https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12757

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **SUCCESSION CAUSE NO. E017 OF 2023** **IN THE MATTER OF THE ESTATE OF JAMES WACHIRA MUTHAE (DECEASED)** ## **DAVID MUITA WACHIRA........................................................... APPLICANT** **VERSUS** ## **MARGARET NJOKI THUKU..................................................RESPONDENT** **JUDGMENT** 1. The Applicant lodged the Summons for Revocation of Grant dated 9th August 2025 by which he sought the Certificate of Confirmation of Grant dated 28.10.2024 be revoked. 2. The grounds relied upon by the Applicant were that the grant was obtained fraudulently by making false statement and concealment from court of something material to the case; the grant was obtained by means of untrue allegation of fact essential in point of law. 3. According to the Petitioner, the Certificate of Confirmation of Grant dated 28.10.2024 distributed the Land parcel Othaya/Itemeni/945 in equal share to 17 beneficiaries. 4. Under paragraph 5 of the affidavit in support of his application, the Applicant states that Land parcel Othaya/Itemeni/945 is non-existent as it was subsequently sub-divided into nine resultant parcels being Othaya/Itemeni/1792 to Othaya/Itemeni/1800 all of which are registered in the names of different proprietors other than the deceased herein. 5. The Respondent/Petitioner filed a Replying Affidavit dated 31.10.2025 by which it was deposed as follows: 6. Land parcel Othaya/Itemeni/945 forms part of the deceased estate as the purported registration was done on 1st March 2010 by Ngunjiri Wachira and six others as proprietors without first filing a succession cause of the estate of the deceased. 7. The partition of Land parcel Othaya/Itemeni/945 into titles number 1792 to 1800 is null and void for obtaining the registration illegally. 8. The Respondent has filed ELC Case number E041 of 2025 at Nyeri against the nine individuals seeking cancellation of title to Land parcel Othaya/Itemeni/1792 to 1800 as the titles were illegally obtained. Submissions 1. The Applicant filed submissions dated 17.4.2026. He identified the issue for determination to be whether the Applicant has established a basis for revoking the rectified certificate of confirmation of grant dated 28.10.2024. He cited Section 76 of the Law of Succession Act. 2. It was also submitted that the Petitioner/Respondent concealed material information to the effect that the suit parcel in question did not form part of the deceased estate and that it was unavailable for distribution. That it is without doubt he has established a basis for revoking the grant. 3. He cited **Re Estate of Julius Ndubi Jaran (2018) eKLR**; that where issues of ownership of property of the estate are raised in a succession cause, they must first be resolved before succession of the property is distributed. 1. The Petitioner/Respondent filed a digest of authorities dated 2nd June 2026. She relied on section 45(1) of the Law of Succession Act. 2. The Respondent cited the case of **Munyasya Mulili & 3 others vs. Sammy Muteti Mulili 2017 eKLR:** *“... any purported sale and transfers of the estate property before that property is legally distributed to all beneficiaries is a contravention of the law. It is therefore an illegal transaction.”* Analysis 1. I have considered the application, the grounds, supporting and opposing affidavit as well as written submissions and statutory and judicial authority provided. 1. Having set out the background to the application, the issue for consideration in my view is whether the application is merited in law. 2. Section 76 of the [Law of Succession Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1972/14), provides 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, based on: **(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.** 1. A perusal of the rectified certificate of confirmation of grant dated 28.10.2024, shows it distributed the Land parcel Othaya/Itemeni/945 in equal shares to 17 beneficiaries. 1. The Applicant produced “DMW-1” being a copy of green card for Land Parcel Othaya/Itemeni/945. The green card indicates that the deceased was the registered proprietor of Land parcel Othaya/Itemeni/945 as at 2.12.1980. Later on, on 1.3.2010 the land parcel was registered in the names of Ngunjiri Wachira and six others as proprietors who then subdivided Land parcel Othaya/Itemeni/945 into 9 parcels number 1792 to 1800 respectively. 2. In the case of *Jamleck Maina Njoroge v Mary Wanjiru Mwangi (2015) eKLR* the court discussed circumstances when a grant can be revoked. “11. The circumstances that can lead to the revocation of grant have been set out in Section 76 Law of Succession. For a grant to be revoked either on the Application of an interested party or on the court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.” (Emphasis added). 1. Upon perusal of the Petition for grant of letters of administration filed by the Respondent/Petitioner it is clear that the properties listed to be the estate of the deceased were not registered in the name of the deceased. The Petitioner/Respondent had annexed Certificate of official search for Land parcels Othaya/Itemeni/1792, 1793, 1794, 1795, 1796, 1797, 1798, 1799 and 1800. This specific land parcels were registered in the names of different proprietors other than the deceased herein. However, the deceased died on 3.12.1980. All subdivision that were made without reference to succession are null and do not need an order to set aside. 2. **See Benjamin Leonard Mc foy vs. United Africa Company Limited [1961] All ER 1169**. In that case the court stated as follows: “If an Act is **void**, then it is in Law a **nullity**. