Margret Ngina Mule v John Muthini Mutua

8. The objector deponed that the Interested Party had not revealed – that the objector and his siblings Zablon Mutuni Mutua and Mary Mueni Mutua were beneficiaries to the estate of their grandfather. 9. He deponed that the deceased had 5 children- Mutua Mule(his father) William Mule (deceased) – No children, Wanza Mule (deceased) (survived by children) Matata Mule(deceased) (no children). 10. He deponed that he only became aware of the matter when the Interested Party came to the farm with other people and began to point out boundaries where they planted euphorbia fence. 11. That he and his siblings had always lived on that land where he had a permanent house and where both his parents were buried. 12. He urged that the chief be summoned to be cross-examined on his letter. 13. Margaret Ngina Mule filed a replying affidavit on 4/10/2018 where she deponed that he mother had transferred the land to her in good faith to protect the same from wastage. She deponed that she was always ready to transfer the same to rightful beneficiaries. She deponed that the objector had disposed off part of his share and that of his siblings when his mother fell ill, she deponed that she had no intention of evicting the objector. 14. On 6/9/2018, the objector swore an affidavit proposing that the property which is 1.7 Ha be shared equally between him, and the interested party (respondent) Nzula died on 17/6/2018. 15. On 19/9/2019 the interested party/respondent filed a further replying affidavit – denying that any wrong doing was committed by her mother. She deponed that he mother obtained the grant in the proper manner, and transferred the property to her in the proper manner. She deponed that this was no longer a matter for this court but for the ELC court because she was already the registered proprietor of the parcel of land. 16. On26/9/2019 the court (Hon. Ong’udi J as she then was) directed that the Chief Tulimani Location to convene meeting(s) in respect of the distribution of the estate of the deceased Mule Kanandu & that the deceased children/their representatives or beneficiaries to attend. The chief was directed to file his report within 30 days of the order. 17. On 26/11/2019 the Hon. Judge noted that the report had been filed. 18. On 7/12/2022 the Hon. Dulu J gave directions that the matter to proceed by way of Viva Voce evidence. 19. The matter proceeded for hearing before me on 5/10/2023. 20. The objector testified and called 2 witnesses George Muasya Mutunga who adopted his statement of 3/9/2019. His testimony was that he had gone to school with the objector’s father – Mutua Mule. The other witness was Simon Mativo Ndambuki, who said he was chairman of Mbaa Vuthi Clan, and had been for 10 years by the time of the hearing. He said that when he called a family meeting the respondent sent him letter through her advocate telling him not to hold any further meetings, over the issue. He adopted his statement of 29/6/2023. 21. The objector reiterated what was in his pleadings. He relied on the report of the chief dated 5/11/2019 filed pursuant to the court order. On 16/5/2024, the court was told that the interested party/ respondent had passed on. This is after the matter was fixed for hearing on 6/11/2023, and the respondent failed to show up on that date and on several subsequent hearing dates .- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4247/eng@2026-02-20 2

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22. The chief Kalawani Location was summoned to appear in court and explain the situation. He confirmed that he wrote the report on 5/11/2019 after receiving the court order. He testified that upon sitting with the family and the beneficiaries of the estate. He said they agreed that the estate be divided into 2 equal shares between the objector and the family of Margaret Ngina. It was claimed that part of the land had been sold by Nzula Kanandu – the wife to the deceased. He produced the letter as part of his evidence. 23. Thereafter the counsel for the objector filed submission. 24. I have carefully considered the record and the evidence before me. I have also considered the submissions filed by the objector’s advocate. The question is the grant herein up for revocation? In the submissions counsel reiterated the evidence on record. It is submitted that Margret Ngina Mule, adopted her Replying affidavit sworn by herself on 3/10/2018, where she stated that her mother transferred the said portion to her in good faith to protect the deceased property against sale, damage or waste and hold in trust for other beneficiaries. Further that she was willing and ready to transfer the said land to the rightful beneficiaries. She also confirmed that the objector has settled on the suit land. 25. The objector relied on the report from the chief – dated 5/11/2019 He stated; Introduction The late Mule Kanandu was the husband to the late Nzula Kanandu Mukunyi who hailed from Kalawani Location in Tulimani Division, Mbooni West Sub County. Margret Ngina is daughter to the late Mule Kanandu and the only surviving child. John Muthini Mutua is son to the late Mutua Mule who was son to the late Mule Kanandu. As per your order to me dated 26/9/2019 which I received on 7th October 2019 I have acted as follows:I convened the meeting on 14th October 2019 at my Office and the following people attended 1. John Muthini Mutua - Applicant 2. Margret Ngina Mule - Respondent 3. Mary Kimilu - Purchaser 4. Daniel Ngusu Musau - Purchaser 5. Elijah Ndangili - Family Member 6. Annah Daudi - Family Member 7. George Muasya - Family Member 8. Florence Muthini - Wife to John Muthini 9. Juliana Kisilu - Family Member 10. Mary Mutiso - Family Member 11. George Mambo - Family Member 12. Munyao Kisilu - Family Member The issue being distribution of the estate of the late Mule Kanandu. The family members suggested that the said parcel of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4247/eng@2026-02-20 3

