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(Being an appeal from the ruling and order of the Chief Magistrate’s Court at Siaya (Hon. Benjamin Byson Limo (PM) dated 14 th February 2025 in Succession Cause No. E126 of 2021).
The appeal arises from the ruling and order of Hon. B. Limo (PM) dated 14 th February 2025 wherein he allowed the Respondents’ summons for revocation of grant dated 11 th November 2024. In that application, the Respondents had sought that the grant issued on 15 th September 2021 and reinstated on 31 st October 2024 be revoked and that titles to land parcels in the name of Appellant and another be cancelled and to revert back in the name of the deceased.
Aggrieved by the said ruling, the Appellant filed his memorandum of appeal dated 17/2/2025 wherein he raised the following grounds of appeal:
That the learned magistrate erred in law and fact in failing to appreciate, sufficiently or at all, the nature of the application which was before him for determination and the grounds upon which the Respondents based their prayer for revocation of grant.
That the learned magistrate erred in law and fact in finding and holding that “… The Petitioner ( Appellant herein) in his replying affidavit admits to have registered other properties in his name by mistake” when no such admission was on record and no such allegation was made by the Respondents as a ground for seeking revocation of grant.
That the learned trial magistrate erred in law and fact by holding and ordering that …all properties which were registered in the name of the Petitioner ( Appellant) by mistake or otherwise to revert back to the name of the deceased to allow full participation of all the beneficiaries on the distribution of the deceased’s estate when there was no evidence before the court to support the finding that some properties of the deceased were registered in the name of the Appellant whether by mistake or otherwise.
That the learned magistrate erred in law and fact in finding and holding that “it appears the petitioner (Appellant) has failed to proceed diligently with the administration of the estate of the deceased …” an issue which was not canvassed by the parties before him as he was still prosecuting the suit, Busia ELC Case No. E004/2024, on behalf of the estate of the deceased to recover a parcel of land measuring 1.04 Hectare which forms part of the net estate of the deceased.
That the learned magistrate erred in law and fact in failing to correctly interpret and apply Section 76 of the Law of Succession Act, and further erred when he failed to find and hold that the Respondents had not made out a case for revocation of the grant issued to Appellant 0n 15/9/2021.
That the learned magistrate erred in law and fact in ignoring his own order dated 31/10/2024 by which he had set aside an exparte order dated 18/7/2023 revoking the grant issued to the Appellant on 15/9/2021 and reinstated the same grant.
That the learned magistrate erred in law and fact in ignoring the High Court order given on 25/1/2021in Siaya High Court Citation Cause NO. 1 of 2020 by which the Appellant as the Citor, was allowed and/or directed by the High Court by consent “…. To petition for grant of letters of administration intestate of the estate of the deceased Michael Massawa Ombayo…” By revoking the learned magistrate purported to countermand an order of a higher court which was in force at the time of his decision.
That the learned magistrate erred in law and fact in granting an order which was unjust in the circumstance, considering that the order left the estate of the deceased without an administrator for no good reason.
The Applicant therefore prays for the following orders that this appeal be allowed with costs; that the order dated 14/2/2025 revoking the grant made to the Appellant by the lower court on 15/9/2021 be set aside and in place of thereof be substituted with an order dismissing the Respondents’ summons for revocation of Grant dated 11/11/2024 with costs; and that such further or other order be granted as the court deems fit and just in the circumstance of this appeal.
This being the first appellate court, its duty is to analyze and evaluate the entire evidence by subjecting it to a fresh exhaustive scrutiny and to arrive at its own independent conclusion as to whether or not to uphold the decision of the trial court. This court must bear in mind that it did not have the opportunity to hear or see the witnesses and must give due allowance for that. (See Selle & Another vs Associated Motor Boat Company Ltd & others [1968] 1EA 123; Peters v. Sunday Post Ltd (1958) EA 424; Mary Wanjiku Gachigi v Ruth Muthoni Kamau (Civil Appeal No. 172 of 2000. (Tunoi, Bosire & Owuor JJA); Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another Civil Appeal No. 345 of 2000. (Okubasi, Githinji & Waki JJA ).
