REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT OF KENYA AT NAKURU

SUCCESSION CAUSE NUMBER 380 OF 2019
IN THE MATTER OF THE ESTATE OF STEPHEN KAMAU MACHARIA
(DECEASED)

JOSEPH GITHINJI KAMAU……………………………...………………….1ST APPLICANT

MOSES MACHARIA KAMAU…………………………..…………………2ND APPLICANT
VERSUS
WANJIRU KAMAU MACAHRIA……...…………………. PETITIONER/RESPONDENT

CERTIFICATE OF URGENCY
(Practice Note of 31st May, 1984)

I, DENNING MURIITHI NDEKE of P.O BOX 611- 20100, NAKURU in the

Republic of Kenya being an advocate of the High Court of Kenya do certify
that the instant application is of utmost urgency requiring to be placed
before the Honourable magistrate on priority basis on the grounds that there
is serious maladministration of assets of the deceased’s estate by the
administrator/petitioner herein and if the said actions are allowed to stand
the deceased’s estate shall be totally wasted at the prejudice of the
beneficiaries. Moreover, the letters of administration issued to the
petitioner/respondent herein were obtained fraudulently and through
concealment of material facts

DATED at NAKURU this…11th ….. day of…………October……...

…………………....2024

………………………………………..
SHETH & WATHIGO
ADVOCATES FOR THE APPLICANTS
{P. NO. LSK/2023/00190 & LSK/2023/00195}
{ADMN. NO. P. 105/2513/93 & P. 105/3602/98}

DRAWN AND FILED BY:

SHETH & WATHIGO
ADVOCATES,
D & D HOUSE, 7TH FLOOR,
WEST ROAD, OGINGA ODINGA AVENUE,
P.O BOX 611-20100,
NAKURU. (OUR REF: 46900)
Emailinfo@shethandwathigoadvocates.co.ke&conveyance.sheth@g
mail.com
Office Phone: 0710273232

nakuru cmcc succ number 380 of 2019 1

 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT OF KENYA AT NAKURU
SUCCESSION CAUSE NUMBER 380 OF 2019
IN THE MATTER OF THE ESTATE OF STEPHEN KAMAU MACHARIA
(DECEASED)

JOSEPH GITHINJI KAMAU……………………………...………………….1ST APPLICANT

MOSES MACHARIA KAMAU…………………………..…………………2ND APPLICANT
VERSUS
WANJIRU KAMAU MACAHRIA……...…………………. PETITIONER/RESPONDENT

SUMMONS FOR REVOCATION/ANNULMENT OF GRANT

(Pursuant to Section 47, 83 (g) & 76 (ii) of the Law of Succession Act
Cap 160 & Rule 73 & 25 (5) of the Probate and Administration Rules
and all enabling provisions of the law)
LET ALL PARTIES CONCERNED attend the Honourable Court on the……..
……….. Day of ……………………… 2020 at 9.00 o’clock in the forenoon or so
soon thereafter for the hearing of an application on the part of the Applicant
for ORDERS:-

1. THAT the application herein be certified as urgent, service thereof be

dispensed with in the first instance and it be heard ex-parte on account
of its urgency.

2. THAT pending the hearing and determination of the instant application

inter-partes, the petitioner/respondent, her servants, agents and
employees be restrained from selling alienating or in any manner
dealing with estate of the deceased herein.

3. THAT the petitioner/respondent be summoned before this honourable

court to produce a full and accurate account of administration of the
deceased’s estate to date.

4. THAT the Certificate of Confirmation of Grant dated 18th day of

February, 2019 issued to the petitioner herein be revoked/annuled and
re-issued to the applicant herein.

5. THAT in the alternative the Certificate of Confirmation of grant dated

the 18th day of February 2019 be rectified to include the name of Paul

nakuru cmcc succ number 380 of 2019 2

 Muigai Muhia as a co-administrator to the estate of the Deceased
herein

6. THAT the costs of this application be in the cause.

WHICH APPLICATION is predicated on the following grounds;

a) THAT a rectified certificate of Confirmation of Grant issued to the

petitioner herein was made on 18th day of February 2019.

b) THAT since issuance of the said grant, the petitioner herein, without
consent or authority of the other beneficiaries, moved to sell and
distribute the deceased estate’s assets to other unknown third parties
consequently totally disinheriting the entitled beneficiaries.

c) THAT as a result, the beneficiaries of the deceased’s estate are totally

dissatisfied by the manner in which the estate is being administered
taking cognizance of the fact that the subject administrator had
previously attempted to disinherit the same beneficiaries by previously
obtaining letter of administration herein fraudulently by actively
concealing material facts from the court.

d) THAT it is in light of the aforesaid that it is verily believed that it would

be in the wider interest of justice and the administration of the
deceased’s estate that the petitioner/respondent herein be first
summoned to court to give a full and accurate account of the
administration of the deceased’s estate.

e) THAT from the foregoing, the beneficiaries of the deceased’s estate

would wish to either have the confirmed grant revoked/annulled and
reissued to one Paul Muigai Muhia or in the alternative have the name
of Paul Muigai Muihia be included as co-administrators of the
deceased’s estate to enable just expeditious administration of the
estate.

f) THAT it would be in the further interest of justice and fair

administration of the deceased’s estate if the orders prayed for herein
are allowed.

