Kinuthia – Deceased Salome Nyaruai Njiri & 4 others v John Kiarie Kinuthia Elizabeth Njeri Wanyoike Catherine Wanjiru Wanyoike & 1 other

who are the deceased’s grandchildren. They are the children of Henry Kinuthia (deceased), a son of the late Augustine, to whom these succession proceedings relate. 3. Salome and Martha (applicants) seek revocation of the grant on record and appointment as administrators. They also seek orders that the administrators render accounts concerning the estate, and further sseek an order for a monthly monetary provision of Kshs.100,000/= for themselves from the estate. 4. They argue that they were not involved in the petition for letters of administration and subsequent confirmation of the grant. They also argue that they were allocated only an acre each out of Gaicanjiru-Kandara Plot No. 1268 (12) and two other properties, namely Ngomongo (Bell Bottom) Plot No. 28 and Ngomongo (Bell Bottom) Plot No. 262, that they assert do not exist. 5. In the supporting affidavit, the Applicants stated that while the other beneficiaries are well provided for, they have not received support from their grandfather’s estate. SUCCESSION CAUSE 554 OF 2001 RULING 2

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6. The application is opposed by the administrators John Kiarie Kinuthia and Elizabeth Njeri Wanyoike. They assert that the Applicants were maintained and supported upon their father’s demise in 1986, that they were involved in the succession process, and that they have been adequately provided for and continue to receive dividends from the estate. Analysis and determination 7. The Court has considered the application, the affidavit in support, the submissions. replying affidavit and the parties’ The issues for determination are as follows; i. Whether the Applicants are dependants within the meaning of Section 29 of the Law of Succession Act; ii. Whether the Applicants have presented sufficient evidence to warrant revocation of the Grant; SUCCESSION CAUSE 554 OF 2001 RULING 3

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iii. Whether the Applicants are adequately provided for; iv. Whether the administrators should be ordered to render accounts. Whether the Applicants are dependants within the meaning of Section 29 of the Law of Succession Act; 8. The Applicants are the grandchildren of the deceased. The administrators, in their submissions, acknowledge that the applicants are dependants of the deceased and as such, beneficiaries of the estate. 9. The Applicants are dependants within the meaning of Section 29 (b) of the Law of Succession Act. Whether the Applicants have presented sufficient evidence to warrant revocation of the Grant; 10. Section 76 of the Law of Succession Act gives the Court the powers to revoke a Grant provided the conditions stipulated therein have been met. It states that: “A grant of representation, whether or not confirmed, may at any time be revoked or annulled SUCCESSION CAUSE 554 OF 2001 RULING 4

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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: i. To apply for confirmation of the grant within one year from the date thereof, or such longer period as the court has ordered or allowed; 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 SUCCESSION CAUSE 554 OF 2001 RULING 5

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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 e) The grant has become useless and inoperative through subsequent circumstances. 11. In order to determine the issue at hand, there must be proof that any of the circumstances described under section 76 of the Law of Succession Act has occurred. 12. In this case, the applicants alleged that the administrators obtained the grant without involving them and that their provision in the estate is inadequate. 13. In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR), Mwita J., as he then was, stated as follows on the principles for the revocation of a grant; “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 SUCCESSION CAUSE 554 OF 2001 RULING 6

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must be evidence of wrong doing 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 interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.” 14. I have examined the petition and the affidavit in support thereof. The petition was filed by Catherine Wanjiru Kinuthia, who was the deceased’s widow. The Grant was issued to her on 13 th November. 2001. On 6th June 2005, the parties agreed to appoint Paul Julius Murathi, the deceased’s son, as a coadministrator. The Grant issued to both was confirmed, and the net intestate estate was vested in the two administrators as trustees for Catherine (the widow and first administrator), who was designated as the life tenant. After her, the estate was to be inherited by the deceased’s children, who would hold it as tenants in common in equal shares. SUCCESSION CAUSE 554 OF 2001 RULING 7

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On 30th March, 2011, the Grant was 15. revoked, and a new grant was issued in the names of John Kiarie Kinuthia (son), Elizabeth Njeri Wanyoike (daughter) and Catherine Wanjiku Kinuthia (widow). The new Grant was confirmed in terms of the previous certificate of Confirmation of Grant that vested the net estate in the widow as life tenant. 16. On 8th July, 2014, the three administrators applied to the Court, via an application dated 21st March, 2014, to set aside the mode of distribution. In the consent filed by the children of the deceased, they set out a new mode of distribution. They told the court that the identities and shares of all persons beneficially entitled to the said estate had been ascertained and determined. 17. This new mode of distribution is what introduced the names of the two applicants as beneficiaries to the estate and the mode of distribution that they now contest. 18. The petition was filed by the deceased’s widow who has priority over all the other SUCCESSION CAUSE 554 OF 2001 RULING 8

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beneficiaries as is provided for under Section 66 of the Law of Succession Act. The Grants that were subsequently issued were also made to the children of the deceased who rank in priority with the Applicants who are the deceased’s grandchildren. 19. The net estate was also, upon confirmation, duly vested in the deceased’s widow with a life interest, as provided for under Section 35 of the Law of Succession Act, which sets out how the estate of a deceased who died intestate and left one surviving spouse and children should be distributed. 20. Upon careful examination of the evidence provided, it is my conclusion that there is insufficient proof to indicate that any of the specific circumstances outlined in Section 76, which would warrant the revocation of the Grant, have taken place. The Grant was duly issued to beneficiaries who rank in priority, in accordance with the law. Further, the confirmation of the grant with a life interest is as mandated by law. SUCCESSION CAUSE 554 OF 2001 RULING 9

