https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12809

In re Estate of Kanyoni alias Njamwea Kanyoni (Deceased) (Succession Cause 550 of 2008) [2026] KEHC 12809 (KLR) (29 July 2026) (Ruling) Neutral citation: [2026] KEHC 12809 (KLR) Republic of Kenya In the High Court at Nyeri Succession Cause 550 of 2008 DKN Magare, J July 29, 2026 IN THE MATTER OF THE ESTATE OF NJAMWEA GITUMO KANYONI alias NJAMWEA KANYONI (DECEASED) Between Flora Wanjiku Muriuki Applicant and Laban Kithome Wamugunda 1st Respondent Peter Kanyoni Njamwea 2nd Respondent Ruling 1.This Ruling is in respect of the Chamber Summons seeking revocation of the grant filed by the Applicant and dated 5.9.2025. The Summons seeks the following reliefs:a.Spent.b.That an order of stay be issued on any transfer of any assets of the estate of the late Njamwea Gitumo Kanyoni alias Njamwea Kanyoni pending the hearing and determination of the application for revocation/annulment of grant.c.That pending the hearing and determination of this summons for revocation, this honourable court be pleased to restrain the respondents, their servants, agents or any other persons acting on their own behalf or on behalf of the respondents from howsoever trespassing, entering, encroaching, subdividing, transferring, or harassing the applicants or interfering with their peaceful occupation and possession of title number Mwerua/Kiandai/1119.d.That an order of stay of proceedings be issued on the proceedings of Criminal Case No. 936 of 2022 pending hearing and determination of the summons for revocation herein.e.That High Court Succession Cause No 550 of 2008 be transferred to the High Court at Kerugoya for hearing and final disposal thereof of the summons for revocation dated 16th August, 2025.f.That the certificate of confirmation to Laban Kithome Wamugunda and Peter Kanyoni Njamwea extracted herein be cancelled.g.That Laban Kithome Wamugunda and Peter Kanyoni Njamwea be ordered to render a just and true account of the estate of the late Njamwea Gitumo Kanyoni alias Njamwea Kanyoni as listed in the schedule to the certificate of confirmation dated 29th January 2010.h.That the letters of administration granted to one Peter Kanyoni Njamwea, issued on the 30th March 2009, and a certificate of confirmation issued by this Honourable Court on the 29th January 2010 be revoked and/or annulled.i.That this Honourable Court be pleased to order a cancellation of any transfer of assets made in respect of the assets listed in the schedule to the certificate of confirmation dated 29th January 2010.j.That costs of this application be provided for. 2.The application is supported by the Affidavit of the Applicant sworn on 5.9.2025 premised on the following grounds:a.She was a widow to the son of the deceased known as Charles Muriuki.b.The deceased had 3 wives and 5 sons.c.The deceased had granted each of the sons land leaving on Mwerua/Kiandai/1119 for distribution.d.The deceased wished that Mwerua/Kiandai/1119 be divided equally among the 3 houses, each house getting half an acre, and had communicated this to the area chief and which share they had already occupied.e.The 2nd and 3rd houses colluded to sell the said parcel to the 1st Respondent.f.The 1st house was never involved in the succession, including the Applicant.g.The Applicant was charged with forcible detainer in Baricho Law Courts due to acts of the Respondents. 3.The Respondents responded to the Chamber summons by way of a replying affidavit sworn by Peter Kanyoni Njamwea by which it was deposed in material as follows:a.The Applicant had not complied with the order of the court on costs and so did not deserve audience of court.b.This court dismissed a similar application for want of prosecution and is funtus officio.c.The Applicant could only appeal to a higher court. 4.The beneficiary Simon Njamwea also filed an affidavit sworn on 27.4.2026 by which he deposed in material part that he was not involved in the process leading to the letters of administration intestate and the certificate of confirmation of grant. Submissions 5.Submissions dated 4.5.2026 were filed on behalf of the beneficiary Simon Mwai Njamwea. It was submitted that all beneficiaries were not brought on board during succession and hence it would only be fair and just that the grant be revoked so that the land reverts back in the name of the deceased for fresh distribution. Reliance was placed on section 176 of the Law of Succession Act. 6.The Applicant filed submissions dated 5.5.2026. It was submitted that the application met the threshold to revoke the grant and reliance was placed on Section 76 of the Law of Succession Act that gives the court the powers to revoke a grant 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; 7.It was also submitted that the Respondents herein, during confirmation, sought to divide the parcel of land but failed to appreciate the Applicant’s claim and that of his brother-in-law, which was just a share of ½ an acre of the land parcel. Further, the 2nd Respondent maliciously and fraudulently introduced a stranger into the estate of the deceased, terming him as a creditor, the 1st Respondent, to distribute the estate of the deceased, leaving out the rightful beneficiaries. Reliance was placed on the Matter of the Estate of L.A.K. (Deceased) [2014] eKLR where the court stated that:“Revocation of grants is governed by Section 76 of the Law of Succession Act. The relevant portions of Section 76 are paragraphs (a), (b) and (c) since the issues raised relate to the process of the making of a grant. A grant may be revoked where the proceedings leading up to its making were defective, or were attended by fraud and concealment of important matter, or was obtained by an untrue allegation of a fact essential to the point.” 