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Case Brief · caselaw.co.ke
MagistratePartially AllowedSuccession Cause (Machakos) - Summons for Confirmation of Grant dated 6th June 2022; Mediation registered as Machakos Mediation No. 005 of 2023· [2024] KEMC 35 (KLR)

In re Estate of George Munyaka Mulwa (Deceased) (Succession Cause E290 of 2021) [2024] KEMC 35 (KLR)

Principal Magistrate's Court at Machakos (Probate and Administration)
17 September 2024
5,135 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld a family's signed agreement on sharing a deceased relative's estate, but paused confirming it until nine omitted properties are accounted for.

What this practically means

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Executive summary

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This is a first-instance probate ruling by the Principal Magistrate's Court at Machakos on a Summons for Confirmation of Grant in the estate of George Munyaka Mulwa, opposed by an Affidavit of Protest by a grandson of the deceased. The Protestor attacked the 'Consent to Mode of Distribution' dated 6th June 2022 on two fronts: that it was not attested as required by rule 40(8) of the Probate and Administration Rules, and that proposing transmission of the properties to the Administrators to hold in trust contravened section 71(2) of the Law of Succession Act and rule 40(4), which require identification of all beneficiaries and their shares. He also protested that nine properties were omitted from the schedule of estate assets. The court held that a consent to mode of distribution has contractual effect and can be set aside only on grounds justifying rescission of a contract - fraud, mistake, misrepresentation, duress, coercion, undue influence, collusion or unconscionability - relying on Flora N. Wasike v Destimo Wamboko and Hirani v Kassim. Applying the rule in L'Estrange v Graucob, the Protestor, having signed the consent before seeking legal advice and proving no vitiating factor, was bound. The first two protest grounds were dismissed. However, the Respondents admitted that some properties were omitted, explaining they were not yet registered in the deceased's name; the court found this protest merited and, invoking section 71(1)(d), postponed confirmation of the grant until the omitted properties are addressed. The judgment was delivered virtually on 17th September 2024 by C.N. Ondieki, Principal Magistrate.

Key legal issues

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01

Validity of the Consent to Mode of Distribution

Holding

The consent is valid and binding; the Protest on attestation and on specification of beneficiaries/shares fails

Reasoning

Distribution in intestacy may be founded on the consent of all beneficiaries, a mode of dispute resolution affirmed by Article 159(2)(c) of the Constitution and recognised in section 71 of the Law of Succession Act and rules 26 and 40 of the Probate and Administration Rules. The consent bears contractual effect and can only be set aside on vitiating grounds such as fraud, mistake, misrepresentation, duress or undue influence. The Protestor signed the consent and, having sought legal advice only after signing, proved none of the vitiating factors; under the parole evidence rule and the rule in L'Estrange v Graucob he is bound.

p. 8
02

Omission of nine properties from the schedule of estate assets

Holding

The Protest succeeds; confirmation of the grant is postponed until the omitted properties are addressed

Reasoning

The Respondents admitted at paragraph 5 of the Replying Affidavit that some properties were omitted, explaining that these had not yet been registered in the name of the deceased and would be included once ownership documents were procured. The court found this explanation insufficient to allow confirmation, invoking section 71(1)(d) of the Law of Succession Act to postpone confirmation until the Respondents confirm to the Court that the issues have been addressed.

p. 8

Legal principles established

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  • A consent to mode of distribution has contractual effect and can only be set aside on grounds that would justify setting aside a contract, such as fraud, mistake, misrepresentation, duress, coercion, undue influence, collusion or unconscionability
  • A party who signs a contract document is bound by its terms regardless of whether they read them, absent a vitiating factor (rule in L'Estrange v Graucob)
  • A court cannot re-write a contract for the parties; contractual liberty belongs to the parties

Court orders

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  1. 1.The Protest on attestation (rule 40(8)) and on specification of beneficiaries and shares (section 71(2) LSA and rule 40(4)) is dismissed as unfounded and without merit
  2. 2.The Protest that nine listed properties were deliberately omitted from the list of estate properties is found well-founded and with merit
  3. 3.Under section 71(1)(d) of the Law of Succession Act, confirmation of the grant is postponed until the Respondents confirm to the Court that the issues relating to the omitted properties have been addressed
Jurisdiction invoked
Probate and Administration jurisdiction under the Law of Succession Act (section 71) and the Probate and Administration Rules on summons for confirmation of grant

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Estate of George Munyaka Mulwa (Deceased) (Succession Cause E290 of 2021) [2024] KEMC 35 (KLR)", Case Analysis (2024). Succession Cause (Machakos) - Summons for Confirmation of Grant dated 6th June 2022; Mediation registered as Machakos Mediation No. 005 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/35/eng@2024-09-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.