In the Estate of Genson Mugo Kamitha (Deceased) — Summons for Revocation of Rectified Grant

19/Rwathia/T.15 and land parcel Loc. 19/Rwathia/1065 distributed among the deceased’s beneficiaries. 2. Later on, summons dated 27th April 2017 were filed for inclusion of plots numbers LR. No. 209/2282 N27 FOLIO 11/31 ECA 8187, LR NO. 209/2788118 IR 21178 and LR 36/1/134 GLAN3 FOLIO 243/17. The application was brought by the surviving administrator, Solomon Kamitha, who asserted that he had recently found out that the deceased was a share-holder in the aforementioned properties together with other co-owners who had incorporated Kigongo Investments Company (herein “the Company”). He claimed that he intended to include the 3 properties to enable him execute documents to transfer the properties to the company’s name. That application to include the 3 properties and bequeath them to the Company was allowed by the court on 4th May 2017. 3. In the application presently before this court, the applicants, Samuel Mwangi Mugo, Paul Kabutu Mugo and Micheck Ithara Mugo aver that the rectification of the grant to include the 3 MCSUCC 19 OF 1987 IN THE ESTATE OF GENSON MUGO KAMITHA Page 2 of 17

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properties was fraudulent as it was obtained through untrue allegations of fact. The summons for revocation of grant dated 17th October 2022 is supported by an affidavit deposed by the applicants. 4. The application was canvassed by way of viva voce evidence. Samwel Mwangi Mugo (PW1) testified in support of the application. Solomon Kamitha Mugo, the administrator, testified as (RW1). The Company’s officials, Stephen Wanjii Mwangi (RW2), Samuel Gathogo Maina (RW3) and Ezra Macharia Gachuhi (RW3) also testified in the matter. Thereafter the parties filed their written submissions in support of their rival positions which this court has duly considered. THE EVIDENCE AND DEPOSITIONS APPLICANT’S CASE 5. According to the applicants, Samuel Mwangi Mugo, Paul Kabutu Mugo and Micheck Ithara Mugo, who are the deceased’s sons, the rectification of the grant on 4 th May 2017 had been obtained through fraud. MCSUCC 19 OF 1987 IN THE ESTATE OF GENSON MUGO KAMITHA Page 3 of 17

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6. The applicants claimed that they had learnt of the rectified grant during a mediation session initiated by officials of the Company with the family. They immediately demanded to know how the rectification had been procured without their participation as beneficiaries and to their dismay, they realized that the signatures of Dr. Joseph Warurua Mugo, Benjamin Muturi Waweru who died on 22nd May 2000 and Jemimah Karingi Mugu who died on 29th September 2022 had been forged in support of the application dated May 2017. Their brother Rowland Kamitha Mugo who resides in the United States had also purportedly signed the consent in support of the application. 7. They subsequently discovered that their brother Solomon Kamitha, who was the surviving administrator in the deceased’s estate, had been summoned by officials of the Company to the chambers of Mwangi Kamau Advocates and ordered to surrender the original grant. Shortly thereafter, he was ejected as an official of the Company. They asked their brother to lodge a complaint with the Directorate of Criminal Investigation which he did. That MCSUCC 19 OF 1987 IN THE ESTATE OF GENSON MUGO KAMITHA Page 4 of 17

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matter was pending investigations. The applicants averred that the 3 properties were owned by other proprietors besides the deceased, however, the rectified grant purported that the properties belonged to the estate of the deceased to the exclusion of the other joint tenants. 8. During the hearing of the matter, Samwel Mwangi referred the court to the impugned consent dated 5 th May 2017 and maintained that they had not signed the consent to the summons for rectification of grant. He also referred the court to title documents with respect to the 3 properties included in the deceased’s estate and maintained that the properties were not solely owned by the deceased. 9. When referred to a letter that was said to have been written by his brother Dr. Joseph Warurua Mugo to the area chief consenting to the transfer of Plot 5 Kihoya Shopping Center to the Company, PW1 stated that according to him, the property referred to in that letter belonged to the deceased’s widow and that in any case, such a letter ought to have come from the administrator. He also MCSUCC 19 OF 1987 IN THE ESTATE OF GENSON MUGO KAMITHA Page 5 of 17

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maintained that they were not involved when that letter was written. ADMINISTRATOR’S CASE 10. For his part, the administrator, Solomon Kamitha Mugo (RW2), similarly maintained that he learnt of the rectification of the grant in July 2021 during a mediation session. He told the court that he had not attended court for the rectification of the grant. His brothers were also not involved in the rectification of the grant. 11. During cross-examination, the administrator testified that he was called to the chambers of Mwangi Kamau advocate and asked by one Thomas Gitonga Mwangi, the child of Jesee Mwangi, to avail the certificate of grant issued in the deceased’s estate and asked to go home. He testified that he had not signed the affidavit in support of the summons for rectification of grant sworn in April 2017, nor had he gotten back the original certificate of grant. During cross examination, Solomon admitted that he was the secretary of the company in 2014. He informed the court that MCSUCC 19 OF 1987 IN THE ESTATE OF GENSON MUGO KAMITHA Page 6 of 17

