https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11995

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. E028 OF 2022** **GEOFFREY KIURA KARANI……………………..........………………APPELLANT** **VERSUS** **G. NAHASHON MURIITHI...............……..……........……...……........RESPONDENT** **(An appeal from the Ruling of Hon. G. Kirugumi (P.M) in Kerugoya Succession Cause No. 34 of 1993 delivered on 30/3/2022)** **JUDGMENT** 1. By an application dated 14/10/2021, the Appellant, a nephew of the deceased herein, sought the revocation of the grant of letters of administration issued to the Respondent and confirmed on 26/5/2021, on the grounds that the entire proceedings were secretly carried out and the Respondent concealed the existence of the Appellant and other lawful beneficiaries. 2. The Respondent filed a Replying Affidavit on 1/11/2021, urging that the Appellant was aware of these proceedings and the application was thus an afterthought filed in bad faith. He had already executed the grant and partitioned L.R No. Mwerua/Gitaku/424 (hereinafter referred to as the estate property) into 10 equal portions amongst the beneficiaries. 3. In dismissing the application, the trial court ruled: *“As the witness has testified it has become apparent that the entire estate was disinherited and the land parcels registered to new owners. The grant was confirmed the year 1994. The new owners of the land have not been included in this application. There is no estate in the name of the deceased as of now hence to proceed with the application would be an exercise in futility. The application is struck out at preliminary level with costs to the Respondent.”* **The Appeal** 1. On appeal, the Appellant filed his memorandum of appeal on 11/4/2023 raising 3 grounds as follows: 1. *The Learned Magistrate erred in law in striking out the appellant’s application dated 14th October 2021.* 2. *The Learned Magistrate erred in law in holding that the grant could not be revoked as the deceased’s estate had been distributed.* 3. *The judgment of the Learned trial Magistrate is against the law and weight of the evidence on record and against the doctrine of stare decisis.* **Duty of the court** 1. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See *Selle v Associated Motor Boat Co. & others [1968] E.A. 123*). **Oral Evidence** 1. AW1 Geoffrey Kiura Karani, the Appellant herein, adopted his affidavit sworn on 14/1/2021 as his evidence in chief and produced the documents filed therewith as exhibits 1 to 5. He testified that, *“I come from Kiaragana. I am a farmer. I am the complainant/applicant. The deceased was my Uncle. He had no child. He had not married. I have siblings. We are six siblings. My mother was cultivating the land before she died. She was granted a portion. It was ¼. She was given by her brother. My Uncle Mureu Rukenya. My mother wanted the portion of land.”* 2. On cross examination, he stated that, *“My mother had been given land. There were no transfer forms. Mureu died in September 1988. I was 40 years then. My mother was alive. She was sober. Succession was first done I don’t know when. I don’t know if it was done in 1993. My mother was alive then. I didn’t know about it in 1993. My mother never said she did not want the land. My mother was alive. My mother was the one summoned by the Chief. I was present when she was summoned by the Chief. We were all there. We filed objection in 2013. Jason Karuiru Kaguya is my cousin was the Petitioner. Nahashon Mureithi is also my cousin. Jason did not tell me when he petitioned. He did not tell my mother. My mother died last year. I did not know Jason was granted letters. Nahashon is not Jason’s son. He is a son to my Uncle Jason Karuiru Kaguiya. I did not know he was the Administrator in 1993. Jason was the Administrator in 1993. I did not know my mother is Jason’s sister she was alive. The deceased is the brother to my mother. My mother was alive. She refused succession. The Chief summoned us. The land was my Uncle’s. It is not my parent’s land. There were only three siblings Jason, Pauline and the deceased. Pauline is my mother. They were the ones to be informed of the succession. In 1993 I was 40 years old. Nahashon was involved because of his father called Jason. The Chief called us later. We have land from my parent’s. We don’t live in this land. We filed in 2021. There was succession in Baricho. We wish to revoke. The grant was for 1993. We had objected last year in November. I don’t know if the land was sold and people live there. No one has bought. I don’t know if there are title deeds. Nahashon is not the beneficiary. According to search the land is subdivided. In the search the land is registered to their owners. New people were listed. I did not know the correct status. The owners of the land were served. The owners have not been involved in this revocation. I realized the other day the land has new owners.”