Meli Mutwiw'a v Joseph Kiio Mutavi & 2 others

2. It is supported by the Affidavit of Meli Mutwiwa sworn on 26/10/2023 and the grounds on the face of the summons:- The applicant is one out of the four administrators of the estate of the deceased. She depones that she participated in the processes of succession up to and until the time the summons for confirmation of grant was issued; that the other administrators obtained the certificate of confirmation of grant fraudulently by concealment of material factors from the court. - That the consent to the confirmation of the grant was obtained through forgery – she depones that she used a thumb print throughout the proceedings and that it is only during the confirmation process that a signature purported to belong to her appears. - That the respondents – her co-administrators did that so as to conceal from the court the fact there existed an agreement on how the property Machakos/Ulu/77 was to be shared – that it was to be shared between Mutwiwa Nguu and Mwakavi Nditu. She annexed the agreement dated 16/6/1966. The agreement states generally that there is a piece of land – whereby Mutwiwa says he has been sent by their father Nguu Mutavi to go and buy land together with Mwakavi. . 3. That the land is being sold at Ksh 1,250 and each will contribute Ksh 625/=. At the time of purchase Mutwiwa has paid 250/=, Mwakavi, 1000/=. They agree that Mutwiwa will refund Ksh. 375/= to Mwakavi after three years; that the land will be shared equally. The agreement is witnessed by Daniel Nzivo Nguthi Mutunga, Joseph Maundu Kimoni and Mwatu Mike. The parties are Mwakavi Nditu and Mutwiwa. 4. The summons for confirmation of grant referred to by the applicant was filed on 24/11/2022. It states that the applicants are the four administrators including the applicant who is the 4th Administrator. It is supported by the joint affidavit of the Administrators who depone – 2. That on 23rd day of May, 2022 we were issued with Amended Grant of Letters of Administration Intestate of the Estate of the late Nguu Mutavi who died on the 6th day of April, 1972. 4. That the deceased left the following heirs/beneficiaries surviving him/her:1) Mikayo Mutungwa 2) Meli Mutw’iwa 3) Kiio Nguu 4) Selina Kakutu Ngui 5) Julius Muia Musyoki 6) George Muli Kiio 7) Veronica Ndanu Mutava 8) Muli Mwakavi 9) Mwongela Mwakavi 10) Dickson Mulinge Mwakavi 11) Joseph Kimanthi Musyoki 12) Elizabeth Mumo Musyoki 13) Mwakavi Nditu https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6414/eng@2026-04-17 2

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5. That the deceased left behind land parcel MACHAKOS/ULU/77 measuring 36.5 Hectares for the Dependants. 6. That we propose that the parcel(s) No(s) MACHAKOS/ULU/77 measuring 36.5 Hectares be subdivided as follows:Mwakavi Nditu 44.05 Acres Meli Mutwiwa 12.669 Acres Joseph Mutavi 7.669 Acres Serah Kamene Maundu 7.669 Acres Julius Musyoki Mary Musyoki 7.669 Acres Kimanthi Musyoki be sub-divided equally among them. Mumo Musyoki Mikayo Mutungwa 7.669 Acres 5. It is signed by the four administrators – next to the applicant’s name is the signature – that reads something like “Mary” A certificate of confirmation of grand dated 31/1/2022 was issued distributing the estate accordingly. The matter was heard by way of oral evidence. 6. The applicant in her testimony reiterated the contents of the affidavit. She testified that Mutwiwa was her husband, and was son of Nguu Mutavi. She confirmed that the land was registered in the name of Nguu Mutavi. She denied that it was not ancestral land in (ng’ undu). She said that Nguu had some other land elsewhere Kiimani but was buried on the suit land. She confirmed that she cooperated with the other administrators and other beneficiaries until the distribution of the estate. She said that she and the other administrators obtained a letter from Chief confirming the heirs of the estate of Nguu Mutavi. She said she was not present in the meeting held on 12/3/2021 where the distribution of the estate of Nguu Mutavi was agreed on. She insisted that her husband did not just pay Ksh 250/= - that he paid half the cost of buying the land in the first place. She took the position that the other persons who were given shares of the land never contributed any money and therefore should not receive a single parcel of that land. 7. She told the court that the other sons of the deceased have their own portions of land elsewhere – that they should not have any portion of land from Machakos/Ulu/Ulu/77. She testified that it was her husband who earned the land while working for a Muzungu, and he called his brother Mwakavi to buy the land with him. 8. She said there were 18 beneficiaries and listed as the beneficiaries of the estate of Nguu – however only three Serah – Joseph and Mikayo have come to claim land – yet each has their own land. She said the only claim was ½ of Machakos/Ulu/Ulu4/77. 9. AW2, Matu Methu was her witness. He said the land was bought between Mwakavi and Nguu Mutavi despite efforts by counsel to bring him to state that the land was bought between Mutwiwa and Mwakavi – he stuck to his testimony that Nguu Mutavi and Mwakavi are the ones who entered into the agreement. He said payment was made by Mwakavi and Nguu. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6414/eng@2026-04-17 3

