https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11136

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **SUCCESSION CAUSE NO. 14 OF 2009** **IN THE MATTER OF THE ESTATE OF KIPTERGECH MISOI (DECEASED)** **RULING** **Brief Facts** 1. The deceased, to whose estate this cause relates, died on 30th September 1996. Representation to her estate was sought on 10th July,2008, by Joseph Kimaru Rotich & George Kibungei Kemboi, at the High Court in Eldoret vide Eldoret High Court Succession Cause 14 of 2009 and was granted on 25th February 2008. In the petition, the deceased was said to have been survived by ten beneficiaries from two houses whereby representation to the Estate was sought by Joseph Kimaru Rotich from the 1st House and George Kibungei Kemboi from the 2nd house. 2. That vide a ruling delivered on 24th May,2024 by Justice Wananda J.R Anuro, letters of administration were issued to the petitioners and directions on summons for confirmations were issued. 3. That summons for confirmation of grant dated 22nd July,2024 were confirmed on 23rd July,2025 and subsequently a certificate of confirmation of grant was issued. 4. The Applicants, describing themselves as purchasers for value of portions of the deceased's estate and beneficiaries moved this Court by summons dated 27thAugust,2025 and 21st October,2025 seeking, among other orders that the Grant of Letters of Administration Intestate issued to the Respondents/administrators and the Certificate of Confirmation of Grant dated 23rd July,2025 be revoked pursuant to Section 76 of the Law of Succession Act. 5. That directions to canvass the applications before me dated 27th August,2025 and 21st October 2025 were taken on 18th March,2026 whereby the two applications were consolidated and parties directed to file responses and submissions which they complied. **Analysis And Determination** 1. The issues falling for determination are:- 1. Whether the Applicants in the two applications have established any of the statutory grounds for revocation under Section 76 of the Law of Succession Act. 2. Whether the Applicants, being purchasers, have the requisite locus standi to seek revocation of the Certificate of Confirmation of Grant 2. The law on revocation is *section 76* of the Law of Succession Act. The relevant portion of the provision states – *‘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 –* *That the proceedings to obtain the grant were defective in substance;* *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;* *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 …’* 1. Both sides filed detailed written submissions, in which they articulated their respective positions. 2. I have carefully considered the application, the affidavits on record, the rival submissions and the applicable law. **Whether the Applicant, being a purchaser, has the requisite locus standi to seek revocation of the Certificate of Confirmation of Grant.** 1. The preliminary issue for determination is whether the Applicant, who is neither a beneficiary nor a dependant of the deceased, possesses the requisite legal standing to move this Court for the revocation of the Grant and the Certificate of Confirmation of Grant. 2. The application before the Court is brought pursuant to Section 76 of the Law of Succession Act. *The provision stipulates that a grant of representation, whether or not confirmed, may at any time be revoked or annulled, either on the Court's own motion or on the application of any interested party, on any of the grounds enumerated therein. The Act does not define the expression "interested party."* 1. The question that therefore arises is whether a purchaser claiming an interest in property forming part of the deceased's estate falls within the ambit of an "interested party" for purposes of Section 76. 2. The Court of Appeal addressed this issue in **Ansazi Gambo Tinga & another v Nicholas Patrice Tabuche [2019] eKLR**, where it held that the phrase "interested party" under Section 76 is not restricted to beneficiaries or persons entitled to inherit the estate. The Court stated: *"Persons with locus standi to seek revocation of grant include any person with a right or expectancy in the estate. It therefore follows that an interested party under Section 76 does not only envision the heirs enumerated under Section 66 of the Act but includes a person who can show an interest in the estate."* 1. Although that appeal did not concern a purchaser, the principle enunciated by the Court of Appeal is of general application. It affirms that locus standi under Section 76 is determined not by one's status as a beneficiary but by the existence of a legally recognizable interest capable of being affected by the administration of the estate. 2. The same approach was adopted by the High Court in **In Republic Estate of Julius Ndubi Javan (Deceased) [2018] eKLR**, where the Court considered whether a purchaser of estate property had standing to seek revocation of a grant. The Court held that a purchaser claiming an interest in estate property is a person sufficiently interested in the estate to invoke the jurisdiction of the succession court under Section 76. The Court, however, emphasized that while the succession court may determine whether the grant ought to be revoked, disputes concerning the enforcement of contractual rights or ownership of land may, where appropriate, fall within the jurisdiction of the Environment and Land Court. This Court respectfully adopts that reasoning. 