Kasyoka Mutemi v Claris Wanjala Mwasaru & 1 other

and that the grant could not be confirmed before the shares of all people beneficially entitled were established. She contended that the applicant was not a beneficiary of the deceased's estate and could not therefore file the said application. 5. The 2nd administratrix also filed an affidavit of protest, which in essence was a rehash of what the 1st administrator had filed. Both administratrices, in essence, stated that the applicant was acting in concert with family members to hinder the administration of the deceased's estate. She also prayed that the Summons for Confirmation of the grant be dismissed for not having merit. 6. The counsel for the 1st and 2nd administrators also filed grounds of opposition dated 8th November 2025. 7. While the summons for confirmation of grant was pending the 1st and 2nd administratrices filed a summons for revocation of grant dated 9th December 2024 vide which they sought to have the grant issued by this Court on 3rd April 2024 revoked on the ground that she a co-administratrix had failed to diligently administer the said estate, was preventing the diligent administration of the estate and also that she had locked out the other beneficiaries from benefiting from the estate. 8. The application was supported by the annexed joint affidavit of the 1st and 2nd administrators. 9. The 3rd administrator opposed the summons for revocation of the grant through he replying affidavit of 20th December 2024, in which she averred that it was the other co-administratrices who had frustrated the administration of the estate by not filing the summons for confirmation of the grant on time or providing a statement of account as directed by the Court. 10. The 3rd administratrix prayed that this Court ought not to allow the said application, but should instead focus on the distribution of the estate rather than entertaining “endless red herrings, time wasting, and consuming applications that not only inordinately delay the dispensation of justice but also muddy the waters in this cause.” 11. She prayed that the application be dismissed as the applicants had not come to Court with clean hands, but with hands she reckoned were “not only with unclean hands, but also bloody hands.” 12. On the 16th December 2024, this Court gave directions on how the applications were to be canvassed. The Court directed that the application dated 9th December 2024 would be canvassed first, by way of Written submissions. 13. The submissions of the 1st and 2nd administratrixes are dated 20th January 2025. According to the said submissions, it was urged that the application be allowed, as the threshold for revoking the grant had been met. 14. Counsel for the administratrixes submitted that the test under section 76 of the Law of Succession Act had been met. Reliance was placed on the decision of this Court in various succession matters. 15. The 3rd administratrix’s submissions are dated 24th January 2025. In the aforementioned submissions, it was argued that it had not been established that the grant ought to be revoked within the standards required by Section 76 of the Law of Succession Act. 16. It was urged based on the dictum in the case of re Estate of Maganga Obuki (deceased) [2020]eKLR that the power to revoke a grant must be exercised judiciously and only in the clearest of cases and on sound grounds. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19454/eng@2025-04-07 2

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17. Counsel averred that what the Court was being invited to do was to act whimsically and capriciously. The counsel for the third administrator stated that his client had attempted to complete the administration but was prevented by the first and second administratrixes. 18. It was therefore urged that the application for revocation of the grant be dismissed. 19. Section 76 of the Law of Succession Act states 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— e. 20. 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.” The court’s power to revoke a grant was discussed in the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR). The Court stated that: “ Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrongdoing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account the interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.” 21. The court in the case of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR) stated as follows: “ 8. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19454/eng@2025-04-07 3

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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 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.” 22. In my view, the applicants had to show that the requirements of section 76 of the Law of Succession Act had been met. The grant was issued by this Court to the parties hereto, as joint administrators. It follows that they were all to administer the estate jointly and thereafter apply for the grant together as a team. It is also not the case that the process vide which the grant was issued was defective. The failure to administer the estate properly is a joint failure of all the parties, rather than of any one of them. 23. In the circumstances, I am unable to agree that a case for the revocation of the grant. If the Court were to do so, it would promote confusion rather than provide the much-needed clarity. 24. I will now address the application for confirmation of the grant. Although I had directed on 16th December 2024 that the revocation application would be heard first, it is my view that I may issue the necessary orders in exercise of my jurisdiction under Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. In my view, unless the Court provides direction, the matter will be delayed by proceedings that are akin to a dog chasing its own tail. 25. I note, in respect of the Summons for Confirmation of grant, that there is no consent to the application by the beneficiaries who are entitled to the grant. 26. Since this Court had appointed three administrators, it was up to the applicant to seek a consensus between them on how the estate was to be devolved to the beneficiaries. According to the applicant's own affidavit, no serious attempt was ever made to reach a mutually agreed-upon agreement. Rather than act prudently, the applicant was very rash. 27. The contents of the applicant’s affidavit contradict what the respondents averred. The respondents in the affidavit of Claris Wanjala Mwasawa, sworn on 8th November 2024, state that there were meetings on 4th July 2024 at Mukala restaurant and on 24th July 2024, but that no agreement was reached as the applicant refused to accept the proposed terms. 28. Having considered the two applications, I am not convinced that they have merit. There is clearly bad blood between the parties, which isn’t helped by the fact that family members have been fanning the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19454/eng@2025-04-07 4

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conflict rather than encouraging reconciliation for the benefit of the beneficiaries. There is still much to be done before the summons for confirmation of the grant can be filed justifiably. 29. In the circumstances, I dismiss the 2 applications. I refer the matter to Court-annexed mediation. If the Court annexed mediation is unsuccessful, the Court will have no choice but to issue the grant to the Public Trustee. 30. I direct that this matter be mentioned before the Deputy Registrar, Mediation on 16th April 2025. 31. It is so ordered. DATED AND SIGNED AT MOMBASA, THIS 7TH DAY OF APRIL 2025. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of:Mr Omwenga, for the 1st and 2nd Administratrices; Mr Mboha, for the 3rd Administratix; and Arthur - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19454/eng@2025-04-07 5

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