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dividends were collected from Kihoya, Kiriti, Eastleigh and elsewhere and shared among the members. THE COMPANY’S CASE 12. The history of the matter was given by Ezra Machari Gachuhi (RW3) a director of the Company. He informed the court that the deceased had collected money from other members of the Company, purchased properties and had them registered in his name on behalf of other members of the Company as a trustee. He claimed that all other properties had been registered in the Company’s name save for the properties located in Nairobi. Regarding the drafting of the impugned summons for rectification of grant, Ezra testified that Solomon was involved in the process as the Company’s secretary and as the administrator of the deceased’s estate. He however admitted that the applicants and other beneficiaries of the deceased’s estate were not present when the summons for rectification of grant was signed. He told the court that the Company had resolved in its AGMs that all properties held in trust for the Company be transferred to the MCSUCC 19 OF 1987 IN THE ESTATE OF GENSON MUGO KAMITHA Page 7 of 17

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Company’s name and most properties had been transferred accordingly. He however conceded that it would be improper to rely on documents that had been signed by persons who were deceased. 13. Stephen Wanjii Mwangi (RW2) one of the company’s directors, also testified that the Company was the owner of the 3 subject properties. He claimed that the representatives of the co-owners of the 3 properties, including his family, had all transferred their shares to the Company. During cross examination, Wanjii testified that Dr. Warurua Mugo had transferred property to the Company but he could not explain the basis of his authority to do so. He also admitted that none of the 3 subject properties was registered in the Company’s name. Wanjii added that as the chairman of the Company, the deceased held the properties in trust for the members of the Company. 14. Samuel Gathogo Maina (RW3) an official of the Company told the court that the registered proprietors of the 3 subject properties were all deceased and that their families had transferred their MCSUCC 19 OF 1987 IN THE ESTATE OF GENSON MUGO KAMITHA Page 8 of 17

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shares of the properties to the Company. He admitted that he together with other officials of the Company and Solomon Kamitha were present when the summons for rectification of grant were drawn. However, the other beneficiaries including Samwel Mwangi, Paul Kabutu, Meschak Mugo and Ronald Kamitha were not present. ISSUES, ANALYSIS AND DETERMINATION 15. The present application was heard at length. During the trial, the court heard from the applicants, the administrators and officials of the Company. The officials of the Company were particularly keen to explain the industrious efforts of its founding members, who had worked tirelessly to contribute resources which were subsequently invested in the acquisition of the properties in question. The said properties were registered in the names of the deceased and other members of the Company as trustees. 16. While this court appreciates the need for the parties to expatiate their issues, considering the significance of the properties to the parties, the issue commending itself for determination in this MCSUCC 19 OF 1987 IN THE ESTATE OF GENSON MUGO KAMITHA Page 9 of 17

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ruling is fairly straightforward. The question this court is called upon to determine is whether the Rectified Grant issued on 8 th May 2017 should be revoked for being procured fraudulently by means of untrue allegations of fact. 17. As already noted in the introduction of this ruling, the impugned Rectified Grant was issued pursuant to an application dated 27 th April 2017. That application sought to include plots numbers LR. No. 209/2282 N27 FOLIO 11/31 ECA 8187, LR NO. 209/2788118 IR 21178 and LR 36/1/134 GLA-N3 FOLIO 243/17, the 3 subject properties, to the estate and for their distribution to the Company. The Summons for Rectification of Grant was based on an affidavit allegedly signed by the administrator on even date and a consent allegedly signed by the beneficiaries of the estate on 5th May 2017. 18. The applicants, who are the deceased’s sons, assert that the beneficiaries did not execute the consent to the Summons for Rectification of Grant. It is also the applicants’ position that the 3 subject properties were not solely owned by the deceased herein MCSUCC 19 OF 1987 IN THE ESTATE OF GENSON MUGO KAMITHA Page 10 of 17

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and could not therefore be transmitted to the Company through the deceased’s estate. 19. Concerning the affidavit sworn in support of the application, the administrator Solomon Kamitha was adamant that he had not signed the affidavit. He claimed that he had been summoned to the chambers of the advocate who had drawn the application and asked to hand over the original Certificate of Grant. He maintained that he had not sworn the affidavit in support of the application. 20. This court notes that although the administrator denied executing the affidavit in support of the application, there is inconclusive evidence distancing him from the affidavit. The court has seen a letter addressed to the Department of Criminal Investigations by the administrator seeking their intervention in the matter but the results of those investigations, if they were commenced, has not been presented before this court. It does not help the administrator’s case that the officials of the Company, RW3 and MCSUCC 19 OF 1987 IN THE ESTATE OF GENSON MUGO KAMITHA Page 11 of 17

