In re Estate of Michael Kahihu Thiongo (Deceased) (Succession Cause 1212 of 2008) [2025] KEHC 17993 (KLR) (Family) (4 December 2025) (Ruling)
Neutral citation:
[2025] KEHC 17993 (KLR)
Republic of Kenya
Succession Cause 1212 of 2008
PM Nyaundi, J
December 4, 2025
IN THE MATTER OF THE ESTATE OF MICHAEL KAHIHU THIONGO (DECEASED)
Ruling
Introduction
1.The ruling herein relates to Amended Summons for Confirmation dated 8th October 2025. The Application is presented under Sections 3A of the Civil Procedure Act, Order 40 Rule 1, 2 and Order 45 of the Civil Procedure rules, Section 76 of the Law of Succession Act, Rule 44(1), Section 45 of the Law of Succession Act, Rules 49 of the Probate and Administration Rules.
2.The Application is presented by Jane Kathumbi Muthiora, Christine Irene Muthiora Njoroge and Stella Wairimu Mburu, the three of them are daughters-in-law to the Deceased herein. The current administrator is their mother-in-law.
3.The Application seeks the following orders-i.Spentii.Spentiii.That the grant of Letters of administration intestate issued to Elizabeth Wairimu Kahihu the Petitioner on the 18th September 2008 and confirmed on the 28th July 2010 and rectified on the 14th of March 2012 be nullified and / or revoked.iv.That the grant of Letters of Administration intestate issued to Elizabeth Wairimu Kahihu the Petitioner on the 18th of September 2008 and confirmed on the 28th of July 2010 and rectified on the 14th of March 2012 be reviewed and / or varied to include a co- administrator(s) in the place of Clement Muthiora (now deceased).v.That the said Elizabeth Wairimu Kahihu be called to account for all sums collected from the residential property known as Plot No. Dagoretti/ Riruta 867/1287 and Plot No. Dagoretti/ Riruta/ 771 Nairobi belonging to the Estate of the deceased.vi.That the Court be pleased to grant any other orders that are deemed just and expedient that will meet the ends of justice including the punishment of Elizabeth Wairimu Kahihuvii.That costs of this application be provided for
4.The application is supported by joint affidavit sworn by the applicants on 6th October 2025. They aver that they are the daughters-in-law of the deceased and widows to deceased sons of the Estate. Initially grant was issued on 18th September 2008 jointly to Elizabeth Wairimu Kahihu (the respondent/ administrator) and Clement Muthiora (now deceased). The grant was subsequently confirmed on 28th July 2010 and rectified on 14th of March 2012. Consequent to the rectification on 14th March 2012, the respondent was appointed as the sole administrator of the Estate.
5.The Beneficiaries of the Estate of the deceased are enumerated at paragraph 7 of the supporting affidavit as –i.Elizabeth Wairimu Kahihu (Widow)ii.Clement Muthiora – Son of the deceased (now deceased)
- Jane Kathumbi Muthiora (widow)
- Elizabeth Wairimu Muthiora (Daughter)
- Debra Wanjiku Muthiora (Daughter)
- Martin Kahihu Muthiora (Son)
- Natasha Wahu Muthiora (Daughter)
- Christine Irene Muthoni Njoroge- Widow
- Stella Wairimu Mburu-Widow
- Michael Kahihu Kuria- Son
- Elizabeth Wangui- Daughter
- Gabriel Mburu- Son
6.The charges against the administrator are that-i.Following the death of Clement Muthiora she fraudulently rectified the grant to have herself as the sole administratorii.The rectification was effected absent the participation of the other beneficiariesiii.The administrator/ respondent has disinherited the other beneficiaries of the Estate by fraudulently transferring to herself the properties belonging to the estate and listed under paragraph 9 of the supporting affidavit as-
- Title Number Dagoretti/ Riruta/ 771
- Title Number Dagoretti/ Riruta/ 3243
- Title Number Mavoko Town Block 2/1281
- Title Number Dagoretti/ Riruta/ 867/1287
- Undivided Shares of Plot in Kitengela
- Undivided Shares of Plot in Ol Kalau Nyahururu
- Barclays Bank Shares
- Barclays Bank Account No. 8186350
7.The application is supported by Martin Kahihu Muthiora, a beneficiary. He is a son of Clement Muthiora (deceased) who is a son of the Deceased herein. His mother is the 1st applicant herein, he states that at the time of the death of the deceased he was a minor, that he is now of age and should therefore have his rightful share transmitted to him. He objects to the administrator lease of the property to a third party as he avers that this has occasioned the demolition of his home.
