Saikwa & another (Legal Representatives of Moses Kiplangat Saikwa) v Vomorono Ltd & 4 others (Civil Appeal 411 of 2019) [2026] KECA 1250 (KLR) (3 July 2026) (Judgment)

Saikwa & another (Legal Representatives of Moses Kiplangat Saikwa) v Vomorono Ltd & 4 others (Civil Appeal 411 of 2019) [2026] KECA 1250 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KECA 1250 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 411 of 2019 DK Musinga, P Lilan & JO Okello, JJA July 3, 2026 Between Rachael Chepkemoi Saikwa 1st Appellant Andrew Raymond Kwemoi Saikwa 2nd Appellant Legal Representatives of Moses Kiplangat Saikwa and Vomorono Limited 1st Respondent John Mtay Saikwa 2nd Respondent Esther Chepkemoi Saikwa 3rd Respondent Amos Potendo Saikwa 4th Respondent Dorcas Mwalila Munabi 5th Respondent (Being an appeal from the judgment of the High Court of Kenya at Nairobi (Muigai, J.) dated 5th June 2018 in Succession Cause No. 599 of 1986) Civil Case 599 of 1986 ) Judgment 1.This appeal underscores the unfortunate reality that even where a deceased person leaves behind a written will, disputes concerning the administration and distribution of his estate may still arise and, in some instances, lead to a complete breakdown of family relations. The estate of Andrew Kisa Saikwa is a case in point. Disagreements among the beneficiaries over the administration and distribution of the estate generated protracted litigation before different courts, spawned a multiplicity of applications, rulings, orders and consent arrangements, and remained unresolved for decades. 2.Although the history leading to this appeal is lengthy and somewhat convoluted, we shall endeavour to summarize only those facts and proceedings necessary for the determination of the present appeal. Andrew Kisa Saikwa (the deceased), died testate on 19th June 1985. He was survived by his widow, Grace Cheptay Saikwa (Grace), and five children, namely, John Mtay Saikwa (John), Moses Kiplangat Saikwa (Moses), Esther Chepkemoi Saikwa (Esther), Peter Bereso Saikwa (Peter), and Drusilla Cheruto Saikwa (Drusilla). During the pendency of the succession proceedings, Peter and Drusilla passed away and were respectively substituted by their personal representatives, Dorcas Mwalila Munabi (Dorcas) and Amos Potendo Saikwa (Amos) respectively. 3.Prior to his death, the deceased executed a written Will dated 11th July 1974 in which he appointed Grace and John as executors and trustees of his estate. The Will provided that Grace would enjoy the income from the residuary estate during her lifetime, after which the estate would devolve equally among the deceased's children, with provision for representation by descendants where a beneficiary predeceased final distribution. 4.A Grant of Probate of Written Will was issued by the High Court on 30th June 1987 to Grace and John and was subsequently confirmed on 16th November 1989. Following the death of Grace on 22nd June 2004, John applied for rectification of the grant and, by an order made on 4th August 2011, the grant was rectified, leaving him as the sole surviving executor of the estate. 5.As shall become apparent in this judgment, the dispute between the parties revolved principally around one of the deceased's key assets, namely, L.R. No. 209/8558 (Grant No. I.R. 28222), Nairobi, measuring approximately 0.3548 hectares (the suit property). The controversy arose after John discovered that the suit property had been removed from the estate and transferred into Esther's name before being subsequently transferred to Talai Holdings Limited (Talai), a company associated with Esther. Consequently, by a Summons dated 1st November 2011 and later amended on 9th December 2011, John sought, among other reliefs, the cancellation of the impugned entries in the register and restoration of the property to the estate. In a ruling delivered on 15th December 2011, G. B. M. Kariuki, J. (as he then was), allowed the application and ordered the Chief Land Registrar to cancel Entry No. 5, registered on 15th October 2004, by which the property had been transferred from the executors of the deceased's estate to Esther, and Entry No. 6, registered on 21st June 2007, by which Esther had transferred the property to Talai. The learned judge further directed that the register be restored to Entry No. 4, which reflected the executors of the deceased's estate as the registered proprietors of the suit property. 6.The record further shows that criminal proceedings were subsequently instituted against Esther in the Chief Magistrates’ Court at Nairobi vide Criminal Case No. 1115 of 2011 arising from the impugned fraudulent transfers. 7.Following restoration of the property to the estate, disputes arose among the beneficiaries regarding its management and eventual distribution. On 12th July 2012, Esther filed an application seeking, among other orders, an injunction restraining John as executor from disposing of, alienating, charging, leasing, selling or otherwise dealing with the suit property pending determination of the application; an inhibition against the title; an order varying, setting aside or vacating the orders issued on 15th December 2011; and an order declaring the cancellation of the transfer to Talai Holdings Limited null and void. Esther contended that John had secretly obtained rectification of the grant and the cancellation orders without involving the other beneficiaries and that he was himself attempting to dispose of the property. 8.Thereafter, on 7th December 2012, Moses filed a separate application seeking orders restraining John and Esther from dealing with the deceased's assets, particularly the suit property. He further sought orders compelling Esther to deposit rental income from the property into a joint account and render a full account of all income generated from the property. 9.During the pendency of the two applications dated 12th July 2012 and 7th December 2012, Talai instituted constitutional proceedings against the Registrar of Titles, the Commissioner of Lands and the Honourable Attorney General, with John participating therein as an interested party. Contemporaneously, it filed an application under certificate of urgency seeking, among other reliefs, conservatory and injunctive orders restraining the intended sale or other dealings with the suit property pending determination of the proceedings. The application was precipitated by allegations that John, in his capacity as executor, intended to proceed with the sale of the suit property. 10.Upon considering the application, Musyoka, J. on 22nd August 2013 issued temporary conservatory orders restraining the respondents, the interested party, their agents, employees, servants and all persons claiming through them from selling, transferring, alienating, charging, developing or otherwise dealing with the suit property or any subdivision thereof pending further orders of the court. 11.The record reflects that notwithstanding the pendency of the foregoing applications and the temporary conservatory orders; John entered into an Agreement for Sale dated 3rd December 2013 with Vomorono Limited (Vomorono) for the sale of the suit property at a consideration of Kshs.300,000,000/=. The agreement expressly acknowledged under clauses 4.2 and 4.3 the existence of Nairobi High Court Succession Cause No. 599 of 1986. Under clause 4.1 and 4.2, Vomorono was to pay a commitment fee of Kshs.5,000,000/=, with a further sum of Kshs.25,000,000/= payable upon the conclusion of the pending succession proceedings, thereby making up the contractual deposit of Kshs.30,000,000/=, equivalent to ten percent (10%) of the purchase price. Clause 4.3 further provided that payment of both the deposit and the balance of the purchase price was contingent upon the outcome of the pending succession proceedings. The balance of Kshs.270,000,000/= was payable within ninety (90) days of the transfer of the suit property. 12.The record further reflects that on 9th April 2014, Musyoka, J. issued further conservatory orders restraining John, Vomorono and all persons claiming through them from selling, transferring, charging, alienating, developing or otherwise dealing with the suit property pending delivery of the court's ruling in respect of the applications dated 12th July 2012 and 7th December 2012 respectively. 13.The applications dated 12th July 2012 and 7th December 2012 were ultimately determined in a ruling delivered by Musyoka, J. on 9th May 2014. The learned judge dismissed Esther's application in its entirety. He further directed Esther and Talai to render, within thirty (30) days, a true and accurate account of all rental and other income derived from the suit property from 15th October 2004. The court also ordered that any sale or transfer of the property undertaken by either John or Esther during the pendency of the two applications stood nullified; directed that the title revert to the executor pending further orders; ordered the executor and beneficiaries to agree on the distribution of the property within forty five (45) days failing which the court would itself determine the mode of distribution; and directed that the matter be mentioned after the said period for compliance. 14.It bears repeating that by the time Musyoka, J. delivered the foregoing ruling on 9th May 2014, John had already entered into the Agreement for Sale dated 3rd December 2013 with Vomorono and had taken steps towards its implementation. The record reflects that this material fact was not disclosed to the court notwithstanding that the applications then pending before it concerned the ownership, preservation and ultimate disposition of the suit property. 15.Following the ruling of 9th May 2014, negotiations took place among some of the beneficiaries and their advocates. Those negotiations culminated in a consent dated 24th October 2014 which was executed by John, Moses and Dorcas through their respective advocates. Under the consent, the parties agreed that the suit property be sold; that the proceeds of sale be distributed equitably among the beneficiaries in accordance with the deceased's Will; that John, in his capacity as executor, execute the sale agreement, transfer and all conveyancing documents necessary to complete the transaction and, in default, the Deputy Registrar do so; that Moses, John and Dorcas, either personally or through their advocates, approve the terms of sale; and that all proceeds of sale be deposited into a joint advocates' account pending distribution among the beneficiaries. 