REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 286 OF 2007
IN THE MATTER OF THE ESTATE OF THE LATE SOLOMON
MITUMBIRI MMUNYUA (DECEASED)
GEOFFREY MURITHI MITUMBIRI::::::::::::::::::::::::::::::::::PETITIONER
VERSUS
CATHERINE KIENDE:::::::::::::::::::::::::::::::::::::::::::INTERESTED PARTY
INTERESTED PARTYS WRITTEN SUBMISSIONS
BACKGROUND
Your honour, SOLOMON MITUMBIRI MMUNYUA ALIAS MITUMBIRI
MMUNYUA (deceased)(herein referred to as the deceased was the father
to the petitioner, the interested party and one JANE ROSE KARWITHA.
The deceased died domiciled in Kenya on 18 th FEBRUARY 2001. He died
intestate.
The deceased left behind three beneficiaries as named above who survived
him.
The petitioner instituted a succession cause in respect of the deceaseds
estate without the knowledge of the other beneficiaries.
Temporary letters of administration intestate of the said estate were issued
to the petitioner on the 26th SEPTEMBER 2007 and confirmed on the 16th
JUNE 2008 without the consent of the other beneficiaries.
During application for the temporary letters of administration and
confirmation thereof, the petitioner concealed the existence of PLOT NO.
KINORU 3B which formed part of the deceaseds estate.
The petitioner after the said confirmation of grant transferred all of the
deceaseds property to himself, that is to say Land Parcel Numbers
KIIRUA / RUIRI/ 3198 and NTIMA / IGOKI/ 2531.

The petitioner in conjunction with one MAKATHIMO MITWERANDU sold

PLOT NO. KINORU 3B to RESILIENT INVESTMENTS LIMITED and
shared the proceeds between themselves.
The petitioner sold Land parcel No. KIIRUA / RUIRI/ 3198 to one
GEOFFREY MURITHI ITUMBIRI.
The interested party only came to learn of the issuance of said letters of
administration, confirmation thereof and the said transactions way after
the fact, and hence the filing of the current summons for revocation of the
said grant by the interested party.
THE LAW.
SECTION 51(2)(h) of the law of Succession Act Cap 160 (herein referred
to as the Act)provides that during application for a grant of
representation, the application should include information as to a full
inventory of all the assets and liabilities of the deceased. (emphasis
supplied.)
SECTION 38 of the Act provides that where an intestate has left a
surviving child or children but no spouse, the net intestate estate shall,
subject to the provisions of sections 41 and 42, devolve upon the surviving
child, if there be only one, or be equally divided among the surviving
children.(emphasis supplied)
RULE 7(7)(b) of the Probate and Administration Rules (herein referred to
as the rules)provides that where a person who is not a person in the order
of preference set out in section 66 of the Act seeks a grant of administration
intestate he shall before the making of the grant furnish to the court such
information as the court may require to enable it to exercise its discretion
under that section and shall also satisfy the court that every person having a
prior preference to a grant by virtue of that section hasa) .
b) consented in writing to the making of the grant to the applicant
c)
RULE 26(1) of the rules provides that Letters of administration shall not
be granted to any applicant without notice to every other person entitled in
the same degree as or in priority to the applicant.

RULE 26(2) of the rules provides that an application for a grant where the
applicant is entitled in a degree equal to or lower than that of any other
person shall, in default of renunciation, or written consent in Form 38 or
39, by all persons so entitled in equality or priority, be supported by an
affidavit of the applicant and such other evidence as the court may require.
RULE 40(8) of the rules provides for the requirement of a consent in
writing and in a prescribed form of all the dependants or other persons who
may be beneficially entitled during the application for confirmation of
grant.
SECTION 76 of the Act provides for the revocation or annulment at
anytime of a grant of representation, whether or not confirmed on the
grounds :
1. That the proceedings making the grant are defective in substance
2. Where the grant is obtained on reliance on false statements, nondisclosure or concealment of important matter or information
3. .
4. ..
SECTION 83(h) provides for the duty personal representatives to
produce to the court, if required by the court, either of its own motion or on
the application of any interested party in the estate, a full and accurate
inventory of the assets and liabilities of the deceased and a full and accurate
account of all dealings therewith up to the date of the account.
LEGAL ISSUES FOR DETERMINATION
Your Honour we have come up with the following legal issues that we find
important for determination in light of the above captioned provisions.
1. Whether the proceedings to obtain the grant were defective in
substance and whether the grant had been obtained by means of
misrepresentation.
2. Whether temporary letters of administration granted upon the
respondent on 16th JUNE 2008 should be revoked or annulled?
3. Who should be appointed as the administrators?