8.The respondent opposes the application and has sworn affidavit on 21st July 2025. She avers that the issue of rectification of grant to have her as sole administrator was resolved by a previous decision of the Court. That the Estate of Clement Muthiora is represented by Martin Kahihu Muthiora as reflected in the certificate of confirmation of Grant.
9.She states that the 2nd Applicant was married to her son Joseph Njoroge (now deceased) but they did not have children. She insinuates that having gone back to her parent’s home she is not a beneficiary of the estate on that score.
10.She denies that she has transferred the properties to her name as alleged and avers that she continues to hold the same in trust for the beneficiaries of the Estate. Regarding the move to lease out Dagoretti/ Riruta/771 she says this was with the consent of the 1st and 3rd applicant, the beneficiary Martin Kahihu Muthiora and her children. Further she contends that she has a life interest over Dagoretti/ Riruta/3243 on which she resides and has residential units for her upkeep.
11.The application was canvassed via written submissions. The Applicant’s submissions are dated 24th October 2025. Those of the beneficiary Martin Kahihu are dated 26th November 2025. The respondent’s submissions are dated 31st October 2025.
Summary of the Applicants’ Submissions
12.The Applicant’s submissions are to a large extent a restatement of their affidavit and therefore I will not reproduce them here. The following authorities are cited in relation of the limitation imposed on the administrator as the holder of a life interest in the estate of the deceased.; In the Matter of the Estate of Gathima Chege (Deceased) Nairobi HCSC No.1955 of 1996 ( unreported); In the Matter of the Estate of Basen Chepkwony HCSC No. 842 of 1991 (unreported) and In re Estate of Rosemary Mukwanjeru Kuria (Deceased) [2018] KEHC 5650 (KLR).
13.It is submitted further that there ought to be more than one administrator as there is a continuing trust and that the grant should be revoked as the administrator has failed to transmit the estate as required under law. The Submissions of Martin Kahihu are in support of the application.
Summary of the Respondent’s Submissions
14.She frames the following as the issues for determinationi.Whether the Objectors have satisfied the threshold for an Objector under the law.ii.Whether the Objectors consents to the leasing of the property can be waivediii.Whether the Petitioner is entitled to deliver account of sums from the said property to the alleged objectorsiv.Whether the Objectors have satisfied the grounds for revocation of the Grantv.Life interest of the Petitioner.vi.Costs
15.On the 1st issue it is submitted that the procedure for lodging objections is that set out under Sections 68 and 69 of the Law of Succession Act. The Applicant’s having given their consent to the lease agreement are estopped from now objecting to the same. Further it is submitted that as daughters-in-law, they lack the requisite locus standi to stake a claim in their father- in- law’s estate reference is made to the decision in Re Estate of Ezekiel Kiprop Birech (Deceased) (Succession Cause 35 of 2018) [2025] KEHC 12821 and Re Estate of Catherine Nduku Malinda (Deceased) [2020] eKLR
16.On the 2nd issue, it is submitted that no basis has been laid for the court to vitiate the consent executed by the 1st and 3rd Applicants to the contract of lease and reference made to the locus classicus case of Flora N. Wasike v Destimo Wamboko [1988] eKLR and also by Muchelule J in a ruling dated 28th October 2022 in relation to application presented by the Beneficiary herein.
17.On the 3rd issue, whether the administrator should give an account of her dealings to the estate, the applicant submits that this is an obligation that lies to only bona fide beneficiaries and the applicants are not.
18.The 4th issue, is whether or not the grant should be revoked. It is submitted while relying on the decision in Doshi v Chemutut & 7 Others (Civil Appeal E020 of 2023) [2025] KECA 776 (KLR) (9 May 2025) (Judgment) that the applicants having failed to prove fraud, the prayer for revocation must fail.
19.On the penultimate issue, it is submitted that the administrator being the surviving spouse has a life interest over the properties of the estate which will terminate on her death or remarriage. Reference is made to the decisions in Re Estate of John Musambayi Katumanga (Deceased) [2014] eKLR and Tau Katungi v Margrethe Thorning Katungi & Another [2014] eKLR where the Court opined that in ideal cases the estate should not be distributed in the life time of the surviving spouse who enjoys a life interest.
