High Court 13243 of 2025

Malu only lived with the deceased for 5 years and was presumed to be a second wife of the deceased. That in the confirmed grant, Peris Wambui Malu and Anna Wambui Malu were to hold their share in the deceased’s property in trust for themselves and for their beneficiaries and the deceased. That the beneficiaries in both households do not agree on how the properties should be distributed amongst them. He argues that Peris Wambui Malu was not a legal wife of the deceased; she cohabited with the deceased for five years, gave birth to two children and left. That some of the properties listed in the schedule of distribution were solely acquired by Anna Wandia Malu and therefore, do not form part of the deceased’ s estate. 5. He faults the court for distributing the properties equally between the two houses. He also argues that one of the beneficiaries, Florence Malu was left out of the distribution of the estate. That the issue of distribution can only be addressed after the grant is revoked. He argued that the orders of 29th May 2009 are incapable of being acted upon and the same should be set aside. He avers that the application for revocation of grant has been brought late in the day because of the death of the two administrators, disputes between surviving family members and delayed tactics by David K. Malu and efforts to revoke the grant previously has been frustrated by the advocates in conduct of this matter by failing to pursue the matter. He urged the court to revoke the grant and order that the parties be referred to settle the matter through mediation or in the alternative, the court do issue a fresh grant or give directions. Afidavit Of Protest By David K. Malu Dated 2Nd May 2024. 6. He opposed the summons for revocation and proposed that estate be distributed as follows; i. Kiu Farm LR. No.1063- 200 acres should be divided equally among the two families. Anne Malu should be allowed 2.5 acres for the homestead. Mr. Fredrick Mbetu Malu should give an account on the proceeds of farming and the ones he hires out for grazing for the last 10 years and the proceeds be shared equally between the two families. ii. 1/3 share Athusi –LR No. 20 233/4- Mr. Fredrick Mbetu Malu to account for dividends received from 2011 to date. They used to receive dividends before their mother Peris passed away. iii. Kilungu Home (2.5 acres)- To be considered as the home of Mrs Peris Koinange and the same be divided between David Koinange Malu and Victor William Malu. iv. Shares in KIU Society- To be divided equally between the two homes. v. Plots in Mitini- Belonged to Mrs. Perus Koinange and the same should be distributed to her siblings. vi. Standard Bank- Proceeds from the account to be shared between the two families. vii. Pioneer Insurance Company- Proceeds from the account to be shared between the two families. viii. Machakos- LR 909/373- Both families consented that this property be sold and proceeds shared equally between the two houses. The applicant has been enjoying rent proceeds with his siblings since their mother died and he should be ordered to account for the same and be distributed between the two families. ix. Salama Plot- 10 acres- it was given to Aimi Ma Kilungu but should be shared equally between the two families. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13243/eng@2025-09-26 2

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x. LR.NO. 1348/86 (Two plots) Sultan Hammud- The plots should be shared equally between the two families and Mr. Fredrick Mbeti Malu should account for proceeds he gets from the hotel, restaurant and lodgings since 2011. xi. Share in Aimi Ma Kilungu- It should be shared equally between the two families. Afidavit Of Victor William Malu Dated 4Th February 2025. 7. He avers that his late mother, Peris was married to the deceased under Kamba Customary Law. Their union was blessed with four children named Musau Malu (deceased), David K. Malu, Victor William Malu and Jane G. Malu and not two as stated by the applicant. That the court was satisfied that Peris ranked in priority as the wife of the deceased when she was appointed as administrator of the deceased’s estate. He argued that the issue whether she was a wife cannot be raised 53 years after the deceased’s death and no new evidence has been to contradict the established position. That the applicant did not mention that Jane G. Malu is a beneficiary of the estate. He avers that Florence Malu is not a child of the deceased or a beneficiary of the estate. He argues that the applicant frustrated the administration of the estate by refusing to execute transfer documents for purposes of transferring properties to the rightful beneficiaries when the deceased’s widows were alive and therefore, is guilty of an offence under Section 94, 95 (a) of the Law of Succession Act. That the applicant has wilfully refused to provide an account of the assets and liabilities of the estate over 32 years and is guilty of an offence under Section 95 (b) of the Law of Succession Act. He also accused the applicant of taking possession disposing off and intermeddling with the deceased’s property before the grant was confirmed and is therefore guilty of an offence under Section 45(1) of the Law of Succession Act. 8. He deponed that the court pronounced itself on the properties forming part of the estate in the grant. The applicant has failed to prove any property jointly owned by the deceased and Anne Wandia Malu. He argued that there is no dispute as to the distribution of the estate a between the two families and therefore, the grant should not be revoked. That the grounds for revocation under Section 76 have not been established by the Applicant. He argued that the court should dismiss the application for revocation of grant and appoint new administrators to replace the dead administrators. Applicant’s Further Afidavit Dated 13Th December 2024. 9. He avers that Jane Malu is a stranger to the deceased’s estate. The birth certificate produced in court shows the name of the Jane Gathoni and the name of the father as William Mbolu Magu. That his application to include Florence Malu has never been opposed by Victor. He denied the allegation of intermeddling of the estate. He disagreed with the proposed mode of distribution of David K. Malu. He averred that he is unable to render accounts for KIU farm which was being managed by his late mother. On the other properties, the beneficiaries are aware of the day to day activities. Some of the properties no longer form part of the deceased’s estate and some properties can be divided fairly and equitably in regard to the proportion of the sole contribution of Anna Wandia Malu. Applicant’s Submissions. 10. The Applicant filed written submissions dated 18th December 2024. He submitted that the threshold for revocation of grant is provided under Section 76 of the Succession Act. He sought to rely on the decision of In the Matter of the Estate of Gladwell Mumbi Njoroge (deceased) [2003 eKLR where the court revoked a grant where all the beneficiaries of the deceased had not been named and there was a discrepancy in the list of assets of the deceased. It was his submission that once the grant is revoked, the parties should be allowed to resolve the dispute through Alternative Dispute Resolution Mechanism and identify the deceased’s properties and how they should be distributed. Reliance was placed on the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13243/eng@2025-09-26 3

