres of the other half share of the estate. The parties were subsequently registered as such and title deeds issued accordingly.
The Revocation of Grant
9. On 22nd April 2021 (18th February 2022), Njuri Gikotho and Muthoni Mutugi Machangia, two of the deceased’s daughters, took out summons for revocation or annulment of grant issued and named Nahashon Kagwima Ndwiga as the respondent and Lawrence Muchiri Ndwiga and Pauline Wacera Ndwiga, one of the daughters of the deceased, as 1st and 2nd Interested Parties respectively. The summons for revocation of grant were based on grounds that:
a. The proceedings to obtain the grant were defective in substance,
b. 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. The grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, notwithstanding the allegation was made in ignorance or inadvertently
10. The applicants deposed in the supporting affidavit, sworn on 22nd April 2021, that they were sisters and daughters of the deceased and the respondent/administrator was their brother while the Interested Parties were their step-brother and step-sister respectively.
11. Further that the succession cause was filed secretly and they were never informed or involved and their names were omitted from the list of beneficiaries. Upon confirmation of the grant, the land had been subdivided and registered as land parcel numbers Mwerua/Kiandai/954, Mwerua/Kiandai/955 and Mwerua/Kiandai/956 in the names of Nahashon Kagwima Ndwiga, Lawrence Muchiri Ndwiga and Pouline Wacera Ndwiga respectively thereby disinheriting them yet they had never renounced their rights to inherit. They had learned of the succession sometime in 2019 and when they demanded to know from their brother as the administrator why they had been left out of the succession as beneficiaries and demanded their respective shares the administrator refused to talk to them. They had since registered restrictions on the respective parcels of land.
12. They prayed that the title deeds issued pursuant to the impugned grant being land parcel numbers Mwerua/Kiandai/954, Mwerua/Kiandai/955 and Mwerua/Kiandai/956 be cancelled and the title to revert to the original title number Mwerua/Kiandai/16 in the name of Ndwiga Kagwima (deceased) for purposes of distribution afresh.
13. The respondent and the Interested Parties filed replying affidavits.
14. In his replying affidavit sworn on 7th April 2022, Nahashon Kagwima Ndwiga deposed that the summons filed by the first two applicants Njuri Gikotho and Muthoni Mutugi Machangia dated 22nd April 2021 was fatally defective for not being signed by the applicants or their advocate.
15. On the substance of the summons, the respondent deposed that the succession cause was conducted in an open manner and included the widows of the deceased Gemima Gathu and Janet Wanjiru Ndwiga, both now deceased, and representatives from the two houses. That, each of the two houses received their rightful share of the deceased’s estate comprised in land parcel No. L.R. Mwerua/Kiandai/16. Further that the estate of the deceased had been wound up in 1988 as per the certificate of confirmation of grant issued on 12th August 1988. Further that the estate was distributed to the lawful beneficiaries of the estate as per the certificate of confirmation of grant, that the land had been partitioned and the title closed on subdivision on 3rd February 1995 and there was no estate capable of being subjected to the proceedings for revocation or annulment of grant.
16. The respondent deposed further that the proceedings for revocation or annulment of the grant could not be instituted after such a long period of 33 years upon confirmation of the grant.
17. After about one year and a half, on 26th July 2022 the remaining daughters Eunice Wanjira Ndwiga, Beatrice Wakini Mutugi and Mary Wambui Mwangi also filed a summons of even date seeking to be joined to the summons for revocation of grant as 3rd, 4th and 5th applicants on the same grounds as the earlier applicants. The application was granted.
18. However, Mary Wambui Mwangi who was a party to the application for revocation later pulled out indicating that she had renounced her right to inheritance of the deceased’s estate.
19. The case proceeded by way of viva voce testimony by parties who gave evidence on the dispute.
20. PW 1, Njuri Gikotho and PW 2, Eunice Wanjira Ndwiga gave evidence for the applicants at the trial.
21. It was the evidence of the applicants that the petitioner/administrator did not involve them in the process of succession and that they were not aware of it until sometime in 2019. PW 1, Njuri Gikotho stated in cross-examination that she was not aware of the succession proceedings until after her mother had died. She was not sure when her mother died but thought it was sometime in 2012. She then lodged a caution over the parcels of land three years after she learnt of the succession cause. She said that she wanted 11/4 acres of the share of her household’s land. She said she was not aware how Pauline, her step-sister came to get her share of the land.
22. PW 2, Eunice Wanjiru said that her mother is Janet Wanjiru (deceased) and Lawrence Muchui Ndwiga, the 1St Interested Party, is her brother. She said that her brother had his parcel of land which he got from the clan different from that of their father. She said that she had not lived on her father’s land and that she could not tell whether her mother participated in the succession cause. She also said that at one time, their mother called them for blessings but she did not know whether Pauline, her sister, had received a share of the land even as she was aware that Pauline had constructed a stone house on the land. She said that the land was divided between the two houses and she wanted them to share their respective portions equally among the siblings.
