Judy Nthenya Mutua v Brandon Mutungi Mutunga & 1 other

b. Spent c. Spent d. Spent e. Spent f. Spent g. That the confirmation of grant of letters of administration to Brandon Mutungi Mutunga and Linford Kitavi Mutunga the 1st and 2nd respondents herein made and issued on the 23rd day of November 2021 by the judge of this Honorable court at Nairobi in Succession Cause No. E360 of 2020, be revoked by this Honorable court. h. That the Respondents be compelled to provide a full account of income from the deceased's estate from the 24th August 2019 when the deceased died. i. Spent j. That costs of this application be borne by the Respondents. 4. Vide the Witness Statements of Caroline Mwikya Mawathe, Eliud Muindu Mutungi and Brandon Mutungi Mutunga all dated 18 September 2024, the Respondents oppose the said Summons for Revocation of Grant. 5. The matter was heard on 30th January 2025. The Objector’s Case 6. The Objector called one witness, PW1, who was the Objector herself. 7. The gist of her case as contained in her Examination in Chief, Supporting Affidavit and Further Affidavit which she adopted was that the Objector and the Deceased lived as husband and wife since August 2015 and they lived together on the jointly owned property known as Mansionette House No. A7 erected on Land Title No. 12867/304, River Park Estate. In support, the Objector provided two Affidavits of Marriage, and Certificate of Title to the property marked as JNM-1(a), JNM-8(a) and JNM-2 respectively as evidence in support. 8. Further, the Objector states that, the Deceased himself presented the Objector to the world as his wife. The Objector provided a Medical Insurance Card and an Affidavit of Consent of Spouse marked as JNM-6 and JNM-7(b) respectively as evidence in support. 9. Additionally, the Objector states that, the Deceased’s family and colleagues acknowledged the Objector as a ‘wife’ to the deceased. The Objector provided the deceased’s Obituary, Funeral Programme and a Court issued Decree Nisi in Milimani MCDC No. 299 of 2015 marked as JNM-1(b), JNM-5(a) and (b) respectively as evidence in support. 10. Moreover, she stated that the Objector and her son were dependants of the Deceased but were left out of the Succession proceedings; and the Respondents who took out the Grant of Letters of Administration made a false statement to the court and also concealed certain material facts to the court such as: failure to identify the Objector as a wife to the Deceased despite knowing so; identifying the asset known as Mansionette House No. A7 erected on Land Title No. 12867/304, River Park Estate as solely owned by the Deceased yet it was jointly owned by both the Deceased and the Objector and automatically passes to her; identifying the asset known as Motor Vehicle Registration No. KCS 749F, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16435/eng@2025-10-28 2

page 2 of 9

Toyota Vitz as owned by the deceased yet it was solely owned by the Objector. The Objector provided a Registration Certificate for the Motor Vehicle marked as JNM-3 respectively as evidence in support; and failure to identify the assets known as the Account in Safaricom Till No. 324474, Motor Vehicle Registration No. KBU 022W, Syokimau Block No. 12715 Plot No. 5787 & 5788, Athi River Plot No. 150 and CIC Insurance Policy. 11. It is worth noting that the Objector admitted on cross-examination that: there was no Kamba Customary marriage between herself and the Deceased; and her son was not the biological son of the Deceased. 12. It also came out in cross-examination that the Objector, among the other beneficiaries of the Deceased including his parents, first wife and biological children, received a share of his pension to the tune of 10% each for the Objector and the first wife, and 25% each for his two biological children, among others. The Respondents’ Case 13. The Respondents’ called two witnesses, DW1 and DW2, who were Brandon Mutungi Mutunga and Eliud Muindu Mutungi respectively. 14. The gist of DW1’s evidence as contained in his Witness Statement which he adopted was that the Administrators of the Estate are the sons of the Deceased and are entitled to administer the Estate and they are not aware of the Objector as the wife to the Deceased. 15. In particular, they challenged the transfer of the asset known as Motor Vehicle Registration No. KCS 749F, Toyota Vitz to the Objector on 19 August 2019 because he was critically ill at the time and could not have executed that transfer document; the Objector is married to one Eric Bahati to whom she is known by his relatives and neighbours as his wife and they have a son named Ryan Baraka Bahati; and the asset known as Mansionette No. A7 on Land Reference No. 12867/304, Athi River, was solely purchased by the Deceased, by way of a mortgage from Kenya Commercial Bank Limited on 23 May 2017 at a cost of KES. 7,500,000.00 for which he was repaying the mortgage in monthly installments of KES. 90,793.00 and that after his death the insurance company paid off the loan. 16. The gist of DW2’s evidence as contained in his Witness Statement which he adopted was that: he is the father to the Deceased who was married to one Caroline Mwikya Mawathe and they were blessed with the two Respondents as sons before they divorced in 2017; and the Deceased was never married again and the Objector is a stranger to him since the peculiarities of Kamba Customary Marriages were not adhered to. 17. It is worth noting that it came out in his Cross-Examination that his wife, who is the mother to the deceased, “used to visit the Objector and [the Deceased] to check on the condition of [the Deceased] who was unwell” but that he “did not know if the Objector was in [the Deceased’s] house as a house maid.” Submissions 18. The Objector filed Written Submissions dated 21 February 2015 while the Respondents’ filed Written Submissions dated 2 April 2025, which were orally highlighted before the court on 18th September 2025 by Ms. Obiri for the Objector and Mr. Ndolo for the Respondents. 19. The Objector submitted the issues for determination as follows: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16435/eng@2025-10-28 3

