https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8228

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **SUCCESSION APPEAL NO. E025 OF 2024** **IN THE MATTER OF THE ESTATE OF JARED MUSIKOYO MASINDE alias MASINDE MUSIKOYO (DECEASED)** **JESCAH PHANICE MASINDE AND 4 OTHERS.…………………………….1ST APPELLANT** **MAGDALENE AYOTI MASINDE……………………………………...………2ND APPELLANT** **ROSELYNE JUMA MASINDE…………………….……….…………………..3RD APPELLANT** **PATRICK SAKWA……………………………...……………………………….4TH APPELLANT** **VERSUS** **MUSIKOYO DAVID MASINDE……………………………………...…………. RESPONDENT** **JUDGMENT** 1. This appeal arises from the ruling of the Chief Magistrate’s Court at Kakamega in Succession Cause No. 2020 of 2018 delivered on 14th November 2024, wherein the court dismissed the Appellants’ Summons for Revocation of Grant dated 13th February 2024. 2. The Appellants, who were the Objectors before the trial court, sought revocation of the Grant of Letters of Administration issued to the Respondent on 16th April 2019 and confirmed on 25th October 2022. They contended that the Respondent had failed to disclose all beneficiaries of the estate and had obtained confirmation of grant through concealment of material facts. 3. The Respondent opposed the application and maintained that all beneficiaries had been disclosed and involved throughout the succession proceedings. He further contended that the estate had already been distributed and that some beneficiaries had subsequently sold portions of their respective shares. 4. Upon considering the evidence before it, the trial court found that the Objectors had participated in the confirmation proceedings and that there was no proof of fraud, concealment, or forgery. The application for revocation was consequently dismissed. 5. Being dissatisfied with that decision, the Appellants lodged the present appeal. 6. As a first appellate court, this Court is obligated to reconsider and re-evaluate the evidence that was placed before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. 7. This principle was set out in the case of Selle v Associated Motor Boat Co. Ltd where the Court held that a first appellate court must re-evaluate the evidence and draw its own conclusions. **ISSUES FOR DETERMINATION** 1. Having considered the record of appeal and the submissions of the parties, the following issues arise for determination: 2. Whether the Respondent obtained the grant through fraud, concealment of material facts or defective proceedings. 3. Whether the Appellants established grounds for revocation of grant under Section 76 of the Law of Succession Act. 4. Whether the trial court erred in dismissing the summons for revocation. **ANALYSIS AND DETERMINATION** 1. **Whether the Grant Was Obtained Fraudulently or Through Concealment** 2. The law governing revocation of grants is found in Section 76 of the Law of Succession Act. A grant may be revoked where the proceedings to obtain it were defective, or where it was obtained fraudulently through false statements or concealment of material facts. 3. The burden rested upon the Appellants to demonstrate that the Respondent failed to disclose beneficiaries or deliberately misled the court. 4. The record shows that the grant was confirmed on 25th October 2022. The proceedings reveal that the beneficiaries attended court during confirmation and their names and identification particulars were captured in the court record. 5. Significantly, the Appellants did not challenge the authenticity of the court proceedings. They did not allege that the attendance record was falsified nor did they provide evidence demonstrating that they were absent from court on the date of confirmation. 6. Although the Appellants alleged that signatures appearing on the consent were not theirs, no expert evidence was tendered to establish forgery. 7. Allegations of fraud and forgery are serious in nature and must be strictly proved. Mere assertions are insufficient. 8. In the case of **Vijay Morjaria v Nansingh Madhusingh Darbar** the Court of Appeal held that allegations of fraud must not only be specifically pleaded but must also be strictly proved. 9. In the present case, no material was placed before the trial court to demonstrate fraud, concealment or misrepresentation on the part of the Respondent. 10. I therefore agree with the finding of the trial court that the allegations remained unproven. 11. **Whether the Appellants Established Grounds for Revocation under Section 76** 12. Revocation of grant is a discretionary remedy that is only available where sufficient grounds are established. The Respondent produced evidence showing that after confirmation of the grant, several beneficiaries took possession of their respective shares and some proceeded to dispose of portions thereof to third parties. 13. The Appellants did not deny the existence of those sale agreements. Their conduct after confirmation of the grant is inconsistent with their assertion that they were unaware of the succession proceedings. 14. Acceptance of benefits arising from a confirmed grant strongly suggests knowledge and participation in the distribution process. A party seeking revocation must demonstrate substantial injustice arising from the administration process. 15. The Appellants failed to identify any beneficiary who was excluded from distribution or any property that was concealed from the court. The evidence instead demonstrates that the estate was distributed and beneficiaries assumed possession of their respective shares. 16. Consequently, no basis was established for revocation under Section 76 of the Law of Succession Act. 17. **Whether the Trial Court Erred in Dismissing the Summons** 18. An appellate court will not lightly interfere with findings of fact by a trial court unless such findings are unsupported by evidence or are based on a misapprehension of the law. 19. The trial magistrate considered the pleadings, affidavits, court record and supporting documents before arriving at the conclusion that the Objectors participated in the succession process. 20. The court further found that the allegations of forgery and exclusion were unsupported by evidence. 21. Upon my independent evaluation of the record, I find no error in those findings. 22. The trial court properly appreciated the evidence before it and correctly applied the provisions of Section 76 of the Law of Succession Act. 23. The Appellants have therefore failed to demonstrate any misdirection in law or fact that would warrant interference by this Court. 24. Having reconsidered the entire record, I find that: 25. The Appellants failed to prove fraud, concealment of material facts, or forgery. 26. The Appellants failed to establish any of the grounds for revocation under Section 76 of the Law of Succession Act. 27. The trial court correctly dismissed the summons for revocation of grant. 28. Accordingly, the appeal lacks merit and is hereby dismissed. 29. The ruling of the Chief Magistrate’s Court dismissing the Summons for Revocation dated 13th February 2024 is hereby upheld. 30. Given the nature of this dispute involving family members, each party shall bear their own costs of the appeal. 31. Right of Appeal 30 days. 32. The file is closed. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF JUNE,2026.** **S.N.MBUNGI** **JUDGE** **In the Presence of:-** CA: Zilda/Velma Parties absent though aware of the ruling date. Court Assistant to upload the ruling to CTS forthwith.