https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8636

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **SUCCESSION APPEAL NO. E001 OF 2024** **IN THE MATTER OF THE ESTATE OF ANDRIKUS HENRY OYUGI OGAWO (DECEASED)** **MAURICE OUMA OYUGI…………….……..…………………………………APPELLANT** **VERSUS** **LUCY ATIENO OTHO…………..……………………………………………RESPONDENT** **(Suing as the Legal Representative of the Estate of JOHN OTHO OGAWO)** **JUDGMENT** 1. This appeal arises from the ruling of Hon. J. Masiga (Principal Magistrate) delivered on 31st January 2024 in respect of the Estate of Andrikus Henry Oyugi Ogawo (Deceased). 2. Being dissatisfied with the said ruling, the Appellant filed a Memorandum of Appeal dated 2nd February 2024 raising, inter alia, the following grounds: 3. That the learned trial magistrate erred in law by purporting to sit on appeal against the decision of a fellow magistrate of equal jurisdiction. 4. That the learned trial magistrate failed to consider that the Respondent had been cited to take out letters of administration. 5. That the learned trial magistrate made contradictory findings of fact. 6. That the learned trial magistrate erred in finding that the threshold under Section 76 of the Law of Succession Act had been met. 7. That the learned trial magistrate failed to consider the ramifications of his decision on third-party beneficiaries. 8. That the orders occasioned a miscarriage of justice. 9. The Respondent opposed the appeal and urged this Court to uphold the ruling of the trial court and dismiss the appeal with costs. 10. This being a first appeal, the duty of this Court is well settled In **Selle v Associated Motor Boat Co. Ltd [1968] EA 123,** the Court held that a first appellate court is obliged to reconsider the evidence, evaluate it itself and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses. 11. Guided by the foregoing principles, I have carefully considered the Record of Appeal, the proceedings before the subordinate court, the ruling appealed against and the rival submissions filed by the parties. **ISSUES FOR DETERMINATION** 1. The issues arising for determination are: 2. Whether there is a competent appeal before this Court. 3. Whether the trial court had jurisdiction to entertain and determine the application for revocation of grant. 4. Whether the Respondent established grounds for revocation under Section 76 of the Law of Succession Act. 5. Whether the trial court improperly determined ownership of land 6. Whether the appeal is merited. 1. **Whether there is a competent appeal before this Court.** 7. The Respondent submitted that the appeal is incompetent because the Appellant failed to include in the Record of Appeal the ruling appealed against together with material annexures that were placed before the trial court. 8. Order 42 Rule 13(4)(f) of the Civil Procedure Rules requires that a Record of Appeal contain the judgment, decree or order appealed from. 9. The Respondent correctly pointed out that the Record of Appeal appears to contain a ruling relating to an application for stay of execution while omitting the substantive ruling of 31st January 2024 which is the subject of this appeal. 10. The Respondent further complained that crucial annexures attached to the application for revocation of grant, including land records and searches relied upon by the trial court, were omitted from the Record of Appeal. 11. Although Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities, parties are nevertheless required to place before the appellate court all material necessary for a proper determination of the dispute. 12. The omissions identified by the Respondent are substantial and render the appeal procedurally deficient. 13. Nonetheless, in the interests of substantive justice and considering that the parties have fully canvassed the appeal, I shall proceed to determine the appeal on its merits. 1. **Whether the trial court had jurisdiction to entertain and determine the application for revocation of grant** 14. The Appellant argues that the trial magistrate sat on appeal against decisions made by fellow magistrates of concurrent jurisdiction. 15. According to the Appellant, the Respondent’s application did not fall within Section 76 of the Law of Succession Act and therefore the trial court lacked jurisdiction.I have considered that argument. 16. The application before the subordinate court was an application for revocation of grant dated 26th April 2023. 17. Section 76 of the Law of Succession Act provides: “A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides either on application by any interested party or of its own motion…” 1. The jurisdiction to revoke a grant is therefore expressly conferred by statute. 2. A revocation application is not an appeal against a previous judicial officer’s decision. It is a substantive statutory proceeding intended to enable the court to revisit grants obtained through concealment, fraud, misrepresentation or other defects specified under Section 76. 3. The mere fact that previous judicial officers had dealt with the matter did not deprive the trial court of jurisdiction to entertain the application. 4. Accordingly, I find that the learned magistrate was properly seized of jurisdiction. 1. **Whether the Respondent established grounds for revocation under Section 76 of the Law of Succession Act.