In re Estate of Lilani (Decesaed) (Succession Cause 6 of 2024) [2026] KEHC 8876 (KLR) (24 June 2026) (Ruling)

In re Estate of Lilani (Decesaed) (Succession Cause 6 of 2024) [2026] KEHC 8876 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEHC 8876 (KLR) Republic of Kenya In the High Court at Vihiga Succession Cause 6 of 2024 RN Nyakundi, J June 24, 2026 IN THE MATTER OF THE ESTATE OF ZACHARIA GOMOLA LILANI (DECEASED) Between Sabeti Andia Gomora Petitioner and Esther Minayo Tito Applicant and Crphin Ingaru Maganga Respondent Ruling 1.In her Chamber Summons application dated 15th December 2024 and filed on 31st January 2025, the Applicant herein sought for orders as follows:-1.That the Applicant Esther Minayo Tito be substituted and made an Administrator of the estate of the deceased herein in place of Sabeti Andia Gomora.2.That the Grant issued to Sabeti Andia Gomora be rectified accordingly in order to reflect Esther Minayo Tito.3.That this court be pleased to rectify and/or revoke all parcels of Land being resultant of sub-division of L.P North Maragoli/Kisatiru/304 to wit L.P No North Maragoli/Kisatiru/1943-1946 to be in conformity with the Certificate of Grant issued on July 2013 and dated 22nd July 2013.4.That the County Surveyor Vihiga County be ordered to survey L.P No North Maragoli/Kisatiru/1943-1946 to be in conformity with the Certificate of Grant issued on 16th July 2013 and dated 22nd July 2013. 2.She swore an affidavit in support of the said Application on 15th December 2024. She averred that she was the daughter of one Tom Mbagala Mare and had proved that by a copy of the Chief’s Letter. She stated that the Petitioner herein was the wife of her late father’s brother, the deceased’s herein. 3.She asserted that the Petitioner died on 6th November 2019 at Vihiga County Referral Hospital and that prior to her death, she had instituted this Cause and Grant was issued by this court on 22nd July 2013. She added that the Certificate of Grant clearly indicated the mode of distribution of the estate of the deceased but that the Respondent herein in collusion with the Surveyor had altered the same and allocated her less of what had been distributed by court. 4.She prayed that she be substituted in place of the deceased Petitioner to enable her rectify the illegal and/or alter the mode of distribution. 5.No response was filed in respect of the said application. The Applicant’s Written Submissions were dated 1st November 2025 and filed on 5th November 2025. Legal Analysis And Determination 6.Section 76 of the Law of Succession Act Cap 160 (Laws of Kenya) provides as follows:-“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; or(ii)to proceed diligently with the administration of the estate; or(iii)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; or(e)that the grant has become useless and inoperative through subsequent circumstances.” 7.Notably, the Certificate of Confirmation of Grant herein was issued on 22nd July 2013. As the Administrator (now deceased) had failed to apply for the confirmation of the said Grant within the prescribed period as provided for under the above-mentioned Section, the said Grant was inoperative by dint of paragraph (e) of the said Section. 8.In the premises, the only option left was to revoke the said inoperative grant and let the beneficiaries appoint another Administrator and Petition for fresh Grant of Letters of Administration following the 9.The Court of Appeal in the case of Florence Okutu Nandwa & Another vs. John Atemba Kojwa, Kisumu Civil Appeal No. 306 of 1998, held that: -“A grant of representation is made in personam. It is specific to the person appointed. It is not transferable to another person. It cannot therefore be transferred from one person to another. The issue of substitution of an administrator with another person should not arise. Where the holder of a grant dies, the grant made to him becomes useless and inoperative, and the grant exists for the purpose only of being revoked. Such grant is revocable under Section 76 of the Law of Succession Act. Upon its revocation, a fresh application for grant should be made in the usual way, following procedures laid down in the Law of Succession Act and the Probate and Administration (Rules)…” (Emphasis court) 10.In the circumstance herein, this Application is not provided for under the law and the same be and is hereby dismissed. As this was a family cause, the court deviated from the general rule that costs follow events so as to preserve family unity. 11.Orders accordingly. DATED, SIGNED AND DELIVERED AT VIHIGA VIA CTS AND EMAIL THIS 24TH DAY OF JUNE 2026………………………………..R. NYAKUNDIJUDGE