The record of the lower court indicates that the Appellant herein had earlier filed a citation at Siaya High Court vide Citation Cause No.1 of 2020 wherein a consent was reached between the Appellant and Citees and that the Appellant was allowed to proceed to take up letters of grant of letters of administration intestate. The Appellant therefore lodged succession cause No. E126/2021 wherein he obtained a grant dated 15/9/2021. The said grant was later revoked on 18/7/2023 after the Appellant failed to appear in court to show cause why he had not filed summons for confirmation of grant. The Appellant later filed an application dated 29/10/2024 seeking reinstatement of the dismissed cause which was allowed on 7/11/2024. The Respondents herein later filed summons for revocation of grant dated 11/10/2024 wherein they sought to have the grant issued on 15/9/2021 and reinstated on 31/10/2024. The said application was disposed of by way of written submissions in which both parties complied. The learned trial magistrate later ordered the revocation of the grant issued on 15/9/2021 and reinstated on 31/10/2024 and further ordered cancellation of titles in name of the Appellant and to revert in the name of the deceased. This thus precipitated to the present appeal.
The Respondents’ gravamen in their application dated 11/11/2024 was inter alia; that the proceedings to obtain the grant were defective in substance; that the grant was obtained fraudulently by the making of false statement; that the grant was obtained by the concealment from court of something material to the case; 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; that the administrator has failed to apply for confirmation of grant within the time allowed despite the notice in the issued grant; that the Appellant/Administrator had cited the Respondents vide Siaya HC Citation Cause No. 1/2020 and that a consent was recorded on 2/2/2021 in which the Appellant was allowed to petition for full grant; that the Appellant together with a brother to the Respondents by name Raphael Oghona Massawa were intermeddlers of the estate of the deceased as they gained registration of Land parcel No. Bukayo/Ebusibwabo/3105 without a full grant; that the transmission of the said parcel No. Bukayo/Ebusibwabo/3105 to the Appellant and Raphael Oghona Massawa was irregular and that the property should now revert back in the name of the deceased; that the Appellant also registered other two parcels of land in his name namely North/Ugenya/Siranga/1042 and 607.
The Appellant filed a replying affidavit sworn on 27/11/2024 wherein he averred inter alia; that he had filed a citation No. 1/2020 in which he had cited the Respondents to take up letters of grant and in which a consent was entered whereby he was allowed to proceed and file for letters of grant and that he was issued with the same on 15/9/2021; that the allegation raised by the Respondent are false; that the Applicants are mischievous; that the Respondents were unhappy with him after he filed a civil suit in Busia reference ELC No. E004/2024 to have the land the Respondents occupy in Bukhayo title LR No. Bukhayo/Ebusibwabo/3105 declared as belonging to the deceased and to be shared by the beneficiaries; that he and Raphael hold the same parcel of land in trust for the estate of the deceased; that parcel number Ugenya/Siranga/1042 is registered in his name but has been included in the list of asset of the deceased’s estate by mistake while parcel Number Ugenya/Siranga/609 belongs to the deceased.
Florence Akinyi swore a replying affidavit dated 29/11/2024 in support of the Appellant wherein she averred inter alia; that she is the 4 th born daughter of the deceased; that their home was in Bukhayo ward which had four houses and that she lived with her mother among other siblings on parcel number Bukhayo/Ebusibwabo/3105; that her father died before he could transfer the land in Bukhayo to his name from the main block of the late Noah Okuku who had sold the land to her father; that the family had to go to court to stop Noah Okuku’s family from attempting to deny the family of the deceased land and that the court in Kakamega ruled in their favour and that the land was registered in the name of Antony Massawa and Raphael Massawa to hold in trust; that the family later arranged for the meeting to distribute the property but her step mother Mary and her children who are the Respondents herein refused to attend the meeting; that the family later mandated the Appellant as the eldest son to apply for letters of administration; that the deceased had two parcels of land Bukhayo/Ebusibwabo/3105 and North/Ugenya/Siranga/607 that the Appellant has listed all the beneficiaries and left nobody out; that the objection raised by the Respondents is in bad faith since they had refused to attend the family meeting called on 21/11/2020; that the Respondents are enjoying the occupation of thirty acres in parcel number Bukhayo/Ebusibwabo/3105 while the other family members have nowhere to build their homes.
