Allan Njuki Murage & 1 other v Githogori Wa Nyangara-murage & 4 others

2. That in the alternative the Ruling by the Honourable Justice Eric Ogola delivered on 28th September, 2023 be reviewed and/set aside to the extent that the Certificate of Grant issued on 22nd June 2010 and rectified on 30th April 2019 be and is hereby further rectified and modified in terms of a comprehensive determination on the distribution of the Estate as proposed hereunder. 3. That all the parties be at liberty to lodge Affidavits proposing each party's preferred manner of distribution, before the Court sets up a date to hear and adjudicate on the matter. 4. That the costs of this Application be costs in the cause. 2. The Summons is based on Allan Njuki Murage and William Mwema Murage’s joint supporting affidavit sworn on the same date. The Applicants also filed a Supplementary Affidavit sworn on 25th September 2025. 3. The Respondents have filed a Replying Affidavit sworn on 8th September 2025 in opposition. 4. For context, this matter relates to the estate of John Murage Nathan Gatheru who died on 14th January, 2000. The Grant of Letters of Administration Intestate in this matter was issued to William Mwema Murage and Allan Njuki Murage on 25th March 2009 and confirmed on 22nd June 2010. The distribution therein was that all the assets in the Estate were to vest in a Company registered as Murage Nyangara Enterprises Ltd, where all the Dependants are holding equal shares. 5. On 4th April 2019, Allan Njuki Murage and William Mwema Murage applied for rectification of grant so that all properties of the deceased are distributed equally among the beneficiaries. The grant was rectified on 30th April 2019. This is the Rectified Certificate of Confirmation of Grant dated 30th April 2019 that is in force. 6. On 20th April 2023, the same Applicants made an application seeking orders that the Certificate of Confirmation of Grant issued by this Honourable Court on the 22nd June 2010 and rectified on 30th April 2019 be further rectified to the effect that all assets and properties of the estate of the deceased be subdivided and distributed amongst all the children of the deceased being as per the consents/ affidavits which were attached and had set out of a proposed manner of distribution. That application was disallowed but the Court directed the beneficiaries to seek to have a common ground, goal and final resolution on the distribution of the estate. The Applicants’ Case 7. Primarily, the Applicants’ deposed that the implementation of the Rectified Certificate of Confirmation of Grant dated 30th April 2019 in force as is “would require all the 7 names of the beneficiaries to be inserted in each Estate's property and thus creating a very impractical, unrealistic and cumbersome communal ownership of the title which would make management and/or development of any such land virtually impossible.” 8. They add that “the beneficiaries have been engaged, but have not been able to reach a common ground on the distribution as some beneficiaries who are not resident in Kenya are still insisting on the properties being held in a Company whereas the Administrators who are resident in Kenya and have been utilizing their respective portions of the land are desirous to have their portions severed and transferred to them.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16452/eng@2025-10-28 2

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9. It is their prayer that “…it is only fair, equitable and just that the Court gives the beneficiaries an opportunity to adduce viva voice evidence for the Court to make a final determination on the distribution of the Estate.” The Respondents’ Case 10. The Respondents aver that “… the Beneficiaries are not agreeable to the proposed Further Rectification by the Administrators due to the fact that such action will lead to the Assets of the Estate not being vested in the Family LLC as was initially agreed which led, in the first place, to the Beneficiaries granting their consent to the Summons for Confirmation of Grant in name of the Administrators.” 11. They aver further that “it is not in dispute that the Beneficiaries are not in agreement with the mode of distribution proposed by the Administrators who have clearly gone against the agreement that brought their trusteeship into existence,” that “it is clear the Administrators are unable to perform their legal obligations diligently in the management and distribution of the Estate as Administrators on behalf of the Beneficiaries which has frustrated distribution of the Estate over the last almost 16 years,” and that the “failure of Administrators to distribute a Deceased's estate is a ground for revocation of a Grant for Letters of Administration as provided under Section 76 (d) of the Law of Succession Act.” 12. It is their contention that “… the Beneficiaries are ready and willing to support the appointment of new Administrators to finalise distribution of the Estate as the current Administrators are clearly unable to act in the best interests of the Beneficiaries.” Determination 13. Having considered the entirety of the Applicants’ Summons, the Grounds therein, the Applicants’ Supporting Affidavit and Supplementary Affidavit, and also having considered the entirety o f the Respondents Replying Affidavit, I opine as hereunder. 14. I have noted the enabling provisions cited by the Applicant and reproduce them hereunder: a. The Law of Succession Act “ 27. Discretion of court in making order In making provision for a dependant the court shall have complete discretion to order a specific share of the estate to be given to the dependant, or to make such other provision for him by way of periodical payments or a lump sum, and to impose such conditions, as it thinks fit. 28. Circumstances to be taken into account by court in making order In considering whether any order should be made under this Part, and if so what order, the court shall have regard to— (a) the nature and amount of the deceased's property; (b) any past, present or future capital or income from any source of the dependant; (c) the existing and future means and needs of the dependant; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16452/eng@2025-10-28 3

