https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11397

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **SUCCESSION CAUSE NO. 262 OF 2010** **IN THE MATTER OF THE ESTATE OF PHILLIP MUDOGO MUTOKO alias MUDOGO MUFUANA (DECEASED)** **BETWEEN** **ELPHAS JUMA .............................................PETITIONER/RESPONDENT** **AND** **1. VINCENT NANZUSHI MUSUNGU** **2. JOSHUA AMINO** **3.CAROLINE ROSE WALUCHIO................ OBJECTORS/APPLICANTS** **RULING** 1. This matter comes up for ruling on the Summons for Revocation and Annulment of Grant dated 11th March 2026, brought under **Sections 66 and 76 of the Law of Succession Act, paragraph 16 of the Fifth Schedule thereto, and Rules 44 and 73 of the Probate and Administration Rules,** wherein the Objectors/Applicants, Vincent Nanzushi Musungu, Joshua Amino and Caroline Rose Waluchio, moved the court seeking, inter alia, the following orders: 1. **That this Honourable Court be pleased to revoke and annul the Certificate of Confirmation of Grant issued to the Petitioner upon this estate;** 2. **That this Honourable Court be pleased to issue a fresh Certificate of Confirmation of Grant to include the three Objectors and to allocate the fourteen (14) acres bequeathed to the family of Florence Ayako Nanzushi and Joseph Nanzushi Keya (both deceased) in their names, upon the parcel known as Butsotso/Esumeyia/112;** 3. **That this Honourable Court be pleased to issue a fresh Certificate of Confirmation of Grant providing for the allocation of five (5) acres to the family of Mudogo Mufuana, through the Petitioner, upon the parcel Butsotso/Esumeyia/112, and upon the parcel on which they reside, being Bungoma/East Bukusu/North Sang'alo/1105, in whole; and** 4. **That the costs of the application be provided for.** 2. The application is premised on the grounds on the face of it and is supported by the affidavit of the three Objectors/Applicants, sworn on 11th March 2026, in which they depose that the deceased, in his lifetime, disposed of a total of fourteen (14) acres out of the nineteen (19) acres comprised in **Butsotso/Esumeyia/112** to Joseph Nanzushi Keya, the father of the 1st and 3rd Applicants, in the year 1973, and that the family of the said Joseph Nanzushi Keya has resided upon and occupied the said fourteen (14) acres since that date. 3. It was further deposed that the deceased and Mr Joseph Nanzushi Keya appeared before the Land Board of Lurambi in 1983, where they mutually agreed to subdivide the parcel. They allocated fourteen acres to Mr Nanzushi Keya, while the deceased and his family retained the remaining five acres. 4. The entire family of the deceased has resided on and been the sole occupants of the parcel **Bungoma/East Bukusu/North Sang'alo/1105** since 1973. That the Certificate of Confirmation of Grant issued to the Petitioner did not exclude these fourteen acres; however, the Applicants assert that this land has ceased to form part of the estate since 1973. Regrettably, the Petitioner, along with his agents and servants, has persisted in harassing and attempting to evict the Applicants from these fourteen acres. 5. The court has reviewed the record and reconsidered the relevant procedural history of this longstanding case. A protest against the confirmation of the grant issued to the Petitioner was originally filed on behalf of Florence Ayako Nanzushi, the mother of the First and Third Applicants and the principal of the Second Applicant, in an application dated 3rd April 2014. 6. That application was subsequently dismissed for want of prosecution on 3rd July 2019 by Honourable Riechi J, a circumstance the Applicants attribute to the default of their former advocate, against whom a complaint was later lodged with the Law Society of Kenya. 7. A fresh application dated 27th November 2023 was thereafter filed in the name of the said Florence Ayako Nanzushi, seeking substantially the orders now sought herein. That application attracted a preliminary objection from the Petitioner/Respondent dated 18th October 2024, grounded in the doctrine of *sub judice* by reason of pending proceedings in **Kakamega ELC No. 62 of 2018 and Court of Appeal Case No. E273 of 2023.** 8. The preliminary objection was considered and dismissed by R.E. Ougo, J., in a Ruling delivered on 29th May 2025. The learned Judge found that the doctrine of *sub judice* had not been established and, in the exercise of discretion, declined to strike out the application. 9. The Applicants state that Florence Ayako Nanzushi passed away while the said application was pending. Upon her death, the application filed in her name was withdrawn to facilitate the present Summons, which has been filed by her surviving children and attorney as persons with a beneficial interest through the estate of Joseph Nanzushi Keya in the subject parcel. 