The appeal was canvassed by way of written submissions. Both parties filed and exchanged submissions.
The Appellant’s submissions are dated 14 th July 2025 whereas those of Respondent are dated 21 st August 2025.
The counsel for Appellant submitted inter alia; that Siaya Magistrate’s Succession Cause No. E126/2021 was filed by the Appellant pursuant to an order which was given by the High Court (Aburili, J) on 2 nd February 2021, in Siaya High Court Cause No. 1 of 2020 as annexed in the record of appeal; that by the said citation cause, the Appellant had cited all the representatives of the deceased’s three (3) houses; the parties who were represented by the advocate then recorded a consent before Hon. Lady Justice Aburili, J that “by consent of both parties herein, the Citor herein, Antony Siwollo Massawa is hereby directed to petition for grant of letters of administration intestate of the estate of the deceased Michael Massawa Ombayo within the next 30 days of today, that the citation is closed and this file be marked as closed”; that pursuant to the aforementioned order, the Appellant moved and filed Siaya CM’s Succession Cause No. E126/2021 in the matter of the estate of Michael Massawa Ombayo (deceased) in compliance with the consent order and that the consent order has never been set aside or reviewed and it remains on record; that the Appellant needed to obtain the subject grant to enable him, as the eldest son of the deceased and one of the beneficiaries of the estate, to among other things collect and preserve the estate of the deceased pending confirmation of the grant and that one of the assets which the Appellant wanted to protect is a parcel of land known as Title No. Bukhayo/Ebusibwabo/3105 which is registered in the name of the Appellant jointly with Raphael Oghona Massawa, another son of the deceased from a different house, but is held by them in trust for the estate of the deceased; that unknown to the Appellant, the trial court had moved suo moto without any notice to any of the parties, and made an order on 18 th July 2023 revoking the Grant and closing the file and that the Appellant only became aware of the order revoking the grant from the pleading filed by Raphael Oghona Massawa in Busia ELC Case No. E004/2024 which the Appellant had filed in respect of Title No. Bukhayo/Ebusibwabo/3105; that immediately the Appellant became aware of the order dated 18/7/2023 revoking the grant, the Appellant filed an application dated 29/10/2024 praying for reinstatement of the revoked grant and re-opening of the file for the succession cause; that the Appellant’s application seeking reinstatement of the revoked grant was allowed by the lower court(Hon. B. Limo) on 7/11/2024 and that the grant was thereby reinstated; that upon becoming aware of the reinstatement of the grant dated 15/9/2021 and re-opening of the file for the cause, the Respondents filed the summons for revocation of grant dated 11/11/2024 alleging that “(1) the proceedings to obtain the grant were defective in substance, (2)the grant was obtained fraudulently by the making of false statement,(3) the grant was obtained by concealment from court of something material to the case, (4) the grant was obtained by means of untrue allegation of a fact essential on point of law to justify the grant, and (5) the administrator has failed to apply for confirmation of grant; that the application for revocation of the grant was strongly opposed by the Appellant who filed replying affidavits sworn by himself and Florence Akinyi Owiti, a daughter of the deceased where both parties also filed written submissions; that by the ruling delivered on 14/2/2025, the trial magistrate allowed the Respondent’s application and revoked the grant dated 15/9/2021 after finding and holding that the consent of all beneficiaries was not obtained, that the Petitioner in his replying affidavit admits to have registered other properties in his name by mistake and that the Petitioner has failed to proceed diligently with the administration of the estate.
Learned counsel further added that apart from revoking the grant, the trial magistrate proceeded to make an order that “…….it is the finding of the court that all properties which were registered in the name of the Petitioner by mistake or otherwise to revert back to the name of the deceased to allow full participation of beneficiaries on the distribution of the deceased’s estate” and yet such an order was never prayed for and neither did the Respondents allege that the Appellant had registered any property belonging to the deceased in his name by mistake.
