https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9272

In re Estate of Wachana (Deceased) (Succession Cause 45 of 1997) [2026] KEHC 9272 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9272 (KLR) Republic of Kenya In the High Court at Bungoma Succession Cause 45 of 1997 E Ominde, J June 25, 2026 IN THE MATTER OF THE ESTATE OF JOSHUA FUTIERA WACHANA (DECEASED) Between Enos Lukorito Wafula 1st Petitioner Paul Otube Lukorito 2nd Petitioner and Rose Naliaka Wanyonyi (Suing as the Legal and Personal Representative of Jackson Wanyonyi Futiera – Deceased) Objector Ruling 1.By way of a Notice of Motion dated 24th September 2025 brought under Section 76(d) (ii) and Rule 44 of the Probate and Administration Rules, the Objector/Applicant Rose Naliaka seeks the following orders:a.Spent.b.That the grant appointing Enos Lukorito and later substituted by his son Vincent Lukorito be revoked.c.That all titles obtained out of the administration of the estate by the said administrator be hereby revoked, and the estate reverted to the deceased.d.That the proceedings instituted before the lower court at Bungoma in CMC/ELC No. 138 of 2018 over the said titles resulting from the impugned grant be stayed pending this application.e.That the administrator to render a full account of the estate so far.f.That the applicant be appointed administrator of the estate in the place of the administrator.g.Costs of this application be provided for. 2.The Application is premised on the grounds set out in the face of it and the Supporting Affidavit of the Objector, Rose Naliaka Wanyonyi sworn on 24th September 2025.The Applicant deposes that she is the widow of the deceased’s only son, the late Jackson Wanyonyi Futiera, and the holder of a limited Grant of Letters of Administration ad litem issued in Bungoma CM Succession Cause No. E048 of 2022, thereby conferring her standing to institute these proceedings. 3.The Applicant’s complaint is that the initial administrator, Enos Lukorito, then a chief, and claiming to be a nephew of the deceased, obtained the Grant of Letters of Administration of the Estate of the deceased herein through misrepresentation and concealment of material facts, notably by presenting an undated consent alleged to have been signed by Jackson Wanyonyi Futiera, which bears only his full name rather than his signature, and by alleging consent of the widow of the deceased without exhibiting any proof thereof. The consent was annexed as RNW-2 and the Affidavit annexed as RNW-3 4.It is further alleged that armed with the impugned grant, the administrator proceeded to cause the sole estate property comprising the estate being LR No. Elgon/Kaptama/268, to be transmitted and subdivided, allocating portions to himself, members of his family, and unrelated third parties such as the Chemlany family, thereby disinheriting the deceased’s only son and, by extension, the Applicant’s family. 5.The Applicant further states that even when her late husband himself petitioned the court for a grant of letters of administration over the estate vide Succession Cause Number Bungoma 139A of 1997, he was denied justice when the court proceeded to confirm the grant to the late Enos Lukorito without any lawful excuse. 6.The Applicant contends that these dealings amount to deliberate fraud, concealment and intermeddling contrary to the Law of Succession Act, and that the subsequent suit filed by purchasers in Bungoma CM ELC No. 138 of 2018 seeking to evict her from the now-subdivided land is but a continuation of a scheme to sanitize an unlawful disinheritance of the true beneficiaries of the estate. Replying Affidavit 7.The application is opposed by way of a Replying Affidavit sworn on 15th October 2025, by Paul Otube Lukorito, the current administrator of the deceased estate, following his substitution of the late Enos Lukorito pursuant to an order of this Court made on 29th October 2025.The Respondent avers that the Application is bad in law. That his late father duly and diligently carried out succession in respect of the estate of the deceased and ensured that each beneficiary obtained a separate title following the subdivision of LR No. Elgon/Kaptama/268 to create LR Elgon/Kaptama/579–584. 8.He deposes that the Applicant’s late husband, Jackson Wanyonyi Futiera, voluntarily consented to the petition for grant in favour of the said Enos Lukorito by signing the prescribed consent form P&A 33, thereby acknowledging the administrator’s entitlement to petition, and that the said husband did not have any problem and that is why the Certificate of Confirmation was subsequently issued on 16th June 1998 stood unchallenged even at the time of the late administrator’s death in 2013. 9.That at one point the Applicant’s deceased husband who died in 2013 tried to file an Application to object to the administration of the estate herein but the said objection was dismissed. That even assuming that objection was not dismissed, then the present application is res judicata and/or sub judice. The Respondent further avers that the estate has been fully administered, titles issued, and the original title closed on subdivision; 10.That this Court lacks jurisdiction to cancel the resultant titles which now fall within the jurisdiction of the Environment and Land Court (ELC) and that in any event, the same subject matter and reliefs sought are the subject of Bungoma CMC ELC No. 138 of 2018, thereby rendering the present application sub judice. That further, the Applicant has not laid down the principles of law that supports the revocation of grant sought as provided under Section 76 of the Law of Succession Act, and the application is therefore misconceived, brought in bad faith, and overtaken by events, given the completed administration and subsequent transfers. Submissions 11.The application was canvassed by way of written submissions. filed on 24th September 2025 on behalf of the Applicant and on 25th February 2026 on behalf of the Petitioner/Respondent. Applicant’s Submissions 12.Counsel for the Applicant reiterates that the impugned grant was obtained in violation of Section 76 of the Law of Succession Act on account of fraud, misrepresentation and concealment of material facts, particularly the forged and undated consent attributed to Jackson Wanyonyi and the alleged but unproven consent of the widow of the deceased. 