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RW4 testified that he was present and signed the supporting affidavit in support of the Summons for Rectification of Grant. 21. In its decision dated 4th May 2017, the court allowed the application to include the 3 subject properties to the deceased’s estate subject to a consent being obtained from the other beneficiaries of the estate. The consent in support of the Summons for Rectification is dated 5 th May 2017. It was allegedly executed by Dr. Joseph Warurua Mugo, Grace Wanjiru Wanjie, Samuel Mwangi Mugo, Paul Kabutu Mugo, Misheck Ithara Mugo, Rowland Kamitha Mugo, Jemima Karingi Mugo and Benjamin Muturi Mugo. 22. At the hearing of this matter, Samuel Gathogo (RW3) and Ezra Macharia (RW4) who claimed to have both been present when the impugned Summons for Rectification of Grant were being prepared, testified that save for the administrator, the other beneficiaries of the estate were not present during the process. Crucially, although there are signatures affixed besides the names of Jemima Karingi Mugo and Benjamin Muturi Mugo, it is an MCSUCC 19 OF 1987 IN THE ESTATE OF GENSON MUGO KAMITHA Page 12 of 17

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admitted fact that they had both passed away before May 2017, on 29th September 2011 and 22nd May 2000 respectively. No expertise is required to conclude that the signatures of those beneficiaries was procured fraudulently. It is also an undisputed fact that Rowland Kamitha Mugo resides in the U.S.A. It is therefore not clear how the said beneficiary signed the consent to the Summons for Rectification of Grant. This court therefore finds that the Consent to the Summons for Rectification of Grant dated 5th May 2017 was procured fraudulently. 23. The parties herein also agree that the 3 subject properties were not solely owned by the deceased. The applicants claim that LR. No. 209/2282 N27 FOLIO 11/31 ECA 8187 was owned by Maina Gatonga, Kariuki Gatonga, Chege Makumi, and the deceased. LR NO. 209/2788118 (IR 21178) is said to have been owned by Geoffry Chege Kariuki, Maina Gatonga, Wamenjwo Wanjage, Kariuki Gatonga, Chege Makumi, Mwara Kariuki, and the deceased. LR 36/1/134 GLA-N3 FOLIO 243/17 is said to have been owned by Maina Gatonga, Wamenjwo Wanjage, Kariuki MCSUCC 19 OF 1987 IN THE ESTATE OF GENSON MUGO KAMITHA Page 13 of 17

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Gatonga, Chege Makumi, Mwara Kariuki, Geoffry Chege Kariuki and the deceased. Samuel Gathogo told the court that the deceased’s share in the three properties was 1 out of 4 of a share, 1 out of 7 of a share and 1 out of 10 of a share. 24. Section 3 of the Law of Succession Act defines the deceased’s estate as “the free property of a deceased person.” The Act defines “Free property”, in relation to a deceased person, as “the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death.” 25. Being a tenant in common in the 3 subject properties, the deceased could not have disposed of those properties freely during his lifetime as he only owned a share of each property. It cannot therefore be said that the 3 properties form part of the deceased’s estate or that the properties can be transmitted through the deceased’s estate. MCSUCC 19 OF 1987 IN THE ESTATE OF GENSON MUGO KAMITHA Page 14 of 17

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26. Evidently, the Summons for Rectification of Grant dated 27 th April 2017 was marred by untrue allegations of fact. It was wrongfully asserted therein that the deceased wholly owned the three properties and was also based on a consent that had been obtained fraudulently and had not been signed by the beneficiaries of the estate as directed by the court. Consequently, this court finds merit in the Summons for Revocation of Rectified Grant dated 17th October 2022. The Rectified Grant is hereby revoked and the orders of the court issued on 4 th May 2017 are hereby set aside. 27. The parties shall bear their own costs of the application. DATED, SIGNED AND DELIVERED AT MURANG’A THIS 7TH DAY OF OCTOBER 2026. HON. GRACE WAITHĨRA SENIOR RESIDENT MAGISTRATE/ADJUDICATOR RULING READ ON THE VIRTUAL PLATFORM IN THE PRESENCE OF; MCSUCC 19 OF 1987 IN THE ESTATE OF GENSON MUGO KAMITHA Page 15 of 17

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C/A MR. MUYA MR ONINDO FOR THE APPLICANTS SAMUEL MWANGI, PAUL KABUTU AND MISHECK ITHARA MR ONINDO H/B MR. ONDUSO FOR THE ADMINISTRATOR /RESPONDENT MR. ANGELEI FOR JESSE MWANGI KAMANGARA AND STEPHEN WANJII MWANGI JESSE MWANGI KAMANGARA: PRESENT STEPHEN WANJII MWANGI: PRESENT EZRA MACHARIA: PRESENT BENEFICIARIES: 1. JEMIMA KIRINGI: DECEASED 2. GRACE WANJIRU: PRESENT 3. DR. JOSEPH MUGO: N/A 4. ROWLAND KAMITHA: N/A 5. BENJAMIN MUTURI: DECEASED MCSUCC 19 OF 1987 IN THE ESTATE OF GENSON MUGO KAMITHA Page 16 of 17

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Court: Counsel’s to take further instructions from their clients. Mention 2nd December 2026. MCSUCC 19 OF 1987 IN THE ESTATE OF GENSON MUGO KAMITHA Page 17 of 17

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