* **Submissions** 1. The Appellant cites *Selle v Associated Motor Boat Co. Ltd [1968] EA*, on the duty of the first appellate court. He urges that he successfully demonstrated that the grant was obtained fraudulently by concealment from the court of his existence and that of other beneficiaries, and cites *In The Matter of the Estate of L.A.K. (Deceased) [2014] eKLR*. He urges that the death of the initial Petitioner Jason Kairuru Kagoiya before completion of the administration of the estate, rendered the grant useless and inoperative, and cites *In re Estate of Elijah Okitah Mikah Tsimbwele (Deceased) [2021] eKLR*. He faults the trial court for holding that the grant could not be revoked as the deceased estate had been distributed, and cites *Matthew Njega Njogu & another v Rosemary Muthoni Njue [2021] eKLR*. 2. The Respondent faults the Appellant and his mother, who was then alive, for failing to object to the issuance of the grant in 1993, and thus the application was clearly an afterthought which this court lacked the jurisdiction to determine. He urges that the estate property had since been fully distributed and sold to parties not before court, and the Appellant’s recourse lay in the Environment and Land Court. **Analysis and Determination** 1. From the grounds of appeal, the singular issue for determination is whether the threshold for the impugned decision was grounded in law. 2. The undisputed evidence on record is that the deceased herein was survived by his brother, Jason Karuiru Kagoiya, the Respondent’s father and his sister, Pauline Wakaguyu Karami, the Appellant’s mother. 3. The Appellant testified that, *“The deceased was my Uncle. He had no child. My mother was cultivating the land before she died. She was granted a portion. It was ¼. She was given by her brother. My Uncle Mureu Rukenya. My mother wanted the portion of land.”* 4. The Appellant and the Respondent are indeed nephews of the deceased, and thus they rank equally in the degree of consanguinity. 5. The record reveals that when the initial Petitioner, Jason Karuiru Kagoiya petitioned for grant of letters of administration intestate on 16/2/1993, he listed himself as the sole beneficiary of the estate, and deliberately concealed the existence of the Appellant’s mother, Pauline Wakaguyu Karami (now deceased), who was equally entitled to inherit from the estate. Following the demise of Jason Karuiru Kagoiya on 11/5/1994, the Respondent was substituted as the new administrator. Similarly, in his summons for confirmation of grant dated 16/3/2021, he also omitted the Appellant’s mother and/or the Appellant from the list of beneficiaries, thereby curtailing their participation in these proceedings. 6. The inevitable consequence of that deliberate non-disclosure is that the Appellant and his mother were unfairly driven away from the seat of justice without a hearing, on the contention that the estate property had since been distributed and allegedly transferred to 3rd parties. 7. The court considers that the subsequent subdivision and transfer of the estate property to 3rd parties cannot, in itself, defeat the Appellant and/or his mother’s legitimate claim particularly where those transactions were predicated upon a grant obtained fraudulently through concealment of material facts. 8. Sections 47 and 48 of the Law of Succession Act vests the succession court with unfettered jurisdiction to make such orders as may be expedient for the ends of justice to be met. That jurisdiction extends to the revocation of grants and, where appropriate, cancellation of all resultant subdivisions, registrations and transfers founded on such a defective grant, so that the estate can revert to the estate for proper distribution among the rightful beneficiaries. 9. Further, the trial court erred in finding that the grant was confirmed in 1993. The record shows that the grant of letters of administration intestate was issued to Jason Karuiru Kagoiya in 1993, while the confirmation of the grant took much later in 2021. **ORDERS** 1. Accordingly, for the reasons set out above, this court finds that the appeal is merited and it is allowed in the following terms: 1. The trial court’s Ruling dated 30/3/2022 is set aside and substituted with an order reinstating the application for revocation of grant dated 14/10/2021, for hearing on merits. 2. There shall be no orders as to costs. *Order accordingly.* **DATED AND DELIVERED THIS 30TH DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Amwayi for for appellant Ms. Kimotho with Mr. Kipruto for the Respondent.