https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/250

In re Estate of Ndeda (Succession Cause 30 of 2023) [2026] KEMC 250 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEMC 250 (KLR) Republic of Kenya In the Port Victoria Law Courts Succession Cause 30 of 2023 AK Njeru, SRM June 4, 2026 Ruling 1.Vide a summons for revocation of grant dated 25th day of November 2025, earlier filed before the High Court and transferred to this court, the applicant seeks the revocation of the grant issued on 4th November 2022 to Michael Okongo Ouma and Simon Ndeda Ouma be revoked or annulled as well as costs of the application. The grounds upon which the said application is predicated, in summary, are that the grant was procured through fraud by the making of a false statement and the concealment of material facts. That one Mbaga Tusinde Gero, the interested party herein, was fraudulently listed as a survivor of the deceased, a fact which was false, that the said interested party was listed as a creditor/ purchaser of part of the estate, to wit, one acre, which was a lie. That the said interested party purchased part of the estate in June 2022 while the grant was confirmed on 7th November 2023 hence a clear case of intermeddling with the estate of the deceased who died on 22nd June 2010. 2.Michael Congo Ouma, on behalf of the petitioners in his replying affidavit dated 1st April 2026, deposed that the objectors lacked locus standi to bring forth this application as they were strangers to the estate of the deceased. That the objectors were not even neighbours to the estate land, namely Bunyala/Bulemia/2730, and hence their claim, which is presumably land related, was an abuse of court process, and ought to be dismissed with costs. 3.The interested party in his replying affidavit dated 2nd April 2026 deposed that indeed he purchased part of the estate with the blessing of the beneficiaries, the proceeds of which were utilized to financé the succession cause herein. The grant was confirmed in the presence of all the beneficiaries with no objection from the beneficiaries. Furthermore, the objectors herein are neither beneficiaries nor relatives of the deceased, hence strangers befitting none of the orders they so seek. That the case they face in the criminal court is land-related, and the claim they have laid lies only in the land court, not in the probate court. He prayed for dismissal of his application. 4.The applicant, in his submissions, stated that the obtaining of the grant by virtue of the sale before the confirmation of the grant was fraudulent and hence violated the provisions of section 45 of the Law of Succession Act. That by virtue of the concealment of material facts stated in the application, the same was befitting of revocation pursuant to section 76 (b) and (c ) of the same Act. The applicant cited the cases of Mitheka vs Mitheka [2005] KLR, Estate of M’Ngarithi(Deeased) [2018] e KLR , estate of Jamleck Maina Njeru vs Margaret Wanjiru Maina [2014] e KLR, Macharia Kihia vs Kihia [1986] e KLR and Re estate of Kipsum Chepkwony (deceased)[ 2019] e KLR 5.In his submissions, the interested party reiterated that the summons for confirmation of the grant can only be brought forth by a beneficiary to the deceased and not a stranger. That hence the application had no feet to stand on hence ought to be dismissed 6.The Petitioners ' submissions were that the submissions of the interested party were that the applicants were strangers to the estate, hence lacked the locus to seek the prayers they sought. Analysis And Determination 7.It is not in dispute that the deceased was the registered owner of all that suit of land known as Bunyala/Bulemia/2730(hereinafter referred to as the estate property). It is also not in dispute that the interested party in the petition and confirmed grant was listed as a buyer of the estate property and apportioned 0.40ha as per the grant confirmed on 7th December 2023. 8.Having carefully considered the pleadings as well as the submissions by each of the parties, I narrow down the issue for determination as follows:a)Whether or not the applicants have locus standi to bring forth this applicationb)Whether or not the grant issued on 4th November 2022 ought to be revoked and or annulled.c)Costs of the application Locus Standi 9.Locus standi is defined in Black’s Law Dictionary, 11th Edition as “the right to bring an action or to be heard in a given forum” 10.Section 76 of the Law of Succession Act brings out very clearly who has the locus standi to make an application such as the one before me:“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..”