Peter Mwau Mukonza & 1 other v Imeld Mwikali Mutiso & 1 other

2. The grounds for the Summons are set out on the face of the Summons and the Supporting Affidavit sworn by Imelda Mwikali Mutio on 19/3/2025 and the annextures therewith. 3. She depones inter alia that she and co- objectors are daughter and wife (widow) of the deceased Emmanuel Mukonza Musyoka who died on 21/1/99. That the Petitioners proceeded to obtain a temporary grant which was also partially confirmed through forgery of hers, and her mother’s signature, mis representation as they did not disclose the deceased’s entire estate, and exclusion of the rightful heirs of the deceased hence, they are unsuitable as Administrators of the Estate of the Deceased. 4. She also depones that using the fraudulently obtained grant they proceeded to file ELC 18/2024 at Machakos (later transferred to Makueni) claiming ownership of certain parcels of land at the detriment of the beneficiaries of the estate. Annexed is ELC 18/2023 Machakos where the ‘Petitioners’ are Plaintiffs and Objectors are Defendants. 5. The 1st Petitioner swore a Replying Affidavit on 16/7/2025. He confirms that the Estate is about his father, the Deceased who died on 21/1/99. That in the Form P & A 5 he has captured the Objectors as daughter and wife of the deceased respectively; and that the family gave its consent to the filing of the Petition. 6. He depones further that to the best of his knowledge, his late father left only 2 assets, namely Kithembe/Kauti/645 and Kithembe/Kauti/718 in his name and therefore the statements about both beneficiaries and the assets do not contain any untrue allegation or concealment from the court of anything material this case, and that nothing would be easier to the objectors than pointing out any property or beneficiary which/who was been omitted or something added which should not have been included. 7. That the proceedings in Makueni ELC 18/2023 is irrelevant to the estate herein as the property therein is in the name of the 1st Objector and not in the name of the deceased herein. 8. That the Limited Grant issued herein has never been confirmed and, in any event, they have not filed the suit in Makueni ELC 18/2023 as the Administrators of the Estate of the Deceased herein. 9. The Petitioners filed Grounds of Opposition dated 29/5/2025 to the effect that the application for stay was an abuse of the process of court, Res Judicata as a similar one was pending before the ELC Court Makueni E017/2020. 10. That the Applicants failed to demonstrate any forgery. 11. Parties agreed to proceed by way of written submissions. 12. The Applicants set down the following as the issues for determination. 5. Whether the Temporary grant issued on 19/3/2014 was obtained fraudulently and or through concealment of material facts, thus, should be revoked under Section 76 of the Law of Succession Act. 6. Whether the Petitioners/Respondents should be restrained from dealing with the estate of the deceased pending determination of the summons for revocation of grant. 7. Whether proceedings in Makueni ELC No. E018 of 2024 should be stayed, pending determination of the summons for revocation of grant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4318/eng@2026-02-20 2

page 2 of 6

13. It is submitted that the 2nd Applicant as the widow of the Deceased has priority over the Petitioner/ Respondent, and was left out when the Petitioner was filling and grant obtained. The Applicants rely on Section 66 of the Law of Succession Act. 14. That the Respondent did not disclose all beneficiaries/estate of deceased, and the consent was not obtained voluntarily. They rely on Section 76 of the Law of Succession Act, and In the Estate of Richard Njoroge Njogu (deceased) [Succession Cause No. 127 of 1999] referred to Re Estate of Murathe Mwaria (deceased), where Koome J,(as she then was) summarized the grounds for revocation of grant under Section 76 as follows: a. "When the procedure followed in obtaining the grant is defective in substance. b. When the grant is obtained fraudulently by making a false statement. c. Making an untrue allegation of fact in point of law to justify the grant. iv. Or when the person who has the grant has failed to proceed diligently with the administration of the estate." 15. In the Estate of Prisca Ong’ayo Nande (deceased) [2020] e KLR further on Re Estate of G.K.K. (deceased) Succession Cause 1298/2011 where the Court stated that failure to disclose full beneficiaries/obtain their consent amounted to concealment of material facts bringing the grant to the purview of Section 76 of the Law of Succession Act for revocation. 16. On restraining orders, it was submitted that the principles in Giella vs Cassman Brown & Co. Ltd [1973] EA 358 were applicable. 17. Regard Makueni ELC E018/2023, it is submitted that the pleadings in Makueni ELC E018/2023 confirm that it is about the Estate of their deceased father. That the Plaintiffs therein aver: inter alia that 18. i. "The deceased; Emmanuel Musyoka Mukonza was a shareholder in Aimi Ma Kilungu Ltd, member number 0994, holding 6 shares but later increased to 25 shares; ii. That when it came to sharing out land to its shareholders, Aimi Ma Kilungu Ltd allocated the late Emmanuel Musyoka Mukonza Agricultural Plot No. 1460 measuring 10 acres or thereabouts and commercial plot No. 1394 measuring 50 by 100 feet; iii. The Plaintiffs further added that, in 1999 Emmanuel Musyoka Mukonza died intestate and on 6/12/2008, the family members an in an agreement by their Amutei clan, the parties agreed to each occupy and own a portion measuring 2 acres in Agricultural plot No. 1460 whereupon the 1st Plaintiff and his family took possession, built a home and have lived there from 2009 to date, and peacefully do so;" They cite Kenya Power & Lighting Ltd vs Esther Wanjiru Wokabi (2014) KEHC 317 KLR which cited in the Estate of Kipkosgei Lagat (P & A 376/2014) [2025] KEHC 4301 (KLR) (4/4/2025) and re Estate of Kipkosgei Lagat (Probate & Administration 376 of 2014) [2025] KEHC 4301 (KLR) (4 April 2025) where the courts were of the view that “ .. In line with the foregoing guidelines, it is generally agreed that in an application for grant of stay of proceedings, the matters that the court must satisfy itself on are: (a) that the applicant has established a prima facie arguable case; (b) that the Application was filed expeditiously; and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4318/eng@2026-02-20 3