** 5. The central issue is whether the grant issued to the Appellant was liable to revocation under Section 76 of the Law of Succession Act. 6. Section 76 permits revocation where: 7. The proceedings to obtain the grant were defective in substance; 8. The grant was obtained fraudulently through false statements; 9. Material facts were concealed from the court; 10. The grant was obtained through untrue allegations of fact essential in law. 11. The evidence before the trial court showed that the Appellant petitioned for letters of administration and listed Land Parcel No. ISUKHA/SHIRERE/1824 as part of the estate. 12. The Respondent produced evidence including a Green Card and official searches indicating that the parcel had allegedly ceased to exist following subdivision in 1981, resulting in parcels ISUKHA/SHIRERE/2051 and ISUKHA/SHIRERE/2052. 13. It was further contended that parcel No. ISUKHA/SHIRERE/2052 had become registered in the name of John Otho Ogawo (deceased), whose estate the Respondent represents. 14. If those facts were true, then the original parcel no longer existed and could not properly form part of the estate in the manner presented before the succession court. 15. The duty of a petitioner in succession proceedings is one of utmost good faith and full disclosure. 16. In **Re Estate of Moses Kirimi Mbogori (Deceased) [2021] eKLR**, the Court held that parties are under a duty to candidly disclose all material facts relating to estate assets and beneficiaries. 17. Similarly*,* ***in Mary Mikali Luvembe v Gideon Gwedeya Lubembe [2006] eKLR,*** the Court revoked a grant where property not belonging to the deceased had been included in the estate and material facts concealed from the court. 18. Upon my own evaluation of the record, I am satisfied that the trial court had sufficient material before it to conclude that there had been concealment and misrepresentation concerning the status of the suit property. 19. I therefore find no basis for interfering with the learned magistrate’s exercise of discretion under Section 76. 20. **Whether the trial court improperly determined ownership of land** 21. The Appellant relied heavily on In Re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR where the Court held that disputes relating to ownership of property between an estate and third parties ought to be determined by courts exercising civil or land jurisdiction and not by succession courts.. 22. A succession court does not have jurisdiction to conclusively determine contested questions of ownership of land between an estate and third parties. Such jurisdiction belongs to the Environment and Land Court or another court of competent jurisdiction. 23. However, I do not find that the trial magistrate exceeded his jurisdiction in the present matter. 24. The learned magistrate did not conclusively determine ownership of the disputed parcels. Rather, the court examined whether material facts had been concealed from the court when obtaining and confirming the grant. That inquiry was necessary in determining whether the requirements of Section 76 of the Law of Succession Act had been satisfied. 25. There is a clear distinction between determining ownership of land and determining whether a grant was obtained through concealment of material facts. 26. The former falls within the jurisdiction of the Environment and Land Court, while the latter falls squarely within the jurisdiction of the succession court. 27. Consequently, the authority of ***In Re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR*** does not assist the Appellant. 28. The Appellant submitted that he had cited the Respondent to take out letters of administration in respect of the Estate of John Otho Ogawo and that the Respondent failed to do so. 29. The existence of a citation, however, does not cure defects in a grant subsequently obtained through concealment or misrepresentation. More importantly, no evidence was produced demonstrating that the citation proceedings were heard and finally determined. 30. There was also no evidence showing that the Respondent was properly served and failed to act. In those circumstances, the citation proceedings cannot defeat the Respondent’s right to seek revocation under Section 76. 31. Having reconsidered the entire record, the rival submissions and the applicable law, I arrive at the following conclusions: 32. The appeal is procedurally deficient owing to omissions in the Record of Appeal. 33. The trial court had jurisdiction to hear and determine the application for revocation of grant. 34. The Respondent established grounds for revocation under Section 76 of the Law of Succession Act. 35. The learned trial magistrate did not sit on appeal against a court of concurrent jurisdiction. e) The learned trial magistrate did not determine ownership of land but properly considered whether material facts had been concealed from the succession court. f) The appeal lacks merit. 1. Accordingly, the appeal is hereby dismissed. 2. The ruling delivered on 31st January 2024 is hereby upheld. 3. The Appellant shall bear the costs of this appeal. It is so ordered. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 11th DAY OF JUNE, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:**