16.On 11th May 2015, Vomorono filed a Notice of Motion in Succession Cause No. 599 of 1986 seeking leave to be joined as an interested party and seeking review, variation, vacation and setting aside of the orders made by Musyoka, J. on 9th May 2014. It further sought injunctive orders restraining interference with the suit property pending determination of the application. Vomorono contended that it was a bona fide purchaser for value; that it had conducted due diligence prior to purchasing the suit property; that it had obtained financing from Habib Bank secured by the property; and that the orders of 9th May 2014 had been made without affording it an opportunity to be heard notwithstanding that they directly affected its proprietary interests. Vomorono was joined in the proceedings as an interested party vide orders made by Musyoka, J. on 18th Decmeber 2015. 17.Around the same period, disputes arising from the sale transaction found their way to the Environment and Land Court. Vomorono instituted Nairobi ELC Miscellaneous Application No. 132 of 2015, Vomorono Limited v Chief Land Registrar and the Honourable Attorney General, and Nairobi ELC Miscellaneous Application No. 183 of 2015, Vomorono Limited v John Mtay Saikwa. In ELC Miscellaneous Application No. 132 of 2015, the parties recorded a consent pursuant to which the court (Gacheru, J.) directed the Chief Land Registrar to reconstruct the Land Register relating to the suit property so as to reflect the missing entry. Subsequently, in ELC Miscellaneous Application No. 183 of 2015, John and Vomorono recorded a consent before Gitumbi, J. on 20th July 2015. Under that consent, the Chief Land Registrar, or the relevant Land Registrar, was directed to cancel Entry No. 12 in the Land Register relating to the suit property. These orders, particularly those in Nairobi ELC Miscellaneous Application No. 183 of 2015 paved the way for the restoration and registration of Vomorono's interest in the suit property and facilitated implementation of the sale transaction notwithstanding the subsisting succession proceedings and the orders previously issued by the Family Division 18.Moses took issue with the consent recorded in ELC Miscellaneous Application No. 183 of 2015. Consequently, by a Notice of Motion dated 30th September 2015, he sought leave to participate in the proceedings as an interested party and further sought orders reviewing, vacating and setting aside the consent order of 20th July 2015. Moses contended that the ELC proceedings had been commenced and prosecuted without disclosure of the pending succession proceedings and the orders issued therein. He further asserted that the consent order had the effect of defeating, nullifying or rendering ineffective the orders made by Musyoka, J. on 9th May 2014 and other preservatory orders issued in the succession cause. According to Moses, the consent had been procured through material non-disclosure and constituted an attempt to circumvent the authority of the Family Division in matters concerning the administration and distribution of the deceased's estate. 19.In a ruling delivered on 23rd June 2017, Gitumbi, J. agreed with Moses and found that the consent order recorded on 20th July 2015 had been entered into without disclosure of the pending succession proceedings and the subsisting orders issued therein. The learned judge observed that the dispute relating to the suit property was inextricably linked to the administration of the deceased's estate and that the parties could not properly seek relief in the Environment and Land Court in a manner that undermined or circumvented orders previously issued by the Family Division. In the learned judge's view, the effect of the consent was to render ineffective, and in some respects defeat, the orders made by Musyoka, J. concerning the preservation, administration and distribution of the suit property. The court further noted that the succession proceedings had not been disclosed to the Environment and Land Court when the consent was recorded, notwithstanding that the ownership and disposition of the suit property remained the subject of active litigation before the Family Division. Consequently, the learned judge set aside the consent order recorded on 20th July 2015 and directed that Nairobi ELC Miscellaneous Application No. 183 of 2015 be transferred to the Family Division and heard together with Succession Cause No. 599 of 1986 so that all issues concerning the suit property and the estate could be determined by one court. 20.Meanwhile, by an application dated 29th April 2016 and filed on 3rd May 2016 and filed in the Succession Cause, Moses sought leave to institute contempt proceedings against John, Vomorono and the directors of Vomorono. He alleged that they had deliberately disobeyed the orders issued on 9th May 2014, 27th May 2015 and 1st October 2015; had secretly instituted and prosecuted ELC Miscellaneous Application No. 183 of 2015; had procured the consent order of 20th July 2015; had caused the property to be retransferred to Vomorono; and had entered onto the property with bulldozers and commenced excavation works despite subsisting court orders. 21.In the impugned judgment, Muigai, J. considered two substantive applications. The first was Vomorono's Notice of Motion dated 11th May 2015, while the second was Moses' Notice of Motion dated 29th April 2016. It is important to point out that by the time the two applications came up for determination, Musyoka, J. had, on 27th May 2015 allowed Vomorono's application for joinder to the succession proceedings. Consequently, the question of joinder was no longer live, thereby leaving for determination the prayers seeking review, variation, vacation and setting aside of the orders issued by Musyoka, J. on 9th May 2014, together with the ancillary injunctive reliefs sought by Vomorono. In support of its application, Vomorono maintained that it was a bona fide purchaser for value, that it had acquired an interest in the suit property pursuant to the Agreement for Sale dated 3rd December 2013, and that the orders issued on 9th May 2014 had adversely affected its proprietary interests without affording it an opportunity to be heard. 22.On the other hand, by his application dated 29th April 2016, Moses sought leave to institute contempt proceedings against John, Vomorono and the directors of Vomorono for alleged disobedience of the orders issued in the succession cause. He contended that, despite being aware of the subsisting court orders, John and Vomorono had proceeded with the sale transaction, procured orders in the Environment and Land Court, caused alterations to be made to the Land Register relating to the suit property, and otherwise acted in a manner calculated to defeat or undermine the orders issued by the Family Division. 23.In a ruling delivered on 5th June 2018, Muigai, J. dismissed Vomorono's application for review. The learned judge held that Vomorono had failed to satisfy the requirements for review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. The court found that Vomorono was fully aware of the existence of Succession Cause No. 599 of 1986 and that the Agreement for Sale dated 3rd December 2013 expressly acknowledged the pending succession proceedings and made their conclusion a condition precedent to completion of the transaction. The court further found that no new and important evidence had been discovered, no error apparent on the face of the record had been demonstrated, and no sufficient reason had been established to warrant review of the orders issued by Musyoka, J. on 9th May 2014. In the learned judge's view, granting the orders sought would amount to condoning the executor's disregard of subsisting court orders. The application for review was consequently dismissed, the court observing that Vomorono's recourse, if any, lay either against the executor or by way of appeal. 24.In reaching that conclusion, the learned judge found that John had negotiated and facilitated the sale of the suit property despite the existence of pending proceedings and preservatory orders issued by the court. The court observed that he had failed to consult the beneficiaries, had not disclosed material facts regarding the transaction, either to the beneficiaries or to the court, and had proceeded with the sale notwithstanding that the succession proceedings remained unresolved and the sale agreement itself recognised the pendency of those proceedings. 25.With regard to the contempt application, the learned judge found that the orders issued on 22nd August 2013, 9th April 2014, 9th May 2014 and 27th May 2015 were valid and binding court orders. The court further found that John had full knowledge of those orders, having been a participant in the proceedings that gave rise to them. The learned judge was satisfied that, despite such knowledge, John had proceeded with the sale transaction, participated in parallel proceedings before the Environment and Land Court, failed to disclose the existence of the succession proceedings and subsisting court orders, and generally acted in a manner inconsistent with the authority of the court. The court consequently found that his conduct amounted to civil contempt. The learned judge nevertheless held that the contempt application could not succeed because it had been commenced outside the six- month limitation period prescribed under section 34 of the Contempt of Court Act. Accordingly, although the court found that the conduct complained of constituted contempt, the application was dismissed as time-barred. 26.As regards Vomorono, the learned judge found that while the company was aware of the existence of Succession Cause No. 599 of 1986, there was no evidence that it had been served with the orders issued on 22nd August 2013, 9th April 2014 and 27th May 2015. The learned judge further held that there was no clear evidence demonstrating Vomorono's actual knowledge of the specific and unambiguous orders restricting the sale, transfer or disposal of the suit property. The court therefore declined to hold that contempt had been proved against the company. 