10. In support of the application, the Applicants have submitted, among other documents, a Certificate of Translation concerning an Agreement dated 7th July 1973. The agreement pertains to Philip Mutoko Mukhwana, identified therein as the owner of **Plot No. 112/Esumeyia/Butsotso**, and Joseph N. Keya. 11. It records the sale of fourteen (14) acres of the land for a sum of Kshs. 6,000, which was received in full. The document is thumb-printed by the parties, attested by the named witnesses, and translated by the Assistant Chief of the area. 12. The Summons was duly served upon the Petitioner/Respondent, who was granted a period by the court within which to respond. The record confirms that no Replying Affidavit, grounds of opposition, or written submissions have been filed on his behalf, notwithstanding such service and the expiration of the time so granted. Consequently, the application is to be considered unopposed and examined solely on the basis of the Applicants' affidavit and annexures. **Determination** 1. I have carefully considered the Summons, the supporting affidavit and the annexures thereto, together with the entire record of this cause, including the previous rulings of this court referred to above, and it is my considered opinion that the following issues arise for determination: 1. **Whether, notwithstanding the absence of opposition, the Applicants have discharged the burden placed upon them to establish a ground for revocation or annulment of the grant under Section 76 of the Law of Succession Act;** 2. **Whether the relief of revocation properly lies against the Certificate of Confirmation of Grant, as opposed to the grant of representation itself; and** 3. **What orders, if any, this court ought to make in the circumstances**. 2. On the first issue, it is well established that an unopposed application should not, by itself, be automatically granted. Even when a respondent chooses not to dispute the allegations against him, the court is obligated to ensure, based on the evidence presented, that the applicant has sufficiently established a right to the relief sought. This duty is especially pertinent when, as in this instance, the relief pertains to land rights and the distribution of a deceased estate. 3. **Section 76 of the Law of Succession Act** provides as follows: *“***A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion –** * + 1. **that the proceedings to obtain the grant were defective in substance;** 2. **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;** 3. **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 and not fraudulently;** 4. **that the person to whom the grant was made has failed, after due notice and without reasonable cause, either to apply for confirmation of the grant within one year from the date thereof, or to proceed diligently with the administration of the estate, or has produced any inventory or account that is false in any material particular; or** 5. **that the grant has become useless and inoperative through subsequent circumstances.”** 1. Where fraud or an untrue allegation is pleaded as the ground for revocation, the standard of proof, though not the criminal standard, is nonetheless higher than the ordinary balance of probabilities. In **R.G. Patel v Lalji Makanji [1957] EA 314**, the former Court of Appeal for Eastern Africa held that allegations of fraud must be strictly proved, and that something more than a mere balance of probabilities is required. This court has consistently applied that principle to applications of this nature and does so here too. 2. In consideration of the foregoing, I observe that the claim alleging that the deceased alienated fourteen (14) acres of **Butsotso/Esumeyia/112** to Joseph Nanzushi Keya in 1973 is supported by substantial evidence. This evidence includes the certified translation of the sale agreement dated 7th July 1973, which bears the thumbprints of both the deceased and Joseph N. Keya, and is attested by designated witnesses. 3. Furthermore, it is confirmed by the translation conducted by the Assistant Chief. The Applicants also assert, without contradiction, that the involved parties appeared before the Land Board of Lurambi in 1983 and formally consented to a subdivision reflecting the earlier sale. 4. I have also considered the undisputed fact that the Applicants' family has occupied the fourteen (14) acres since 1973, a duration now exceeding fifty (50) years. This occupation is consistent with, and lends support to, the alleged alienation. Long, uninterrupted, and unexplained possession of this kind constitutes significant evidence in favour of a transfer *inter vivos*, particularly given that the Petitioner has been granted ample opportunity to contest the claim and has chosen not to do so. 5. Based on the entirety of the material presented before me, I am satisfied, to the standard required, that the fourteen (14) acres in question ceased to be part of the free property of the deceased as of 1973. Therefore, these acres could not have been lawfully available for distribution as part of his estate upon his death. 6. Consequently, to the extent that the Certificate of Confirmation of Grant issued to the Petitioner purported to include or failed to exclude the said fourteen (14) acres, it was based on an untrue allegation of a fact essential to justify the grant within the meaning of **Section 76(c) of the Law of Succession Act**, regardless of whether that untrue allegation was made in good faith. 