8.On the part of the Respondents, I have not had sight of their submissions. Analysis 9.The Respondents raised an issue that the application is similar to an application by the Applicants dated 10.8.2022 that was dismissed by this Court on 14.10.2024 and so the Court was functus officio. A dismissal for want of prosecution did not preclude a fresh application for want of prosecution. The Applicant had the option to seek to reinstate the dismissed application or file a fresh application. I am thus unable to fault the Applicant for filing a fresh application as the matters in the application dismissed for want of prosecution were not determined in their entirety. In re Estate of Andashe Munyeti (Deceased) [2021] eKLR the court stated as follows:7.Once the High Court issues a certificate of confirmation of grant the exercise that follows is transmission, which is not governed by the Law of Succession Act, as I have indicated above, but by land legislation, which legislation is not oversighted by the High Court but by the Environment and Land Court. Issues that arise from implementation of the certificate of confirmation of grant are not within the province of the High Court, and the High Court becomes pretty much functus officio, so far implementation of the distribution orders are concerned. The only thing the High Court can do is to amend or review the certificate, but it cannot oversight how the exercise of distribution is carried out, for that oversight lies elsewhere. So much of what is sought in the application dated 22nd October 2020 is outside the jurisdiction of the High Court, especially all those orders sought against the Land Registrar. 10.The court is thus not functus officio on the issue of revocation of the Grant, for the Grant, whether or not confirmed, may at any time be revoked as provided under Section 76 of the Law of Succession Act. In the case of Ochanda (Suing on his Behalf and on Behalf of 996 Former Employees of Telkom Limited) v Telkom Kenya Limited (Motion 24 of 2014) [2014] KESC 7 (KLR) (25 November 2014) (Ruling), the court of appeal [EM Githinji, W Karanja & Po Kiage, JJ] held as follows regarding functus officio:21.Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognised in the common law tradition from as long ago as the latter part of the 19th Century. In the Canadian case of Chandler Vs Alberta Association of Architects [1989] 2 S.C.R. 848, Sopinka J. traced the origins of the doctrines as follows (at p. 860);22.The general rule that a final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal In re St. Nazaire Co., (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:23.Where there had been a slip in drawing it up, and,Where there was an error in expressing the manifest intention of the court. SeePaper Machinery Ltd. vs. J.O. Rose Engineering Corp., [1934] S.C.R. 186”The Supreme Court in Raila Odinga v IEBC cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 in which the learned author stated;...“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”24.The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions and these have been captured thus in Jersey Evening Post Ltd Vs Ai Thani [2002] JLR 542 at 550, also cited and applied by the Supreme Court; 11.The same was discussed in the case of Menginya Salim Murgani v Kenya Revenue Authority [2014] eKLR, where the Supreme Court posited as follows:It is a general principle of law that a Court after passing Judgment, becomes functus officio and cannot revisit the Judgment on merits, or purport to exercise a judicial power over the same matter, save as provided by law. In Lakhamshi Brothers v. Raja & Sons [1966] EA 313 the then Court of Appeal heldas follows:“This court is now the final Court of Appeal and when this court delivers its judgement, that judgement is, so far as the particular proceedings are concerned, the end of the litigation. It determines in respect of the parties to the particular proceedings their final legal position, subject as I have said to the limited application of the slip rule.” 12.The Supreme Court decision of Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR) cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with special reference to its application in Administrative Law” (2005) 122 SALJ 832 reads: -“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.” 21.Section 99 of the Civil Procedure Act provides exceptions to the doctrine of functus officio in the following terms-“Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.” 13.The Respondent contended that the Appellant is, in effect, inviting this Court to reopen the case, re-evaluate the evidence, and arrive at a fresh determination on issues herein. However, upon considering the material placed before the Court, I note that the Respondent did not disclose that there are other beneficiaries with an interest in the suit property. Further, the charge of forceful detainer appears to have been founded solely on the basis of the confirmed grant. That fact is significant, as it raises the question whether the criminal proceedings were instituted without full disclosure of the succession dispute and the competing interests in the land. It suggests that the dispute is not merely one of unlawful occupation, but one that is intertwined with unresolved issues relating to the administration and distribution of the deceased's estate. 14.The Grounds for revocation or annulment of grant of Letters of Administration are set out in Section 76 of the Law of Succession 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; 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. 15.The Applicant maintained that the Respondents left the 1st house out of the distribution of the estate and disinherited them. The deceased herein died on 18.6.2003. The only property that is subject to the contest herein is stated as Mwerua/Kiandai/1119 measuring 0.539 Ha. It is said that the 2nd Respondent illegally sold and transferred the said property to one Laban Kithome Wamugunda. He has not taken possession, hence the question of forcible detainer. 