27.The learned judge further held that Vomorono had conducted due diligence prior to entering into the transaction, had obtained and relied upon the deceased's Will, the grant of probate, the rectified grant and official searches, and had dealt with John in his capacity as the duly appointed executor of the estate. The court therefore concluded that Vomorono qualified as a bona fide purchaser for value without notice. Applying section 93 of the Law of Succession Act (the Act), the learned judge held that the sale transaction remained valid, notwithstanding the executor's misconduct and his failure to obtain the concurrence of the beneficiaries. 28.The learned judge nevertheless expressed grave concern regarding John's conduct as executor. She found that he had failed to consult or involve the beneficiaries in the sale transaction, failed to account for the administration of the estate, concealed material facts from the beneficiaries, the court and the Lands Registry, and persistently acted in disregard of court orders. The court further found that he had failed to demonstrate the necessity or desirability of the sale, and had generally acted in breach of the fiduciary obligations imposed upon him as executor and trustee of the estate. 29.Consequently, acting suo motu under section 76 of the Act, the learned judge revoked the Grant of Probate issued on 30th June 1987 and rectified on 4th August 2011, removed John as executor of the estate, and directed that a fresh grant issue in favour of Moses as the new executor. 30.The court further ordered John to deposit in court all monies received in connection with the sale of the suit property, render a full account of his administration of the estate from the date of his appointment as executor, and surrender all relevant information relating to the transaction. The court also directed that all monies arising from the sale transaction and held by any person be deposited in court pending further directions. Moses was directed, in consultation with all beneficiaries, to ascertain the status of the title to the suit property, obtain all records relating to the sale transaction, and take steps towards the completion of the administration and distribution of the estate. 31.Being aggrieved and dissatisfied with the entire ruling of the trial court, Moses (now deceased and represented herein by Rachael Chepkemoi Saikwa and Andrew Raymond Kwemoi Saikwa, his personal representatives) preferred this appeal. In the memorandum of appeal dated 9th August 2019, the appellant contends that the learned judge erred in law and in fact by making findings and issuing orders that were inconsistent with, and effectively contradicted, the earlier decisions of Musyoka, J. delivered on 9th May 2014 and Gitumbi, J. delivered on 23rd June 2017; by holding that Vomorono qualified as a bona fide purchaser for value without notice, notwithstanding its admitted knowledge of the pending succession proceedings and the fact that the sale agreement expressly made the transaction subject to the outcome of those proceedings; by finding that the appellant's contempt proceedings were statute-barred under the Contempt of Court Act, 2016; by failing to properly consider the evidence demonstrating fraud, illegality, material non-disclosure and other irregularities allegedly perpetrated by John and Vomorono before, during and after the impugned sale transaction; and by failing to give effect to the doctrine of lis pendens and the subsisting court orders restricting dealings with the suit property. 32.The learned judge is additionally faulted for upholding the validity of the sale transaction despite finding that John had acted in contempt of court orders and in breach of his fiduciary duties as executor; failing to appreciate that John lacked capacity, in light of the pending proceedings and subsisting court orders, to enter into the impugned transaction; accepting Vomorono's contention that it had exercised due diligence despite its knowledge of the pending succession proceedings and the conditional nature of the sale agreement; and for failing to uphold the rule of law, public policy and the authority of court orders in the face of what the appellant considered to be glaring evidence of fraud, illegality and contempt. 33.On his part, John filed a Notice of Cross-Appeal dated 4th October 2019 wherein he contended that the learned judge erred in law and in fact by revoking the grant issued in his favour and removing him as executor of the deceased's estate on the court's own motion, in the absence of an application for revocation and without affording him an opportunity to be heard; by failing to compel the appellant and the other beneficiaries to account for the assets and benefits received from the estate; by directing Moses to pursue records and inquiries aimed at establishing the validity of the title to the suit property and the sale transaction; by failing to properly consider the affidavit evidence tendered by the beneficiaries in support of his administration of the estate and thereby failing to appreciate that he acted pursuant to the authority conferred by the deceased's Will; and by failing to take into account the ruling delivered by G.B.M. Kariuki, J. on 15th December 2011, the Certificate of Confirmation of Grant issued on 16th November 1989, and the express wishes of the deceased as set out in his Will. John accordingly seeks orders setting aside the revocation of the grant and his removal as executor, reinstating him as the sole executor of the estate, compelling the beneficiaries to account for estate assets in their possession, and awarding him the costs of the appeal, the cross-appeal and the proceedings before the High Court. 34.Vomorono, on its part, filed a Notice of Grounds Affirming the Decision dated 26th September 2019 wherein it contended that the decision of the learned judge ought to be affirmed on grounds other than those relied upon by the High Court. In particular, Vomorono maintained that the learned judge correctly found that the sale transaction was protected by section 93(1) of the Act; that the orders issued by Musyoka, J. on 9th May 2014 were principally directed at Esther and her obligation to account for income derived from the suit property; that Vomorono was a bona fide purchaser for value without notice having transacted with a duly appointed executor acting under a confirmed grant; that the allegations of fraud, collusion and illegality were not proved to the requisite standard; that the company had conducted extensive due diligence, including obtaining the deceased's Will, the confirmed grant and conducting official searches which revealed no encumbrances or restrictions affecting the title; that there was no evidence that Vomorono had knowledge of, or had been served with, the court orders alleged to have been breached; and that the sale transaction was validly undertaken by John in the exercise of his powers as executor of the deceased's estate. Vomorono consequently urged this Court to uphold the validity of the sale transaction, affirm its status as a bona fide purchaser for value without notice and dismiss the appeal with costs. 35.At the hearing of the appeal, learned counsel Mr. Isindu appeared for the appellants. The 1st respondent, Vomorono, was represented by learned counsel Mr. Peter Lang’at together with Mr. Ham Lang’at, while the 2nd respondent, John, was represented by learned counsel Ms. Chemeli. Dorcas, the 5th respondent, appeared in person. There was no appearance on behalf of the 3rd and 4th respondents. Save for Dorcas, who left the matter to the Court, counsel for the appellants, Vomorono and John made brief oral highlights in support of their respective client’s written submissions. 36.Highlighting the appellant's written submissions dated 14th October 2020, learned counsel Mr. Isindu submitted that the learned judge correctly appreciated the factual background of the dispute and made extensive findings demonstrating that the sale transaction involving the suit property had been undertaken in disregard of subsisting court orders and the rights of the beneficiaries. Counsel pointed out that the learned judge found that John had negotiated and concluded the sale transaction during the pendency of proceedings affecting the suit property; had failed to disclose material facts to the beneficiaries and the court; had acted contrary to his fiduciary obligations as executor; and had participated in parallel proceedings before the Environment and Land Court without disclosure of the pending succession proceedings. Counsel nevertheless faulted the learned judge for subsequently validating the transaction and treating Vomorono as a bona fide purchaser for value without notice. According to counsel, the learned judge's ultimate conclusions were irreconcilable with her own factual findings. He contended that having found the transaction to be irregular, unlawful and undertaken in disregard of court orders, the court could not thereafter uphold it as valid and unimpeachable. 37.Counsel submitted that the dispute ought to be viewed in the context of the purpose of succession proceedings, namely the protection and orderly distribution of a deceased person's estate for the benefit of the beneficiaries. In his view, the suit property, being part of the deceased's estate, was unlawfully transferred to a third party through a transaction undertaken contrary to the terms of the deceased's Will and in violation of subsisting court orders. He maintained that the sale was neither transparent nor sanctioned by all the beneficiaries and that the learned judge erred by effectively according judicial approval to a transaction that had been repeatedly challenged throughout the succession proceedings. 