https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7496

Nakaya & another v Makaya (Succession Appeal 2 of 2024) [2026] KEHC 7496 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 7496 (KLR) Republic of Kenya In the High Court at Vihiga Succession Appeal 2 of 2024 JN Kamau, J June 3, 2026 Between Justus B Nakaya 1st Appellant Geib Caleb Nakaya 2nd Appellant and Julius Manani Makaya Respondent (Being an appeal from the Ruling and Orders of Hon S. Ongeri (SPM) delivered at Vihiga in the Principal Magistrate’s Court Succession Case No 89 of 2003 on 19th May 2022) Judgment Introduction 1.In his Ruling of 19th May 2022, the Learned Trial Magistrate, Hon. S. Ongeri (SPM), allowed the Respondent’s Summons for Revocation of Grant dated 8th October 2021 and revoked the Certificate of Confirmation of Grant dated 1st March 2002 (sic) and made a declaration that any steps that were taken pursuant to that certificate of confirmation as a nullity. The Learned Magistrate also made a declaration that the transfer of Land Parcel No. East Bunyore/Ebusamia/1637(hereinafter referred to as the “subject property”) in the name of Noah Nakaya Kabole was done fraudulently. 2.Being aggrieved by the said decision, on 7th June 2022, the Appellants herein filed a Memorandum of Appeal dated 3rd June 2022. They relied on six (6) grounds of appeal. They also filed a Supplementary Record of Appeal dated 8th November 2024 on 9th November 2026 3.Their Written Submissions were dated 26th May 2025 and filed on 27th May 2025, while those of the Respondent were dated and filed on 25th July 2025. The Judgment herein is based on the said Written Submissions, which all parties relied upon in their entirety. Legal Analysis 4.It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion, but bearing in mind that it neither saw nor heard the witnesses testify. 5.This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123, where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. 6.Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that the issue that had been placed before it for determination was whether the Trial Court erred in revoking the Certificate of Confirmation of Grant dated 1st March 2007. All the grounds of appeal were related and were, therefore, dealt with together. 7.The Appellants submitted that they were sons of Noah Nakaya Kabole , a son of Kabole Nakaya (deceased) herein, whose estate was the subject of the Appeal herein. They stated that their father, the said Noah Nakaya Kabole, was issued with a grant of administration in Succession Cause No 89 of 2003 and a title deed for the suit property, which was then transmitted to his name. 8.They pointed out that when their father died, they filed succession of his estate in Kakamega High Court Succession Cause No 466 of 2010, in which they were issued with a Gant of Letters of Administration with the Certificate of Confirmation of Grant being issued on 22nd November 2019. They averred that the subject property was then transferred to the 2nd Appellant herein. They asserted that the Respondent never objected or filed a revocation of the Grant in those proceedings. 9.They were emphatic that, having obtained the title through the succession proceedings in Kakamega High Court, the Trial Court had no jurisdiction to cancel the Title of the subject property because doing so was tantamount to the Trial Court overturning the decision of the High Court. They placed reliance on the case of Re-Estate Sabianus Ramba Odero (deceased) (2020) KLR, where it was held that the transmission of property, and cancellation of titles were processes that were governed by the Land Registration Act and the Land Act and the Court with jurisdiction to deal with any disputes or issues that could arise over the process was the Environment and Land Court. 10.They further pointed out that in any event, there were no particulars of fraud that were proven against their father, who was issued with a Certificate of Confirmation of Grant in Vihiga SPM Succession Cause 89 of 2003. 11.In rejoinder, the Respondent submitted that he was a son of the late Kabole Nakaya, and a brother to the said Noah Nakaya Kabole. He asserted that his brother, the said Noah Nakaya Kabole, was granted Letters of Administration in respect of the estate of their late father Kabole Nakaya, on 26th January 2007. He averred that the said Letters of Administration of were confirmed on 1st March 2007 in which the said Noah Nakaya Kabole allocated to himself the whole share of the subject property and fraudulently obtained title of the subject property in his name in 1988, thereby disinheriting his brothers. 12.He pointed out that the fraud was criminally prosecuted in Criminal Case No 889 of 1989, where the said Noah Nakaya Kabole (now deceased), was convicted. He added that on 27th March 1992, the court ordered the cancellation of his registration as proprietor and ordered that the land title to revert to their father so that a proper succession process could be undertaken for the benefit of all beneficiaries. He stated that despite this, the said Noah Nakaya Kabole secretly filed Succession Cause No 89 of 2003 in respect of their father’s estate without informing or involving his brothers and obtained a Grant, whereafter he caused the subject property to be transferred in his name alone. 13.He stated that as brothers, they filed an objection and despite this, Noah Nakaya Kabole forged the signatures of his brothers, including the Respondent herein, and filed affidavits of disclaimer dated 26th January 2007 on behalf of his brothers without their knowledge, alleging that they had no interest in the suit property and that they had surrendered their portions to him. The pointed out that he subject property was therefore transferred to him and later to his sons, the Appellants herein who then filed Kakamega High Court Succession Cause No 466 of 2010 without involving their uncles who were the rightful heirs. 14.He was emphatic that the Grant that was issued on 1st March, 2007 was obtained fraudulently and in violation of Rule 26 of the Probate and Administration Rules since the administrator failed to disclose and include all the beneficiaries. He further pointed out that the court had jurisdiction under Section 76 of the Law of Succession Act to revoke a grant at any time if it was obtained by concealment of material facts or through misrepresentation. 