3. That said, the mere assertion that one is a purchaser does not automatically entitle such person to the orders sought. The Court must still inquire whether the alleged purchase confers a legally recognizable interest deserving of protection in succession proceedings. In that regard, the Court must consider, among other matters, whether the sale agreement was valid, whether the vendor possessed the legal capacity to dispose of the property, and whether the transaction complied with the mandatory provisions of the Law of Succession Act. 4. Particular significance attaches to Section 82(b)(ii) of the Law of Succession Act,which prohibits personal representatives from selling immovable property of the estate before confirmation of grant unless authorized by the Court. Where a purchaser's claim is founded upon a transaction entered into in contravention of that statutory prohibition, the Court may ultimately decline to enforce the transaction. Nevertheless, that issue goes to the merits of the purchaser's claim and not to the question of locus standi. The validity or otherwise of the sale is a matter for substantive determination after the Court has first satisfied itself that the Applicant has sufficient interest to invoke its jurisdiction. 5. Accordingly, the Court is persuaded that a purchaser who demonstrates a prima facie proprietary interest in estate property qualifies as an "interested party" within the meaning of Section 76 of the Law of Succession Act and is therefore competent to seek revocation or annulment of a grant or a certificate of confirmation of grant where it is alleged that the grant was obtained through fraud, concealment of material facts, misrepresentation, or any other ground recognized under the statute. 6. The issue that remains is not whether the Applicant has locus standi, but whether the Applicant has established any of the statutory grounds for revocation under Section 76. That question falls to be determined on the evidence placed before the Court. 7. The second issue touches on the alleged acquisition of the estate property by the said Felix Kinuthia. He has been accused by the applicant of intermeddling with the estate of the deceased. The material before me shows that the deceased died in 2004. The estate property was sold to various purchasers. Representation to the estate was made to the administrators on 3rd July,2024. The purchasers brought the parcels before a grant of representation was made to the administrators. 8. The law on intermeddling is *section 45* of the Law of Succession Act, which states – *‘(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with any free property of a deceased person.* *(2) Any person who contravenes the provisions of this section shall –* * 1. *be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or both fine and imprisonment …’* 1. The effect of this is that the property of a dead person cannot be lawfully dealt with by anybody unless such person is authorized to do so by the law. Such authority emanates from a grant of representation, and any person who handles estate property without authority is guilty of intermeddling. The law takes a very serious view of intermeddling and makes it a criminal offence. 2. The beneficiaries who were the vendors sold the property belonging to a dead person without authority as letters of administration had not yet been taken out. 3. The fact of having petitioned for the letters did not clothe them with any authority. 4. They intermeddled with the estate, and they no doubt committed an offence under *section 45(2) (a)* of the Act. 5. As the vendors had no authority to sell the property in question, The purchasers acquired no interest in it at all as the sellers had no title to it whatsoever. A buyer, such as the ones listed in both applications are not in the same footing with a creditor, for the interest they allege to have acquired in the estate was not acquired from the deceased during his lifetime or from a person authorized to sell the property. It should be noted that even where a grant of representation has been obtained, the grant-holder has no power to sell any immovable asset before confirmation of the grant. 6. This is the law under *section 82* (b) (ii),which states – *‘Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers … to sell or otherwise turn to account … all or any part of the assets vested in them, as they think best: provided that – no immovable property shall be sold before confirmation of the grant …’* 1. The sale to the purchasers of immovable property was done in contravention of the law. 2. The Applicants' complaint is founded principally on alleged concealment of their interests as purchasers. There is no dispute that purchasers with a legally recognizable interest in estate property may, in an appropriate case, approach the succession court. However, the mere fact that one alleges to be a purchaser does not, without more, justify revocation of a grant. The applicant must demonstrate both the existence of a legally enforceable interest and that one or more of the grounds stipulated under Section 76 has been established. 3. From the material placed before this Court, the Applicants rely on sale agreements allegedly executed with individual beneficiaries of the estate. 4. There is no evidence that the vendors were personal representatives acting in exercise of powers conferred by law, nor is there evidence that the Court sanctioned the alleged dispositions. 5. It is trite that prior to confirmation of a grant, immovable property of the estate cannot lawfully be sold by personal representatives except with leave of the Court. 6. Equally, beneficiaries who have not become registered proprietors through transmission possess no legal capacity to alienate estate property so as to bind the estate. 7. Any purported sale by such beneficiaries creates, at best, contractual obligations between the parties to the transaction and does not confer upon the purchaser an interest capable of defeating the lawful administration of the estate. 8. The Applicants have not demonstrated that the administrators participated in the impugned transactions or that they deliberately concealed any material fact from the Court. 9. Fraud is a serious allegation which must not only be pleaded with particularity but also proved by cogent evidence. 10. Beyond asserting that the confirmation ignored their interests, the Applicants have not placed before the Court evidence establishing fraudulent conduct, deliberate concealment or misrepresentation by the administrators. 