https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12154

In re Estate of Opapo (Deceased) (Succession Appeal E005 of 2025) [2026] KEHC 12154 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KEHC 12154 (KLR) Republic of Kenya In the High Court at Kisumu Succession Appeal E005 of 2025 AK Ithuku, J July 31, 2026 IN THE MATTER OF THE ESTATE OF NICHOLAS BARRACK OPAPO (DECEASED) Between Dinah Anyango Koro Appellant and Julius Odhiambo Chesongo Respondent (Being an appeal against the Ruling and Order of Hon. Edina Nyaboke Angima, Resident Magistrate, delivered on 27th February 2025 in Nyando Magistrate’s Court Succession Cause No. E135 of 2024) Judgment A. Introduction 1.This is a first appeal. It is brought by the appellant, Dinah Anyango Koro, the widow of the deceased and a co-administrator of his estate, against the Ruling and Order of Hon. Edina Nyaboke Angima, Resident Magistrate, delivered at the Nyando Magistrate’s Court on 27th February 2025 in Succession Cause No. E135 of 2024. By that Ruling the trial court dismissed, with costs, the appellant’s Chamber Summons dated 15th November 2023 in which she had sought the revocation of the grant of letters of administration made to the respondent and the annulment of the certificate of confirmation of grant issued on 9th March 2021. 2.The respondent, Julius Odhiambo Chesongo, is the other co-administrator of the estate. He first came into the succession as a person asserting a claim against the estate in the character of a creditor and an adverse claimant to the deceased’s land, and it was on that footing that a grant of letters of administration was first made to him. 3.By a Memorandum of Appeal dated 6th March 2025 the appellant advances six grounds of appeal and prays that this court allows the appeal, sets aside the Ruling and Order of the trial court, and substitutes orders revoking the grant made to the respondent, permitting the appellant to set down the petition for confirmation of grant afresh, reserving to the respondent liberty to prove his alleged debt in a court of competent jurisdiction, and awarding her the costs of both courts. 4.The appellant did not file written submissions in this appeal. The respondent filed written submissions dated 10th April 2026 which are confined to a single, threshold objection: that the appeal is incompetent because leave to appeal was neither sought nor obtained, and that the want of such leave deprives this court of jurisdiction to entertain the appeal at all. I therefore begin with that objection before turning, if necessary, to the merits. B. Background 5.The late Nicholas Barrack Opapo ("the deceased") died intestate. According to the grant of letters of administration on record his date of death is given as 10th April 2016, although certain affidavits in the record give the date as 10th April 2006; nothing in this appeal turns on the discrepancy. He was survived by his widow (the appellant) and his children, some of whom are minors, so that the administration of his estate involves a continuing trust. The principal asset around which this dispute has revolved is the parcel of land known as Kisumu/Katolo/780, which was registered in the name of the deceased. 6.The succession did not begin in the ordinary way, with the family taking out representation. It began with the respondent. In Kisumu High Court Citation Cause No. 55 of 2015 the respondent took out a citation naming the appellant as citee. In the affidavit verifying the proposed citation he deponed, among other things, that the deceased had "fraudulently registered" the suit land, that he (the respondent) had been the first registered owner of the parcel since 1984 and remained in occupation, and that by a verbal agreement made in 1996 the deceased had agreed to purchase a portion of the land for KShs 20,000, of which a balance of KShs 13,000 had remained unpaid at the date of death. On that basis the respondent presented himself as a creditor of, and adverse claimant against, the estate. 7.Those very claims had, however, been disputed by the appellant through her advocates’ letter dated 14th October 2015, which the respondent did not place before the court at the citation stage. Upon the appellant’s default in petitioning, the respondent obtained leave to petition and a grant of letters of administration intestate was issued to him alone on 5th December 2016. 8.On 23rd June 2017 the respondent applied for confirmation of that grant, proposing that the whole of parcel Kisumu/Katolo/780 be transmitted to himself. When the application came up, none of the beneficiaries had been served or involved. The appellant filed an affidavit of protest on 23rd March 2018, asserting that the parcel was registered exclusively in the name of her late husband, that the respondent enjoyed no privity of the estate and was owed nothing by it, and that he had engaged none of the beneficiaries in his proposed mode of distribution. 