page 3 of 9

20. a. Whether the Objector has a cognizable legal or equitable claim to spousal status - Does the Applicant possess the requisite locus standi to assert rights over the deceased's estate? b. Whether the transfer of Motor Vehicle Registration Number KCS 749F was lawfully executed and whether the Applicant engaged in fraudulent misappropriation (Intermeddling) - Was the transfer valid considering the deceased's incapacitation, and did the Applicant unlawfully dissipate estate assets? and c. Whether the grant issued to the 1st and 2nd Respondent meets the statutory threshold for revocation - Has the Applicant demonstrated sufficient grounds under Section 76 of the Law of Succession Act to warrant revocation, or does the grant remain legally unimpeachable? The Respondents on the other hand submitted the issues for determination as follows: a. Whether the Objector was married to the Deceased; b. Whether there can be matrimonial property in the absence of marriage and whether the Objector has proved contribution to the River Park House; and c. Whether the Objector is a dependant of the Deceased under the Law of Succession Act. Determination 21. Having considered the entirety of the Objector’s Summons for Revocation of Grant, the Grounds therein, the Objector’s Supporting Affidavit and Further Affidavit and the annexed documents therein adopted at the Hearing, the proceedings of the PW1’s Examination-in-Chief, Cross-Examination and Re-Examination and their Written Submissions and also having considered the entirety of the DW1 and DW2’s Witness Statements adopted at the Hearing and the Index and Bundle of Documents included therein, the proceedings of the DW1 and DW2’s Examination-in-Chief, Cross-Examination and Re-Examination and their Written Submissions, I opine as hereunder. 22. The Jurisdiction of this Court in Applications brought under the Law of Succession Act (LSA) is trite and provided for in Section 47 of the said Act which is reproduced: “ 47. Jurisdiction of High Court The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:...” 23. The law on the Revocation of Grants is provided for in Section 76 of the LSA which is reproduced: “ 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; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16435/eng@2025-10-28 4

page 4 of 9

(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) 24. (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.” Upon construing a long line of case law on Revocation of Grants, the Court of Appeal in the case of Nyaga Cottolengo Francis v Pius Mwaniki Karani [2017] KECA 422 (KLR) had this to say: “ 21. The combined effect of the provisions of the law cited above is to clothe the court with considerably wide powers to do justice in any particular estate of a deceased person on case by case basis. The discretion excisable is in terms unfettered but, of course, it must be guided by the law and reason but not whims or caprice.” 25. With respect to both Counsels for Objector and the Respondents who have delved first on the issue of whether or not the Deceased and the Objector were married, be it customary or by way of presumption of marriage, the success or lack thereof of the Summons for Revocation of Grant, in my view, can be determined without answering this question. 26. However, because the question has nevertheless been asked and vigorously submitted upon, it will be answered as the last issue in this determination. a. Whether the objector has met the statutory threshold for revocation under section 76 of the law of succession act 27. The objector has presented uncontroverted evidence that the asset known as Mansionette House No. A7 erected on Land Title No. 12867/304, River Park Estate (also identified by the Respondents as “Mansionette No. A7 on Land Reference No. 12867/304, Athi River”) was jointly owned by the Objector and the Deceased. The Objector submitted in evidence a Certificate of Title for Land Title No. 12867/304 which clearly indicates the registered owners of that property as Tirrus Mutunga Eliud (the Deceased) and Judy Nthenya Mutua (the Objector). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16435/eng@2025-10-28 5