20.On the final issue, it is submitted that the applicants should bear the costs of the application and relies on the test set out by Mativo J (as he then was) in Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another [2016] eKLR.
Analysis and Determination
21.Before I proceed with framing the issues for determination, I will pronounce on two preliminary issues-
22.The 1st is how the applicants have styled themselves. They refer to themselves as Objectors. Proceedings under the law of Succession Act are sui generis and therefore the terms used therein may not have similar import as in other circumstances. Under the Law of Succession, the term ‘Objector’ refers to an individual who wishes to prevent the issuance of a grant to a Petitioner. Under Sections 68 and 69 of the Law of the Succession Act, this application has to be presented prior to the issuance of the grant. The current proceedings are not objection proceedings as envisaged under the Law of Succession Act. There are multiple prayers, revocation of grant; rectification of grant to include all beneficiaries and request for accounts. The correct reference of the parties, in light of the application they are making is therefore applicants.
23.In the same vein, the grant herein having issued, the correct reference to the respondent herein is not Petitioner but administrator or respondent.
24.The 2nd issue, is the attempt by the applicants to introduce evidence at the time of submissions. The Applicants have attached to their submissions, Grant of letters of administration with respect to the Estates of Joseph Rahael Njoroge and Peter Kuria Kahihu (both deceased). Submissions are not pleadings, see Abdul v Mokua [2025] KEHC 4105 (KLR) and therefore a party cannot introduce evidence along with submissions. I am left with no option but to strike out those two documents from the Court record.
25.Having regard to the pleadings on record, submissions filed and the relevant law, I deem the following to be the issues for determinationi.Whether the Court should revoke the grant herein?ii.Whether the respondent is guilty of intermeddling with the deceased’s estate?iii.Whether there is a continuing trust in the Estate?iv.What if any are the consequential orders that ought to be made?v.Who should pay costs?
Whether the Court should revoke the grant herein?
26.It is submitted that the grant herein should be revoked on the basis that it was obtained by fraud. The Black’s Law Dictionary defines fraud as-
27.To sustain this charge, the applicants had to set out the acts that they consider fraudulent with sufficient specificity. What I can garner from the pleadings is that they are of the view that the list of beneficiaries of the deceased is that set out in paragraph 7 of the affidavit in support of the application. This list they say has the sanction of the area chief in letter dated 2nd May 2007. I have looked at the said letter and the beneficiaries of the deceased are listed as-i.Elizabeth Wairimu Kahihu Wife of the Deceasedii.Clement Muthiora Soniii.Joseph Njoroge Soniv.George Ndingu Sonv.Zachariah Ngugi Sonvi.Ann Wahu Daughtervii.Peter Kuria Sonviii.James Karanja Son
28.The Certificate of Confirmation of Grant issued on 28th July 2010, listed the following as the beneficiaries, Elizabeth Wairimu Kahihu, Clement Muthiora, George Ndungu, Zachariah Ngugi, Ann Wahu, Peter Kuria, James Karanja, Joseph Njoroge.
29.Following the death of Clement Muthiora and Joseph Njoroge the grant was rectified and a fresh grant issued to Elizabeth Wairimu Kahihu as sole administrator, with the following as beneficiaries; George Ndungu, Zachariah Ngugi, Ann Wahu, Peter Kuria, James Karanja, Martin Kahihu Muthiora (Son of Clement Muthiora).
30.The grant was rectified with the consent of George Ndungu, Zachariah Ngugi, Ann Wahu, Peter Kuria, James Karanja and Martin Kahihu Muthiora. There is a consent on record dated 27th February 2012.
31.Section 29 of the Law of Succession Act, recognises the following as dependants or beneficiaries of a deceased person-
32.The letter of the Chief and not paragraph 7 of the supporting affidavit is in tandem with Section 29 in so far as who the rightful beneficiaries of the Estate are. In this case it is the children of the deceased who are the beneficiaries of the Estate. In the case of those who have died it is their Estates as represented by their personal representatives.