38.Counsel further contended that the evidence before the court demonstrated that both John and Vomorono were fully aware of the pending succession proceedings. He emphasized that Clause 4 of the Agreement for Sale dated 3rd December 2013 expressly acknowledged the existence of Succession Cause No. 599 of 1986 and made completion of the transaction subject to the outcome of those proceedings. According to counsel, that provision alone was sufficient to demonstrate that Vomorono had notice of competing claims affecting the suit property and could not therefore invoke the protection accorded to an innocent purchaser. He asserted that despite such knowledge, John and Vomorono proceeded with the transaction and later resorted to separate proceedings in the Environment and Land Court where, without involving the other beneficiaries, they procured consent orders whose effect was to defeat or circumvent the orders issued by the Family Division. Counsel submitted that this conduct formed part of a deliberate scheme to place the property beyond the reach of the estate and its beneficiaries. 39.Counsel also faulted the learned judge for failing to accord proper effect to the rulings delivered by Musyoka, J. on 9th May 2014 and Gitumbi, J. on 23rd June 2017. He submitted that Musyoka, J. had nullified transactions relating to the suit property undertaken during the pendency of the relevant applications and directed that the property revert to the estate for distribution among the beneficiaries. Likewise, Gitumbi, J. had set aside the consent recorded in ELC Miscellaneous Application No. 183 of 2015 after finding that the Environment and Land Court had not been informed of the pending succession proceedings and subsisting court orders. Counsel contended that the learned judge's subsequent validation of the sale transaction effectively undermined those earlier decisions and created contradictory judicial outcomes concerning the same property. 40.As regards the finding that Vomorono was a bona fide purchaser for value without notice, counsel submitted that the company had actual knowledge of the pending succession proceedings and could not claim ignorance of the disputes affecting the suit property. In his view, the learned judge placed undue emphasis on the due diligence allegedly undertaken by Vomorono while overlooking the fact that the transaction was expressly conditioned upon the outcome of the succession proceedings. Counsel further contended that the learned judge failed to give effect to the doctrine of lis pendens and thereby sanctioned a transaction undertaken while the property remained the subject of active litigation. He maintained that permitting the transaction to stand undermined the authority of the court and rewarded conduct undertaken in deliberate disregard of pending proceedings and court orders. 41.Turning to the issue of contempt, counsel submitted that the learned judge correctly found that John had knowingly violated the court orders issued on 22nd August 2013, 9th April 2014, 9th May 2014 and 27th May 2015. Counsel contended that the appellant's Summons dated 29th April 2016 sought leave to institute contempt proceedings against John, while the subsequent Notice of Motion dated 24th May 2017 sought substantive orders of committal arising from continued acts of disobedience, including dealings with the suit property and construction activities allegedly undertaken thereon notwithstanding the subsisting preservatory orders. According to counsel, the evidence before the court demonstrated a sustained pattern of non-compliance extending over several years and involving both the sale transaction itself and subsequent attempts to implement and perfect that transaction through parallel proceedings before the Environment and Land Court. Counsel maintained that, having found that John had actual knowledge of the relevant orders and had acted in deliberate disregard thereof, the learned judge ought to have granted effective relief instead of dismissing the contempt proceedings on limitation grounds. In this regard, counsel faulted the court for holding that the application was barred by section 34 of the Contempt of Court Act, 2016. He contended that the contempt proceedings had been initiated before the commencement of the Act on 13th January 2017 and that the limitation provision could not be applied retrospectively. He further submitted that some of the acts complained of occurred in 2017 and therefore fell outside the ambit of the statutory limitation period. 42.Counsel further submitted that the learned judge misapplied the principles enunciated in Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR, a decision upon which she herself relied. Counsel noted that the learned judge correctly acknowledged the principle that actual knowledge of a court order supersedes personal service and proceeded to find that John had full knowledge of the orders issued in the succession proceedings and had knowingly acted in disregard thereof. According to counsel, those findings ought to have led inevitably to a finding of contempt and the invalidation of the transaction undertaken in breach of the court orders. Counsel contended that the learned judge's subsequent validation of the sale transaction and recognition of Vomorono as a bona fide purchaser produced an internally inconsistent outcome. In his view, the judgment simultaneously condemned and legitimized the same conduct, thereby undermining the authority of court orders and departing from the principles articulated in Shimmers Plaza (supra). 43.Counsel concluded by urging this Court to allow the appeal and restore the suit property to the estate for distribution in accordance with the deceased's Will. He stated that the appellant's principal concern was not the recovery or deposit of the sale proceeds but the reversal of what he described as an unlawful and fraudulent transaction so that the property could revert to the estate and be distributed among the beneficiaries in accordance with the deceased's testamentary wishes. He maintained that the transaction was tainted by illegality, material non-disclosure, contempt of court and abuse of process and ought not to receive judicial protection. 44.As regards the Notice of Grounds Affirming the Decision and the Notice of Cross-Appeal lodged by John, counsel submitted that the learned judge properly invoked section 76 of the Act in revoking the grant and removing John as executor. Counsel further argued that the orders issued by Musyoka, J. on 9th May 2014 had neither been set aside nor complied with and therefore remained binding upon the parties. According to counsel, John lacked the capacity to enter into the impugned transaction in view of the subsisting court orders and had, in any event, failed to account for the proceeds of sale as required of him as executor and trustee of the estate. Counsel consequently urged the Court to dismiss the cross-appeal in its entirety. 45.On its part, Vomorono, through written submissions dated 24th November 2020 and which were highlighted by learned counsel Mr. Lagat, identified six issues for determination, namely whether the sale and transfer of the suit property from John to Vomorono was tainted by fraud, illegality or irregularity; whether Vomorono qualified as a bona fide purchaser for value without notice; whether the transaction satisfied the legal requirements of a valid contract; whether due diligence was exercised prior to the acquisition; whether the doctrine of lis pendens was applicable to the dispute; and whether the learned judge erred in declining to review the orders issued by Musyoka, J. on 9th May 2014. 46.As regards the first issue, counsel submitted that the appellant had failed to establish any fraud, collusion or illegality in the sale transaction. He contended that allegations of fraud must not only be specifically pleaded but must also be strictly proved. In that regard, counsel relied on the decision of this Court in Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR for the proposition that allegations of fraud must be distinctly pleaded and proved. Counsel also cited Ndolo v Ndolo [2008] 1 KLR (G&F) 742, where the Court emphasized that the standard of proof required for fraud is higher than a balance of probabilities though not as high as proof beyond reasonable doubt. Counsel maintained that no evidence had been placed before the trial court demonstrating fraud, collusion or illegality on the part of Vomorono. In any event, counsel asserted that the transaction was protected by section 93(1) of the Act, which validates transfers of property by a personal representative notwithstanding any subsequent revocation or variation of the grant. According to counsel, the suit property was transferred by John in his capacity as the holder of a confirmed grant and duly appointed executor of the estate and, absent proof of fraud or collusion on the part of the purchaser, the transaction could not be impeached. Counsel therefore maintained that the learned judge was correct in rejecting the allegations of fraud and illegality. 47.On whether Vomorono was a bona fide purchaser for value without notice, counsel submitted that the company acquired the suit property from John, who was at the time the duly appointed executor of the estate and holder of a confirmed grant. Counsel contended that John possessed full legal authority to deal with the property by virtue of section 80 of the Act and that Vomorono was entitled to rely on the grant and the powers conferred thereunder. It was further submitted that the company had not been a party to the succession proceedings when the orders of 9th May 2014 were issued and was therefore entitled to seek review of those orders after being joined to the proceedings. According to counsel, the learned judge correctly appreciated that the principles of natural justice required that Vomorono be afforded an opportunity to be heard before orders adversely affecting its proprietary interests could be maintained. 48.In support of the bona fide purchaser argument, counsel relied on Lawrence Mukiri v Attorney General & 4 Others [2013] eKLR, where the court identified the ingredients necessary to establish the defence of bona fide purchaser for value without notice. Counsel also cited Katende v Haridar & Company Limited [2008] 2 E.A. 173 for the proposition that a purchaser who acquires property in good faith, pays valuable consideration and has no notice of fraud or defects in title is entitled to protection. Counsel submitted that the evidence demonstrated that Vomorono purchased the property in good faith, paid valuable consideration, conducted official searches, inspected the title documents, obtained copies of the Will and confirmed grant, and had no notice of any defect affecting John's authority to transact. The learned judge, it was contended, was therefore correct in concluding that Vomorono qualified as a bona fide purchaser for value without notice. 