9.On 27th September 2018 the court (Cherere J.) directed that a fresh grant issue jointly to the appellant and the respondent, and a joint grant of letters of administration was issued to both of them on 19th February 2019. On 22nd August 2019 the respondent filed a further application for confirmation, this time proposing that he take 1.20 hectares of the parcel and the appellant 0.40 hectares. That application was not accompanied by the consent of the beneficiaries to the proposed distribution. On 14th October 2019 the court directed that the protest be heard by way of viva voce evidence and that the parties file and exchange witness statements. The matter was thereafter referred to court-annexed mediation, which yielded a certificate of non-compliance. 10.On 1st February 2021, the respondent appeared before Kamau J. (who was then coming to the matter afresh) and took an ex parte date for the hearing of the confirmation. On 1st March 2021 the confirmation was heard in the absence of the appellant and the grant was confirmed in the terms the respondent had proposed, notwithstanding the earlier direction that the protest be heard viva voce. A certificate of confirmation of grant issued on 9th March 2021, distributing 1.20 hectares to the respondent and 0.40 hectares to the appellant. 11.The appellant’s case is that she learnt of the confirmation only when, on being served with the respondent’s subsequent application dated 12th July 2023 (by which he sought to compel the execution of the instruments of sub-division and transfer of the 1.20 hectares to himself), she discovered that the grant had been confirmed against her protest. She thereupon filed the Chamber Summons dated 15th November 2023, seeking revocation of the certificate of confirmation and of the grant made to the respondent, and the appointment of a co-administrator in his place. 12.On 29th April 2024, the High Court (Sharriff J.), having established from Form P&A 5 that the value of the estate was estimated at KShs 1,000,000 and thus within the pecuniary jurisdiction of the subordinate court, transferred the cause to the Nyando Magistrate’s Court "for hearing and determination". That transfer was made at a sitting convened for the very purpose of fixing the hearing of the appellant’s revocation application. It is on that transfer that the appellant’s Chamber Summons came to be heard and determined by the learned trial magistrate. C. The Ruling Appealed From 13.In her Ruling of 27th February 2025, the learned magistrate set out the prayers in the Chamber Summons and the parties’ respective affidavits. She reproduced section 76 of the Law of Succession Act and cited In re Estate of Magangi Obuki (Deceased) [2020] eKLR, Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] eKLR and Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] eKLR. She then found that there was "no evidence of defect in the proceedings, fraud or untrue allegations made to the Court"; that the appellant had actively participated in the proceedings and had not adequately explained the occasions on which she stayed away; and that the appellant had failed to file her submissions despite being directed to do so. 14.The nub of the trial court’s reasoning, however, lay in its conclusion on jurisdiction. The learned magistrate held that what was apparent was that the appellant had "failed to prosecute her case before the Hon. Court and is now seeking this Court to review the decision of a superior Court! It can never happen." On that basis she dismissed the Chamber Summons with costs to the respondent. D. The Grounds Of Appeal 15.The Memorandum of Appeal raises six grounds, which may be summarised as follows:(i)that the learned magistrate erred in finding that the application did not reveal fraud or untrue allegations of fact material to the petition, when the evidence showed that the respondent was not an undisputed creditor of the estate and therefore lacked privity of the estate;(ii)that she erred in finding that the issues raised in the application for revocation or annulment had already been determined by the High Court, when no such determination exists on the record;(iii)that she exhibited undue bias against the appellant by ignoring the merits of her case in favour of an unsupported finding that she had failed to prosecute her case and was seeking to review a decision of the superior court;(iv)that she erred in law in holding that the grant could not be revoked merely because the superior court had made it, when it was that same superior court which had transferred the cause to her for determination and final disposal, thereby unlawfully circumscribing her jurisdiction and reading into section 76 of the Law of Succession Act a limitation that does not exist;(v)that in quoting Jamleck Maina Njoroge v Mary Wanjiru Mwangi and Albert Imbuga Kisigwa v Recho Kavai Kisigwa, she failed to take into account the cardinal principle that in deciding whether to revoke a grant it is the interest of all the beneficiaries of the estate that must be the guiding light; and(vi)that she erred in ignoring the