33.The applicants presented this application in their names and not as representatives of the estates of their respective husbands. The position of daughters-in-law in estates of their deceased parents in law was well articulated in the case of In Re Estate of Catherine Nduku Malinda (Deceased) (2020) eKLR where the Court stated as follows:(176)In my view a daughter in law may lay a claim as a beneficiary not in her own right but as a legal representative of a deceased son. In other words, the legal representatives of a deceased’s dependants may properly stake a claim to the estate of a deceased person on behalf of legally recognized dependants. However, that is not the Protestor’s claim in these proceedings.
34.Further in Re Estate of Munyua Mbeke (Deceased) [2015] eKLR, Hon. W. Musyoka J, held that:(30)The clear wording of section 29 of the act does not include daughters-in -law of the deceased. Daughters-in-law are not children of the deceased and therefore they do not fall within the category of the children of the deceased. They therefore cannot mount an application under section 26 of the Act as the applicant has done in this case.
35.W. Musyoka J, again, in the case of In Re Estate of Cecilia Wanjiru Kibicho (Deceased) (2016) eKLR, pronounced himself as follows:
36.Having regard to the circumstances of this case, it is clear that the parties were mistaken on who the beneficiaries of the Estate were. The administrator for instance arrived at a wrong conclusion that Martin Kahihu Muthiora could stand in the place of his father, as sole beneficiary of his father’s share given that his father had other children. The administrator also erred in holding that the share owing to her son Joseph reverted to her after his death as he was survived by a spouse.
37.Under Section 36 of the Law of Succession Act as a spouse of the deceased son, since she had no children she is entitled to a life interest in his share of the estate and then on termination of her life interest the estate will devolve in the order set out under Section 39 of the Act.
38.In light of Section 29, the rightful beneficiaries of the estate are therefore-i.Elizabeth Wairimu Kahihu Wife of the Deceasedii.Estate of Clement Muthiora (deceased)iii.Estate of Joseph Njoroge (deceased)iv.Estate of George Ndungu (Deceased)v.Estate of Zachariah Ngugi (deceased)vi.Ann Wahu daughtervii.Estate of Peter Kuria(deceased)viii.James Karanja Son
38.In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR), Mwita J. made pertinent remarks on principles for the revocation of a grant as follows:
39.As observed, it is evident that the actions of the administrator were not actuated by malice or an intention to deprive rightful beneficiaries of the estate of the deceased. Her omission can be addressed by amending the certificate of Grant in terms of paragraph 37 above and correctly setting out the beneficiaries of the Estate.
40.The applicants also allege that the administrator has acted fraudulently by transferring land into her sole name. This is not supported by the documentation that has been presented by the applicants. With respect to all the 3 parcels of land with title, the proprietorship section clearly indicates that the Administrator, holds the property in trust of the children, who are all named except for Joseph and Martin Kahihu is included as representative of Clement Muthiora.
41.For the reasons cited above, I decline to revoke the grant.
Whether the respondent is guilty of intermeddling with the deceased’s estate?
42.This charge stems from what the applicants deem to be the respondent’s interest in the estate and in particular her dealing with DAGORETTI/ RIRUTA/771 where she has entered into a heads of terms agreement with Alaya Consultants Limited. The Description of the Lessor reveals that she is well aware that she is holding the property in trust. Section 45 of the Law of Succession Act prohibits intermeddling with the estate of a deceased. It does not however define intermeddling.
43.In Veronica Njoki Wakagoto (Deceased) (2013) eKLR the Court observed thus:
44.In Re Estate of M`Ngarithi M`Miriti (2017) eKLR the term “intermeddling” was elucidated to mean:
45.It is not in dispute that as surviving spouse of the deceased, the administrator has a life interest in the estate and as set out in the certificate of confirmed grant she holds the assets in trust for the children of the deceased. Has she overstepped her mandate? 46. The scenario playing out in the instant case is that the daughters in law and grandchild of the deceased want their share of the estate during the life time of the administrator who holds a life interest. They do not think that as the holder of a life interest she can enter into an agreement to lease the land.
47.The 3rd applicant and Martin Kahihu, the beneficiary, do not deny signing the consent to the leasing agreement. They contend they were duped, that it was a lease but that it is a sale. They have not received their share of the deposit paid under the agreement.