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AW3 Kakui Mutuse testified that Mutwiwa was his cousin, and Nguu was “Nau”. He said he was present when an agreement was made on 6/7/1997 that the applicant had called a clan meeting because some members of the family were disturbing her , - and they were told to leave the land. He said Ulu/ Ulu/77 belonged to Nguu – but was bought by Mwakavi and Mutwiwa because Nguu had nothing. This witness testified that one Kitila, a Muzungu owned land and he decided to give his employees land – all they need to pay was the survey fees of Ksh.1250/=. He said it was Nguu Kitavi who was working for the Muzungu, then he left it for his son Mutwiwa, after he became old – he said the land belonged to Nguu but he did not have the money so, his sons Mutwiwa and Mwakavi paid. – After this it became Mutwiwa’s and Mwakavi’s. He said that Nguu sent Mutwiwa to buy the land, Mutwiwa called ‘Mwakavi’ that Mutwiwa also worked for the Muzungu. 10. AW4 Muli Mwakavi. He said that the father of Nguu and his grandfather were brothers. He said his father Mwakavi paid Ksh 1000/= while Mutwiwa paid Kshs 250/=. He said that Mutwiwa later refunded the Mwakavi and they became equal. He said each was to get ½ a share. He said he was not present when the agreement or the refund was made. He said he was present when the meeting of 12/3/2021. He said he did not sign the distribution agreement. 11. For the respondent’s case – RW1 – Mikayo Mutwiwa testified that Nguu Mutavi was father of Ngui – Ngui was her husband that Ngui was the 1st born son of Nguu Mutavi and her father in law. She testified that the land Machakos Ulu/Ulu/77 belonged to her father in-law. She said land was bought by Nguu and Mwakavi Nditu, - that Nguu had other children – Kiio, Ngui, Musyoki and Mutwiwa. - She said that the land was shared between Mwakavi and Mutwiwa and thereafter the land was shared among Nguu’s children. 12. She stated further that the land belonged to Nguu Mutavi and Mwakavi Nditu. She confirmed she was not a witness to the agreement of 1996. She confirmed that the applicant rejected the distribution proposed because she did not want – she (RW1) and others to get their share. She confirmed that the meeting of 1997 – the clan wanted her to leave – but they could not leave because there was nowhere to go. PW2 Joseph Kiio s/o of Nguu Mutavi testified that he was last born son of Nguu Mutavi. He said the land belonged to his father. He confirmed that it is his father who worked for the Muzungu. He could not afford the Ksh 1250/= required to their employee was giving them in old age – so he sent for his nephew Mwakavi Nditu – eventually each side paid ½ the cost, and they became equal co-owner of the land. He said in his father’s house there were four sons – three are deceased but their families are there. That the family met on 12/3/2021 to share the land, but the applicant did agree with the distribution. He said he did not live at Ulu/Ulu/77. He confirmed that all children of Mutwiw’a lived on the land but only 2 children of Nguu lived there. He said Mikayo was not living on the said land but that her husband was buried on Nguu’s land. He confirmed that the issue before court was the estate of Nguu Mutavi. Parties filed submissions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6414/eng@2026-04-17 4