established principles that only creditors with proven or acknowledged debts qualify for a grant of administration, and that the duty of the succession court is confined to ascertaining the assets of the estate, the beneficiaries and the mode of distribution, so that contested claims by creditors must first be determined by a court of competent jurisdiction before being brought to the succession court. E. Issues For Determination 16.Having considered the Memorandum of Appeal, the record of appeal and the respondent’s submissions, I frame the following issues for determination:(a)whether the appeal is competent, and in particular whether leave to appeal was a precondition to the exercise of this court’s appellate jurisdiction;(b)the nature of the appeal and the standard by which this court is to review the decision of the trial court;(c)whether the learned magistrate erred in holding that she lacked jurisdiction to revoke the grant and that the appellant was seeking to review a decision of the superior court (grounds (ii), (iii) and (iv));(d)whether, on a re-evaluation of the record, the appellant established grounds for the revocation or annulment of the grant under section 76 of the Law of Succession Act (grounds (i), (v) and (vi)); and(e)what orders, including as to costs, ought to issue. F. Analysis And Determination (a) Whether the appeal is competent — the question of leave 17.The respondent did not raise this objection by way of a formal preliminary objection; he took the point in his written submissions, contending that, no leave to appeal having been sought or granted, the appeal is a nullity and this court is without jurisdiction. As the objection goes to jurisdiction, it is one that may be taken in that manner and at any stage, and I therefore consider it first. He relies on Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR for the proposition that a court cannot arrogate jurisdiction to itself by judicial craft, and on Mohammed Shally Sese v Fulson Company Limited & Another [2006] eKLR for the proposition that equity does not aid the indolent. 18.With respect, the objection is misconceived. The right of appeal in a succession cause decided by a magistrate is conferred by statute. Section 50(1) of the Law of Succession Act provides:“An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate and the decision of the High Court thereon shall be final." 19.The provision confers an appeal as of right. It draws no distinction between final and interlocutory orders and imposes no requirement of leave. The only mention of leave in section 50 is in subsection (2), which concerns a further appeal to the Court of Appeal, on a point of Muslim law, from a decision of a Kadhi’s Court — a situation that has no application here. There is thus no statutory foundation for the respondent’s contention that leave was a precondition to this appeal. 20.The authority on which the respondent relies in fact tells against him. The principle in Samuel Kamau Macharia is that jurisdiction flows from the Constitution or from statute and cannot be conferred or enlarged by judicial craft. Applying that very principle, the statute — section 50(1) of the Law of Succession Act — confers upon this court jurisdiction to hear an appeal from the order of the Resident Magistrate as of right. To insist upon a leave requirement that the statute does not impose would itself be to add to the statute by judicial craft. As for Mohammed Shally Sese, the maxim that equity does not aid the indolent has no bearing on the existence of a statutory right of appeal; it goes, if at all, to the merits, to which I return below. 21.The objection is accordingly overruled. The appeal is competent and properly before this court. (b) The nature of the appeal and the standard of review 22.This being a first appeal, the duty of this court is that restated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123: to reconsider the evidence, evaluate it and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses and making due allowance for that. Here the application for revocation was determined on affidavit evidence and documentary material, without oral testimony. In those circumstances this court is in as good a position as the trial court to assess the material, and the caution ordinarily owed to a trial court’s impressions of demeanour has little application. 23.At the same time, the power to revoke or annul a grant under section 76 of the Law of Succession Act is a discretionary one. Where the appeal is against the exercise of a discretion, this court will not interfere merely because it might have reached a different conclusion. As was held in Mbogo & Another v Shah [1968] EA 93, an appellate court will not interfere with the exercise of discretion by the court below unless satisfied that the decision is clearly wrong because that court misdirected itself, or acted on matters on which it should not have acted, or failed to take into account matters which it should have considered, and in so doing arrived at a wrong conclusion. It is by that measure that the grounds of appeal fall to be assessed. (c) Jurisdiction to revoke, and the finding that the appellant sought to review the superior court (grounds (ii), (iii) and (iv)) 24.The decisive strand of the trial court’s reasoning was that the appellant was, in substance, inviting a magistrate to "review the decision of a superior Court", which "can never happen". That reasoning, in my respectful view, proceeds from a misdirection as to the nature of the jurisdiction the trial court was exercising. 