49.As regards the validity of the sale transaction, counsel submitted that all the essential elements of a valid contract, namely offer, acceptance, consideration and compliance with the requisite statutory formalities, had been satisfied. Counsel further contended that the transaction was insulated from challenge by section 93(1) of the Act, which protects transfers of property undertaken by a personal representative notwithstanding any subsequent revocation or variation of the grant. In support of that proposition, counsel relied on Jacinta Wanja Kamau v Rosemary Wanjiru Wanyokie & Another [2013] eKLR, where the court emphasized that a party seeking the protection of section 93 must first establish that he or she is a purchaser for value. Counsel also cited Monica Adhiambo v Maurice Odera Koko [2016] eKLR, in which the court recognized the statutory protection afforded to third parties who transact with personal representatives acting pursuant to a grant of representation. Counsel therefore maintained that, having purchased the suit property from a duly appointed executor and holder of a confirmed grant, Vomorono acquired a valid and protected interest which could not be impeached merely because disputes subsequently arose concerning the administration of the estate or because John was later removed as executor. 50.On the issue of due diligence, counsel submitted that the evidence before the trial court demonstrated that Vomorono undertook all reasonable inquiries expected of a prudent purchaser. Reliance was placed on the affidavit of Grace Mbogo and the accompanying documents which showed that the company obtained official searches, examined the title documents and verified the existence of a confirmed grant. Counsel cited Shimoni Resort v Registrar of Titles & 5 Others [2016] eKLR for the proposition that a purchaser who conducts proper due diligence and relies on official records is entitled to protection under the law. He contended that the learned judge correctly found that there was no evidence that Vomorono knew or ought to have known that John lacked authority to sell the property or that there was an ongoing suit affecting the suit property. 51.Turning to the doctrine of lis pendens, counsel submitted that the doctrine was inapplicable to the circumstances of the present case. Relying on Black's Law Dictionary, 9th Edition, for the definition of the doctrine, counsel maintained that lis pendens is principally concerned with preserving property that is the subject of active litigation between competing claimants to title or proprietary interests. According to counsel, the proceedings before the succession court did not involve a dispute over ownership of the suit property as between rival claimants, but rather concerned the administration and distribution of a deceased's estate among beneficiaries. 52.Counsel therefore contended that the mere existence of succession proceedings did not, without more, invalidate a transaction undertaken by a duly appointed executor acting pursuant to a confirmed grant. He further submitted that the learned judge correctly found that there was no evidence that Vomorono had been served with, or had actual knowledge of, the specific court orders restricting dealings with the property at the time of purchase. In counsel's view, the company acquired its interest in the suit property as an independent third party dealing with the executor in his representative capacity and could not be deprived of that interest on the basis of orders to which it was not privy. Counsel added that Vomorono only became directly involved in the succession proceedings after obtaining joinder and was therefore not bound by orders issued before its participation in the proceedings. Accordingly, he maintained that neither the doctrine of lis pendens nor the preservatory orders issued in the succession cause operated to invalidate the transaction or defeat the company's proprietary rights in the suit property. 53.Finally, on the question whether the learned judge erred in declining to review the orders issued by Musyoka, J. on 9th May 2014, counsel submitted that the learned judge properly exercised her discretion in refusing to interfere with those orders. He contended that the orders in question were principally directed at Esther and were intended to compel her to account for rental income collected from the suit property over a period of approximately fourteen years. According to counsel, the learned judge correctly found that the issues determined by Musyoka, J. were distinct from those arising in the applications before her and properly confined herself to the matters requiring determination. Counsel further submitted that the dispute before the court principally concerned the beneficiaries' obligation to account for estate assets and income received therefrom, and that the appellant's grievances regarding the conduct of John as executor did not furnish a basis for revisiting the orders issued by Musyoka, J. 54.Counsel therefore urged this Court to dismiss the appeal with costs and uphold the ruling of Muigai, J. in its entirety. He maintained that the learned judge properly evaluated the evidence, correctly applied the law and reached conclusions that were fully supported by the record. Counsel further expressed support for the cross-appeal lodged by John and urged the Court to uphold the findings favourable to Vomorono and dismiss the appellant's challenge in its entirety. 55.At the hearing hereof, counsel contended that the appeal had been overtaken by events. He submitted that the sale transaction had been completed, the purchase price paid, affidavits accounting for the proceeds had been filed, and some beneficiaries had already received their respective shares. In counsel's view, the substratum of the appeal had therefore been extinguished, leaving no basis for disturbing the transaction or the title held by Vomorono. 56.It is important to point out that while responding to questions from the Court, counsel acknowledged that Vomorono was aware of the existence of the succession proceedings at the time it entered into the transaction and that this fact had been disclosed in the agreement for sale. He nevertheless maintained that the company had no knowledge of the specific court orders restricting dealings with the suit property and only became aware of them after the transaction had been completed. Counsel further accepted that the other beneficiaries did not participate in the proceedings commenced before the Environment and Land Court, explaining that those proceedings were instituted principally to regularize and reconstruct the Land Register and were later brought to the attention of the succession court and consolidated with the succession proceedings. 57.When pressed by the Court regarding the implications of purchasing property while aware of pending litigation, counsel accepted that the purchaser knew of the succession proceedings and that the transaction was therefore undertaken subject to the outcome of those proceedings. Counsel further agreed that a purchaser who acquires property with knowledge of pending litigation must ordinarily be prepared to abide by the eventual outcome of that litigation, whether favourable or adverse. He nonetheless maintained that the company's title remained protected because it had acted in good faith, conducted due diligence and dealt with the holder of a confirmed grant. 58.Counsel further explained that the purchase price had been paid to John in his capacity as executor and that responsibility for distribution of the proceeds lay with him rather than with the purchaser. He maintained that Vomorono discharged its obligations under the agreement by paying the agreed consideration and that any dispute concerning the subsequent application or distribution of the proceeds was a matter between the executor and the beneficiaries. 59.On his part, John, through written submissions dated 8th June 2021 and which were highlighted by learned counsel Ms. Chemeli urged this Court to dismiss the appeal and allow the cross-appeal. Counsel submitted that the dispute concerning the administration of the deceased's estate had been the subject of numerous proceedings before the Family Division of the High Court and the Environment and Land Court over several years. According to counsel, the appellant was attempting to re-open issues that had already been conclusively determined and the Court ought to uphold the principle of finality in litigation. In support of that proposition, counsel relied on Lal Chand v Radha Kishan, AIR 1977 SC 789, for the principle that litigation must come to an end and that parties should not be permitted to repeatedly re-litigate matters already determined by competent courts. 60.Counsel submitted that John was the sole surviving executor of the deceased's Will and had lawfully administered the estate following the death of the co-executor, Grace. According to counsel, most of the estate had already been distributed to the beneficiaries and the appellant had substantially benefited from the estate. Counsel further maintained that Esther had enjoyed exclusive possession of the suit property and collected rental income therefrom for many years without rendering a proper account to the estate notwithstanding the orders issued by the court. 61.Turning to the sale of the suit property, counsel submitted that John possessed the requisite authority to enter into the transaction. She pointed out that under the deceased's Will dated 11th May 1974, the executors were expressly empowered to sell estate assets, convert them into money or postpone such sale at their discretion. Counsel further submitted that those powers were reaffirmed by the rectified grant issued on 4th August 2011. According to counsel, the sale to Vomorono on 3rd December 2013 was therefore undertaken pursuant to powers conferred by both the Will and the grant. Counsel maintained that the transaction was supported by all the requisite documentation, was undertaken for valuable consideration and could not be impeached merely because disputes subsequently arose among the beneficiaries. 