(emphasis mine) 11.An interested party to a succession cause is defined in the case of In re Estate of Stone Kathuli Muinde (Deceased) [2016] KEHC 3725 (KLR as,“A person interested in the probate cause would be he that claims a right or interest in the assets, either as heir or dependant or survivor or beneficiary or creditor of the deceased or estate” 12.The applicants from the application have been charged with the offences of interfering with boundary features contrary to section 21(1) as read with section 21(2) of the Land Registration Act and the offence of malicious damage to property contrary to section 339(1) of the Penal Code. They now seek to stop the proceedings of this criminal case by relying on the prayers sought herein that the interested party, who is a beneficiary of the estate suit, did not acquire the said property legally, so the criminal proceedings against them have no basis. 13.I have combed through the entire pleadings and submissions by the applicants to find out their interests in the estate property to no avail. They have cited none. 14.Section 107 (1) of the Evidence Act provides that “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” They have failed to prove they are interested parties to the said estate. 15.The applicants are busy bodies who lack locus standi to make this application. Their claim must therefore fail.Whether or not the grant ought to be revoked and or annulled as prayed 16.Even after finding that the applicants lack locus standi, the court, can suo moto proceed to determine issues under Section 76 of the Law of Succession Act which provides for the Revocation or annulment of grant. The same provides thus;“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. 17.The applicants have alluded to facts that at the time of making the grant, the petitioners made a false statement that the interested party herein was a survivor to the deceased yet he was a purchaser. 18.I have considered the attachments filed as part of the applicant's list of documents in the succession cause and specifically the letter from the chief dated 2/12/2021. It lists the interested party as a buyer. Interested party has not disputed this fact. He explains that he indeed purchased the property from a beneficiary and not the deceased himself. 19.The summons for confirmation of grant is dated 6th July 2023. At no time is the interested party listed as a dependant to the deceased under paragraph 2 of the affidavit in support of the summons for confirmation of grant. During the confirmation hearing, at no time did the court seek his consent to have the grant confirmed or denied to give the interested party the privilege accorded to a dependant. It is therefore not true that the interested party was represented as a dependant of the deceased. 20.From the evidence presented by the applicants against the interested party, it is therefore true that indeed he and the person who sold to him are intermeddlers within the meaning of section 45 of the Law of Succession Act. The interested party has admitted as such but justified the same, stating that the proceeds of the purchase went to the financing of the succession cause. Be that as it may, the same does not take away the fact that the same was contrary to the provisions of section 45 of the Law of Succession Act. 21.Does this now form a proper legal basis for revocation of the grant issued? I find no. A very good explanation as to why is found in the case of re Estate of Daniel Mugo Kamuruana (Deceased) [2026] KEHC 5815 (KLR) where R. Mwongo, J, held,“From a reading of section 76, issues of distribution of the estate do not have any bearing whatsoever on the process of obtaining the grant, nor can they lead to revocation. Distribution of the estate is a separate process, and if a party to the proceedings at confirmation is disgruntled, they must seek recourse through setting aside the certificate of confirmation of grant and not seeking revocation of the grant of representation.” 22.In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR, Musyoka, J. after analyzing section 76 and discussing the meaning of a grant within the provisions of the laws governing succession in Kenya, held thus......section 76 has nothing to do with the confirmation process, and provides no relief at all to any person unhappy with the confirmation process. In the absence of any provision in the Law of Succession Act for relief or redress for persons aggrieved by such orders, the aggrieved parties have only two recourses under general civil law, that is to say, appeal and review, to the extent that the same is permissible under the Law of Succession Act. I would believe that one can also apply for the setting aside or vacating of confirmation orders, where the same are obtained through abuse of procedure.” [Emphasis added] 23.Based on the above, I find therefore that not only do the applicants have no locus standi to bring forth this application, but the grounds upon which the same is made also lacks merit pursuant to the meaning of section 76 of the Law of Succession Act. 24.The consequence thereof is that the entire application is struck out with costs to the petitioners/ administrators and the interested party. 25.Right of appeal within 30days explained. DATED, SIGNED AND DELIVERED AT PORT VICTORIA THIS 4TH JUNE 2026,HON. ANNE NJERUSENIOR RESIDENT MAGISTRATE