25.The cause came before the Nyando Magistrate’s Court not on the magistrate’s own initiative but by an order of the High Court (Sharriff J.) made on 29th April 2024, transferring it "for hearing and determination". That was a general transfer of the cause, made at a sitting convened to fix the hearing of the appellant’s revocation application. On that transfer the trial court was fully seized of the cause and clothed with the jurisdiction of a court of first instance in the succession, the estate being within its pecuniary jurisdiction under section 48 of the Act. It was, for the purposes of the matters transferred, the succession court. 26.Section 76 of the Law of Succession Act empowers "the court" to revoke or annul a grant of representation, "whether or not confirmed", and to do so "at any time", either on the application of an interested party or of its own motion. Entertaining such an application is not an exercise in reviewing or sitting on appeal from the court that made the grant; it is the discharge of a distinct statutory jurisdiction expressly conferred on the succession court itself. Once seized of the cause, the trial court was both entitled and bound to determine the revocation application on its merits. To decline to do so on the ground that it could not "review" the superior court was to circumscribe a jurisdiction that the statute had conferred and that the transfer had placed in its hands. Ground (iv) succeeds. 27.Two further findings cannot stand on the record. First, the finding that the appellant "failed to file her submissions" is contradicted by the record of appeal, which contains the appellant’s written submissions filed in the court below, and by the proceedings, which record that both parties had filed submissions before the Ruling was reserved. Second, the finding that the issues raised in the revocation application had already been "determined by the High Court" is not borne out: the High Court had directed a joint grant and had directed that the protest be heard viva voce; the confirmation was thereafter taken ex parte and the protest was never heard on its merits. There was thus no prior adjudication of the questions raised by the revocation application. Grounds (ii) and (iii) accordingly also succeed. (d) Whether grounds for revocation under section 76 were established (grounds (i), (v) and (vi)) 28.Section 76 provides, so far as is relevant, that a grant may be revoked or annulled where:“(a)the proceedings to obtain the grant were defective in substance; (b) 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) 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; [or] (d) the person to whom the grant was made has failed, after due notice and without reasonable cause, to apply for confirmation or to proceed diligently with the administration." 29.The power is discretionary, but it is not exercised in a vacuum. As Mwita J. observed in Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] eKLR (Succession Cause No. 158 of 2000) — the very authority the trial court cited — the power "must be exercised judiciously and only on sound grounds… There must be evidence of wrongdoing", and when the court is called upon to exercise it, "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." That the trial court cited this authority yet did not weigh the interests of the beneficiaries is the very complaint made in ground (v). 30.Re-evaluating the record, the following matters, in my view, satisfy the threshold under section 76. The respondent came to the estate asserting a claim as a creditor and adverse owner founded upon an alleged unpaid balance under a verbal sale of 1996 and an assertion that he, and not the deceased, was the true owner of the suit land. That claim was, from the outset, contested: the appellant had disputed it by her advocates’ letter of 14th October 2015, a letter the respondent did not disclose to the court when he took out the citation. The concealment of a known dispute, going to the very foundation on which the respondent presented himself as a person entitled to a grant, is material within the meaning of section 76(b), and the allegation of an entitlement founded on a contested and unproven claim is an untrue allegation of a fact essential in point of law to justify the grant within section 76(c). 