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decision of In Re Estate of Sananga Okonda (Deceased) [2020] eKLR. He urged the court to revoke the grant and issue a fresh grant. 1st Administrator’s Submissions. 11. The administrator’s submissions are dated 20th February 2025. Citing Section 81 of the Law of Succession which provides that upon the death of one or several administrators, all powers and duties of the administrators shall be vested on the surviving administrators, he urged the court not to revoke the grant. He asked the court to do justice in distributing the deceased’s estate. Submissions by Victor William Malu. 12. He filed written submissions dated 3rd March 2025. He submitted that the threshold for revocation of grant is provided under Section 76 of the Succession Act. He sought to rely on the decision of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR. He submitted that in this case, the grant has not become inoperable because there are surviving administrators. In this case, the surviving administrators should administer the estate. He sought to rely on the decision of In the Matter of the Estate of Mwangi Mugwe alias Eliza Ngware (Deceased) Nairobi High Court Succession Cause No. 2018 of 2001 and Section 81 of the Law of Succession Act. In arguing that where there is a continuing trust, he stated that where there is one administrator, the surviving administrator should apply to the court to appoint a new administrator under Section 75 A(1) of the Law of Succession Act. 13. He further submitted that the issue whether Peris Wambui Malu is a wife of the deceased was determined in this suit and therefore, is res judicata. He sought to rely on the decisions of Kaari & another vs the Attorney General & others (2005) 1 EA 83 and Omondi vs National Bank of Kenya Limited & others (2001) EA 177 and In re Estate of Daniel Rotich alias Kipkemoi A. Rotich (Deceased) (Succession Cause 89 of 2014) [2023] KEHC 17699 (KLR) (16 May 2023). That as a surviving spouse of the deceased, she has priority over the other beneficiaries to be issued with grant. It was his submission that the applicant had not proved that the deceased co-owned properties with Anna Wandia Malu or that some of the properties belonged to her. 14. He argued that the applicant as an administrator ought to have known all the beneficiaries of the estate when listing the beneficiaries and cannot at this point argue that one of the beneficiaries was left out. On whether the matter should be referred to alternative dispute resolution mechanism, he argued that the parties have not consented to go for mediation and the court should not compel them. He relied on the decision of In re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR. 15. He further submitted that the applicant and his mother intermeddled with the deceased’s estate by changing ownership of the company and selling the deceased’s property and bought a house using the proceeds of sale. He also accused the applicant of collecting rent from the deceased’s properties. He argued that the applicant is guilty of offences under Section 94, Section 95 (a) and (b) of the Law of Succession Act. He relied on the decision of In re Estate of Stephen Kiunga M’mwitari (Deceased) [2019] eKLR. He stated that the applicant owes a fiduciary duty to account for the estate under Section 83 (e) and (g) of the Law of Succession Act. He relied on the decision of Re Estate of the Late Mwaura Makuro (Deceased) [2021] eKLR. 16. Lastly, he urged the court to assess the amount of money collected and misused by the applicant and be deducted from what he should get from the estate. He relied on the decision of In re Estate of Peter Nzuki Ndeti (Deceased) (Succession Cause 261 of 2015) [2022] KEHC 11045 (KLR) (3 August 2022. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13243/eng@2025-09-26 4