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land should be divided into two portions. That is the purchasers to get one part and the objector John Muthini Mutua to get the other part. The respondent Margret Ngina Mule suggested the status Quo to remain the purchasers to remain in their parts and John Muthini to remain where he is. I therefore suggested to visit the site with all the family members/the objector and the respondent on 23 October 2019, which I did. And this is what I found 1. Both the purchasers have ¾ of the piece of land. 2. The unoccupied piece of land is very small. Both parties did not agree and I hope this report will guide you in this matter for the ruling. Attached please find a sketch of the said land. 26. The record will show that the petitioner was already deceased at the time of hearing of this case. Secondly it is counsel for the objector who told the court that the respondent/interested party had also died before she would testify or call her witnesses but no evidence was ever placed before the court that she was now deceased. The objector was responsible for serving her with a hearing date and filing affidavit of service/providing evidence that the respondent had died. 27. Be that as it may, the asset of the estate had been transmitted to the wife of the deceased who transferred the same to her daughter in her lifetime. Before this matter could be heard and determined the daughter is said to have passed on. This information coming from the objector could be taken as the truth because the he had no reason to lie, and he would know. 28. The chief reported that the objector John Muthini Mutua is son to the late Mutua Mule who was son to the late Mule Kanandu, meaning he is a grandson of the deceased herein. His father would have been entitled to a share of the estate, meaning that his grandmother transferred the land to his aunt. This aunt appeared in the first instance to acknowledge that the land was not hers per se and that she was ready to share it, later she stated that her mother had not made a mistake to transfer the same to her. 29. However, with the death of the interested party the dynamics of the cause changed. The objector being aware that the interested party had passed on, then the matter could not proceed without her substitution her estate must be represented in this cause if the objector intends to proceed with it. The estate of the deceased was inherited by his wife. It was transmitted to her. She transferred the property to her daughter. Both are deceased. No one is representing either of their estates in this matter. 30. In addition, the wife of the deceased and the daughter of the deceased are said to have sold part of the land as per the chief’s report. There are persons described as purchasers said to be occupying ¾ of the estate. 31. The matter enters the murky waters of alleged purchasers of property belonging to a deceased person from a beneficiary who had a title deed but who is now deceased, but who is not the deceased in this estate. The purchaser’s claim may not be within this estate anymore. 32. The objector’s claim is now tied up in the estate of his aunt. She was not the one who obtained the grant in this matter, she was not the administrator who transferred the property and she died before https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4247/eng@2026-02-20 4

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she could give her evidence on how the land came to be in her name. So now it is up to her estate to explain and that would require her representative. 33. Otherwise, prima facie, the deceased estate went to his wife and she transferred it to her child. There is nothing left here without involving the estate of the interested party as the entire estate has been transmitted. That now it is the estate of the deceased interested party that becomes answerable for what happened to the land that was the deceased’s asset. For the answers to be forth coming the objector needed to have brought on board the estate of the deceased interested. 34. While the court has the power to revoke a grant suo motu, a revocation of the grant without hearing the interested party who was actively participating in the matter save for her passing would not be tenable. 35. The objector is not without recourse as he can pursue the matter as against the estate of his aunt, or involve the estate in this matter. While the purchasers may have to address the matter through the court with jurisdiction over issues of dispute sale and ownership of land. 36. The summons for revocation of the grant is declined with no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY ON 20TH DAY OF FEBRUARY 2026 MUMBUA T. MATHEKA JUDGE Court Assistant Daniel Counsel for the objector Mr. Makundi N/A for Interested Party https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4247/eng@2026-02-20 5

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