https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9643

In re Estate of Wabomba (Deceased) (Succession Cause 75 of 1998) [2026] KEHC 9643 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEHC 9643 (KLR) Republic of Kenya In the High Court at Bungoma Succession Cause 75 of 1998 REA Ougo, J June 30, 2026 IN THE MATTER OF THE ESTATE OF THE LATER SITINI WABOMBA ( DECEASED) Between Peter Juma R. Makoko Petitioner and Dekila Nanjala Mwenja Objector Ruling 1.In a Summons dated 18th March 2025 brought under section 76 of the Law of Succession Act Cap 160, Rule 44,45,& 49 of the Probate and Administration Rules, Dekila Nanjala Mwenja, the Objector, seeks the following orders;i.That the grant of letters of administration issued to the petitioner/ respondent herein on the 27/3/2007 and subsequent certificate of confirmation of grant dated the 18/5/2009 be revoked and/or annulled.ii.That this Honourable Court be pleased to issue a declaration that land parcel No. Bungoma/ Sotsambu/279 does form part of the estate of the late Sitini Waboma.iii.That this Honourable court be pleased to order and direct that L.R. Bungoma/ Soysambu/279 be reverted back to the Settlement Fund Trustees for appropriate discharge.iv.That costs be provided for by the petitioner/ respondent 2.The application is supported by the grounds on the face of the application and an affidavit sworn by Derrick Nanjala Mwenya on 18th March 2025. She deposes as follows: she is the widow of the late Mwenya Wanaswa Silali, who died on 10th June 2010 at the age of 76 years, and she is the legal representative of the estate of my above-named late husband, having obtained a Limited Grant of Letters of Administration Ad Litem vide BGM CMC Succession Cause No. 204 OF 2017. The petitioner herein, purported to be the son of the late Sitini Wabomba, secretly and fraudulently filed this succession and obtained a Grant and a Certificate of Confirmation of Grant in the year 2010 without involving the family of the late Mwenya Wanaswa Silali, who had purchased land parcel No. Bungoma/Soysambu/279 from the late Sitini Wabomba. The petitioner herein fraudulently obtained a chief’s letter and filed the Succession of the late Sitini Wabomba, clearly knowing that land parcel No. Bungoma/Soysambu/279 belongs to my late husband, Mwenya Wanaswa Silali, having bought the same through a Settlement Card Agreement dated 4/5/1966. At the time the petitioner filed that succession, land parcel No. Bungoma/Soysambu/279 was still in the name of Settlement Fund Trustee and therefore could not form part of the estate of the late Sitini Wabomba. After concluding the aforementioned fraudulent succession, the petitioner herein colluded with the Land Registrar, Bungoma, and had the restriction by the Director of Land Adjudication, vide letter dated 4/8/2009, entry No. 3 on the Green Card of the suit land removed to pave the way for transfer of the land in his name, knowing that the caution by my late husband, Entry No. 4 on the Green Card, was never removed. The petitioner went ahead and subdivided land parcel No. Bungoma/Soysambu/279 into two parcels, being land parcel No. Bungoma/Tongaren/1761 in the names of Samwel Wamwana Ekasiriwat, measuring 4.87 Ha, and Bungoma/Tongaren/1762 in the name of Peter Juma R. Makoko (the petitioner herein), measuring 2.0 Ha, and all these fraudulent actions were done by the petitioner and the Land Registrar, Bungoma, on 8th June 2010, as per Entry No. 8 on the Green Card. 3.She further averred that, together with her family, they have been living on land parcel No. Bungoma/Soysambu/279 since 1966, when her late husband, Mwenya Wanaswa Silali, bought this land from Sitini Wabomba (deceased) under the Settlement Agreement Card dated 4/5/1966. She averred that the petitioner herein has never occupied or utilised land parcel No. Bungoma/Soyambu/279, and that even when Sitini Wabomba died, he was buried elsewhere, where he had bought land and settled after selling his land to us in 1966. 4.That by the time her late husband bought the land, the land was still under the name of Settlement Fund Trustee, and that his land was never registered in the name of the late Sitini Wabomba; therefore, it could not form part of the estate of Sitini Wabomba, and therefore Entry No. 6 on the Green card of land parcel No. Bungoma/Soysambu/279 on the 8/6/2010, as per Entry No. 6 on the Green card. As per the interpretation of Entry Nos. 6, 7 and 7 on the Green card of land parcel No. Bungoma/Soysambu/279, it means that the deceased Sitini Wabomba was registered as the owner of the suit land after succession, and on the same date, he was registered as the owner on the 8/6/2010. The Petitioner was registered as the owner of the suit land, and on the same date he closed the title parcel No. 1761 in his name and 1762 in the name of Samwel Wamalwa Ekasirimait, and all the above were a total fraud by the Petitioner. 5.She further recalled that when my late husband died on 10/6/2010, she buried him on the suit land, Parcel No. Bungoma/Soysambu/279, where we had lived since 1966, and that the petitioner herein and any family members of Sitini Wabomba never objected to the burial of my deceased husband on the suit land, as they were all aware that Sitini Wabomba had sued her deceased husband at the Tongaren Land Disputes Tribunal in 2010, where the Tribunal awarded him the suit land parcel No. Bungoma/Soysambu/279, and the said decision was adopted vide Kimilili Resident Magistrate's Court Land Case No. 12 OF 2010, and a decree was issued. That the petitioner herein filed Bungoma High Court ELC Petition No. E005 of 2022 against her to challenge the decision of the Tongaren Land Disputes Tribunal, which was ultimately dismissed on 21st November 2024 vide a judgment dated the same date, and a decree was issued. 