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Analysis And Determination 17. Having reviewed the pleadings and submissions I frame the following as the issues for determination a. Whether the grant issued herein should be revoked? b. Whether this Court should vary the Orders of 1st December 1993 confirming the grant? c. What if any are the consequential orders that the Court should make? d. Who should pay the Costs herein? Whether the grant issued herein should be revoked? 18. Section 76 of the Law of Succession Act states 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— (e) 19. (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 that the grant has become useless and inoperative through subsequent circumstances.” This was clearly expounded on by the court In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR where it was stated that: Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13243/eng@2025-09-26 5

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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 circumstances, 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. 20. The Applicant invited the court to revoke the grant of letters of administration for the reasons that the grant has become inoperative because two of the administrators are dead. However, Section 81 of the Act provides that powers and duties of personal representatives’ vest in the survivor on death of one of them. The said Section provides that: Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivor or survivors of them: Provided that, where there has been a grant of letters of administration which involve any continuing trust, a sole surviving administrator who is not a trust corporation shall have no power to do any act or thing in respect of such trust until the court has made a further grant to one or more persons jointly with him. 21. The grant was issued to four persons, two of whom are now deceased. That is not a ground to make it inoperative and as observed above the provisions of section 81 cited above come into play to remedy the situation. 22. It has been alluded to that the grant issued to David Malu was revoked, I see no evidence of this on record. Accordingly, I direct that on account of the death of the two Administrators; Anna Wandia Malu and Peris Wambui, the grant earlier issued be revoked and fresh grant issue to the surviving administrators; Fredrick Mbeti Malu and David Koinange Malu 23. Section 76(d)(ii) provides that where the administrator fails to proceed diligently with the transmission of the estate, the grant may be revoked on this ground. The grant herein was confirmed on 1st December 1993. The administrators failed in their statutory duty of distributing the estate of the deceased among the beneficiaries which presents a good ground for revocation. The record shows that it has not been possible to distribute the Estate as there is a long-standing dispute as to who the beneficiaries of the estate are, what comprises the assets of the estate and how the assets should be distributed. This notwithstanding that the Certificate of Confirmation of grant enumerated the assets and provided that the assets be registered in the joint names of the widows then surviving for the benefit of the dependants. 24. I do not think that given the history of the matter it would be in the interests of justice to revoke the grant, in doing so I am persuaded by the decision of Ogola J, in re Estate of the Late Mwaura Makuro (Deceased) [2021] eKLR, where in similar circumstances he declined to revoke the grant as it would not meet the ends of delivering substantive justice. The Court instead directed the administrators to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13243/eng@2025-09-26 6

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complete transmission of the estate within specified timelines. Likewise, in this matter I am hopeful that under Court supervision the administrators herein will act to finalise the transmission of the estate. Whether this Court should vary the Orders of 1st December 1993 conffirming the grant? 25. At the time of confirming the Grant both families were represented by Counsel. It is therefore unfortunate, that the Certificate of Confirmation of grant does not comply with the proviso of Section 71 (1) that providesProvided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the Court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed the grant shall specify all such persons and their respective shares. (Emphasis Supplied) 26. The grant as confirmed on 1st December 1993 did not specify how the assets would be divided amongst the beneficiaries of the estate. The 2 widows who were to hold the properties in trust for the beneficiaries are both deceased. The certificate of grant did not specify the beneficiaries. There is now contestation with regard to the inclusion of Florence Malu and Jane Malu. 27. For these reasons I find that the appropriate order to make is to set aside the orders of 1st December 1993 and order that the Administrators present a summons for confirmation of grant that complies with Section 71 of the Law of Succession Act within 30 days from the date hereof. In the event that the Administrators are unable to present a joint summons then Fredrick Malu will present Summons for Confirmation and serve it on all the beneficiaries of the Estate. Any beneficiary who intends to file an affidavit of protest will do so within 14 days of service. What if any are the consequential orders that the Court should make? a. The Grant previously issued herein is revoked and fresh Grant will issue to Fredrick Mbeti Malu and David Koinange Malu b. Orders of 1st December 1993 and the Certificate of Confirmation of Grant are set aside c. The matter will be mentioned on 11th November 2025 to confirm Summons for Confirmation of Grant and affidavits of Protest filed and to take directions on the hearing of the Summons for Confirmation of Grant. d. This being a family matter there shall be no order as to costs. e. Leave of appeal granted, any party exercising their right to appeal, to file appeal within 30 days. It is so ordered SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 26th DAY OF SEPTEMBER, 2025. M NYAUNDI HIGH COURT JUDGE In the presence of: Fardosa Court Assistant Ms. Kavithe for 1st Respondent Ms. Moraa holding brief for Romo - Administrators https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13243/eng@2025-09-26 7

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