Stephen Kariuki Ndururi v Margaret Kirigo Muthui

5. The Applicant has now filed this summons seeking to have the Grant which was issued to the Respondent revoked on grounds that the parcel of land known as Mweiga/block1/Labura/1383 (hereinafter referred to as ‘Plot 1383’) did not belong to the Deceased and did not form part of the estate. 6. The applicant stated that this parcel of land belonged to himself as he had purchased the same from one Dorcas Nduta Macharia in June 1995 at an agreed consideration of Kshs. 175,000. 7. The Applicant averred that he left the Title Deed in the custody of his father since he himself resided in Nairobi. That sometime in the year 2023, the Applicant realized that the title deed was missing. 8. The Applicant states that he then applied for the Green Card for the said property in order to ascertain its status. He discovered that the Respondent who was the administratrix of the estate had transferred the property into her own name and then had subsequently sold this Plot 1383 to a third party Almes Limited. The Applicant then reported the matter to local authorities. 9. Upon further investigation the Applicant discovered that the Respondent had obtained a Certificate of Confirmed Grant dated 21st November 2008 by which Plot 1383 was to devolve entirely to the Respondent. 10. The Applicant alleges that the Respondent obtained the grant fraudulently by misrepresenting to the probate court that this Plot 1383 belonged to the Deceased formed part of the estate and was available for distribution. The Applicant also complains that the Respondent obtained the Grant secretly and did not involve him yet he too was a beneficiary of the estate. That the Respondent committed fraud by failing to alert the Probate Court that Plot 1383 actually belonged to the Applicant. Hence this application for revocation of Grant. 11. In her replying affidavit the Respondent confirms that she is a daughter to the Deceased and the Administratrix of his estate. That she was issued with the grant on 21st November 2008, which Grant was confirmed on the same date 21st November 2008. 12. The Respondent asserts that Plot 1383 formed part of the estate of the Deceased. The Respondent states that the Deceased purchased a parcel of land from one Nduta Rungare which land the Deceased later sub-divided into two parcels being Mweiga/Block1 Labura/1383 and 1382. That the deceased gave five acres to his son and grandson (the Applicant). 13. The Respondent alleges that the Applicant and his father later reneged on their promise to care for the Deceased so the Deceased recalled his gift to them. The Respondent states that the Deceased filed a case in the Mweiga Land Disputes Tribunal and the Tribunal and the tribunal cancelled the Applicants Title and directed that Plot 1383 revert back to the name of the Deceased. That these orders of the land Tribunal were confirmed and adopted by the chief magistrates court vide Nyeri CM Award No. 28 of 2001. Therefore according to the Respondent Plot 1383 belonged to the Deceased. She prays that the summons for revocation of Grant be dismissed. Analysis And Determination 14. I have carefully considered this summons, the reply filed thereto as well as the evidence adduced in open court. 15. The Applicant has sought to have the Grant issued to the Respondent revoked on grounds that the same was obtained by way of fraud and misrepresentation. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9137/eng@2026-06-29 2

page 2 of 5

16. The grounds upon which a Grant may be revoked are set out in Section 76 of the Law of Succession Act 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) (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.” 17. The first issue which raises eyebrows is the fact that this application for revocation of Grant is being filed some sixteen (16) years after the Grant had been confirmed. Where has the Applicant been all this time? If as the Applicant claims this Plot 1383 belonged to him why has he not taken any action in the preceding sixteen (16) years. It is not conceivable that the Applicant abandoned his alleged property without checking on it for this length of time. 18. The Applicant claims that he was not aware of the succession proceedings. The Applicant was a ‘grandson’ to the Deceased and a nephew to the Respondent. Being a grandson to the Deceased the Applicant was not a dependant as defined by Section 29 of the Law of Succession Act. The law does not require that he be notified before the succession cause was filed. The Applicant did not rank in priority over the children of the deceased. 19. The Respondent averred that the succession cause was gazetted as required by law. She annexed to her Replying Affidavit a copy of Gazette notice No. 27 of 4th January 2008 (Annexture ‘MKM 3’). This gazette notice acted as information to the public that a succession cause had been filed. Thus it cannot be said that the cause was filed secretly – the Respondent publicized the succession proceedings as required by law. If the applicant did not see the gazette notice (which is curious since the estate was of his late grandfather) then he only has himself to blame. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9137/eng@2026-06-29 3

page 3 of 5

20. It is quite clear to this court that the crux of the matter here is the question of ownership of Mweiga/ Block 1/Labura 1383. The Applicant claims that the said parcel of land belongs to him whilst the Respondent asserts that it belonged to the Deceased. 21. Matters relating to ownership, use and occupation of land have now under Article 162 of the constitution been mandated to be determined by a specialized court being the Environment and Land Court (‘ELC’). 22. Section 13 of the Environment and Land Court Act provides for the jurisdiction of that court as follows:13. Jurisdiction of the Court (1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) In exercise of its jurisdiction under Article 162 (2) (b) of the Constitution, the Court shall have power to hear and determine disputes (a) relating to environmental planning and protection climate issues, land use planning, title tenure boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land andcontracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land [Rev. 2012] No. 19 of 2011 Environment and Land Court 9 [Issue 1]. 23. Therefore, the correct and proper forum before which the parties ought to ventilate their claim to the suit land is the ELC. The Environment and Land Court is the only court exclusively mandated by law to determine the question of ‘ownership’ of the suit land. 24. In Re Estate of Mbai Wainaina (Deceased) [2015] eKLR, the court held as follows:“ ……..The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determining issues of ownership of property…. It is not a matter of the probate court being incompetent to deal with such issues but rather the provisions of the Law of Succession Act and the relevant subsidiary legislation do not provide a convenient mechanism for determination of such issues. A party who wishes to have such matters resolved ought to file a substantive suit to be determined by the Environment and Land Court. Consequently, and for the reasons stated, I must find and hold that this court has no jurisdiction to resolve the proprietary interest on land based on the alleged trust. In this case therefore, the only path legally open to the applicants is to institute separate proceedings to articulate their claim/rights in the right forum and which is the Environment and Land Court.” [Own emphasis] https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9137/eng@2026-06-29 4

page 4 of 5

25. Likewise in Re Estate Of Stone Kathubi Muinde (Deceased) [2016] eKLR Hon. Justice William Musyoka held that:“ Such claims to ownership of alleged estate property, as between the estate and a third party, should be resolved through the civil process in a civil suit property brought before a civil court in accordance with the provisions of the Civil Procedure Act and Civil Procedure Rules. This could mean filing suit at the magistrates’ courts, or at the Civil or Commercial Divisions of the High Court, or at the Environment and Land Court. If a decree is obtained in such suit in favour of the claimant then such decree should be presented to the probate court in the succession cause so that that court can give effect to it.” (Own emphasis) 26. I therefore find that this court has no jurisdiction to make any pronouncement regarding the Applicants claim to ownership of the Plot 1383. If the Applicant wishes to seek orders in that regard he must file a civil suit in the Environment and Land Court, which is the only court with the Mandate to make a decision over issues relating to ‘ownership’ of land. 27. For the above reasons I find no merit in this summons for revocation of Grant. The same is dismissed in its entirety. This being a family matter each side will bear their own costs. DATED IN NYERI THIS 29TH DAY OF JUNE 2026. ………………………. MAUREEN A. ODERO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9137/eng@2026-06-29 5

page 5 of 5