15.He asserted that the said Noah Nakaya Kabole misled the court by filing affidavits of disclaimer all dated 26th January 2007, with forged signatures from his brothers including the Respondent, claiming that they had given him their share of the land. He cited Estate of M'Ngarithi M'Miriti (deceased) 2017 eKLR , where the court held that exclusion of lawful beneficiaries in a succession cause was sufficient ground for revocation of a grant, even where the estate had already been distributed. 16.He submitted that the fact that the subject property had been transferred through successive successions did not oust the court's jurisdiction to examine whether the original Grant issued on 26th January 2007 and confirmed on 1st March 2007 was fraudulently obtained. He was emphatic that since the said Noah Nakaya Kabole obtained the grant fraudulently, all subsequent transfers based on that invalid grant of 1st March 2007 were avoidable. He quoted the doctrine of nemo dat quod non habet meaning that one could not give what they did not have. 17.He was categorical that the 2nd Appellant could not hide behind a title obtained from a tainted process, to deny the rightful beneficiaries their share of the estate of their late father, and that the revocation of the original grant of 1st March 2007 vitiated all subsequent actions taken thereunder. He was emphatic that the transfer of the suit property to the 2nd Appellant did not confer a good title since the root of the title was defective. He was emphatic that title was not immune from challenge because it was based on an illegitimate grant. 18.A perusal of the impugned Ruling of the Trial Court dated 19th May 2022 showed that it observed that it was seized with the estate of Kabole Nakaya, who was the Appellant’s grandfather, before the Appellants filed Kakamega High Court Succession Cause No 466 of 2010 in respect of the estate of their father, Noah Nakaya Kabole. 19.Section 76 of the Law of Succession Act Cap 160 (Laws of Kenya) provides as follows:-A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—a.that the proceedings to obtain the grant were defective in substance;b.that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;c.that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;d.that the person to whom the grant was made has failed, after due notice and without reasonable cause either-i.to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; orii.to proceed diligently with the administration of the estate; oriii.to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; ore.that the grant has become useless and inoperative through subsequent circumstances. 20.This court noted that the Trial Court was clear that it had no jurisdiction and could not, therefore, deal with the estate of Kabole Nakaya. It determined that since Noah Nakaya Kabole failed to notify the Respondent herein, he denied him an opportunity to participate in the proceedings. The Appellant did not make reference to the Respondent’s consent in Form 37 pursuant to Rule 40 (8) of the Probate and Administration Rules that states as follows:-“Where no affidavit of protest has been filed the summons and affidavit shall without delay be placed by the registrar before the court by which the grant was issued which may, on receipt of the consent in writing in Form 37 of all dependants or other persons who may be beneficially entitled, allow the application without the attendance of any person; but where an affidavit of protest has been filed or any of the persons beneficially entitled has not consented in writing the court shall order that the matter be set down as soon as may be for directions in chambers on notice in Form 74 to the applicant, the protester and to such other persons as the court thinks fit.” 21.It was apparent to this court that the proceedings to obtain the Grant of Letters of Administration Intestate in the estate of Kabole Nakaya in Vihiga Succession Cause No 89 of 2003 were defective in substance and that the Grant of Letters of Administration was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case as was contemplated in Section 76 (a) and (b) of the Law of Succession. 22.Notably, the Trial Court only revoked the Certificate of Confirmation of Grant that was issued to the said Noah Nakaya Kabole, issued on 1st March 2007. In the said Certificate of Confirmation, Noah Nakaya Kabole was the only heir of the subject property. The non-disclosure was fraudulent because the administrator was fully aware that the deceased was survived by other children, yet he indicated himself as the only survivor. It was the view of this court that the Trial Court did not err when in revoking the Certificate of Grant that was issued on 1st March 2007. 23.As the Respondent correctly pointed out, Noah Nakaya Kabole could not pass a good title to the 2nd Appellant herein, as the process to obtain the Grant of Letters of Administration could not pass the threshold of a process that was contemplated in Section 76 (a) of the Law of Succession. This court agreed with the Trial Court that the Succession Court was not toothless when it came to the fraudulent transmission of a deceased’s property in succession proceedings. 24.The matter in question was not one of ownership or title that would have come under the purview of the Environment and Land Court but rather, it was a question of the legality of the proceedings leading to the transmission of a deceased’s property through issuance of a certificate of confirmation of grant that could only be issued and revoked by a succession court. Indeed, the Law of Succession had a complete procedure of confirming distribution of a deceased’s assets and revoking such distribution if the process for such distribution was flawed. Disposition 25.For the foregoing reason, the upshot of this court’s decision was that the Appellant’s Appeal that was lodged on 7th June 2022 lacked merit and is hereby dismissed. The effect of this decision is that the Ruling that was delivered by Hon S. Ongeri (SPM) at Vihiga in the Principal Magistrate’s Court Succession Case No 89 of 2003 on 19th May 2022 be and is hereby affirmed and upheld. 26.As this was a family dispute, this court hereby deviates from the rule that costs follow the event and directs that the parties will bear their own costs of this Appeal. 27.It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 3RD DAY OF JUNE 2026J. KAMAUJUDGE