13.Counsel submits that the contents of the supporting affidavit and annexures RNW‑1 to RNW‑4 demonstrate that the succession process was manipulated to side line the deceased’s only son and to unlawfully introduce third parties into the estate, including the Chemlany family, who are said to have received a gratuitous allocation of six acres without lawful justification. 14.Counsel relies on Section 76 of the Law of Succession Act and on case law In re Estate of Prisca Ong’ayo Nande (Deceased) and In re Estate of Karisa Baya Toya (Deceased), where the High Court held that revocation is justified where the process was “marred by fraud, misrepresentation or concealment of material information” or where the administrator fails to proceed diligently with administration or to render accounts. 15.Counsel further submitted that the Respondents intermeddled with the estate, distributed assets to strangers and failed to render accounts, breaching their fiduciary duty under Section 72 of the Law of Succession Act. They relied on the case of In re Estate of Prisca Ong’ayo Nande (Deceased), where the court held that,“…the second general ground is where the grant was obtained procedurally, but the administrator thereafter fails to proceed diligently with administration or fails to render the accounts as and when required.” 16.On the question of appointment of a new administrator, counsel submits that the Applicant, as the widow of the deceased’s only son and the holder of a limited grant ad litem, is the most suitable person to be appointed administrator upon revocation, as set out in the Law of Succession Act, and that such appointment will protect the estate from further mismanagement and secure the interests of the rightful beneficiaries. 17.Counsel accordingly prayed that this Honourable Court be pleased to revoke the impugned grant of letters of administration issued in favour of the late Enos Lukorito and now standing in the name of his successor, appoint the Applicant as administrator of the estate of the late Joshua Futiera Wachana in his stead, cancel all titles issued to date, compel the current administrator to render a full and accurate account of all dealings in respect of LR NO. Elgon/Kaptama/268 and its resultant subdivisions, and grant such further or other orders as may be necessary to secure the estate and vindicate the rights of the rightful beneficiaries. Respondent’s Submissions 18.Counsel for the Respondent raises, as preliminary points, the twin objections of jurisdiction and the doctrines of res judicata and sub judice. It is contended that the estate property, LR No. Elgon/Kaptama/268, was lawfully transmitted and closed on subdivision, creating LR No. Elgon/Kaptama/579– 584 now registered in the names of various beneficiaries and third parties, and that any challenge to those titles lies exclusively with the ELC and not with the succession court. 19.Counsel points out that the Applicant is already pursuing similar or related reliefs in Bungoma CMC ELC No. 138 of 2018, whose judgment is said to be pending and scheduled for 26th March 2026, and thus the prayers touching on cancellation of titles and stay of those proceedings are said to offend the doctrines of res judicata and sub judice, and invite this Court to interfere with the jurisdiction and process of another competent court. He further urged that revocation would be prejudicial to third parties who already hold titles. 20.It is further submitted that the Applicant, being a daughter‑in‑law of the deceased, has not moved the Court for substitution in place of her deceased husband in this cause and, in any event, has not specifically sought revocation of the existing grant in her prayers, such that the prayer for her appointment as administrator is fatally defective and contrary to the principle that parties are bound by their pleadings. Counsel maintains that the administrator discharged his mandate by completing distribution and causing titles to be issued and that, in the circumstances, there is no basis upon which this Court can order any accounts to be rendered in respect of an estate that has already been transmitted to beneficiaries. 21.Counsel for the Petitioner/Respondent therefore prayed that this Honourable Court be pleased to find that the application for revocation is misconceived, res judicata and/or sub judice, that the succession herein was duly and fully concluded with LR NO. Elgon/Kaptama/268 lawfully subdivided and transmitted to the beneficiaries, that this Court lacks jurisdiction within these proceedings to impeach or cancel the resultant titles or to stay Bungoma CMC ELC No. 138 of 2018, and consequently that the Objector/Applicant’s Notice of Motion dated 24th September 2025 be dismissed with costs to the Petitioner/Respondent. Determination 22.Having considered the application, the depositions in the affidavits sworn as well as the submissions filed, it is my considered opinion that the following are the issues that arise for determination:i.Whether this Court has jurisdiction, within this succession proceedings, to revoke and/or cancel titles created out of LR Elgon/Kaptama/268 and to stay proceedings in Bungoma CMELC No. 138 of 2018.ii.Whether the Applicant has established grounds for revocation of the grant under Section 76 of the Law of Succession Act.iii.iii. Whether the Applicant is a suitable person to be appointed administrator upon any revocation, and what consequential or protective orders, if any, are appropriate. 