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Applicant’s Submissions 13 After reiterating the evidence, the applicant submitted that she was able to paint a very clear picture on her rights were over the Machakos/ULU/77 – basically that upon purchase of the land in 1966 – the Mutwiw’a and Mwakavi agreed to an equal share for each, hence her argument that the unless the property is distributed in equal shares between Nguu Mutavi and Mwakavi Nditu the distribution is not acceptable to her – that she did not consent to this distribution. She set out three issues for determination:a. Does the Objector/applicant have a right over the suit property and does she have locus standi as an applicant under the summons for revocation dated 26/10/2023? b. Was the grant to the Estate of Nguu Mutavi obtained fraudulently? c. Whether the Grant of Letters of Administration issue on 24/05/2022 and confirmed on 31/01/2023 should stand? 14. It is submitted on the 1st issue that the family of Mutwiwa and that of Mwakavi are the only ones who occupy the said land. The courts attention is also drawn to the agreement of 13/8/2021which the applicant was not a party to but which stated that the other sons of Nguu were not involved when the suit property was bought and only believe that the father paid for the shamba. 15. It is submitted that the registration of the property in Nguu Mutavi’s name, was for him to hold in trust of Mutwiw’a and Mwakavi Nditu. She relies on Munyu Maina Vs Hiram Gathiha Maina [2013]eKLR to the effect that this court needs to look and is in active possession of the land, the conduct of parties with regard to the land – how they took occupation etc., that in the distribution Mwakavi Nditu has been given ½ the share. On the 2nd issue it is submitted that the applicant’s signature was forged – and that brings the grant up for revocation. She relies on Musa Nyaribari Gekone & 2 Others –vs- Peter Miyienda & Another Civil Appeal No. 2 of 2014/Kisumu where the court quoted Section76 of the Law of Succession Act in coming to its decision:- “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) … (b) That the grant was obtained fraudulently by making a false statement or by 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:? The court upheld the decision in the High Court Succession Cause No. 35 of 2012 Kisii, where E.M Muriithi revoked grant of letters of administration issued by the court and stated that “Accordingly, I revoke the grant of letters of Administration made to the petitioner on the 5/6/2012 and confirmed on 19/4/2013 on the grounds of non-disclosure of the 1st Applicant’s interest as a purchaser for value of the suit property and therefore the untruthful allegation that all persons beneficially entitled to the estate had been ascertained and determined as the 1st and 2nd Respondents only”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6414/eng@2026-04-17 5

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On appeal the ruling was upheld and the appeal quashed. This was owing to the fact that there was non-disclosure of material fact and the same amounted to fraudulent means of obtaining the grant. It is submitted that in this case the Respondents forged the Applicant’s signature to deceive the court and purport that the Applicant was involved with the activities and processes leading to the confirmation of grant under the estate of the late Nguu Mutavi and that she was agreeable to all steps thereunder. That the Respondents concealed materials facts that the suit property belonged to Mutwiwa Nguu and Mwakavi Nditu. That the Respondents were aware that the Applicant had rights over half of the suit property and if not for their fraudulent actions the parties would not be in court under the circumstances they find themselves now. That the respondents concealed from the court the agreement of 6/6/1996. 15. On the 2nd issue it is submitted that because the consent of the applicant to the confirmation of the grant, was forged then the grant must be revoked – see Angela Maina Vs Rebecca Waiyego Mwangi& Another, [2016]eKLR. 16. The applicant revisited the issue of a site visit which was raised during the Hearing of the matter. It is submitted that the visit will confirm that the land Machakos/Ulu/77 is divided into 2 halves – with a boundary; one half in the possession of family of Mwakavi, the other the family of Mutwiwa. Respondents Submissions 17. It was submitted that this matter began in 2012 and the estate of Nguu Mutavi was shown to have the following dependants:a. Mikayo Mutungwa – Daughter-in-law b. Meli Mutwiwa – Daughter-in-law c. Kamene Maundu – Daughter d. Mbaluku Musyoki – Daughter-in-law e. Joseph Kiio Mutavi – Son f. Kavuli Mutisya – Daughter-in-law g. Mbeleete Mutisya – Daughter-in-law h. Kavuki Nguu – Daughter i. Mwakavi Nditu – Nephew and the estate had one property Machakos/Ulu/77. 18.. That on 5/11/2012, the parties signed a consent to the effect that the parcel would be registered in the four names of the administrators to hold in trust for the beneficiaries. 19. The respondents set out the following issues for determination:1. Whether the Objector has locus standi to bring this application; 2. Whether Machakos Ulu/77 is part of the estate of the deceased. 3. Issue of trust and possession https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6414/eng@2026-04-17 6