Your honour, the above issues set out for determination have been
canvassed under various topics as seen below.
NOTICE TO OTHER BENEFICIARIES)
Your Honour as seen earlier, Rule 26(1) of the Probate and
Administration Rules makes it mandatory for an applicant for Letters of
Administration to notify every other person entitled in the same degree as
or in priority to the applicant of his/her intention, otherwise no such letters
should be granted.
Your honour, the petitioner in this matter did not at any one time
communicate to the interested party about his intentions to take out a grant
of representation in respect of the deceaseds estate.
Your Honour, the Interested Party being a sister to the petitioner, she is
equally entitled in the same degree as the petitioner to apply for letters of
administration of the deceaseds estate as espoused by the order of
consanguinity as is enshrined in Section 66 of the Law of Succession Act
Cap 160.
Your Honour, the Petitioner secretly filed the application for letters of
administration to disinherit the interested party and her sister JANE
KARWITHA and as such, it forms one of the grounds for revocation of the
said grant.
CONSENT TO APPLICATION FOR AND CONFIRMATION OF
GRANT
Your Honour, it is clear in the petitioners application for grant of
administration of the deceaseds estate and his supporting affidavit thereof
that the only beneficiaries that survived the deceased are namely, the
petitioner, the interested Party and JANE KARWITHA.
The said interested Party and JANE KARWITHA are the only persons that
were supposed to consent to the making of a grant of administration
intestate to the petitioner being of equal priority to them, pursuant to Rule
26(2) of the Probate & Administration Rules as seen earlier.
Your Honour, instead of having all persons entitled to the administration of
the estate of the deceased to the administration of the estate of the deceased
in equality to or in priority to the petitioner and in this case the Interested

Party and JANE KARWITHA consent to the said letters of administration

to the estate of the deceased being granted to him, the petitioner actually
sought the consent of one BONIFACE KIMATHI MURITHI and RAEL
KARIMI MURITHI who are his son and wife respectively.
Your Honour, substitution of the Interested Party and JANE KARWITHA
for the petitioners wife and son in the consent to the making of a grant of
administration intestate to person of equal or lesser priority was a serious
misrepresentation and a complete violation of Rule 26(2) of the Probate
and Administration Rules (supra) and the Order of consanguinity as
provided in Section 66 of the Law of Succession Act.
Your Honour, to harmonize topic 1 and 2 above, we refer this Honourable
Court to ELIZABETH WANJIRU KAMAU V LUCY WANJIKU
[2015] EKLR in which matter the words of KOOME J. in IN THE
MATTER OF THE ESTATE OF NGAII GATUMBI NAIROBI H.C.
SUCCESSION CAUSE NO. 783 of 1993 were reiterated thus.
A grant will be revoked where a person who is entitled to apply is
not notified by the petitioner of his intention to apply and that
persons consent to the petitioners application is not sought.
Your Honour, in RACHAEL WANJIRU KARANJA V NANCY
WAMBUI KAMAU [2015] eKLR, it was held that in filing the petition
for grant of letters of administration intestate, the Respondent did not
inform and consult with other beneficiaries of the deceaseds estate as
required by law, specifically section 66 of the Law of Succession Act Cap
160 PART III Rule 7(7) (b) of the Probate and Administration Rules. She
did not fully disclose all the beneficiaries of the estate of the deceased and
obtain the requisite consents.
Court in its finding held that the grant of administration intestate obtained
by the Respondent in THIKA SUCCESSION CAUSE NO. 390 of 2007 were
obtained fraudulently because of inter alia, non-disclosure of the other
beneficiaries and information to the other beneficiaries and family of the
deceased. (Emphasis supplied)
Your Honour, in IN THE MATTER OF THE ESTATE MMUKETHA
MTWAMWARI [2013] eKLR, court held that the petitioner in her form
38 for consent to making of grant of administration intestate to person of