23.The issue of the critical nature of the jurisdiction of a court in the hearing and determination of any cause before it was outlined in the case of Owners of Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Limited (1989) KLR 1. Therein, the court stated thus;“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A Court of Law downs its tool in respect of a matter before it the moment it holds the opinion that it is without jurisdiction.” 24.On the acquisition of jurisdiction by a court, The Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR hel as follows;“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.….the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. 25.The issue of the need for courts to operate strictly within their constitutional and statutory limits and cannot in this regard acquire and/or abrogate to themselves jurisdiction by and of themselves was discussed extensively in the case of In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. It was therein held thus;It… (a court that is) …cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” 26.The Constitutional provisions that determines the jurisdiction of the three courts of equal status to the High Court, the Environment and Land Court and the Employment and Labour Relations Court is Article 162(2)(b) of the Constitution. This provision establishes the Environment and Land Court to hear and determine disputes relating to the environment, use, occupation, and title to land and Article 165(5)(b) thereof explicitly states that the High Court shall not have jurisdiction over causes falling within the jurisdiction of the courts contemplated in Article 162(2) of the Constitution with the Environment and Land Court being one such court. 27.In line with this constitutional provision, the Environment and Land Court was subsequently established by the enactment of the Environment and Land Court Act of 2011 to define the jurisdiction of the court and also guide its operations. Under Section 13(2)(e) of Act, the court is stated to have jurisdiction over disputes relating to land, including leases, tenancies, and contracts involving land. Further Section 150 of the Land Act, 2012, reinforces the Environment and Land Court’s jurisdiction over land-related disputes. 28.In the instant case, it is common ground that the primary issue is the original estate property being LR No. Elgon/Kaptama/268. It is also common ground that this original title has since been closed on subdivision to create LR No. Elgon/Kaptama/579–584 and the resultant parcels are now registered in the names of different beneficiaries, new titles issued, some of which are said to have subsequently been sold to third parties who are not parties to these proceedings. 29.The prayer for the revocation of all the titles issued and order that the estate be reverted to the deceased directly implicates the validity of registered titles and the rights of persons presently on the register, including non-parties to this cause. As already herein demonstrated, such reliefs fall within the constitutional and statutory jurisdiction and mandate of the Environment and Land Court, and not within the limited jurisdiction of the Succession Court, whose role is primarily to identify beneficiaries, determine their shares, and oversee distribution, but not to finally pronounce on competing proprietary claims of third parties inter se. 30.Similarly, the same position on the want of jurisdiction applies to the prayer that the proceedings in Bungoma CMELC No. 138 of 2018 be stayed pending the determination of this application. This is for reasons that the said Magistrate’s Court is sitting as an Environment and Land Court. In the premises, the Court finds that, whereas it has the mandate to interrogate the process by which the grant was obtained under Section 76 of the Succession Act, it lacks the jurisdiction to cancel and/or revoke the resultant titles consequent to the subdivision of the original estate property being LR No. Elgon/Kaptama/268 and/or to stay the proceedings before the subordinate court exercising its Environment and Land Court jurisdiction. Those prayers are therefore not available in this cause. 31.On the prayer for the revocation of the grant, Section 76 of the Law of Succession Act empowers the Court to revoke or annul a grant, whether or not confirmed, where, inter alia, the proceedings to obtain the grant were defective in substance; or the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material; or by means of an untrue allegation of a fact essential in law; or where the administrator has failed, after due notice and without reasonable cause, to proceed diligently with administration or to render accounts. 32.The Applicant’s case is anchored primarily on Section 76(b) and (c) of the Act and that is on allegations of fraud, misrepresentation and concealment with a secondary complaint on mismanagement and intermeddling. She relies on the undated consent attributed to Jackson Wanyonyi, said also to have allegedly misrepresented the widow's participation and consent as principal beneficiary. 33.The Respondent, for his part, places reliance on the same consent Form P&A 33, which now bears a signature and the attestation of the local chief, and argues that the deceased son voluntarily consented to his father’s nephew petitioning for the grant, and that the certificate of confirmation stood unchallenged throughout Jackson’s lifetime, thereby undermining the allegation of deception. 