11. Similarly, the Applicants have not demonstrated that the proceedings leading to the confirmation of the grant were defective in substance. 12. The confirmation proceedings were undertaken in accordance with the law, the beneficiaries were identified, and the estate was distributed among those entitled under the grant. 13. The Applicants' dissatisfaction arises from private transactions entered into with individual beneficiaries, not from any procedural irregularity in the succession proceedings themselves. 14. This Court is mindful that succession proceedings are intended to identify the beneficiaries of a deceased's estate and supervise its administration and distribution. They are not designed to adjudicate contested contractual rights arising from disputed sale agreements. 15. Where a purchaser alleges breach of a sale agreement or seeks enforcement of contractual rights, the appropriate remedy ordinarily lies in proceedings against the vendor or before the court vested with jurisdiction to determine questions of title, occupation or contractual interests in land, depending on the nature of the claim. 16. The Court is therefore not persuaded that the Applicants have brought themselves within any of the grounds set out under Section 76 of the Law of Succession Act. 17. Revocation of a grant is a drastic remedy which should only be granted upon clear proof of the statutory grounds. 18. Such proof has not been furnished in the present application. 19. The applicants herein lays claim to Uasin Gishu/Ngenyilel/244, not as an in heritors from the estate of the deceased herein, but by alleging that portions of that property was sold to them by the estate. 20. The sales were declared void pursuant to the ruling dated and delivered 24th May,2024. That would mean the court has to decide a question of ownership of the said property as between the estate and the applicants. Sale of property is about conveyance of title from the seller to the buyer. The dispute, therefore, is at the heart of title and ownership. 21. Ownership or proprietorship of a property revolves about title, and that clearly places the matter squarely under Article 162(2) of the Constitution. 22. The property in question is registered land. Registration of property and transfers are governed by land legislation, to be specific the Land Registration Act, No. 3 of 2012, and the Land Act, No. 6 of 2012. The two pieces of land legislation have elaborate provisions of sale of registered land, and transfer and registration thereof. A determination of the question as to whether there was a valid sale of the registered land in accordance with the relevant land legislation, is an issue that is well outside the jurisdiction of the High Court. 23. Both statutes carry provisions which state the jurisdiction of the court with regard to the application and interpretation of the two statutes. 24. These provisions are to be found in sections 2 and 101 of the Land Registration Act and sections 2 and 150 of the Land Act. 25. The provisions in the Land Registration Act state as follows: *“Interpretation.* *In this Act, unless the context otherwise requires—* *“Court” means the Environment and Land Court established under the Environment and Land Court Act, 2011, No. 19 of 2011:…* *Jurisdiction of court.* *101. The Environment and Land Court established by the Environment and Land Court Act, 2011 No. 19 of 2011 has jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.”* *29. The Land Act carries similar provisions, which state as follows:* *“2. Interpretation* *In this Act, unless the context otherwise requires—* *“Court” means the Environment and Land Court established under the Environment and Land Court Act, 2011 (No. 19 of 2011); …* *150. Jurisdiction of the Environment and Land Court. The Environment and Land Court established in the Environment and Land Court Act and the subordinate courts as empowered by any written law shall have jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.”* 1. My understanding of these provisions, in the context of the matter before me, is that any disputes or questions or issues that require court intervention, which revolve around sale, registration and transfer of land, fall within the jurisdiction of the Environment and Land Court. The Land Registration Act and the Land Act, therefore, confer jurisdiction in the Environment and Land Court with regard to all the processes that are subject to the two statutes, and, therefore, any reference in the two statutes to court is meant to refer to the Environment and Land Court and any subordinate court that has been conferred with jurisdiction over the processes the subject of the two statutes. 2. All this adds emphasis to the fact that I have no jurisdiction whatsoever to address the matter that the applicants have placed before me. 3. Jurisdiction is at the core of exercise of power by a court. Where there is no jurisdiction the court cannot exercise power without violating the principles of rule of law and legality. It was in that context that the Court of Appeal, in Owners of the Motor Vessel **“Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] eKLR,** stated: *“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 tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”* **Determination** 1. Accordingly, I find that the application dated 27th August,2025 and 21st October, 2025 seeking for revocation lack merit. **0rders** 1. The Applications dated 27th August,2025 and 21st October,2025 are hereby dismissed. 2. The Grant and the Certificate of Confirmation of Grant shall remain in force. 3. The Applicants shall be at liberty to pursue such remedies as may be available against the persons with whom they entered into the alleged sale agreements before a court of competent jurisdiction. 4. The applicants shall bear the costs. It is so ordered. **Delivered, Dated and Signed on This 17th Day of July, 2026 at Eldoret High Court** **………………………………** **J. M. CHIGITI (SC)** **JUDGE** ***In the presence of:***