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” 1. In *re Estate of Julius Ndubi Javan (Deceased) [2018] KEHC 8523 (KLR)*, it was stated: “The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property must be identified. Thus, where issues on the ownership of the property of the estate are raised in a succession cause, they must be resolved before such property is distributed. And that is the very reason why rule 41(3) of the Probate and Administration Rules was enacted so that claims which prima facie valid should be determined before confirmation.” 1. In the case *of* **Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 OF 2000,**Mwita J*.* made remarks on the guiding principles for the revocation of a grant. He stated; “[13] 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.” 1. It was common position of the parties that the deceased left land parcel number Othaya/Itemeni/945. 1. Section 47 of the [*Law of Succession Act*](https://new.kenyalaw.org/akn/ke/act/1972/14) vests this court with wide discretion in granting protective powers for purposes of safeguarding the estate of a deceased person. The section stipulates as follows: **“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.;** 1. Similarly, Rule 73 of the Probate and Administration Rules provides that: **“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”** 1. A reading of the above sections indicate that the High Court is clothed with wide powers to do what is necessary to ensure that the ends of justice are met. Thus, in a succession cause, the High Court has jurisdiction to issue any orders including cancellation of title deeds where the grant is revoked as emphasized by the Court of Appeal in [*Floris Piezzo & Another –vs-TGiancarlo Falasconi (2014)*](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/827) eKLR. 2. The Respondent submits that Land parcel Othaya/Itemeni/945 forms part of the deceased’s estate as the purported registration was done on 1st March 2010 by Ngunjiri Wachira and six others as proprietors without first filing a succession cause of the estate of the deceased. She added that the partition of Land parcel Othaya/Itemeni/945 into titles number 1792 to 1800 is null and void for obtaining the registration illegally. 3. I have looked at the green card for Land parcel Othaya/Itemeni/945. Entry number 2 which was done on 1.3.2010 indicated that Land parcel Othaya/Itemeni/945 was registered in the names of the Applicant and six other proprietors through RL7 on their own behalf and as trustees. It is not clear whether succession was done before the Applicant and six other proprietors were registered as proprietors of Land parcel Othaya/Itemeni/945. 4. In [*In Estate of Veronica Njoki Wakegito (2013)*](https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/1) eKLR it was stated that: “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 serious view of intermeddling and makes it a criminal offence.” 1. Upon perusal of the Chief’s beneficiary letter attached to the Petition for grant of letters of administration, it is clear some of the registered proprietors of Land parcels Othaya/Itemeni/1792, 1793, 1794, 1795, 1796, 1797, 1798, 1799 and 1800 are children of the deceased. However, it is not clear whether they did succession before the subdivision of Land parcel Othaya/Itemeni/945. 2. In **Munyasya Mulili & 3 Others –Vs- Sammy Muteti Mulili** (2017) eKLR Nyamweya J. cited the case of *Salome Wambui Njau* (suing as the administratrix of the *Estate of Peter Kiguru Njuguna (Deceased) –Vs- Caroline Wangui Kiguru, ELC* (2013) eKLR, where it was held that: - “In matters of succession disputes touching on land, the Environment and Land Court pursuant to Article 162 (2) of the Constitution and the High Court as the Succession Court under Section 47 of the [*Law of Succession Act*](https://new.kenyalaw.org/akn/ke/act/1972/14) would appear to have a concurrent jurisdiction. It would thus depend on the circumstances of each case which Court is best suited to hear and determine the dispute.” 1. The Respondent has filed ELC Case number E041 of 2025 at Nyeri against the nine individuals seeking cancellation of title to Land parcel Othaya/Itemeni/1792 to 1800 as the titles were illegally obtained. I see no harm in the Respondent pursuing the matter to determine the validity of the titles being held by the Applicant and 8 others. Musyoka J *in re Estate of Stone KathuliMuinde (Deceased) [2016] eKLR* held that: **“…If a decree is obtained in such suit in favour of the claimant, then such decree should be presented to the probate court in the succession cause so that that court can give effect to it.”** 1. Based on the above analysis, it leads me to this finding. The Applicant has not satisfied section 76 of the [*Law of Succession Act*](https://new.kenyalaw.org/akn/ke/act/1972/14). In the upshot, I do make the following orders. 2. All transfers and intermeddling with the deceased’s parcel of land Othaya/Itemeni/945 together with all subsequent transfers are revoked. 3. The estate to revert to the deceased James Wachira Muthae pending transmission. 4. The application for revocation of grant lacks merit and is accordingly dismissed. 5. All the persons holding the subdivisions of land parcel numbers Othaya/Itemeni/1792 to 1800 to surrender the same to the land registrar. 6. The land registrar to cancel any subdivision to land parcel number Othaya/Itemeni/945 and revert to the estate of the deceased. 7. Transmission shall be concluded within 6 months. 8. Mention on 3rd February 2027 to confirm transmission before the Deputy Registrar. 9. Each party to bear their own costs. **DELIVERED, DATED** and **SIGNED** at **NYERI** onthis **30th** day of **July,** the year of our Lord **Two Thousand and Twenty-Six**. Judgment delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Ms. Wambui Mwai for the Applicant Mr. Gatonye for the Respondent Court Assistant – Timothy