31.More fundamentally, a succession court had no jurisdiction to determine the respondent’s contested claim of debt and ownership in the first place. As was held in In re Estate of William Koike Riyies (Deceased) [2024] KEHC 4177 (KLR), the jurisdiction of a court sitting in probate "is limited to ascertaining what assets form the estate of a deceased person, who the beneficiaries are and how to distribute the assets to the beneficiaries"; it does not extend to determining who the creditors are where the claim is contested, and a person "whose claim is contested, must first go to the court with the jurisdiction to determine such an issue and once his claim has crystallised, he can return to the Probate Court and lay his claim by presenting the decree." The respondent’s claim to the deceased’s registered land was precisely such a contested claim, properly the province of the Environment and Land Court. Yet, through the confirmation, the succession court proceeded to award him 1.20 hectares — three-quarters of the sole registered asset — to the detriment of the widow and the children of the deceased. Grounds (i) and (vi) are, in substance, made out. 32.The manner in which the confirmation was obtained compounds the defect. Notwithstanding the express direction of Cherere J. of 14th October 2019 that the protest be heard by viva voce evidence, the confirmation was taken ex parte before a judge newly seized of the matter, in the appellant’s absence, and the proposed distribution was confirmed without the consent of the beneficiaries and without the protest ever being heard. Proceedings that dispose of the sole asset of an estate against a pending protest, contrary to a subsisting direction for a viva voce hearing, and without the participation of the beneficiaries (among them minors on whose behalf a continuing trust subsists), are defective in substance within section 76(a). 33.For completeness I address the answers the respondent advanced below. It was said that the court was functus officio and that the appellant’s only remedy was an appeal. Neither answer holds. Section 76 expressly permits revocation "at any time" and "whether or not confirmed"; a court is therefore not functus when invited to revoke a grant obtained through concealment or defect, and the existence of a right of appeal does not oust the distinct statutory remedy of revocation. It was also said that the appellant was indolent. But a revocation under section 76 is not barred by any period of limitation, and on the record the appellant learnt of the confirmation only upon being served with the respondent’s application of 12th July 2023, whereupon she acted. Nor does her position as a co-administrator bar her: she remained an interested party entitled to invoke section 76, and her having been joined as co-administrator did not cure the defects attending the ex parte confirmation obtained in her absence. 34.It follows that the learned magistrate’s conclusion that there was "no evidence of defect in the proceedings, fraud or untrue allegations" was reached without regard to the concealment of the dispute, the want of jurisdiction over the contested claim, the ex parte confirmation taken contrary to a subsisting direction, and the absence of the beneficiaries’ consent. That was a misdirection of the kind contemplated in Mbogo v Shah, and the resulting decision cannot stand. Grounds (i), (v) and (vi) succeed. G. Disposition 35.For the reasons given, the appeal succeeds. I make the following orders:(a)the appeal is allowed;(b)the Ruling and Order of the Nyando Magistrate’s Court delivered on 27th February 2025 in Succession Cause No. E135 of 2024 are set aside;(c)the certificate of confirmation of grant issued on 9th March 2021 is annulled, and the grant of letters of administration is revoked insofar as it enured to the benefit of the respondent, Julius Odhiambo Chesongo;(d)the appellant, Dinah Anyango Koro, shall remain the administratrix of the estate; and, there being a continuing trust, the trial court shall, pursuant to section 58 as read with section 66 of the Law of Succession Act, appoint a co-administrator to act jointly with her, preferably from among the adult beneficiaries of the estate;(e)the estate shall be ascertained afresh and the petition set down for confirmation of grant before the Nyando Magistrate’s Court, within such time and on such directions as that court shall give, with all the beneficiaries of the estate being involved in the proposed mode of distribution;(f)the respondent is at liberty to pursue his claim of debt and his claim to the suit land in a court of competent jurisdiction and, if he obtains a decree, to present it to the succession court in the ordinary way; and(g)the appellant shall have the costs of this appeal. The costs of the application in the court below shall abide the outcome of the fresh confirmation proceedings.Orders accordingly. DATED, SIGNED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026.HON. ALEX K. ITHUKUJUDGEIn the presence of:Counsel for the appellant: ....................................................Counsel for the respondent: ................................................