23. The respondent Nahashon Kagwima Ndwiga, gave evidence as DW 1. He said that his sisters were aware of the succession cause. He conceded that he did not indicate their names in the petition as beneficiaries of the estate and as the administrator of the estate he did not give a share to his sisters. He also said that he got land from the clan and that is where he stays. He further said that they did not develop the land the subject of the dispute after the succession cause and that they had not sold it to outsiders. He also said that one of the widows, Janet gave her share of the estate to Pauline, one of her daughters and the other daughters were aware of this. He further said that it was not his father’s wish to give land to his daughters.
24. DW 2, Stephen Mbui testified as is material that Nahashon and Lawrence have their own parcels of land.
25. DW 3, Gakono Mbui did not have much to say in his evidence that would assist the court to resolve the dispute.
26. The Interested Parties in the application, Lawrence Muchiri Ndwiga and Pauline Wacera Ndwiga also testified. Lawrence said that he has his own land measuring 8 acres. He said further that his mother called all her daughters when she gave her share of the estate to the 2nd Interested Party, Pauline and that his sisters attended the Land Control Board (LCB) meetings for that exercise and they did not object.
27. On her part Pauline testified that she attended the succession cause proceedings and that their sisters/the applicants, were not involved and they did not get a share of their father’s estate. She also said that she was not involved in the succession proceedings and she did not object to the manner the land was subdivided because at the time girls were not involved in sharing land. She said she was the one living on the land and that she got it because she was the one who was taking care of their late mother, Janet Wanjira. She said that they went to the LCB with Beatrice and Eunice, PW 2 and they had no objection.
28. Upon hearing the application by viva voce evidence, the learned magistrate revoked the grant issued on 27th October 1987 and confirmed on 12th April 1988 and cancelled the ensuing title deeds for the various parcels of land on grounds that it was illegal to leave out the applicants and that defective could not be overlooked due to passage of time.
29. The appellants were dissatisfied with the trial court’s judgment and filed this appeal through a memorandum dated 9th August 2023. The record of appeal was filed on 19th February 2024 challenging that decision.
Grounds of appeal
30. The appeal to this court is based on some twelve grounds. Ostensibly, those grounds can be summarized into two, thus:
a. That the learned trial magistrate erred in both law and fact in finding that the respondents were not made aware of the administration of the deceased’s estate when in fact they were aware as their respective mothers had participated in the same and the respondents participated at the Land Control Board meetings during the transfer of the estate to the beneficiaries as per the certificate of confirmation of grant;
b. That the learned trial magistrate erred in both law and fact in failing to find that the respondents were guilty of delay or laches in initiating the process of revocation and annulment of the grant, doing so only after 36 years after the certificate of confirmation of grant had been issued thereby contravening the provisions of section 4(2) as read with section 26, section 4(4), section 7 as read with section 3(3) all of the Limitation of actions Act (Cap. 22) Laws of Kenya.
31. The appellants therefore pray that this court allow the appeal, the judgment of the trial court be set aside, vacated, and/varied and grant any other and/or further orders as this court may deem fit and just, and that costs of the appeal be granted to the appellant.
Submissions
32. The appeal was disposed of by way of written submissions filed by learned counsels for the parties.
33. The appellants through their learned counsel based their submissions largely on the issue of delay in filing the application for revocation of grant. They have cited section 4(4) of the Limitation of Actions Act which provides as follows:
“S. 4(4) An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.”
34. It is their submission that the judgment in the succession cause was delivered on 12th April 1988 and therefore time to bring any action based on that judgment has since expired.
35. The appellants submit further that even as the application for revocation was based on fraud, the respondents gave evidence that they discovered the alleged fraud after the passing of their respective mothers sometime in 2010 and 2012. Since they filed their application on 22nd April 2021, that was still ten years after the discovery of the alleged fraud and their action would still be caught up by limitation under section 4(2) as read with section 26 of the Limitation of Actions Act.
36. They submit further that the application for revocation of grant and redistribution of the estate is an action to recover land and this too is time barred under section 7 of the Limitation of Actions Act which provides that:
S. 7. An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.
37. The appellants submit that the respondents ought to have filed action to claim their respective portions of the estate before twelve years elapsed after confirmation of the grant.
38. The appellants submit that in any case, the respondents were indolent for 36 years after the court gave its judgment in the succession proceedings and their application should not have ben entertained by the trial court.