6.That one, Dunstan Wafula Namusonge, sued Samwel Wamalwa Esikaramait vide Kimilili Principal Magistrate's Vide ELC No. 22 of 2019 over land parcel No. Bungoma/Soysambu/279, registered in the name of Samwel Wamalwa Esikaramait, where she was enjoined as a defendant, and the suit was ultimately dismissed on 27/06/2024. That the Settlement Fund Trustee tried, severally, to have land parcel No. Bungoma/Soysambu/279 registered in the name of my deceased husband, Mwenya Wanaswa Silali, while he was still alive, and even when Sitini Wabomba was alive, but they both died before the suit land was transferred into the name of her late husband. That, vide the above-annexed correspondence from the Settlement Fund Trustee, it is evident that her deceased husband, Mwenya Wanaswa Silali, indeed purchased land parcel No. Bungoma/Soysambu/279 from Sitini Wabomba (Deceased), and that she is entitled to be given this land as the widow of my late husband. 7.That during the hearing of BGM High Court ELC Petition No. E005 of 2022, the Petitioner herein confirmed through his oral testimony that he and his family have been living on the suit land since 1996, and that his family has never accepted the suit land parcel Bungoma/Soysambu/279 herein. That it is imperative that the Petitioner herein filed this succession secretly, without involving her and her family, who have been in occupation since 1966, and that the Petitioner went ahead and fraudulently subdivided the suit land, creating new numbers in his name and in the name of Samwel Wamalwa Ekasirimait (now deceased). The Petitioner herein took advantage of my old age and proceeded to award himself land belonging to my late husband, Mwenya Wanaswa Silali. She and my family have no other place to call home, and we have no other land than the suit land parcel No. Bungoma/Soysambu/279, where I have lived with my family since 1966 to date, and I have buried my husband and other family members on this land. Her late husband, Mwenya Wanaswa Silali, prior to his demise, had filed summons for the revocation of the Grant dated the 27th October 2009, but he later became sickly, bedridden, and died before the conclusion of the objection proceeding. The Petitioner has no claim over the suit land parcel No. Bungoma/Soysambu/279, as the same was duly sold to my late husband, Mwenya Wanaswa Silali, in 1966, and he has never lived on or claimed the suit land even after this fraudulent succession was concluded. 8.The application was not opposed. The objector's case was heard, and she adopted the contents of her detailed affidavit and the annexures. She also filed submissions. She reiterated her evidence and stated that when the petitioner filed the suit, the land parcel number 279 was still in the name of the settlement scheme and could not form part of the estate of the late Sitini Wabomba. That after the petitioner obtained the certificate of confirmation of the grant, he subdivided the land into two parcels, 1761 and 1762. These actions are fraudulent, as they have been living on the said land since 1966, when her husband bought the land from the deceased. The petitioner has never occupied or utilised parcel no. 279. She claims that the green card entry no. 6 on parcel no. 279 was fraudulently entered, because the deceased Sitini Wabomba is said to have died on the 22.8.1958 and therefore could not be registered as the owner of parcel no. 279 on the 8.10.2010, as per the said entry no. 6. The objector pointed out that the records show that on the 8.6.2010 the petitioner was registered as the owner of parcel no. 279; then he closed the title, subdivided, and created parcels nos. 1761 and 1761. All this is a total fraud. The court should also note that Petition No. E005 OF 2022, which was filed against the objector, was dismissed on the 21.11.2024. 9.From the evidence adduced, which was not challenged, it is evident that the parties have been before the tribunal and the ELC over land parcel 279, and that the applicant proved to the tribunal and the ELC court that the land was sold to her late husband. 10.Section 76 of the Law of Succession Act provides as follows;Revocation or annulment of grant-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—a)that the proceedings to obtain the grant were defective in substance;b)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;c)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;d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—i.to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; orii.to proceed diligently with the administration of the estate; oriii.to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; ore)that the grant has become useless and inoperative through subsequent circumstances.” 11.The power to revoke a grant is discretionary as was stated in the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Mwita J stated as follows:Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the Court to invoke section 76 and order to revoke or annul a grant. And when a Court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice. 12.As to whether the grant should be revoked, this court should satisfy itself that the applicant has proved the alleged grounds for revocation. It is evident that the petitioner failed to disclose to the court that land parcel no. Bungoma / Soysambu /279 belonged to Mwenya Wansawa Silali, who had bought it from the deceased Sitini Wabomba. As the legal representative of the estate of the late Mwenya Wansawa, she has demonstrated that this is a case that justifies revocation of the grant. The petitioner also failed to disclose material facts to the court, namely that the parcel belonged to the objector’s late husband and that they have lived on the land since 1966. In my view, the grant was obtained fraudulently by making a false statement and concealing from the court something material to the case. 13.I find merit in the application; prayers 1, 2, 3 and 4 of the application dated the 18th March 2025 are hereby granted. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JUNE 2026.R.E.OUGOJUDGEIn the presence:Mr. Juma Waswa For the ObjectorDavid JumaWilkister - C/A