16.In this case, it is clear that one house was totally left out of the succession. This offends the right to fair hearing. Proceeding without regard to other parties to be affected irredeemably soils any decision flowing from the fruits flowing from that decision. In the case of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR), the Court of Appeal, sitting in Malindi [Makhandia, Ouko & M’Inoti, JJ.A] posited as follows:The former Court of Appeal for Eastern Africa, in Ali Bin Khamis v. Salim Bin Khamis Kirobe & Others, [1956] 1 EA 195 expressed the view that where an order is made without service upon a person who is affected by it, procedural cockups will not deter the court, ex debito justitiae, from setting aside such an order. Briggs, JA., with whom Worley P. and Sinclair, VP. concurred, stated thus:“On the appeal before us Mr. Khanna relied on Craig v Kanseen [1943] 1 All ER 108 as showing that where an order is improperly made without serving a person known to be affected by it and having a statutory right to be served before its can be made, the order is a nullity in the sense that it must be set aside ex debito justitiae, and that in cases of nullity procedure is unimportant, since the Court has inherent jurisdiction to set aside its own order. I accept these principles, as laid down by Lord Greene, MR.” 17.The court has thus found a basis for nullifying a grant. In the case of Jamleck Maina Njoroge v Mary Wanjiru Mwangi (2015) eKLR the court discussed circumstances when a grant can be revoked. The court observed:“ 11.The circumstances that can lead to the revocation of a grant have been set out in Section 76 of the 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.” 18.The next question is whether the title held by Laban Kithome Wamugunda is protected by section 93 of the Succession Act.(1)All transfers of any interest in immovable or movable property made to a purchaser either before or after the commencement of this Act, by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act.(2)A transfer of immovable property by a personal representative to a purchaser shall not be invalidated by reason only that the purchaser may have notice that all the debts, liabilities, funeral and testamentary or administration expenses, duties, and legacies of the deceased have not been discharged nor provided for. 19.Laban Kithome Wamugunda was listed in the succession proceedings as a creditor rather than as a beneficiary. Consequently, he does not enjoy the protection afforded under section 93 of the Law of Succession Act, which safeguards bona fide purchasers who acquire property from a personal representative. If indeed Laban's claim is founded on an alleged purchase from the deceased during his lifetime, that is a separate cause of action which he is at liberty to pursue before a court of competent jurisdiction. Such a claim cannot be vindicated through reliance on section 93, nor can it defeat the rights of the beneficiaries in these succession proceedings. 20.The final issue concerns the effect of this decision on Baricho Criminal Case No. 936 of 2022. It is evident that the criminal proceedings were commenced on the strength of the orders issued in these succession proceedings. Having found that the foundation upon which those proceedings were predicated can no longer stand, it follows that the continuation of the criminal case would amount to an abuse of the court process. 21.Accordingly, the only appropriate order is one permanently staying the proceedings in Baricho Criminal Case No. 936 of 2022. For the avoidance of doubt, this order is confined to the proceedings founded on the impugned grant and does not preclude the Director of Public Prosecutions from taking such lawful action as may be warranted on the basis of any fresh or independent evidence unrelated to the matters determined in this succession cause. 22.A copy of this ruling shall be served upon the Director of Public Prosecutions for appropriate action in light of the findings and orders made herein. 23.Given the size of the estate, this file is transferred to Baricho MCC for hearing and determination. The court shall appoint an administrator other than the petitioner herein. 24.All title deeds issued herein pursuant to the revoked grant are hereby cancelled. The Land Registrar shall cancel all subdivisions and transfers and revert all the deceased’s estate to the state it was on 18.06.2003. Consequent upon the foregoing, the letters of administration granted to one Peter Kanyoni Njamwea, issued on the 30th March 2009, and a certificate of confirmation issued by this Honourable Court on the 29th January 2010 are hereby revoked. 25.This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, which provides as follows:(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.(2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 26.Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 27.The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), as follows:18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.22.Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 28.Given the circumstances, the Applicant is entitled to costs. The Respondents shall bear the costs of cancellation of titles. Determination 29.In the upshot, I make the following orders: that the Chamber Summons for Revocation of the Grant dated 5.9.2025 is hereby allowed in the following terms:a.Consequent upon the foregoing, the letters of administration granted to one Peter Kanyoni Njamwea, issued on the 30th March 2009, and a certificate of confirmation issued by this Honourable Court on the 29th January 2010 are hereby revoked.b.Baricho Criminal Case No. 936 of 2022 is permanently stayed.c.A copy of this ruling shall be served upon the Director of Public Prosecutions for appropriate action in light of the findings and orders made herein.d.This file is transferred to Baricho MCC for hearing and determination.e.The court shall appoint an administrator other than the Petitioner herein.f.All title deeds issued herein pursuant to the revoked grant are hereby cancelled. The land registrar shall cancel all subdivisions and transfers and revert all the deceased’s estate to the state it was on 18.06.2003.g.The Respondents shall bear the costs of the application of Ksh 25,000/= and costs of cancellation of titles. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 29TH DAY OF JULY, THE YEAR OF OUR LORD TWO THOUSAND AND TWENTY-SIX. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -No appearance for the ApplicantBeneficiaries presentCourt Assistant – Timothy