7. I now turn to the second issue, namely, whether it is the grant of representation or the Certificate of Confirmation that is properly amenable to revocation under **Section 76**. The court in **Re Estate of Joel Cheruiyot Rono [2016] eKLR** held, and I respectfully agree, that; “**A certificate of confirmation of a grant is not a grant representation, but a certificate to the effect that the grant had been confirmed by the court. The discretion given to the court by the provisions in section 76 of the Law of Succession Act is for revocation of grants of representation, not certificates that confirm those grants. There is therefore no power in those provisions for the court to revoke a certificate of confirmation of grant. As can be seen from the outset, the said application stands on shaky ground.”** 1. That distinction is not, however fatal to the Applicants' case here. Prayers (b) and (c) of the Summons, properly construed, seek in substance the issuance of a fresh Certificate of Confirmation reflecting a corrected mode of distribution, a relief this court is entitled to grant in the exercise of its general jurisdiction under **Section 47 of the Act** to entertain and determine any dispute arising in the course of administration, and to make such orders as may be expedient to give effect to the true state of the estate. 2. I am cognizant that the subdivision agreed upon in 1983, based on the material before me, was never documented through registered survey plans bearing distinct parcel numbers for the fourteen (14) and five (5) acre segments. Moreover, any order issued by this court regarding distribution must be practically implementable on the ground. 3. Under these circumstances, I abstain from making an order at this stage that purports to allocate specific, un-demarcated acreage to identified individuals. Instead, I find it more prudent and consistent with the court's established approach in similar cases to first direct the ascertainment and demarcation of the boundary between the two portions prior to the issuance of a new Certificate of Confirmation. 4. Regarding the allegations of harassment and attempted eviction, these issues are appropriately managed through protective rather than punitive orders, pending the finalisation of the demarcation and the new confirmation as directed herein. I am convinced that it serves the interests of justice and falls within the jurisdiction of this court pursuant to **Section 47 of the Act** to grant limited protective orders to maintain the status quo until compliance with the directives below. 5. On costs, I note that this application has proceeded unopposed, that this matter has already been the subject of prolonged litigation extending over approximately sixteen (16) years, and that the Petitioner's failure to respond, despite being served and granted an extension of time by the court, has caused unnecessary delay and expense to the Applicants. In light of these circumstances, I determine that the costs of this application should be borne personally by the Petitioner, and not from the estate. 6. Considering the foregoing, the Summons for Revocation and Annulment of Grant dated 11th March 2026 is granted to the extent specified below, and it is now hereby ordered: 1. **That the Certificate of Confirmation of Grant issued to the Petitioner herein is revoked to the extent that it includes, or fails to exclude, the fourteen (14) acres of land comprising Butsotso/Esumeyia/112, which was alienated by the deceased to Joseph Nanzushi Keya, as per the agreement dated 7th July 1973.** 2. **That the Petitioner, together with the 1st and 3rd Applicants and any other person claiming interest therein, shall, within sixty (60) days of this Ruling, jointly engage the County Surveyor, Bungoma, to ascertain, demarcate, and report on the boundary between the said fourteen (14) acres and the remaining five (5) acres of Butsotso/Esumeyia/112, in accordance with the agreement of 1973 and the consent recorded before the Land Board of Lurambi in 1983.** 3. **Upon the filing of the aforementioned survey report, the Petitioner shall, within thirty (30) days thereafter, submit an amended Summons for Confirmation of Grant that reflects the exclusion of the fourteen (14) acres from the distributable estate, and provides for the confirmation of the remaining five (5) acres of Butsotso/Esumeyia/112, together with the parcel Bungoma/East Bukusu/North Sang'alo/1105, in favour of the deceased's estate.** 4. **Pending compliance with orders (b) and (c) above, the Petitioner, his agents, servants, and/or any persons claiming under him, are hereby restrained from evicting, threatening, or in any manner interfering with the occupation of the fourteen (14) acres in dispute by the 1st, 2nd and 3rd Applicants.** 5. **That the Officer Commanding Police Division, Navakholo, is hereby instructed to ensure compliance with the directives herein outlined, ensure that peace is maintained as between the parties herein until the implementation process is complete, and also provide security during the demarcation process.** 6. **That the costs of this application shall be personally borne by the Petitioner** 7. **That this matter shall be scheduled for mention before the Deputy Register on a date to be determined, after the expiry of 90 days from the date of this Ruling for the purpose of confirming compliance and the issuing further directions.** **Read, Dated and Signed at BUNGOMA 23rd JULY 2026.** **E. OMINDE** **JUDGE**