equal or lesser priority failed to obtain the consent of the objectors. The
Petitioner only obtained consent of only three (3) beneficiaries. Court
further held that in the instant cause, it was evidently clear that the
petitioner did not comply with the mandatory provision of Rule 26(1) and
(2) of the Probate and Administration Rules in that the petitioner did not
give notice to every other person entitled in the same degree as or in
priority to her when she moved to seek grant.
JUSTICE J. A. MAKAU stated in conclusion, in view of the foregoing, I am
satisfied that there is sufficient ground to warrant the revocation of grant of
letters of administration and confirmed grant issued in this cause.
Your Honour this Honourable Court in ANTONY KARUKENYA
NJERU VS THOMAS M. NJERU [2014] eKLR held inter alia that the
respondent was required to file FORM 38 as per provisions of Rule 26(2) of
the Probate and Administration Rules which mandates a petitioner to
obtain consent to the making of the grant of administration intestate to
person of equal or lesser priority. The applicant who is of equal priority by
virtue of Rule 26(2) of the Probate and Administration Rules which
mandates a petitioner to obtain consent to the making of the grant of
administration intestate to person of equal or lesser priority. The applicant
who is of equal priority by virtue of Rule 26(2) of the Probate and
administration Rules did not execute any consent in favour of the
respondent nor did he renounce his rights to petition for the grant and as
such, the proceedings to obtain grant before subordinate court were
defective in substance and grant was obtained by means of untrue
allegation of facts essential in point of Law.
Consequently, JUSTICE J. A. MAKAU ordered the annulment of the said
grant of administration intestate.
Your Honour, the petitioner in this matter did not, disclose the existence of
PLOT NO. 3B KINORU in the list of the deceaseds property during his
application for grant of administration intestate. In his replying affidavit,
he claims that the said property was owned jointly by the deceased and one
MAKATHIMO MITWERANDU ( now deceased) who took over the
ownership of the Plot after the deceaseds death.
Your Honour, the petitioner in support of the above allegation alluded to a
copy of MINUTES OF THE TOWN PLANNING, WORKS AND HOUSING

COMMITTEE MEETING held on 30th October, 2012 in the committee room

town hall at 1.40 pm way after the deceaseds death.
Your Honour, in the said minutes, it is clear beyond peradventure that the
meeting was held to hear and determine and/or approve an application No.
1036 by MITUMBIRI MMUNYUA and MAKATHIMO MITWERANDU to
transfer the ownership of Plot No. KINORU 3 B to Resilient Investments
Limited.
Your Honour, it would therefore appear that
MAKATHIMO
MITWERANDU never took over the said property as alleged by the
petitioner and the truth of the matter is that the petitioner actually used his
unlawfully acquired status as administrator of the deceaseds estate to sell
jointly with the said MAKATHIMO MITWERANDU, PLOT NO. 3B
KINORU and share the proceeds thereof.
Your Honour, as such, we humbly submit that the petitioner actually
concealed the existence of the said PLOT NO. 3B KINORU from the
Honourable Court deliberately so as to dispossess the deceaseds estate of
the same, in total violation of Section 51(2)(h) of the Law of Succession Act
(Supra).
Your Honour, in IN RE ESTATE OF ONYANGO OGUTU- (deceased)
{2004} e KLR, justice W.MUSYOKA stated that,
I do not understand why they failed to move the court
appropriately for amendment of the certificate of confirmation
of grant once it came to their knowledge that these assets
existed. I am of the view that these assets were deliberately
concealed from the court.
He went ahead to note that Revocation of grants is provided for under
Section 76 of the Law of Succession Act and that a grant will be revoked if
the same was obtained through a process that was defective, or where there
was concealment of matter from the court, or where there was fraud.
Your Honour, the consent to confirmation of the grant of administration
issued to the petitioner was a forgery as the interested party never signed
any such consent.
Your Honour, the whole process of issuing of the said grant and
confirmation thereof was marred by discrepancies in that the Interested