page 5 of 9

28. I say it is uncontroverted because the only evidence in opposition to this position that was submitted by the Respondents was that “Mansionette No. A7 on Land Reference No. 12867/304, Athi River, was solely purchased by the Deceased, by way of a mortgage from Kenya Commercial Bank Limited on 23 May 2017 at a cost of KES. 7,500,000.00 for which he was repaying the mortgage in monthly installments of KES. 90,793.00 and that after his death the insurance company paid off the loan.” 29. In my view, this stated opposition is insufficient and from the uncontroverted Certificate of Title submitted by the Objector, it is patently clear that the asset could not have and should not have formed part of the distributable assets of the Estate because, on the face of the Certificate of Title, it was owned in joint tenancy by the Deceased and the Objector. 30. Section 2 of the Land Act states that: “ “joint tenancy” means a form of concurrent ownership of land where two or more persons each possess the land simultaneously and have undivided interest in the land under which upon the death of one owner it is transferred to the surviving owner or owners.” 31. With respect to the Respondents’ submissions under their framed issue that was “… whether the Objector has proven contribution to the River Park House,” it matters not whether the Objector contributed to the acquisition of the property, she is registered as a joint owner and that is enough. 32. It therefore follows that Mansionette House No. A7 erected on Land Title No. 12867/304, River Park Estate transmits to the surviving owner, who is the Objector, by operation of law and could not have formed part of the assets of the deceased and be distributed in the Certificate of Confirmation of Grant. 33. The Objector would succeed on this head even in the event that the property was owned under tenancy in common because the Certificate for Confirmation of Grant is for the whole of the property not half share. 34. The Objector has also presented evidence that the asset known as Motor Vehicle Registration No. KCS 749F, Toyota Vitz is solely owned by the Objector. The Objector submitted in evidence a Registration Certificate for the Motor Vehicle which clearly indicates the registered owner of that asset as Judy Nthenya Mutua (the Objector). 35. The only evidence in opposition to this position that was submitted by the Respondents was that the transfer of the asset known as Motor Vehicle Registration No. KCS 749F, Toyota Vitz to the Objector on 19th August 2019 was not possible because the deceased critically ill at the time and could not have executed that transfer document. Again, in my view, this stated opposition is insufficient because the Motor Vehicle Copy of Records dated 30th March 2022 submitted by the Respondents does not indicate when the vehicle was transferred from the Deceased and Fahari Cars Limited to the Objector, and the 19th August 2019 is not indicated anywhere on the document attached at page 4 (page 41 of 70 of the 1st and 2nd Respondents ‘Index and Bundle of Documents) of the Investigation Report by Counter Strike Limited dated 13th April 2022. It therefore again follows that, on a balance of probabilities, Motor Vehicle Registration No. KCS 749F, Toyota Vitz could not have formed part of the assets of the deceased and be distributed in the Certificate of Confirmation of Grant. 36. Considering the above, it is unclear how the Respondents filed the Petition for Grant of Letters of Administration Intestate but failed to attach or adduce any Proof of Title for the aforementioned Assets that were listed in the Schedule for Distribution. 37. In disposition of this issue, I find that an untrue allegation of fact, whether made falsely contrary to Section 76(b) of the LSA or in ignorance contrary to Section 76(c) of the LSA with regards to the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16435/eng@2025-10-28 6

page 6 of 9

ownership of the aforementioned assets was, by parity of the reasoning above, made to the Court and the Certificate of Confirmation of Grant ought to be revoked for that reason. b. Whether the objector was a wife or spouse of the deceased and a beneficiary for succession purposes? 38. The Objector admitted on cross-examination that there was no Kamba Customary marriage between herself and the Deceased. 39. Be that as it may, on the facts before the court, a question arises as to whether a presumption of marriage can be made as between the Objector and the Deceased. The authority on this is the holding of the Court of Appeal in V R M v M R M & another [2006] KECA 342 (KLR) where it was stated in similar circumstances that: “ For it matters not whether statutory or customary marriage requirements are strictly proved in a marriage. The court must go further and consider whether, on the facts and circumstances available on record, the principle of presumption of marriage was applicable in the appellant’s favour.” 40. In MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) [2023] KESC 2 (KLR), the Apex Court set out the parameters within which a presumption of marriage may be made which parameters are reproduced hereunder: “ 64. 41. We find it prudent at this juncture to lay out the strict parameters within which a presumption of marriage can be made: 1. The parties must have lived together for a long period of time. 2. The parties must have the legal right or capacity to marry. 3. The parties must have intended to marry. 4. There must be consent by both parties. 5. The parties must have held themselves out to the outside world as being a married couple. 6. The onus of proving the presumption is on the party who alleges it. 7. The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive. 8. The standard of proof is on a balance of probabilities.” The Supreme Court in the same case, MNK v POM (supra at paragraph 37 above) stated on capacity that: “ 50. Case law guides us on the issue of capacity. In Machani v Vernoor [1985] KLR 859, the Court of Appeal held that: “The presumption covers two aspects, that the parties must have capacity to enter into a marriage and that they did so in effect. During the continuance of a previous marriage, the already married https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16435/eng@2025-10-28 7