page 3 of 6

(c) that the Applicant has established sufficient cause to the satisfaction of the Court that it is in the interest of justice to grant orders sought." 19. For the Petitioners, it is submitted that the Petitioner did not apply for Grant Ad Litem in order to institute Makueni ELC E018/2024. It is also submitted that there is nothing like a Temporary Grant of Administration in our LOSA .They cite Re M’Mbijiwe M’Muguongo [2021] e KLR. 20. It is further submitted that the Objectors have not established the alleged concealment of beneficiaries or estate of the deceased and that Makueni ELC 018/23 is about Konza South/Konza South Block 4 (Aimi ma Kilungu) 2417 which does not form part of the estate of the deceased herein. 21. That the allegations of fraud must be pleaded and specifically proved as was stated by the Court of Appeal in Ndolo vs Ndolo [2008] 1 KLR (sic). 22. It is also submitted that Esther Minoo Mukonza whose signature is alleged to have been forged has not sworn an affidavit to that effect. That though counsel is not an expert, to him, the 1st Objector’s signature on the application and in the Petition appear similar; that no evidence of any report made to the police to investigate the alleged forgery. 23. Further that the estate has been pending confirmation and any revocation will take back the matter and not solve the issues. 24. I have carefully considered the application before me and the submissions by parties. In my view the only issue for my determination is whether the Grant made to the Administrators in this matter ought to be revoked. To answer that question, we need to determine also whether the plaintiffs in Makueni ELC 018 of 2023 obtained grant herein in order to file that suit. 25. I have perused the Succession Cause file. It began as Machakos Succession Cause 1009/2013. The Petition was filed on 30/12/2013 by Peter Mwau Mukonza and Fredrick Musyoka Mukonza. In Form P & A5 they set out the beneficiaries as their mother, their 2 brothers, 2 sisters including the 1st Objector. There is a document a consent to making of grant dated 20/12/2013 which appears to have been signed by all the beneficiaries including their 83-year-old mother. 26. A Grant of Letters of Administration Intestate was made to Peter Mwau Mukonza and Fredrick Musyoka Mukonza on 19/3/2014. 27. This file was transferred to Makueni vide order of 21/2/2017 where it acquired the Number 334/2017. 28. It is noteworthy that since that time the Petitioners have never moved the court to have the grant confirmed/distribute the estate. It would appear that no member of the family ever raised any issue until the issues in Makueni ELC 018 of 2023 began. 29. Be that as it may, I have perused the annexture “IMM1” which is the Machakos ELC 27/2023. The Plaintiffs therein are Peter Mwau Mukonza and Wilfred Kioko Mutiso. On the face of it these are not the joint Administrators of the Estate of Emmanuel Mukonza Musyoka (Deceased). The Joint administrators Peter Mwau Mukonza and Fredrick Musyoka Mukonza. 30. True Peter Mwau Mukonza is one of the Administrators of the estate but the 2nd Plaintiff is not. Neither is Fredrick Musyoka Mukonza a party to the ELC suit. So, from the word go, it is not true/ correct that the administrators of the estate of the deceased herein used the grant to file the suit in Machakos ELC 27/2023. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4318/eng@2026-02-20 4