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Whether the Applicants are adequately provided for; 21. As the administrators sought to sever this life interest, they introduced the Applicants, rightly so because they are acknowledged as dependants. 22. The Applicants argue that the portion allocated to them is inadequate while the other beneficiaries received a larger portion of the estate. The allocation of portions came after the Grant had been confirmed with a life interest to the widow and therefore, they could not have moved the Court under Section 26 of the Law of Succession Act. 23. Under Section 35 (2) of the Law of Succession Act, a surviving spouse has the power to appoint all or part of the net intestate estate as a gift, effective immediately, among the surviving children. 24. Their cause of action rested in Section 35 (3) rather than revocation of the grant. This section provides that a dependant who believes the power in the appointment of the estate by the widow under Section 35 (2) has been unfairly exercised or withheld SUCCESSION CAUSE 554 OF 2001 RULING 10

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can apply to the court to assign their share, either as originally designated or with a different appointment. Section 35 (4) provides for the 25. considerations that the court should take into account, as follows; “Where an application is made under subsection (3), the court shall have power to award the applicant a share of the capital of the net intestate estate with or without variation of any appointment already made, and in determining whether an order shall be made, and if so what order, shall have regard to – (a) the nature and amount of the deceased’s property; (b) any past, present or future capital or income from any source of the applicant and of the surviving spouse; (c) the existing and future means and needs of the applicant and the surviving spouse; (d) whether the deceased had made any advancement or other gift to the applicant during his lifetime or by will; SUCCESSION CAUSE 554 OF 2001 RULING 11

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(e) the conduct of the applicant in relation to the deceased and to the surviving spouse; (f) the situation and circumstances of any other person who has any vested or contingent interest in the net intestate estate of the deceased or as a beneficiary under his will (if any); and (g) the general circumstances of the case including the surviving spouse’s reasons for withholding or exercising the power in the manner in which he or she did, and any other application made under this section.” 26. I have reviewed the application and the replying affidavit. The administrators provided an account of the estate, particularly regarding their late mother’s involvement and action at the relevant time. I have no reason to doubt that the widow was maintained by the same estate during her lifetime. As a surviving spouse, whether she had no other source of income is a major determinant in Section 35 (4) (b). The widow has since passed away, making it challenging to ascertain the SUCCESSION CAUSE 554 OF 2001 RULING 12

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precise considerations that influenced her decision to exercise the power granted under Section 35(2) in relation to the termination of the life interest. 27. However, from the certificate of confirmation issued on 8th July 2014, it is clear that the applicants were factored in and allocated specific portions of the estate. 28. Based on their affidavit, I am not convinced that the applicants were unaware of the matters pertaining to the estate since 2001. They waited until 2026 to seek Court intervention, and as expected, a lot may have transpired with the estate. 29. The Applicants were allocated the following properties; Martha - Ngomongo (Bell Bottom) Plot No. 28 - 1 acre out of Gaicanjiru – Kandara Plot No. 1268 (12) Salome - Ngomongo (Bell Bottom) Plot No. 262 - 1 acre out of Gaicanjiru – Kandara Plot No. 1268 (12) SUCCESSION CAUSE 554 OF 2001 RULING 13

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30. According to the certificate, they are also to receive proceeds from the properties that were sold. 31. When these allocations are examined alongside the nature and amount of the deceased’s property, the property allocated to the other beneficiaries, and the circumstances that may relate to the estate income used towards the deceased’s widow, I am not persuaded that the widow’s appointment of the estate under Section 35 (2) was exercised unfairly. I therefore see no reason why the Court should interfere with the same. 32. Save for the argument that the portions are inadequate, the Applicants do not raise any issue about the 1-acre portions; it is therefore believable that they already received title for this one as stated by the administrators. 33. They, however, argue that the plots at Ngomongo have not been transmitted to them as they do not exist. The properties were included by the administrators in the schedule; it is expected that they SUCCESSION CAUSE 554 OF 2001 RULING 14

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exercised due diligence in including the property, as required of them under Section 83 (e) of the Law of Succession Act, that the assets provided are an accurate inventory of the deceased’s estate. 34. As the Applicants state that they have yet to benefit from this property, this suggests that the estate may not have been fully administered. It is the responsibility of the administrators to ensure that each beneficiary receives their beneficial interest from the estate. 35. There are also no accounts provided to confirm whether the properties to be sold have been sold and whether any benefits from the sale may already have been paid out to all the beneficiaries, including the applicants. 36. I note that there are no other pending applications in relation to the other properties, except for an application dated 14th November, 205, which seeks to amend a reference for one of the properties. SUCCESSION CAUSE 554 OF 2001 RULING 15

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37. It is crucial to conclude estate administration; this can be done by the administrators providing a status report on the transmission concerning the assets allocated to the Applicants in this case. Under Section 81 of the Law of 38. Succession Act, upon the death of one administrator, all the powers and duties vest in the surviving administrator/s unless there is a continuing trust that requires more than one administrator, where there were only two. 39. In this case, John and Elizabeth are the surviving administrators. They remain as administrators. Disposition 40. a. The court declines to revoke the grant; b. The administrators are required to submit a status report detailing the transmission of the assets allocated to the applicants within a period of 60 days; c. Each party to bear own costs. 41. SUCCESSION CAUSE 554 OF 2001 Orders accordingly. RULING 16

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DATED, DELIVERED and SIGNED at NAIROBI on this 30TH day of JULY 2026. ………………………. C. KENDAGOR JUDGE In the presence of: Court Assistant: Beryl Mr. Muinde, Advocate for the Applicants No attendance for the Respondents SUCCESSION CAUSE 554 OF 2001 RULING 17

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