page 7 of 9

party would have no capacity to enter into the new marriage, and the new marriage would be null until the previous marriage had been brought to an end by a final decree or divorce.” 42. Applying this to the instant facts, and noting that the marriage between the Deceased and Caroline Mwikya Mawathe was dissolved one month after the 2nd day of November 2016, it therefore follows that the Deceased’s capacity to come under presumption of marriage with the Objector only materialised from 2nd December 2016 to the date of his passing on 24 August 2019 being two years and nine months. 43. The simple question to be asked now is whether after the Deceased became free to marry, did the parties: cohabit, evince any intention to marry and hold themselves out to the outside world as being a married couple, so that the Court can presume a marriage? 44. On cohabitation, the facts speak for themselves, the house in which the Deceased was residing was Mansionette House No. A7 erected on Land Title No. 12867/304, River Park Estate which was jointly owned the Deceased and Objector. It also came out in DW2’s Cross-Examination that his wife, who is the mother to the deceased, “used to visit the Objector and [the Deceased] to check on the condition of [the Deceased] who was unwell” but that he “did not know if the Objector was in [the Deceased’s] house as a house maid.” No evidence was led to the effect that the Objector was a house maid, but it comes out clearly that she was living in the same house as the Deceased, title notwithstanding. 45. Evidence on intention to marry is scant but this could be explained by the overwhelming evidence with regards to the fact that the parties held themselves out to the outside world as being a married couple and therefore did not think they needed to formally get married. 46. The overwhelming evidence in so far as the latter is concerned includes: a. the fact that the Deceased held out the Objector as his spouse to his Banker when he had her swear an Affidavit of Marriage together with a Spousal Consent when charging property where he was a registered owner; b. the fact the Deceased held out the Objector as his spouse to his employer when he put her on his medical insurance cover; and c. the fact the Deceased held out the Objector as his spouse to his Life Insurance provider. 47. Moreover, while the Respondents now feign ignorance of the Objector’s existence in the pleadings filed, the evidence in record proves the contrary since the Objector is listed as a Wife and Widow to the Deceased in the Obituary, the Funeral Programme and the Deceased’s Pension Benefits where even her son, Ryan Baraka Bahati, was listed as a Step-Son to the Deceased. 48. All these factors are sufficient to establish that there was a common intention to have a marriage and I make no other inference than that the Deceased and the Objector were husband and wife. 49. The Objector is therefore a beneficiary of the estate of the Deceased, entitled to a share of the Estate, pursuant to Section 29 of the Law of Succession Act which defines dependant as follows: “ For the purposes of this Part, "dependant" means— a. the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16435/eng@2025-10-28 8

page 8 of 9

50. In disposition of this issue, I find that the proceedings to obtain the grant were defective in substance contrary to Section 76(a) of the LSA for lack of consent from the Objector as Wife or Widow to the deceased, and an untrue allegation of fact, whether made falsely contrary to Section 76(b) of the LSA or in ignorance contrary to Section 76(c) of the LSA with regards identifying the Deceased and her son beneficiaries was, by parity of the reasoning above, made to the Court and the Certificate of Confirmation of Grant ought to be revoked for those reasons. 51. This being a family matter, each party shall bear their own costs. Orders 52. Having considered the issues delineated by this Court for determination, the Orders are as follows: a. The confirmation of grant of letters of administration to Brandon Mutungi Mutunga and Linford Kitavi Mutunga the 1st and 2nd respondents herein made and issued on the 23rd day of November 2021 by the judge of this Honorable court at Nairobi in Succession Cause No. E360 of 2020, are hereby revoked together with all the consequential orders; b. Grant of Letters of Administration do issue jointly to Brandon Mutungi Mutunga and Judy Nthenya Mutua; and c. The new Administrators to file Summons for Confirmation of Grant within 60 days and in the event that they are unable to file the Summons jointly then either may file the summons and in the absence of consensus the other Administrator at liberty to file Affidavit of protest containing their alternative mode(s) of Distribution of the Estate within 14 days of service. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 28TH DAY OF OCTOBER, 2025. _____________________ E. K. OGOLA JUDGE In the presence of: Mr Maina ……………………………………………………………………. for the Objector. Mr Ndolo Holding Brief Kilonzo M/s……………………………for the Respondent. Gisiele…………………………………………………………………………… Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16435/eng@2025-10-28 9

page 9 of 9