62.As regards the appellant's challenge to the decision of Muigai, J., counsel submitted that the learned judge properly evaluated the evidence and correctly dismissed the application dated 11th May 2015 seeking review of the orders issued by Musyoka, J. on 9th May 2014. Counsel contended that the application had been brought by a third party who was not originally a party to the succession proceedings and who sought to revisit orders that had neither been appealed against nor set aside. According to counsel, the learned judge correctly appreciated the scope of the review jurisdiction under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules and properly exercised her discretion in declining to interfere with the orders of Musyoka, J. Counsel further submitted that the learned judge considered the evidence and found no sufficient basis for review and that, in any event, the applicant had subsequently been admitted into the succession proceedings and afforded an opportunity to participate therein. In counsel's view, the learned judge was entitled to conclude that no prejudice had been demonstrated and that the application did not satisfy the threshold for review. Counsel therefore maintained that the decision dismissing the application was well-founded both in fact and in law and ought not to be disturbed by this Court. 63.On the issue of contempt, counsel submitted that the learned judge was right in dismissing the contempt proceedings against his client. Counsel contended that John had not been personally served with the orders alleged to have been breached and that, in any event, his former advocates had not kept him apprised of developments in the proceedings between August 2013 and May 2014. In support of that position, counsel relied on Justus Kariuki Mate & Another v Martin Nyaga Wambora & Another [2014] eKLR, where this Court held that contempt of court is established upon proof of the existence of a clear court order, knowledge of that order by the alleged contemnor, and wilful disobedience thereof. According to counsel, those elements had not been demonstrated against John and the learned judge therefore arrived at the correct conclusion in dismissing the contempt application. Counsel also maintained that the application was statute-barred and that the learned judge correctly applied the law in declining to grant the orders sought. 64.Turning to the cross-appeal, counsel submitted that although the learned judge correctly dismissed both the review application and the contempt proceedings, she fell into error when she proceeded, on her own motion, to revoke the grant issued to John and remove him as executor of the estate. Counsel contended that the issue of revocation had not been raised in any of the applications before the court and that no summons for revocation had been filed under section 76 of the Act. According to counsel, the revocation order was therefore made in the absence of any pleading placing that issue before the court and without affording John an opportunity to respond to the allegations that ultimately formed the basis of his removal as executor. 65.Counsel further submitted that the learned judge failed to accord John a fair hearing before making findings that fundamentally affected his rights and status as executor. Counsel contended that no notice had been issued requiring John to show cause why the grant should not be revoked and that the court did not invite submissions on the question of revocation before making the impugned orders. Counsel maintained that the decision therefore offended the rules of natural justice, Article 47 of the Constitution and the provisions of the Fair Administrative Action Act. Reliance was placed on Republic v National Land Commission & 2 others Ex Parte Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West) [2018] eKLR for the proposition that a person likely to be adversely affected by a decision must first be afforded notice and an opportunity to be heard. Counsel therefore urged this Court to allow the cross-appeal, set aside the orders revoking the grant and removing John as executor, and reinstate the confirmed and rectified grant. 66.Counsel also submitted that the learned judge adopted an uneven approach in directing John to account for the administration of the estate while failing to require the appellant and the other beneficiaries to account for estate assets and benefits already received by them. According to counsel, several beneficiaries had enjoyed possession and use of estate assets for many years and ought similarly to have been required to render an account. Counsel also faulted the learned judge for directing Moses to pursue records and inquiries relating to the validity of the title to the suit property and the sale transaction notwithstanding her findings that the transaction was valid and that Vomorono was a bona fide purchaser for value without notice. In counsel's view, those directions were inconsistent with the court's own findings and had the effect of reopening matters that had already been determined. 67.In response to questions from the Bench, counsel reiterated that the impugned sale had been completed between December 2013 and January 2014 when John was still the duly appointed executor acting pursuant to the powers conferred by the Will and the grant. She maintained that the transaction was therefore consistent with the deceased's testamentary intentions. As regards the distribution of the sale proceeds in respect of the suit property, counsel submitted that the record contained competing affidavits regarding the receipt and application of the funds and that any reconciliation of those accounts would require evidentiary inquiry and could not appropriately be undertaken in the present appeal. 68.Finally, counsel supported the learned judge's finding that Vomorono was a bona fide purchaser for value without notice. Relying on the definition of a bona fide purchaser in Black's Law Dictionary, 10th Edition, section 93(1) of the Act, and the decisions in Kinyanjui Kamau v George Kamau [2015] eKLR and Elizabeth Kamene Ndolo v George Matata Ndolo [1996] eKLR, counsel submitted that the allegations of fraud, illegality and collusion levelled against John and Vomorono had not been proved to the requisite standard. Counsel further pointed out that similar allegations had been raised in Nairobi ELC Case No. 251 of 2011 and had not been sustained. According to counsel, the learned judge correctly found that the transaction was supported by the relevant documentation, was undertaken for valuable consideration and attracted the protection accorded to a bona fide purchaser for value without notice. She therefore urged this Court to dismiss the appeal, allow the cross-appeal to the extent of setting aside the revocation of the grant, reinstating the confirmed and rectified grant, and issuing such further directions as the Court deemed appropriate. 69.On her part, although Dorcas initially indicated that she was leaving the matter to the Court, she stated, in response to questions from the Bench that she supported the appeal. She explained that she was dissatisfied with the manner in which John had administered the estate and handled the distribution of the proceeds arising from the sale of the suit property. According to her, some beneficiaries were excluded from important decisions concerning the estate and were not adequately involved in the process. She further stated that certain court proceedings relating to the property had been undertaken without her knowledge or participation and that she only became aware of them after the fact. As the widow of Peter, one of the deceased's sons, she maintained that the beneficiaries had not been sufficiently consulted and, for that reason, supported the appeal. 70.The duty of this Court on a first appeal is to analyze and re- assess the evidence on record and reach its own conclusions in the matter. It was put more appropriately in Selle -vs- Associated Motor Boat Co. [1968] EA 123, thus:“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif vs. Ali Mohamed Sholan (1955), 22 E. A. C. A. 270).” 71.We have carefully considered the record of appeal, the impugned ruling, the rival submissions, the notice of cross- appeal and the notice of grounds affirming the decision. In our view, this appeal turns on four broad issues. First, whether the learned judge erred in upholding the sale transaction relating to L.R. No. 209/8558 and in finding that Vomorono was a bona fide purchaser for value without notice. Secondly, whether the learned judge erred in dismissing the contempt proceedings. Thirdly, whether the learned judge properly exercised her powers under section 76 of the Act in revoking the grant and removing John as executor of the estate.Fourthly, what orders ought to issue, including whether the cross-appeal has merit? 72.The first issue, in our view, lies at the heart of this appeal. It concerns the nature and extent of the powers vested in an executor and the legal consequences of acts undertaken in breach of fiduciary obligations and in disregard of subsisting court orders. 73.There is no dispute that the deceased died testate and that John ultimately became the sole surviving executor following the death of Grace. Equally, there is no dispute that under the deceased's Will and by virtue of the grant of probate issued in the succession proceedings, John was vested with authority to administer the estate. Sections 79, 82 and 83 of the Act vest the property of a deceased person in the personal representative, confer powers necessary for the administration of the estate and impose corresponding duties of diligence, accountability and faithful administration. In Trouistik Union International & another v Jane Mbeyu & another [1993] eKLR, this Court emphasized that the power to act on behalf of a deceased's estate is vested exclusively in the personal representative and derives from the grant of representation. The Court underscored that it is only such personal representative who may exercise the statutory powers conferred by the Act in relation to the estate. 