39. The appellants called in the application of Kikuyu customary law contending that it is patrilineal and the deceased had made his wishes known before his death that his estate should devolve upon his wives and sons. Learned counsel appreciated that even as he was making that submission it would not hold any water and so I make no further comment on it because clearly the estate was administered under the LSA and not Kikuyu customary law.
40. The respondents through their learned counsel submit that there is no time limit for filing of an application for revocation of grant. They have cited several cases to support that submission. They also maintain that the respondents were not aware of the succession proceedings at all. Finally, they submit that the trial court was correct to allow the application for revocation of grant and the decision should be affirmed by this court.
Duty of appellate court on a first appeal
41. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
42. I am well guided by these principles in the consideration and determination of this appeal.
43. These issues are not new to succession disputes. They have been raised time without number, and courts have made pronouncements upon them. But they keep vexing parties who continue to advance the same arguments for the courts’ determination. This court will therefore restate the law as expounded by other superior courts of record before it.
44. The grounds for revocation of a grant are set out in section 76 of the LSA as follows:
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.
45. I have considered the grounds of appeal, the submissions by the parties in this appeal and reviewed the evidence tendered before and the judgment of the trial court. There are two issues for determination based on the grounds of appeal threshed out above:
a. Whether the trial court erred in both law and fact in failing to find that there was an inordinate delay by the respondents herein in filing the summons for revocation of grant in breach of the Limitation of Actions Act;
b. Whether the trial court erred in both law and fact in finding that the respondents were not made aware of the administration of the deceased’s estate.
46. The issue of inordinate delay in application for revocation of a grant is addressed by section 76 of the LSA, which provides that 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… (Emphasis mine). This provision needs no further explanation because it is in plain language. This finding is supported by the cases cited by learned counsel for the respondents in Patrick Mwangemi Wanjala & 3 others v Jackson Ngoda Jumwa [2016] KEHC 3023 (KLR) and Jane Wambui Wahuga & 4 others v Ruth Njoki Mwangi [2016] KEHC 8004 (KLR). In the case of In re Estate of Samuel Kimalel Tanui (Deceased) [2020] KEHC 1443 (KLR) the High Court stated that the doctrines of laches, acquiescence and estoppel are inapplicable within the context of proceedings for revocation of grant. In other words, an application for revocation of grant will not be defeated on the sole ground that there was inaction or inordinate delay in filing the same. Perhaps where there are other grounds underlying the issue, the same may be considered alongside the delay.
47. The issue of limitation of time has similarly been addressed by the courts and found that the Limitation of Actions Act does not apply to probate causes. In In re Estate of Nathu Khan (Deceased) [2020] KEHC 2651 (KLR) the High Court, while considering whether a summons for revocation or annulment of grant, had the following to say on the issue of the application being barred by the statute of limitations:
“The 2nd Respondent argues that this Application is caught up by the Statute of Limitations. As I understand it, the 2nd Respondent argues that by dint of section 83(e) of the Law of Succession Act, the Application should have been filed within six months of the grant of probate. He further argues that by dint of section 4(4) of the Limitations of Actions Act, the action should have been filed within 12 years of the grant of probate.
“The 2nd Respondent’s protestations on limitations are misplaced for two reasons. First, as our decisional law has consistently held, the Statute of Limitations does not apply to succession matters strictu sensu. See, for example, In re Estate of Devchand Lagdhir Shah (Deceased) [2018] eKLR; In re. Estate of Josephine Magdalena Motion (Deceased) [2016] eKLR and In re Estate of Charles Ngotho Gachunga (Deceased) [2015] eKLR.”
48. It follows from the foregoing decisions of the courts that an application for revocation of a grant cannot therefore be claimed to be time-barred. Thus, the applicants’ grounds for revocation of grant, as set out in the summons for the revocation or annulment of the grant, cannot be dismissed based only on the ground of limitation (see the case of Jane Wambui Wahuga & 4 others v Ruth Njoki Mwangi [2016] KEHC 8004 (KLR)).
49. From the evidence adduced before the trial court, it is apparent as was found by the trial court that in the petition for letters of administration, the Petitioner, Nahashon Kagwima Ndwiga, the 1st appellant herein left out all the daughters of the deceased namely Njuri Gikotho, Muthoni Mutugi Machangia, Eunice Wanjira Ndwiga and Beatrice Wakini Mutugi the respondents herein as well as Mary Wambui Mwangi who was a party to the application for revocation but later pulled out indicating that she had renounced her inheritance and then Pauline Wacera Ndwiga who is the 3rd appellant herein. The estate was shared amongst the two widows and the two sons of the deceased. Pauline later got a share, not as a beneficiary of the estate but by way of a transfer from her mother. These issues are not in contest.