page 4 of 6

31. In addition, I have not seen any Temporary Grant or Grant Ad Litem in the names of the Petitioners in the Succession Cause or the Plaintiffs in the ELC matter seeking the same for purposes of filing the ELC suit. . What I have seen is a full grant in the names of Peter and Fredrick Mukonza. I have also not seen any “temporary confirmation”. There is not such thing as a temporary confirmation. It is either a partial confirmation/full confirmation. I have not seen any Summons for Confirmation of Grant for any part of the estate. 32. It is the position of the Applicant/Objector that the grant ought to be revoked because:-Her signature and that of her mother were forged. The alleged fraud and forgery require proof. Other than the allegations she did not provide any. As to the doubt that the other beneficiaries to the estate did not sign the consent for the grant none of them swore affidavits to that effect so the court could not determine the issue on her allegations alone 33. I say this because fraud and forgery are serious allegations because they are also criminal. They cannot be established by averments in an affidavit only or by submissions. The one making the allegation must prove that allegation to the required standard which is higher than a balance of probabilities. 34. On the issue of s. 66 of the LOSA, it is not in doubt that the mother of the Administrators herein and 1st Objector has priority over her sons when it comes to filing a petition over the estate of her husband. However, on the face of it, it appears that she gave them her consent to file the same and without her testimony that her signature was forged, the court cannot by just looking at the document determine that her signature was forged. 35. No other beneficiaries other than the ones in the Form P & As have been named as having been excluded. No other property has been named as having been excluded. 36. On the issue of restraining orders/staying the ELC matter; In the ELC matter Plaintiffs state that their father had a property at Aimi Ma Kilungu Plot No. 1460 of 10 acres. In their averment that that property was fraudulently registered in the name of 2nd Objector/Applicant who then transferred it to the 1 st Objector/Applicant. 37. The Objector/Applicant is not saying that that property belongs to the estate of her father yet she says that if the Plaintiffs in ELC E018/2023 are allowed to continue with the proceedings, the Applicants and other rightful beneficiaries stand to suffer irreparable harm as the Petitioners may obtain unlawful ownership of the Deceased’s property; that the estate of the deceased may suffer illegal alienation, transfer/disposal to the detriment of the rightful beneficiaries of the estate. 38. From the plaint and paragraph 11 of the same the Plaintiffs accused the 1st Objector/Applicant of issuing an eviction letter to them through her advocates in mid-August 2023 on the ground that the parcel of land they have occupied is now registered as Konza South/Konza South Block 4/2417 belongs to the 1 st Objector/Applicant. 39. The question that begs is who among the three has alienated the estate of the deceased if indeed the plaintiffs in the ELC matter are pursuing the 1st objector applicant to recover the property of their father/grandfather? While I do not have the full facts of the ELC matter from what I gather from what is before me, the objector appears to have alienated the estate of the deceased. 40. Clearly what is before the ELC Court on the face of it is whether or not the land belongs to the 1st Objector/Applicant or to the estate of the deceased. She has a title deed in her name hence the ELC court is the rightful place to deal with the issue. 41. It appears to me that it is actually the Plaintiffs who went to establish that parcel of land belongs to the estate of the deceased but it is now registered in the name of the Objector/Applicant. If indeed the other https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4318/eng@2026-02-20 5

page 5 of 6

beneficiaries will suffer if the land is left in the hands of the Plaintiff, then the Objector/Applicants could cede it to the Succession Cause as part of the estate of the deceased for distribution by the court. 42. As matters stand, it appears to me that it is the Plaintiffs in the ELC Court who are pursuing the correction of the current situation. The Objectors/Applicants will have the opportunity to deal with those issues before the ELC court. They cam only be sorted out if the matter at the ELC court is heard on merit. 43. I agree with the petitioner that there is nothing like a temporaray grant in the LOSA. 44. In this matter there is a grant of administration of letters intestate in the joint names of Peter Mwau Mukonza and Fredrick Musyoka Mukonza. There is no temporary or limited grant. 45. If indeed the applicant objector was referring to the grant herein then my finding is that grounds upon which the application for revocation of the grant is premised have not been proved. 46. I also find that the prayer for restraining orders is not merited as the grant herein has not been used in the Makueni E018 of 2023. 47. The application is without merit and is dismissed. 48. Each party to bear its own costs. DATED, SIGNED AND DELIVERED VIRTUALLY ON 20TH FEBRUARY 2026 MUMBUA T MATHEKA JUDGE CA DANIEL Makundi for Petitioner Ms. Mjambili holding brief for Ms. Lokol for the applicant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4318/eng@2026-02-20 6

page 6 of 6