74.Those statutory powers, however, are neither absolute nor unfettered. A personal representative occupies a fiduciary position. He is entrusted with the administration of property belonging not to himself but to the estate and ultimately to the beneficiaries. His powers must therefore be exercised in utmost good faith, with complete transparency, and solely for the benefit of the estate. 75.Turning to the circumstances of the present case, the record before us reveals that by the time John entered into the Agreement for Sale dated 3rd December 2013 with Vomorono, the suit property was already the subject of active litigation before the succession court. Applications dated 12th July 2012 and 7th December 2012 remained pending. Temporary conservatory orders had also been issued by Musyoka, J. on 22nd August 2013. The administration of the estate, and in particular the status of the suit property, was therefore under active judicial scrutiny. 76.Significantly, the Agreement for Sale itself expressly acknowledged the existence of Succession Cause No. 599 of 1986. Clauses 4.2 and 4.3 thereof made payment of the deposit and completion of the transaction contingent upon the outcome of those proceedings. The agreement therefore leaves no room for doubt that both John and Vomorono were fully aware that the suit property was the subject of pending succession proceedings and that the parties' respective rights thereto remained unresolved. 77.Against this backdrop and with due respect to the learned judge, we are unable to reconcile her findings of fact with the legal conclusions she ultimately reached. The learned judge found that John acted in breach of his fiduciary obligations; failed to disclose material facts to the beneficiaries and the court; proceeded with the transaction notwithstanding pending proceedings affecting the suit property; and knowingly disregarded subsisting court orders. Having made those findings, it is difficult to understand the legal basis upon which the transaction was nevertheless upheld. 78.In our view, an executor who proceeds to negotiate and implement the sale of estate property while material applications concerning that property remain pending before the court acts at considerable peril. Such conduct is fundamentally inconsistent with the obligation of candour and fidelity owed both to the court and to the beneficiaries. 79.We are equally unable to agree with the learned judge's conclusion that Vomorono qualified as a bona fide purchaser for value without notice. The law relating to bona fide purchasers is settled. In Katende v Haridar & Company Limited [2008] (supra), a decision repeatedly applied by our courts, the Court of Appeal in Uganda held that a bona fide purchaser for value without notice is one who acquires property in good faith and for valuable consideration from a person possessing an apparently valid title, without notice of any fraud, defect in title or competing claim, and who is not shown to have participated in or been privy to any fraudulent conduct affecting the transaction. Similarly, in Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura v Attorney General & 4 Others [2017] eKLR, this Court reaffirmed that a purchaser seeking the protection accorded to a bona fide purchaser for value must demonstrate, among other things, that he acquired the property in good faith and without notice of any fraud or defect in title. The Court further emphasized that the purchaser's conduct and the diligence undertaken in the transaction are relevant considerations in determining whether that protection is available. 80.In the present case, notice was neither constructive nor inferred. It was actual and express. The pending succession proceedings were specifically acknowledged in the sale agreement. Completion of the transaction was expressly tied to the outcome of those proceedings. The question that naturally arises is this: having acknowledged the existence of ongoing litigation affecting the property, what inquiry did Vomorono undertake regarding the nature of those proceedings? 81.We note that Vomorono undertook certain conventional due diligence measures, including conducting official searches, examining title documents and confirming that John was the holder of a confirmed grant. However, due diligence is a contextual obligation. The scope of inquiry required of a purchaser, in our view, varies according to the circumstances of each transaction. 82.In this case, the purchaser had actual notice that the suit property was the subject of pending succession proceedings. Indeed, the Agreement for Sale expressly recognized those proceedings and conditioned completion upon their outcome. In such circumstances, reasonable prudence required the purchaser to inquire into the nature, scope and status of those proceedings and any orders affecting the property. A purchaser who knowingly acquires an interest in property that is the subject of pending litigation cannot shut its eyes to the contents of those proceedings and later claim complete innocence. 83.The evidence before us does not demonstrate that any meaningful inquiry was made regarding the proceedings which the purchaser itself acknowledged as material to the transaction. Had such inquiry been undertaken, the purchaser would have discovered that the suit property remained the subject of unresolved disputes before the succession court and that preservatory orders had been issued concerning dealings with the property. 84.We therefore find that although the evidence does not establish fraud on the part of Vomorono, it establishes actual notice of circumstances sufficient to deprive the company of the status of a bona fide purchaser for value without notice. Consequently, the transaction falls to be determined subject to the outcome of the succession proceedings of which the purchaser admittedly had knowledge. 85.We are also unable to agree with the submission that the doctrine of lis pendens is wholly inapplicable to succession proceedings. The doctrine is founded upon the broader public policy that the subject matter of litigation ought not to be alienated in a manner that defeats or prejudices the court's eventual determination. 86.Whether viewed through the traditional doctrine of lis pendens or through the court's inherent jurisdiction to preserve the subject matter of litigation, the underlying principle remains the same. A party who knowingly acquires property while litigation concerning that property is pending takes the property subject to the outcome of that litigation. 87.We reiterate that in the present case, the purchaser expressly acknowledged the existence of the pending succession proceedings and expressly agreed that completion of the transaction would depend on their outcome. Consequently, even if the doctrine of lis pendens were approached from its modern equitable foundations, the purchaser could not acquire a superior position to that which would ultimately emerge from the succession proceedings themselves. 88.In seeking to uphold the transaction, both Vomorono and John placed considerable reliance on section 93(1) of the Act. Their argument, in essence, was that having acquired the suit property from a personal representative acting under a grant of representation, the transaction was insulated from challenge notwithstanding any subsequent disputes relating to the administration of the estate. Section 93(1) provides that:“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.” 89.We fully appreciate that section 93(1) of the Act serves an important statutory purpose. The provision protects transactions entered into by purchasers dealing with personal representatives and promotes certainty in the administration of estates. It recognizes that third parties transacting with holders of grants should ordinarily be entitled to rely on the authority conferred by such grants without being required to investigate every aspect of the administration of the estate. 90.However, the protection afforded by section 93(1) is not available in every circumstance. The provision cannot be interpreted as validating transactions undertaken in circumstances where the purchaser has actual notice that the property is the subject of pending litigation and that the authority of the personal representative to complete the transaction remains under active judicial scrutiny. To construe the provision otherwise would permit estate assets to be placed beyond the reach of the court through transactions knowingly undertaken during the pendency of disputes concerning the very property being sold. 91.In the present case, the distinguishing feature is not merely the existence of succession proceedings. Rather, it is the fact that the Agreement for Sale expressly acknowledged those proceedings and expressly made completion of the transaction contingent upon their outcome. Having elected to proceed on that basis, Vomorono assumed the risk that the proceedings might ultimately produce a result adverse to the transaction. In those circumstances, the company cannot invoke section 93(1) to defeat the authority of the succession court or to insulate the transaction from scrutiny arising directly from the proceedings of which it admittedly had notice. 92.We consequently find that the learned judge erred in law in upholding the transaction and in finding that Vomorono was a bona fide purchaser for value without notice. Having found that John acted in breach of his fiduciary obligations as executor, failed to disclose material facts to the beneficiaries and the court, and proceeded with the transaction notwithstanding pending proceedings and subsisting court orders affecting the suit property, the learned judge ought to have concluded that the transaction was incapable of attracting legal protection as against the estate. Accordingly, we declare that the transaction between John and Vomorono relating to the suit property is not entitled to the protection afforded under section 93(1) of the Act. It follows that the transfer and registration of the suit property in favour of Vomorono cannot stand, and are hereby set aside, whereupon the property shall revert to the estate of the deceased. 