https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8023

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU SUCCESSION APPEAL NO. E015 OF 2025 MARGARET ATIENO OTIENO ........………........................ 1ST APPELLANT EVERLYNE ATIENO ODENY ............................................... 2ND APPELLANT ALFRED ODHAYA OKUTA ................................................... 3RD APPELLANT - VERSUS - JACOB KISIAGE ........................................................................ RESPONDENT 1. WAYWA KISIEGE (“the deceased”) died on the 12/11/1980. The 1st J U D G M E N T appellant, his grand-daughter, petitioned for letters of administration and the same was issued to her on the 11/3/2024 and confirmed on the 28/8/2024. The 2nd and 3rd appellants were beneficiaries of the deceased’s estate as evident from the Certificate of Confirmation of Grant. 2. Subsequently, by a Summons for revocation of grant dated 30/1/2025, the respondent sought the revocation of grant contending that the 1st appellant obtained the grant through concealment of material facts to the court specifically, that there was an existing Succession Cause No. E193 of 2023 at the Nyando Magistrates Court, which the 1st appellant was well cognizant of having taken part in it. Page 1 of 10 3. In its judgment delivered on the 28/5/2025, the trial court held that the 1st appellant concealed the existence of an existing Succession Cause over the deceased’s estate from it in procuring its grant and proceeded to revoke the same and ordered that the deceased’s estate return to his name. 4. Being aggrieved by that decision, the appellants sought relief from this Court vide their Memorandum of Appeal dated 3/6/2025 raising grounds of appeal summarized as follows; a) That the trial court erred by asserting that the respondent’s summons for revocation was undefended in the face of the 1 st defendant’s affidavit sworn on the 29/4/2025. b) That the trial court erred by finding that the 1st appellant was privy and participated in the proceedings in Nyando Succession Cause E193 of 2023 and that she had concealed that fact from the court. c) That the trial court failed to apply the principle laid out in the case of Albert Imbuga Kisigwa v Recho Karai Kisigwa (2016) eKLR wherein it was held that a court called upon to exercise its discretion must take into account all beneficiaries to the deceased’s estate. d) That the trial court erred by ignoring the principle that where there are two competing succession proceedings, the one to be revoked is not only the latter but the court similarly has to consider other Page 2 of 10 factors such as the relationship of the petitioners to the deceased’s estate. e) That the court erred by failing to recognize the titles acquired by the 2nd and 3rd appellants for valuable consideration as a result of the sub-division of LR No. Kisumu/Sidho East/404. 5. In accordance with the duty expected of a first appellate Court, I have have to re-consider and re-evaluate the evidence in light of the submissions made before me. See Selles & Another vs. Associated Motor Boat Company Ltd (1968) EA. The facts are not substantially in dispute. 6. The issue for determination before the trial court was whether it should revoke the grant issued to the 1st appellant on the 11/3/2024 and confirmed on the 28/8/2024. The respondent contended that there was an existing Succession Cause at the Nyando Magistrates Court specifically, Succession Cause E193 of 2023 which the 1st appellant was cognizant of and had taken part in but refused to reveal it to the trial court. 7. The 1st appellant failed to file any response to the Summons for revocation but instead filed an application dated 28/4/2025 seeking to arrest the intended ruling on the Summons for revocation, consolidation of the two succession causes and cross examine the respondent and one Clifford Otieno Obiero. Page 3 of 10 8. Mr. Obiero, counsel for the respondent herein who appeared for him before the trial court opposed the Motion on the grounds that his client’s summons for revocation was to revoke the grant made to the 1st appellant and the revocation would terminate the suit before the trial court hence there was no need for consolidation of the two competing causes. He further stated that cross-examination could not legalize fraud occasioned by the 1st appellant in her filing of a separate Succession cause. 9. After considering the oral submissions by counsel for both parties, the trial court granted the 1st appellant leave to put in her replying affidavit to the Summons for revocation of grant however at the time of the impugned ruling, the said replying affidavit was not on record. 10. It is based on the foregoing that the trial court made its ruling which is impugned herein by the appellants. Accordingly, the issue for determination before this court is whether the trial court erred in revoking the grant issued to the 1st appellant. 