48.The facts in this case are similar to those in Tau Katungi v Margrethe Thorning Katungi & another [2014] KEHC 3226 (KLR) in which the Court elucidated the rights and hence protection of a surviving spouse who holds a life interest against children who are motivated by the spirit of the Son captured in biblical records at Luke Chapter 15 and beginning with verse 11. In that case the Court stated as follows-(16)“Life interest” is not defined in the Law of Succession Act. Black’s Law Dictionary, ninth edition, West, 2009, defines it as “an interest in real or personal property measured by the duration of the holder’s or another person’s life.” In the context of Section 35 it is an interest held by the surviving spouse during their life “in the whole of the residue of the net interest estate.” Its effect is that the surviving spouse first enjoys rights over the property and at his or her death the property passes to other persons. In the context of Section 35, the widow is entitled to enjoy rights over the residue of the net intestate estate, that is after taking away the chattels and settlement of liabilities, during her life time with the property passing to the children upon her demise or remarriage of she be a widow.(17)The effect of Section 35(1) is that the children of the deceased are not entitled to access the net intestate estate so long as there is a surviving spouse. The children’s right to the property crystallises upon the determination of the life interest following the death of the life interest holder or her remarriage. Prior to that, the widow would be entitled to exclusive right over the net estate. This means that if the net estate is generating income she would be the person entitled exclusively to the income so generated.
49.I agree with the reasoning of Hon. Musyoka J. where there is a life interest as in the instant case, the interest of the children of the deceased does not crystallise until it is terminated either by death or by marriage or if the surviving spouse exercises their power of appointment under Section 35 (2). The limitation to the surviving spouse is she cannot sell any property without the consent of the beneficiaries or the Court.
50.The necessary implication is that she can lease as the spouse in this case has done and the income derived is for her sole benefit. She is therefore under no obligation to account for the rental income as demanded with respect to Title Number Dagoretti/ Riruta/ 3243 (on which she resides and where she is collecting rental income for her sustenance) or any other of the properties.
51.She has magnanimously involved the applicants, a grandson and her other children in the transaction involving the lease of Dagoretti/ Riruta/771. Their response has been to go rabid on her demanding the sun, the stars, the moon and the universe. Left to their own devices they would cut her off and proceed to reap from what undoubtedly is the fruit of the labour of the deceased and the administrator. Section 35 of the Law of Succession Act will come to her aid to ward them off, at least during her life time.
52.I therefore find that the administrator is not guilty of intermeddling as alleged, she is within her rights as a surviving spouse to seek to increase the value of the estate and in turn enhance her earnings.
Whether there is a continuing trust in the Estate?
53.Section 84 of the Law of Succession Act, recognises two instances when a continuing trust will be operable these are, by way of life interest or where there are minor beneficiaries. Section 58 of the Act, prohibits the appointment of a single administrator where there is a continuing trust. Section 81 requires that upon the death of a joint administrator where there is a continuing trust the Court will appoint an additional administrator (s).
54.Section 66 of the Act provides the Court with a hierarchy of persons who may be appointed as administrators of the deceased’s estate, with the spouse ranking in priority and after that the children. For this reason, the applicant will make the necessary application for appointment of a co administrator, with priority given to her children. Daughters-in-law, even when they are administrators of the estates of deceased children are not on that list.
What if any are the consequential orders that ought to be made?
55.In light of the foregoing the following orders will issue-a)The Administrator will within 30 days present a summons of amendment and rectification of grant pursuant to Sections 58, 66 and 81 of the Law of Succession Act for appointment of a co administrator.b)The application under (a) above to rectify the grant to include beneficiaries of the Estate asi.Elizabeth Wairimu Kahihu - widowii.Estate of Clement Muthiora (deceased)iii.Estate of Joseph Njoroge (deceased)iv.Estate of George Ndungu (deceased)v.Estate of Zachariah Ngugi (deceased)vi.Ann Wahu daughtervii.Estate of Peter Kuria(deceased)viii.James Karanja Sonc)The orders of status quo are lifted.d)Mention on 24th February 2026 to confirm compliance and take further directions.e)This being a family matter, each party will bear their own costs
56.Leave granted to appeal, the party exercising their right of appeal to do so within 30 days.It is so ordered.
DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 4TH DAY OF DECEMBER 2025.P.M NYAUNDIJUDGEIn the presence of:Fardosa Court AssistantAencha for ApplicantsMs. Atsanga holding brief for Washuka for RespondentMrs. Gulenywa for Beneficiary Martin MuthioraSUCCESSION CAUSE NO. 1212 OF 2008 Page 10