Party and her sister JANEROSE KARWITHA evidently never signed the
consent to making of a grant to person of equal or lesser priority but are
purported to have signed the consent to confirmation of the said grant.
Your Honour, we humbly submit that invariably, the said consent to
confirmation of grant was a forgery and in light of the persuasive decision
of justice W. MUSYOKA in IN RE ESTATE OF ONYANGO OGUTU(deceased) {2004} e KLR (supra) the said grant ought to be revoked on
the ground among others of fraud, a resultant of the aforementioned
forgery.
Your Honour, the whole process of issuance of grant and confirmation
thereof as initiated by the petitioner we humbly submit was an attempt by
the petitioner to swallow up the deceaseds estate.
SALE OF THE DECEASEDS PROPERTY
Your honour, the petitioner in his replying affidavit alluded to the fact that
the interested party asked to have her share of the deceaseds estate
registered in the petitioners names. We humbly submit that the foregoing
is a naked lie only calculated at hoodwinking this Honourable court into
relaxing its guards and approve of the petitioners fraudulent dealings as
seen earlier on in our submissions.
Your honour, the petitioner sold the deceaseds property i.e 1 acre out of
KIIRUA/ RUIRI/ 3198 and forged an acknowledgement receipt dated
24/6/ 2010 indicating that the petitioner was selling the same as the
interested partys trustee, and that the interested party had received a
deposit of Kshs 340,000/-. Your honour, the interested party never
received any such money as she does not even know the purchaser in the
transaction.
Your honour, at the time of the aforementioned transaction, the interested
party had just lost her daughter to death and suffered from trauma related
illnesses. The petitioner approached her and asked her to open a bank
account where he would deposit some money to take care of her medical
bills. Like any other needy person would, she accepted and the petitioner
deposited some Kshs 100,000/-. Little did the interested party know that
the petitioner was laying a trap for her so that it would appear as if she had
consented to or had taken part in the said transaction.
Your honour, in that regard, we humbly submit that looking at the
discrepancies in the application for grant by the petitioner and
confirmation thereof, it is only clear beyond peradventure that the

petitioner depicts a fraudulent, cunning and obnoctious character by his

misdeeds.
CONCLUSION
Your Honour, in light of the foregoing submissions and very persuasive
authorities, we humbly submit that the said grant of administration issued
to the petitioner and confirmed thereof be revoked for the process of
obtaining the same was defective in substance and was also attended by
fraud and misrepresentation. Your Honour in IN THE MATTER OF
THE ESTATE OF MUIRURI MUCHORO {deceased} {2014} e
KLR it was stated thus,
Section 76 of the Law of Succession Act allows the revocation of a
grant where the process of obtaining the same was defective or
attended by fraud and misrepresentation. The failure to comply with
mandatory provisions of the law makes a process defective, while the
non-disclosure or concealment of as many as eighteen(18) persons
distorts the picture presented to the court and amounts to
misrepresentations
Your Honur, we humbly pray that as a consequence of the said revocation,
this Honourable Court orders:a. THAT all Titles issued arising out of the confirmed grant issued
on 16th June, 2008 be cancelled and the same revert back into the
name
of
SOLOMON
MITUMBIRI
MMUNYUA
alias
MITUMBIRI MMUNYUA (deceased) as, out of nothing, comes
nothing (ex nuhilo nilil fit).
b. That the petitioner to render a full and accurate inventory of the
assets and liabilities of the deceased and an accurate account of all
dealings therewith up to date and most especially the dealings in
Plot No. 3B KINORU .
c. That this honourable Court be pleased to appoint the interested
party in this matter and her sister JANEROSE KARWITHA as
joint administrators of the estate of the deceased.
Your Honour, we have attached the following very persuasive authorities
for your perusal and consideration.

1. ELIZABETH WANJIRU KAMAU V LUCY WANJIKU [2015] EKLR

2. RACHAEL WANJIRU KARANJA V NANCY WAMBUI KAMAU
[2015] eKLR
3. IN THE MATTER OF THE ESTATE MMUKETHA MTWAMWARI
[2013] eKLR
4. ANTONY KARUKENYA NJERU VS THOMAS M. NJERU [2014]
eKLR
5. IN RE ESTATE OF ONYANGO OGUTU- (deceased) {2004} e KLR
6. IN THE MATTER OF THE ESTATE OF MUIRURI MUCHORO
{deceased} {2014} e KLR
DATED AT MERU THIS.DAY OF .2015

MAITAI RIMITA & CO.

ADVOCATES FOR THE APPLICANT
DRAWN & FILED BY:
MAITAI RIMITA & CO.
ADVOCATES
STANDARD BANK BUILDING,
MOI AVENUE
P. O. BOX 3151 -60200
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TO BE SERVED UPON:
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