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4. Whether the grant was obtained fraudulently 5. Whether the Objector is entitled to revocation of the grant; and 6. Whether the request for a site visit is necessary or legally justified. 20. On the issue of locus standi – the respondents cite section 29 of the LOSA. it is submitted that the among the dependants of the deceased, and as a daughter in-law of the deceased she is not entitled to challenge the grant. That she is a co-administrator of the estate since 2013 and had ample time to raise objection during the confirmation process – as per Rule 40(6) of the P & A Rules. 21. On whether the property is part of the estate of the deceased, the respondent relies on s. 26 of the Land Registration Act to state that the land was registered in the name of Nguu Mutavi It states; 26. Certificate of title to be held as conclusive evidence of proprietorship (1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—(a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 22. Hence under section 3 of the LOSA – this was the free property of Nguu Mutavi. That the deceased in his life time lived on the property, enjoyed the property and neither the husband of the applicant, nor the applicant raised any issue with the deceased – that the applicant seeks to elevate an informal agreement of 1966 to over-ride the registered ownership of the deceased. The respondents rely on Munyu Maina (above) that the applicant had the onus to prove that Nguu Mutavi held the land in trust for her. 23. In evidence that the title deed had not been revoked – as allowed by section 80(1) of the LRA (1)Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake. 24. On the issue of trust and possession it is submitted that the occupation of the land by the applicant’s family was permissive and did not over ride legal title, no evidence of trust. 25. On whether the grant was obtained fraudulently no evidence was brought forensic, hand writing expert to establish that the applicant’s signature was forged. 26. The respondents relied on Ndolo Vs Ndolo [1996] eKLR where the court held that:“Allegations of fraud must be strictly proved and the standard of proof is higher than the ordinary balance of probabilities.” 27. The respondents also rely on section 107 & 107 of the Evidence Act on the burden of proof. 28. On whether the objector is entitled to the revocation of the grant the respondents rely on section 76 of the LOSA. The applicant must establish that the grant was obtained fraudulently; there was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6414/eng@2026-04-17 7

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concealment of material facts; proceedings were defective in substance; the person to whom the grant was issued has failed in their duty. 29. It is submitted that none of these factors has been proved by the applicant, it is also submitted that Jamleck Maina Njoroge Vs Mary Wanjiku Mwangi cited by the applicant is distinguishable because in that case – there was clear and proven concealment and misrepresentation. 30. On the issue of the site visit – it is submitted that no justification has been placed before court either through pleadings, testimonies or documentary exhibits and that the court cannot visit the site to conduct viva voce hearing. That there is sufficient evidence before the court to determine the issue. 31. The court is urged to dismiss the (summons) dated 26/10/2023, declared Machakos/Ulu… /77 as part of the estate of Nguu Mutavi, and sustain the grant as issued and confirmed. Analysis & Determination 32. I have carefully considered the summons, the evidence on record and the submissions by parties. The issues for determination are whether the applicant has established that her signature was forged, and that the property herein belonged to her husband and not to the estate of Nguu Mutwiw’a and that the other administrators concealed this fact to the court, 33. Nguu Mutavi died on 6th April 1972 dues to old age as per the death certificate filed with the petition herein on 21st November 2012 . The form P&A 5 listed the beneficiaries as set out herein above, and Machakos Ulu 77 as the sole estate of the deceased, no liabilities were listed and the applicants were the applicant herein and three others who described themselves as sons and daughter of the deceased. 34. Letter 41 was issued on 28th March 2013 to the four administrators in Machakos Succession Cause 1194 of 2012. A summons for confirmation of grant was filed by Mikayo Mutungwa dated 4th Nov 2013 on 5th Nov 2013 where the administrators sought that the whole estate be registered in their four names to hold in trust for all the beneficiaries. 35. This was not prosecuted by the time the matter was transferred to Makueni vide order dated 21/2/2017. The matter was dismissed for want of prosecution on the 13th July 2017. The administrators filed for reinstatement which was done 36. The contentious Summons for confirmation of grant was files on 24 th November 2022. 37. The record shows that on 30th January 2023 all the beneficiaries were physically present in court before the Hon Dulu J, and none objected to the mode of distribution, The court allowed the summons and directed that certificate of confirmation of grant to issue, The applicant herein is the 2nd in the list of beneficiaries. 38. A certificate of confirmation of grant was issued. 39. The locus standi of the applicant was questioned on the basis that she is a daughter in law. S. 76 of the LOSA provides that 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— 40. The application for revocation can be brought by any interested party. The applicant is an interested party because she is a daughter in law of the deceased and it is not disputed that she lives on the land. 41. From the foregoing it is evident that the applicant participated in all the process and was an administrator from the word go. The agreement she produced herein was in her possession and he ought to have produced it from the beginning as an administrator so that she would ensure that it was indicated in the form P&A 5 . As an administrator she can also say that she was not truthful when she https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6414/eng@2026-04-17 8