The counsel for Appellant has put forth eight grounds of appeal and in clusters; that ground 1,2, and 3 is that the trial magistrate committed a grave error by finding and holding that the Appellant had admitted to have registered other properties of the deceased in his name by mistake yet there was no such admission and that the alleged admission was invented by the trial magistrate. That not even the Respondents had made such an allegation and it was not one of the grounds upon which the Respondents had based their application for revocation of grant. The Appellant further submitted that he had informed the court in his replying affidavit sworn on 27/11/2024, and at paragraph 7,8,and 9 thereof, that the Applicants are being mischievous, and that he was aware that the Applicants and their other siblings, are not happy with him for filing a suit (Busia ELC No. E004 of 2024) to have the land they occupy in Bukhayo/Ebusibwabo/3105) declared to be belonging to the deceased’s estate and shared among all beneficiaries of the deceased’s estate; that although the said title No. Bukhayo/Ebusibwabo/3105 is registered in his name jointly with Raphael Oghona Massawa, they hold the land in trust for the estate of the deceased and that all the deceased’s heir/dependants are entitled to a share of the land and that the title No. North/Ugenya/Siranga/1042 is however registered in his name and the same was included in the list of assets of the estate by mistake, that title No. North Ugenya/Siranga/609 belongs to the deceased who was also known by an alias of Michael Ochieng; that from the above sentiments, the Appellant did not admit that he registered some of the deceased’s land in his name by mistake.
It was further submitted that the Appellant was actually informing the court that he needed the grant, and he had used it, to file a case in Busia Environment and Land Court to recover on behalf of the estate of the deceased land which was registered in his name jointly with Raphael Oghona Massawa but which land the Appellant was aware belonged to the deceased’s estate and was being held by him and the said Raphael Oghona Massawa in trust for the estate and all the heirs of the deceased. That the Appellant also revealed to the court hat he had actually filed a case in court to recover the land on behalf of the estate using the grant; that the Appellant had further informed the court that his own property had been listed as part of the deceased’s estates by mistake and that it did not mean that the Appellant had admitted to have registered land belonging to the deceased in his name by mistake; that according to the holding by the trial magistrate that the Appellant had admitted that he had registered some properties belonging to the deceased in his name by mistake was wholly erroneous and was not supported by the evidence which was on record and consequently, the order directing that all properties which were registered in the name of the Petitioner by mistake or otherwise to revert back to the name of the deceased was given in error and in vain and that the orders should be set aside.
Further, it was submitted that the trial magistrate erred by holding that the Appellant had failed to proceed diligently with the administration of the estate of the deceased and that the trial magistrate ignored his own order dated 31/10/2024 by which he had set aside his earlier order dated 18/7/2023 revoking the grant.
Further, on ground 4,5, and 6 of the appeal, it was submitted that the trial magistrate also erred by ignoring the fact that his earlier order of reinstatement of grant was not challenged by the Respondents and no appeal or application to set aside the order had been filed by the Respondents. That by making an application to revoke the grant which had been reinstated by an order dated 31/10/2024 and which was not being challenged, the Respondents’ application was incompetent and ought not to have been entertained or allowed; that the trial magistrate also erred in allowing an application which did not meet the threshold prescribed by Section 76 of the Law of succession Act because none of the grounds which the Respondents relied on was proved. That no fraud, concealment of material facts or procedural error or failure to administer the estate was demonstrated or proved by the Respondents. That on contrary, the Appellant had demonstrated that he had applied for and obtained the grant quite procedurally and lawfully and that the delay in making an application for confirmation of the grant was because the Appellant still needed to pursue Title No. Bukhayo/Ebusibwabu/1305 on behalf of the estate of the deceased for the benefit of all beneficiaries including the Respondents.
On Ground 7 and 8, counsel submitted that the Appellant had petitioned the court for the grant in compliance with a court order which had been given by a Judge in Citation Cause No. 1 of 2020. That the High Court (Aburili J) had made an order on 2/2/2020 directing the Appellant… to petition for grant of letters of administration intestate of the deceased Michael Massawa Ombayo w ithin 30 days..’’ and that the order was never set aside or reviewed and is still intact to date. That the Appellant submitted that the lower court had no powers or jurisdiction to delve into the circumstances under which the Grant was obtained or to hold that “the consent of all the beneficiaries was not obtained to enable proper succession proceedings take place.” This is more so considering that the Respondents who had applied for revocation of the grant were all included in the list of beneficiaries and they stood to lose nothing.