11. It is trite that Revocation of grant is provided for under section 76 of the Law of Succession Act. The grounds upon which the grant may be revoked are well provided therein. The said section provides that revocation can either be at the instance of an applicant or can be by the court suo moto. Page 4 of 10 12. However, it is a prerequisite that the conditions for revocation as set out under that section must be proved. In Jamleck Maina Njoroge v Mary Wanjiru Mwangi (2015) eKLR, the court observed: - “The circumstances that can lead to the revocation of grant have been set out in Section 76 Law of Succession. For a grant to be revoked either on the Application of an interested party or on the court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.” 13. Further, In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR, it was stated that: - “Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for Page 5 of 10 representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.” Page 6 of 10 14. The power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not a discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order for revocation or annulment of a grant. When a court is called upon to exercise this discretion, it must take into account the interests of all the beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interests of justice. (See Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 OF 2000). 15. A court has jurisdiction to revoke a grant if the conditions set out in section 76 are satisfied. This is in furtherance of the probate court’s duty to distribute free property of the deceased to the rightful beneficiaries. Definitely, where property has been distributed to a wrong beneficiary, the court can revoke the grant and have the property revert back to the deceased for proper distribution. 16. In the present case, it is not disputed that the 1st appellant was well cognizant of the existence of Nyando Succession Cause E193 of 2023 prior to instituting the succession proceedings before the trial court. She failed to disclose this to the trial court. This amounts to material non-disclosure or concealment of material facts as provided under section 76 of the Law of Succession Act. Page 7 of 10 17. In Re Estate of Moses Wachira Kimotho (Deceased) [2009] KEHC 3958 (KLR), the court pointed out the importance of disclosing all material facts before a court of law while seeking letters of administration and confirmation thereof, in the following terms: - “I am certain that had the applicants been made aware of the application for the confirmation of grant by being served they would have brought to the fore their aforesaid interest in the estate of the deceased and the resultant grant would have taken care of those interests. Further had the respondent been forthright and candid and included the applicants as beneficiaries of a portion of the estate of the deceased as purchasers for value, the court in confirming the grant would have taken into account their interest in the estate of the deceased. As it is therefore the grant was obtained fraudulently by making of a false statement and or concealment from court of something material to the cause. The respondent knew of the applicants’ interest in the estate of the deceased yet she chose to ignore them completely in her petition of letters of administration intestate. She also ignored them completely when she applied for the confirmation of the grant.” (see also In re Estate of Magangi Obuki (Deceased) [2020] KEHC 348 (KLR)) Page 8 of 10 18. I am of the view that, the concealment by the 1st appellant was not innocent but deliberate. It was intended to mislead the court, facilitate confirmation of the grant and enable unilateral control and subdivision of estate property to the exclusion of other beneficiaries. This omission was calculated and strategic. 19. It was contended by the 1st appellant that the trial court ignored her response contained in the affidavit sworn on the 29/4/2025. However, that affidavit was contained in the chamber summons of the even date filed by the 1st appellant which the court dismissed and directed that she files a replying affidavit to the Summons for revocation during the hearing on the 14/5/2025. This limb of the appeal thus fails. 20. Having revoked the grant issued and confirmed to the 1st appellant, all subsequent transactions over the suit property became null and void ab initio. Consequently, the 1st appellant cannot seek to have this court validate transactions leading to interference with the deceased’s estate as these were in essence transactions anchored on illegality. The said beneficiaries can only find recourse from the 1st appellant in her personal capacity and not from the deceased’s estate. 21. The upshot of the above is that I uphold the decision of the trial court of 28/5/2025 and find that it properly exercised its discretion. Accordingly, this appeal lacks merit and is dismissed with costs. Page 9 of 10 It is so decreed. DATED and DELIVERED at Kisumu this 5th day of June, 2026. A. MABEYA, FCI Arb JUDGE Page 10 of 10