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conceded to the filing of the cause without indication that the land did not belong to the deceased. The form P&A does not contain any liability. 42. The applicant did not produce evidence to support the allegation that her ‘signature ; was forged. What about her declared presence in court when the grant was confirmed?. Why did she not raise the issue then before the Judge? The court is not an expert on forgeries. The allegation of forgery ought to have been strictly proven. 43. Did she establish that the land belonged to her husband? 44. The land was registered in the name on Nguu Mutavi but the certificate in his name was issued on 16th May 1974 as per the certificate of search issued by the Land Registrar on 5th November 2012. Hence when the administrators including the applicant were bringing the Petition for letters of administration , the applicant was aware of the fact that the petition was for the estate of Nguu Mutavi. 45. The respondent submitted extensively on the provisions of the Land Registration Act vis a vis the registration of the deceased’s land and the fact that the same had not been challenged. The applicant had all the time to challenge that registration on the basis of the alleged trust. 46. Regrading the site visit, it is a fact that the distribution of the estate of the deceased need not necessarily follow the boundaries on the ground. The fact that a person who beneficially entitled does not occupy any part of the property before its distribution does not automatically make him a non- beneficiary or disinherit the person. 47. The document dated 6th June 1966 is said to be an agreement to buy the land between her husband and Mwakavi. The land is not described and no one can tell what land the two were talking about. But more importantly even the applicant’s witnesses could not agree that the alleged purchase was between the applicant’s husband and Mwakavi. One insisted that it was between Nguu and Mwakavi. That the land belonged to Nguu and not to Mutwiwa and Mwakavi. 48. The evidence is that it was Nguu who worked for the Muzungu, it was not the applicant’s husband. So why would he be the one who got the land yet the evidence is that the one who had worked for the Muzungu was the one getting the land? It appears to me that if any such purchase happened it was Nguu’s land. 49. True, the distribution shows that the land was shared half to Mwakavi and the other half to Nguu’s family. The beneficiaries agreed on the distribution, and since it has not been challenged, this court would not disturb it. I did not hear any dispute over this distribution. Even the applicant does not appear to have an issue with this. 50. The applicant has not established that that land belonged to her husband. 51. In the circumstances I find that The property Machakos/Ulu/77 is property of the estate of Nguu Mutavi. There was no evidence of concealment of any material particulars from the court; No proof of the alleged forgery . 52. The summons for revocation of grant is not proved and the same is dismissed. 53. Considering the nature of the matter , no orders as to costs. JUDGMENT, DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH APRIL 2026. MUMBUA T MATHEKA JUDGE CA Chrispol https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6414/eng@2026-04-17 9

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Ms. Kinuthia for the Applicant Mr. L M Wambua for the Respondents Signed BY/FOR: LADY JUSTICE MATHEKA, TERESIA MUMBUA THE JUDICIARY OF KENYA MAKUENI HIGH COURT HIGH COURT DIVISION DATE: 2026-04-18 11:01:37 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6414/eng@2026-04-17 10

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