It was further submitted that in view of the fact that the Respondents were all included in the petition as beneficiaries, and which petition was filed pursuant to a commanding High Court order dated 2/2/2021, there was absolutely no basis for the complaints that were raised by the Respondents and that the trial magistrate was wrong in revoking the Grant dated 15/9/2023 and that by revoking the Grant and making no order for any other grant to be issued to anybody, the trial magistrate occasioned a serious miscarriage of justice because the revocation left the deceased’s estate without an administrator, for no good reason and that the revocation order left the Appellant without power or capacity to prosecute Busia ELC Case No. E004 of 2024 on the strength of the same grant.
Counsel placed reliance in the case of In re Estate of William Mbogo Njunu (deceased) [2022] Eklr, where Njuguna, J held as follows
“35 However, revoking a grant means that the estate will be left without an administrator and which is against the objective of the Law of Succession Act and the duties of the Probate Court. Section 66 of the Law of Succession Act bestows this court with the discretion as to the person or persons to whom a grant of letters of administration shall, in the best interest of all concerned, be made…….”
Further, reliance was placed in Re Estate of late Simon Ndungu Njoroge (deceased) [2024] Eklr where H.M.Nyaga, J held as follows:
“ 43. In view of the above, I find that there are sufficient grounds to revoke the grant. However, in the interest of expediting this matter, I will not revoke the grant as prayed. This will leave the estate without an administrator and thus at risk of wastage. Under Section 56(1) (b) of the Succession Act, a court can appoint up to a maximum of 4 administrators of the estate of the deceased. Thus, the grant herein is to be rectified and a fresh one to issue in the name of the three existing administrators and the Applicant herein.
That in the instant case, the trial magistrate revoked the grant and failed to protect the estate in any way. That this was highly imprudent and against the law.
It was finally submitted that the trial magistrate granted an order which the Respondents were not entitled to, with the result that a serious miscarriage of justice was occasioned not only to the Appellant but also to the estate of the deceased and all the heirs/dependants who are entitled to have the estate administered, preserved, collected and thereafter distributed in accordance with the law.
Therefore, the Appellant prays that this appeal be allowed with costs, that the lower court order dated 14/2/2025 be set aside and in place thereof be substituted with an order dismissing the Respondents’ summons for revocation of grant dated 11/11/2024 with costs and such further or other order be granted as the court will deem just and expedient.
The 1 st and 2 nd Respondent filed submissions dated 21 st August 2025.
The Respondents’ counsel gave a brief history of the matter and submitted that the appeal emanates from the ruling and order of the Chief Magistrate’s Court at Siaya (Hon. Benjamin Byson Limo (PM) dated 14 th February,2025 in Succession Cause No. E126 of 2021). That by the Respondent’s application dated 11 th November,2024 , the trial court allowed the said application as prayed and being dissatisfied with said ruling and order, the Appellant preferred this appeal by a memorandum of appeal dated 17 th February,2025 where he raised eight (8) grounds of appeal. A brief historical background of the litigation is inter alia; that Siaya Chief’s Magistrate’s succession cause No. E126 of 2021 was filed by the Appellant pursuant to an order which was given by the High Court (Hon. Aburili, Judge) on 2 nd February,2021 in Siaya High Court Citation Cause No.1 of 2020(page 12 of the record); that by the said Citation Cause, the Appellant cited only five persons who are beneficiaries, Mary Anyango Massawa, Rathatphael Oghona Massawa, Henry Massawa, Jude Thaddeus Massawa, Paul Agoyo Massawa (page 38 of the record) of the deceased’s estate and that the purported five had authority/consent from their houses to represent them in the succession cause that had been filed; that pursuant to the order dated 2 nd February,2021 the Appellant filed Siaya Chief Magistrate’s Court Succession Cause. No. E126 of 2021 –In the estate of Michael Massawa Ombayo (deceased) in compliance with the consent order between the parties therein. (page 23 of the record); that the Succession Cause was gazetted and Grant of Letters of Administration Intestate was issued to the Appellant on the 15 th