AND UPON the grounds in the annexed affidavit of PAUL MUIGAI MUHIA
filed herewith and upon further and/or other grounds to be adduced at the
hearing hereof

DATED at NAKURU this…11th ….. day of…………October……...

…………………....2024

nakuru cmcc succ number 380 of 2019 3

 ………………………………………..
SHETH & WATHIGO
ADVOCATES FOR THE APPLICANTS
{P. NO. LSK/2023/00190 & LSK/2023/00195}
{ADMN. NO. P. 105/2513/93 & P. 105/3602/98}

DRAWN AND FILED BY:

SHETH & WATHIGO
ADVOCATES,
D & D HOUSE, 7TH FLOOR,
WEST ROAD, OGINGA ODINGA AVENUE,
P.O BOX 611-20100,
NAKURU. (OUR REF: 46900)
Emailinfo@shethandwathigoadvocates.co.ke&conveyance.sheth@g
mail.com
Office Phone: 0710273232
P. NO. LSK/2023/00190 & LSK/2023/00195
ADMN. NO. P. 105/2513/93 & P. 105/3602/98

TO BE SERVED UPON:
MIRUGI KARIUKI & CO.
ADVOCATES
INDER SINGH BUILDING, 2ND FLOOR
P.O. BOX 1689-20100
NAKURU

NOTE:

“If any party served does not appear at the time and place above-mentioned
such order will be made and proceedings taken as the court may think just
and expedient.”

nakuru cmcc succ number 380 of 2019 4

 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT OF KENYA AT NAKURU
SUCCESSION CAUSE NUMBER 380 OF 2019
IN THE MATTER OF THE ESTATE OF STEPHEN KAMAU MACHARIA
(DECEASED)

JOSEPH GITHINJI KAMAU……………………………...………………….1ST APPLICANT

MOSES MACHARIA KAMAU…………………………..…………………2ND APPLICANT
VERSUS
WANJIRU KAMAU MACAHRIA……...…………………. PETITIONER/RESPONDENT

AFFIDAVIT IN PROTEST

I, JOSEPH GITHINJI KAMAU of Post Office Box 785 Naivasha in the Republic
of Kenya do hereby make oath and deponed as follows: -

1. THAT I am the 1st protestor/Applicant herein, a male of sound mind,

residing and working for gain in Nakuru. I Have the authority of co-
applicant to swear this affidavit on his behalf therefore I am competent
to swear this affidavit on my behalf and his.

2. THAT the deceased was known to us by virtue of him being our father
and hence we are rightful beneficiaries to his estate. Moreover, it is
also not in dispute that the respondent herein is our mother and wife
to the deceased herein.

3. THAT I further confirm that other than ourselves as the applicant

herein the deceased herein was survived by the beneficiaries as listed
in paragraph 4 of the Affidavit in support of summons for confirmation
of grant. In addition to the aforesaid it is further indeed true that the
deceased herein passed away on the 20th day of January 2013

4. THAT following the untimely demise of the deceased herein the

applicants herein were unaware of any succession proceedings taken
out with respect to the deceased estate including the instant
proceedings. Moreover, the respondent herein did not notify the

nakuru cmcc succ number 380 of 2019 5

 applicants herein of her intention of instituting the instant succession
proceedings or taking out of letters of administration.

5. THAT It is only after the 29th day of March 2022, that it became
apparent to the applicants herein that the respondent herein had
instituted succession proceedings when they were approached by the
respondent to execute a consent seeking to sell parcel of land known
as Nairobi/ Block 62/539 for purposes of settling medical needs of the
said respondent. However even at this time the respondent did not
disclose the existence of the succession proceedings and the
applicants therefore executed the consent of sale of land purely on
humanitarian grounds in assistance of their ailing mother.