50. The issue is whether in failing to include the daughters in the succession cause and the distribution of the deceased’s estate, the proceedings to obtain the grant were defective in substance, 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 or that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, notwithstanding the allegation was made in ignorance or inadvertently.
51. I am not prepared to find that the grant was obtained fraudulently. It is apparent from the evidence that the administrator of the estate was all along working under the mistaken belief that daughters were not entitled to inherit their father’s property. All the appellants, including Pauline who is a daughter said so. That is why he left out of the succession proceedings Pauline, also a daughter of the deceased and who was not married.
52. I also find that the respondents were not entirely honest to allege that the succession proceedings were conducted behind their back. I am satisfied from the fact that their respective mothers were involved in the succession, to find that the respondents were very much aware of the succession proceedings and at that time, they were also under the mistaken belief that they were not entitled to inherit. It cannot be a coincidence that all the four of them knew absolutely nothing of what was happening.
53. I am satisfied and do find that the respondents have not only been privy to all the successions proceedings as active spectators.
54. It is however clear that, in the petition for letters of administration, the petitioner concealed the fact that there were other beneficiaries of the estate, a fact which was material to the case and also an untrue allegation of a fact essential in point of law to justify the grant. The concealment was however passive and not active, having found that the daughters were aware of the succession proceedings. However, the law provides that it is immaterial that the untrue allegation of fact was made in ignorance or inadvertently. Whichever way, the grant has to be revoked.
55. Consequently, I find that the learned trial magistrate did not err in law or in fact in finding that the applicants had proved their case on a balance of probability.
56. However, I note that upon revoking the grant, the learned trial magistrate did not give directions on how the proceedings would be conducted going forward.
57. It is a cardinal principle of law that litigation must come to an end.
58. The discretion on how the estate of a deceased person should be shared lies with the court. I do not think it would be fair to send back the parties to the drawing board given the age of this matter. I do not think the issues in this case are so difficult to resolve if the parties were to agree to sit down and share the property taking guidance from the court. However, attempts even by this court to have the parties agree to an out of court settlement have been flatly declined.
59. One of the issues the parties have to be aware of is that the estate will not necessarily be shared out equally. The court is the one to determine the fair mode of distribution of the estate. It has been determined in a myriad of cases beginning with Mary Rono v Jane Rono & another [2005] KECA 326 (KLR) that sections 38 and 40 of the LSA does not mean that the estate has to be subdivided equally among the beneficiaries. Similarly, in the case of Rahab Njeri Kariuki v Joyce Waruguru Kariuki & 2 Others [2016] e KLR, the court while interpreting the inference of Section 40 of the Law of Succession Act observed as follows: -
“The Learned Judges essentially espoused the principal of fairness and equity in distribution of a deceased’s estate between or amongst persons beneficiary entitled to such an estate in a polygamous family set-up. While the number of children in a particular house is an important factor in the determination of the share to be allocated to each house, it is not the only factor; neither is it the controlling factor. The share each house gets is not contingent upon the number of children in any particular house; there are other considerations which will guide the court’s discretion in the distribution of the estate; for instance, the age of the children and their station in life are factors that the court will necessarily take into account.”
60. Taking cue from the above decision, the factors which this court has taken into account in determining this issue are as follows:
61. First, all the parties agreed that their late father had sub-divided the land into two equal portions for each house. The houses were using their respective portions of the land as such at the time of his death. Therefore, the share of each house will remain as such and the children of that house will share their portion.
62. Secondly, the court has considered that some of the children are already endowed with property in one way or the other, either through marriage for the daughters or being given property by the clan, for the sons. The court has also considered that one of the beneficiaries, Pauline has no other property other than what was bequeathed to her by their mother Janet and that she was taking care of their mother all along until her demise in 2010.
63. Finally, one of the daughters, Mary renounced her right to inherit, thereby leaving her share to the others to share.
64. In that case, I find that the most equitable way to share out the property would be as follows:
a. In the first house Nahashon Kagwima will cede two acres so that one acre for each will go to each of his sisters Muthoni Mutugi and Njuri Gikotho.
b. In the second house:
i. Pauline will cede half an acre bequeathed to her by their mother.
ii. Lawrence will also cede half acre of his share.
iii. The one acre arising from Pauline’s share and Lawrence’s share will be divided equally between Beatrice Wakini Mutugi and Eunice Wanjira Ndwiga.
65. Consequently, the appeal is determined on the terms above. The certificate of confirmation of grant will be rectified to provide for this mode of distribution.
66. This being a family dispute, there shall be no orders for costs.
67. Orders accordingly.
Dated, signed, and delivered on the Virtual Platform, Teams, this 6th day of October 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Gitau Kahiga for the Appellants.
Kamau holding brief for Murigu for the Respondents
Ummu holding brief for Job:
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