34.It is important to note that the record of the court in this file HCSUCCC No. 45 of 1997, shows that by way of a Chamber Summons dated 8th August 2001, the Applicant’s deceased husband filed a similar Application seeking to revoke the grant issued to the deceased administrator. The record shows that the Applicant however did not follow up this Application to its logical conclusion. Instead on 29th January 2002, he filed an Application under Certificate of Urgency seeking that the court restrains the deceased administrator from dealing with the land parcel comprising the estate being LR No. Elgon/Kaptama/268 35.An order of temporary injunction dated 31st January 2002 was issued by Waki J (as he then was) in favour of the Applicant who was ordered to serve the Respondents, and the matter fixed for hearing within in 14 days. The record shows that the Applicant did not effect service as ordered, and on 26th March 2002, the Respondent deceased administrator filed an application seeking that the orders of injunction be set aside. The Application was heard inter parties and Ringera J (as he then was) in his Ruling delivered on 11th July 2002 struck out the Application dated 29th January 2002 for being incompetent. Thereafter there was no further action in this file until the present Application was filed. 36.That aside, the court has also perused the proceedings in HCP&A No. 139A of 1997 herein referred to by the Applicant. It transpires that therein, the Applicant’s deceased Husband applied for and obtained a grant of Letters of Administration with Respect to the deceased estate comprising of the suit land being the same said LR No. Elgon/Kaptama/268. That grant was confirmed on 22nd June 1999. The record therein shows that there are no subsequent proceedings in this file. This therefore means that this grant was not challenged and/or cancelled and the presumption then is that it does still exist as a valid grant. 37.In this regard, the Applicant’s deceased husband was therefore also an administrator of the very same estate having obtained a valid grant from the court. Indeed, the court notes that it is upon the basis of this grant that the Applicant’s deceased husband premised his application for revocation of grant dated 8th August 2001 herein referred to which he never followed up. 38.In light of the above, it is therefore not correct for the Applicant to assert that all her deceased husband’s efforts to have his objections to the grant issued to the deceased administrator heard and determined were frustrated by the court to justify the filing of this Application at this point in time. The record shows that the court rose to the occasion at every turn, when it was appropriately moved, and in fact issued interim orders that favoured the Applicant’s deceased husband, but it is the said Applicant who thereafter failed to follow up on the directions given by the court necessary for the full hearing and determination of his applications and/or objections on merit. 39.Further, there is also evidence, which is a common ground as between the parties, that the estate was subsequently administered to completion, with the original title to the suit land, which is the subject of the confirmed grants held by the Applicant’s deceased husband and the deceased administrator subdivided, and new titles issued. Given these circumstances, it is my very well considered opinion that it the Applicant’s deceased husband that slept on his rights, acted in an indolent manner and is himself guilty of laches. 40.The record reflects that the present challenge comes many years after confirmation of the grant and the completion of transmission, and also after the deaths of both the original administrator and Jackson. The Court is alive to the principle, as articulated in authorities cited by both counsel, that the power to revoke a grant is discretionary and must be exercised judiciously, on sound evidence, and not whimsically or capriciously; and that, even where technical grounds appear to exist, the Court must take into account the interests of all beneficiaries and the practical consequences of unravelling a long‑concluded administration. 41.Based on my conclusion that this application stands compromised by the equitable Doctrine of laches and my conclusion on the issue of the jurisdiction of the court, it is my finding that the twin doctrines of sub judice and res judicata are not applicable in this matter. However, it is my further finding that the Applicant herein does not merit the exercise of the court’s discretion in her favour in light of the fact that the power of a court to revoke or not to revoke a grant under Section 76 of the Succession Act is a discretionary power which must be exercised judiciously. 42.In this regard, it is my considered view that for the court to make a definitive finding of fraud sufficient, at this late stage, to unravel the grant and the entire chain of transactions would most definitely not amount to a judicious exercise of the courts discretionary power. 43.In the circumstances, whereas the Applicant may have raised serious and weighty complaints about the history of this succession by way of this Application, the Court is not persuaded that this is an appropriate case, to warrant the revocation of the grant herein issued to the deceased administrator under Section 76 of the Succession Act at this late stage, given the circumstances of this case as herein summarised. 44.Lastly, in view of the fact that the prayer that the Applicant herein be appointed the administrator of the estate, and that the deceased administrator be compelled to render a full account of the estate so far, are both prayers are inextricably tied to the Application for the revocation of the existing grant, in light of my finding as above on the prayer for revocation, then these two need no consideration by dint of the fact that this finding has rendered both moot. The upshot therefore is that the Applicant’s Application lacks merit and the same is now hereby dismissed in its entirety. Each party is to bear their own costs. READ DATED AND SIGNED AT BUNGOMA ON 25TH JUNE 2026E. OMINDEJUDGE