6. THAT subsequently we moved to establish if succession proceedings

was indeed established over the deceased estate and in the course of
our investigation it became apparent that:

a) THAT the respondent herein was issued with letters of

administration on the 12th day of November 2019 and gazzetted
on the 11th day of October 2019.

b) THAT the said letters of administration were obtained

fraudulently on the basis of application made by the respondent
vide application dated the 24th day of September 2019 as the
respondent herein did not notify us or any other family member
of the intent of taking out succession proceedings neither did the
family consent to her sole appointment as administrator of the
deceased estate.

c) THAT moreover, the consent annexed to the said application

also dated the 24th day of September 2019 is fraudulently
presented to court as having been executed by all beneficiaries
while in actual sense neither of the applicants herein executed
the same. It is therefore accurate to aver that the signatures
appearing against the names of the applicants herein are a
forgery.

d) THAT in addition to the aforesaid, the respondent herein has

deliberately excluded many other assets forming part of the
deceased estate in her application before court which included
but are not limited to the following properties: -

i. NAKURU/RARE/GICHOBO/916
ii. NAKURU/RARE/GICHOBO/480
iii. NAKURU/RARE/GICHOBO/894

nakuru cmcc succ number 380 of 2019 6

 iv. KIHONGO/LIKAI BLOCK 2 (MUTUKANIO)/ 678
v. MITI MINGI MBARUK BLOCK 1 (NDEGE) 660
vi. NAKURU MUNICIPALITY BLOCK 23/771 (RENTAL INCOME)
vii. NAIROBI/BLOCK 62/539
viii. KENGEN SHARES
ix. BARCLAYS BANK ACCOUNT NUMBER
x. MOTOR VEHICLE REGISTRATION NUMBER KAH 607 S

7. THAT in addition to the aforesaid, I am advised by our advocates on

record that the duty of an administrator is to preserve the estate of the
deceased until distribution of assets to the rightful beneficiaries is
undertaken. However, the respondent herein has abdicated such
duties in failing to include the aforesaid assets for distribution before
court and instead has authorized and or allowed that some of the
aforesaid assets be disposed off to 3 rd parties thereby disinheriting the
rightful beneficiaries to the deceased estate.

8. THAT in addition to the aforesaid, the respondent herein is collecting

rent gained from rentals situated on the parcel of land known as
NAKURU MUNICIPALITY BLOCK 23/771 for own gain without the
consent of all beneficiaries. It is our advocates advise, which we
believe to be sound that the aforesaid actions by the respondent, her
agents, servants or person claiming under her, amount to
intermeddling, a criminal offence.

9. THAT it is clear that the respondents herein have come to this

honourable court with unclean hands by dint of material non-
disclosure. Moreover, it is evident that the respondent is unable to
legally administer the deceased estate and as such her
maladministration is prejudicial to the deceased estate and to the
rightful beneficiaries of the deceased estate.

10. THAT from the aforesaid and upon advice of our advocates on
record, I verily believe that there is sufficient grounds to have the
letters of administration revoked and the process be undertaken
afresh.

11. THAT I further verily believe that it is paramount that this

honourable court does order the respondent herein to provide a
statement of accounts of the administration of the deceased estate
from the date of issuance of letters of administration to date including
the issue of rental income thus far collected.

12. THAT in addition to the aforesaid, it is curious that despite

issuance of letters of administration way back in 2022, more than 1

nakuru cmcc succ number 380 of 2019 7

 year has passed and the respondent has not made any application for
full confirmation of grant but rather is only interested in seeking partial
grants which is against the intent or import of succession proceedings

13. THAT in the interest of justice the Court should stay and/or
revoke any issuance of grant to the respondents herein until the issue
of liability by the estate is dealt with.

14. THAT parties herein have attempted to settle issues between

themselves amicably and through court annexed mediation process
but the same was frustrated as the respondent herein failed to attend
or participate in the said process

15. THAT I depone to this affidavit in support of my application and

prayers sought herein.

16. THAT what is deponed to hereinabove is true to the best of my

knowledge, information and belief.

SWORN by the said )

JOSEPH GITHINJI KAMAU ) _________________
)
at NAKURU this ……….day of ………2024 )
)
)
BEFORE ME; - )
)
)
)
COMMISSIONER FOR OATHS )
)
)

DRAWN AND FILED BY:

SHETH & WATHIGO
ADVOCATES,
D & D HOUSE, 7TH FLOOR,
WEST ROAD, OGINGA ODINGA AVENUE,
P.O BOX 611-20100,
NAKURU. (OUR REF: 46900)
Emailinfo@shethandwathigoadvocates.co.ke&conveyance.sheth@g
mail.com
Office Phone: 0710273232
P. NO. LSK/2023/00190 & LSK/2023/00195

nakuru cmcc succ number 380 of 2019 8

ADMN. NO. P. 105/2513/93 & P. 105/3602/98

TO BE SERVED UPON:
MIRUGI KARIUKI & CO.
ADVOCATES
INDER SINGH BUILDING, 2ND FLOOR
P.O. BOX 1689-20100
NAKURU

nakuru cmcc succ number 380 of 2019 9