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38. (d) whether the deceased had made any advancement or other gift to the dependant during his lifetime; (e) the conduct of the dependant in relation to the deceased; (f) the situation and circumstances of the deceased's other dependants and the beneficiaries under any will; (g) the general circumstances of the case, including, so far as can be ascertained, the testator's reasons for not making provision for the dependant. Where intestate has left a surviving child or children but no spouse Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.” b. The Probate and Administration Rules “ 43. Rectification of grant (1) 73. Where the holder of a grant seeks pursuant to the provisions of section 74 of the Act rectification of an error in the grant as to the names or descriptions of any person or thing or as to the time or place of the death of the deceased or, in the case of a limited grant, the purpose for which the grant was made, he shall apply by summons in Form 110 for such rectification through the registry and in the cause in which the grant was issued. Saving of inherent powers of court Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 15. Having noted that Respondents have prayed for Revocation of the Grant, 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/2025/16452/eng@2025-10-28 4

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(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) (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.” 16. Upon considering the provisions cited by the Applicants, and the underpinning provision relating to Revocation, it is my assessment that the only issue which this court ought to consider is whether or not Rectified Certificate of Confirmation of Grant dated 30th April 2019 is implementable as is, and if not, what ought to be done? 17. 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:...” 18. It is also trite law this Court is clothed under Rule 73 of the Probate and Administration Rules with jurisdiction to issue orders that will meet the ends of justice. That Rule provides that: “ 73. Saving of inherent powers of court Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 19. A reading of Section 47 of the Law of Succession Act together with Rule 73 of the Probate and Administration Rules, yields a finding that this Court has the jurisdiction to issue any orders it deems fit as far as the ends of justice are concerned. 20. The parties in this matter are clearly at a deadlock as far as the distribution of the Estate is concerned. It is however worth noting at this time, as things stand, that the Respondents are misguided in their insistence on the vesting of the assets in a Family LLC. I say this because that ship sailed upon the issuance of the Rectified Certificate of Confirmation of Grant dated 30th April 2019. The present situation is that all the properties of the deceased are distributed equally among the beneficiaries. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16452/eng@2025-10-28 5

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21. The question that remains unanswered upon that conclusion is whether can the Rectified Certificate of Confirmation of Grant dated 30th April 2019 is implementable as is? The available answer is in the negative. 22. The case has been made by the Applicants’ that, the relevant Land Registrar to whom the implementation of the Rectified Certificate of Confirmation of Grant dated 30th April 2019 falls urges that it “would require all the 7 names of the beneficiaries to be inserted in each Estate's property and thus creating a very impractical, unrealistic and cumbersome communal ownership of the title which would make management and/or development of any such land virtually impossible.” The Respondents have not proffered any evidence in traversal of this. 23. For what it’s worth, the Respondents urge instead that the “failure of Administrators to distribute a Deceased's estate is a ground for revocation of a Grant for Letters of Administration as provided under Section 76 (d) of the Law of Succession Act.” 24. I find that this is the middle ground. However, I do not reach that conclusion on the same reasoning as the Respondents. The Rectified Certificate of Confirmation of Grant ought to be revoked and evidence on the mode of the distribution of the Estate be led for a fresh one to be issued simply because the grant has become useless and inoperative through subsequent circumstances, that is, on the basis on Section 76(e) of the Law of Succession Act. I however decline to remove the Administrators. 25. This being a family matter, each party shall bear their own costs. Orders 26. 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 Allan Njuki Murage And William Mwema Murage, the Applicants herein, issued on the 22nd day of June 2010 and rectified on the 30th April 2019, are hereby revoked together with all the consequential orders; and b. The Administrators to file Summons for Confirmation of Grant within 60 days, and in the absence of consensus, the other Beneficiaries are at liberty to file Affidavit(s) 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 Mcdonald…………………………………………… for the Administrators. Gisiele……………………………………………………………….. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16452/eng@2025-10-28 6

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