93.Turning to the issue of contempt, the record reflects that the application before the learned judge was the Summons dated 29th April 2016 and filed on 3rd May 2016. Upon considering the evidence, the learned judge found that John, as executor and a party to the succession proceedings, had actual knowledge of the orders issued on 22nd August 2013, 9th April 2014, 9th May 2014 and 27th May 2015 and was fully aware of those orders. The learned judge consequently held that, in his case, actual knowledge superseded the need for personal service. She further found that he proceeded with the sale transaction notwithstanding those orders, concealed material information from the beneficiaries and the court, and generally acted in disregard of the authority of the court. 94.The position regarding Vomorono stood on a somewhat different footing. The company was not an original party to the succession proceedings, although the evidence leaves no doubt that it was aware of their existence from the outset. Indeed, the Agreement for Sale dated 3rd December 2013 expressly acknowledged the pendency of Succession Cause No. 599 of 1986 and made completion of the transaction dependent upon the outcome of those proceedings. The learned judge nevertheless found that there was insufficient evidence demonstrating that Vomorono had been served with, or otherwise had actual knowledge of, the specific court orders alleged to have been breached. On that basis, she declined to hold the company or its directors guilty of contempt. While that finding does not assist Vomorono in its assertion that it was a bona fide purchaser for value without notice, we are not persuaded that the evidence before the learned judge established, to the requisite standard applicable in contempt proceedings, that the company had actual knowledge of the particular orders said to have been disobeyed. 95.Returning to the findings against John, the learned judge expressly found that John's conduct amounted to civil contempt. However, and despite making those findings, she dismissed the application on the basis that it was barred by section 34 of the Contempt of Court Act, 2016. 96.With due respect to the learned judge, we are unable to agree with that conclusion. The contempt proceedings were commenced by the Summons dated 29th April 2016 and filed on 3rd May 2016, prior to the enactment and commencement of the Contempt of Court Act, Cap 8F which was assented to on 23rd December 2016 and came into force on 13th January 2017. At the time the proceedings were instituted, the applicable legal framework governing contempt of court was section 5 of the Judicature Act which vested the superior courts with jurisdiction to punish for contempt and imported the applicable law and procedure of the High Court of Justice in England. In the absence of any express transitional provision rendering pending contempt proceedings incompetent, we find no basis upon which section 34 of the Contempt of Court Act could be applied retrospectively so as to defeat proceedings that had already been lawfully commenced under the previous legal regime. 97.In any event, the acts complained of were not confined to the execution of the Agreement for Sale in December 2013. They extended to the institution and prosecution of ELC Miscellaneous Application No. 183 of 2015, the procurement of the consent order dated 20th July 2015, the subsequent dealings with the title to the suit property and other acts allegedly undertaken in furtherance of the impugned transaction. More importantly, the learned judge expressly found that John had actual knowledge of the relevant court orders and had nevertheless acted in deliberate disregard thereof. Having found that the impugned conduct amounted to wilful disobedience of valid court orders, we are unable to reconcile that finding with the subsequent dismissal of the contempt proceedings on the ground of limitation. 98.In Shimmers Plaza Limited v National Bank of Kenya Limited (supra), this Court affirmed that actual knowledge supersedes personal service. Likewise, in Justus Kariuki Mate & Another v Martin Nyaga Wambora & Another (supra), this Court held that contempt is established where there exists a clear order, knowledge thereof and deliberate disobedience. 99.Having found that John possessed actual knowledge of the relevant orders and deliberately acted in disregard thereof, the learned judge effectively established all the ingredients of civil contempt. With respect, her subsequent dismissal of the application neutralized her own findings. We therefore find that the appellant established civil contempt against John. 100.Accordingly, we set aside the order dismissing the appellant’s contempt application and substitute therefor an order allowing the contempt application against John and finding him liable for civil contempt of the orders identified by the High Court. Given the passage of time and the fact that the High Court did not proceed to consider the appropriate penalty or consequential relief, we remit the matter to the High Court for the limited purpose of determining the appropriate sanction and any consequential orders arising from the finding of contempt, upon considering any mitigation that may be advanced by John. 101.We now turn to determine the cross-appeal filed by John. From the outset, we fully agree with the learned judge that the conduct of John as executor raised serious concerns capable of warranting revocation of the grant. The findings made by the learned judge plainly brought the matter within the ambit of section 76 of the Act. 102.Indeed, section 76 of the Act empowers the court, either on application or on its own motion, to revoke a grant where the statutory grounds for revocation are established. Those grounds generally relate to defects in the process through which the grant was obtained; misconduct, default or failure by the personal representative in the administration of the estate; or subsequent circumstances rendering the grant useless or inoperative. The jurisdiction is therefore a supervisory one, intended to ensure that grants are issued and administered in accordance with the law and in the interests of the estate and its beneficiaries. 103.It follows, therefore, that the jurisdiction of the court to revoke a grant on its own motion is beyond dispute. The learned judge therefore did not err in principle by invoking section 76 suo motu. Indeed, the findings she made concerning John's administration of the estate were, in our view, capable of justifying consideration of revocation. 104.However, the difficulty, in our view, lies not in the existence of jurisdiction but in the procedure adopted. Rule 44(5) of the Probate and Administration Rules specifically contemplates revocation initiated by the court itself. It provides that:“Where the High Court requires that notice shall be given to any person of its intention of its own motion to revoke or annual a grant on any of the grounds set out in section 76 of the Act the notice shall be in Form 69 and shall be served on such persons as the court may direct.” 105.Our interpretation of rule 44(5) is that the power of the court to revoke a grant on its own motion is not unfettered. Before such power is exercised, the holder of the grant must be notified of the grounds upon which revocation is proposed and afforded an opportunity to show cause why the grant should not be revoked. In our view, the rule thus embodies the audi alteram partem principle and ensures that the court's supervisory jurisdiction under section 76 of the Act is exercised in a manner consistent with procedural fairness. 106.The record does not disclose that John was notified that revocation was under consideration or afforded an opportunity to address the court specifically on that issue before the order was made. 107.Based on the foregoing, we are satisfied that the learned judge did not err in considering whether the grant issued to John ought to be revoked. The findings regarding his conduct as executor plainly warranted such consideration under section 76 of the Act. The error, in our view, lay in the failure to comply with rule 44(5) of the Probate and Administration Rules by notifying John of the grounds for the proposed revocation and affording him an opportunity to show cause before the order was made. 108.Accordingly, while we affirm the learned judge's findings regarding John's conduct as executor, we are unable to uphold the order revoking the grant and removing him as executor, the same having been made without compliance with rule 44(5) of the Probate and Administration Rules. 109.The above notwithstanding, the findings made by both the High Court and this Court raise serious issues concerning the administration of the estate which merit reconsideration by the succession court. 110.Accordingly, while we set aside the order revoking the grant on procedural grounds, we direct that the question whether grounds exist for the revocation of the grant under section 76 of the Act be remitted to the High Court for reconsideration upon compliance with rule 44(5) of the Probate and Administration Rules and after affording all the affected parties an opportunity to be heard. 111.Pending such determination, John shall continue to administer the estate subject to the supervision of the High Court and shall not undertake any transaction involving the disposal, transfer or encumbrance of estate assets without prior approval of that court. 112.The Deputy Registrar of the Family Division shall place the succession cause before the Judge in charge of the Family Division within thirty (30) days of this judgment for directions regarding the expeditious determination of the question of revocation and the completion of the administration of the estate. 113.For the avoidance of doubt, nothing in this judgment shall preclude the High Court, upon compliance with section 76 of the Act and rule 44(5) of the Probate and Administration Rules, from determining afresh whether grounds exist for revocation of the grant issued to John. 114.Lastly, and given the long and unfortunate history of this dispute and the fact that it substantially concerns members of the same family, we direct that each party shall bear its own costs of the appeal and the cross-appeal. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY 2026.D. K. MUSINGA………………………… JUDGE OF APPEAL PAUL LILAN………………………… JUDGE OF APPEAL DR. J.O. OKELLO……………………….. JUDGE OF APPEALI certify that this is a true copy of the originalSigned DEPUTY REGISTRAR.