September,2021(page 11 of the record); that the Appellant then used the grant to file a case in Busia Law Courts, that is Busia ELC Case No. E004 of 2024 in respect of Title No. Bukhayo/Ebusibwabo/3105 registered in the names of the Appellant and Raphael Oghona Massawa as joint proprietors. (page 101 to 104 of the record); that the Defendant in Busia ELC Case No. E004 of 2024, one Raphael Oghona Massawa then filed a Preliminary Objection to the suit dated 24 th October,2024. (page 105 to 106 of the record) to the effect that the grant which clothed the Appellant therein as plaintiff with authority to file the Busia ELC suit had been revoked; that on realizing the grant had been revoked, the Appellant filed ex-parte summons for reinstatement of the revoked grant dated 29 th October,2024 ( See page 96 to 108 of the record); that the court on the 7 th November,2024 reinstated the grant by allowing the summons and granted prayer 2 and 3 of the same; that on the 11 th November,2024, the 1 st Respondent herein filed summons for revocation of grant issued on the 15 th September,2021 claiming lack of consent, concealment of material facts by the Appellant herein ( See page 4 to 26 of the record); that on the 14 th February,2025, the Siaya Chief Magistrate’s Court revoked the grant that had been reinstated on the 7 th November,2024 hence the filing of this appeal dated the 17 th February,2025 (See page 81 to 82 of the record).
24. Learned counsel submitted that Section 76 of the Law of Succession Act provides for the instances in which the Magistrate’s Court can revoke a grant of representation of a deceased person’s estate. That section provides in part 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—
that the proceedings to obtain the grant were defective in substance;
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” [Emphasis supplied].
Reliance was placed In Matheka & Another vs. Matheka [2005] 2KLR 455 the Court of Appeal construed Section 76 of the Law of Succession Act and laid down the following guiding principles: -
“ i. A grant may be revoked either by the application by an interested party, or by the court on its own motion.
ii. Even when revocation is by the court upon its 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 the making of a false statement or by concealment of something material to the case or that the grant was obtained by means of untrue allegation of facts essential in point of law or that the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the estate.” [Emphasis supplied].
In the instant appeal, the Appellants’ claim is that that the Learned Magistrate erred in law and fact in failing to correctly interpret and apply section 76 of the Law of Succession Act in its ruling .
The Respondent had the duty to prove any of the grounds set out in Section 76 of the Law of Succession Act before the grant issued on the 15 th February,2025 was revoked. In the persuasive decision of the High Court, Mwita, J. in Albert Imbuga Kisigwa vs. Recho Kavai Kisigwa , Succession Cause No. 158 of 2000 stated as follows: -
“[13] Power to revoke a grant is a discretionary power that must be exercised judiciously and on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrongdoing for the court to invoke Section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”
Further, Rule 26 of Probate and Administration Rules states that letters of administration shall not be granted to any applicant without notice to every person entitled in the same degree as or in priority to the applicant . In Re Estate of Wahome Mwenje Ngonoro (2016) eKLR it was held: -
“It is trite law that if a grant was obtained fraudulently by making of a false statement or by the concealment from the court of something material to the case; or that the grant was obtained by means of untrue allegation of fact essential in point of law to justify the grant not withstanding that the allegation was made in ignorance or inadvertently, such a grant can be revoked or annulled. The law permits the court to revoke a grant on its own motion or on application by an
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(Being an appeal from the ruling and order of the Chief Magistrate’s Court at Siaya (Hon. Benjamin Byson Limo (PM) dated 14 th February 2025 in Succession Cause No. E126 of 2021).
The appeal arises from the ruling and order of Hon. B. Limo (PM) dated 14 th February 2025 wherein he allowed the Respondents’ summons for revocation of grant dated 11 th November 2024. In that application, the Respondents had sought that the grant issued on 15 th September 2021 and reinstated on 31 st October 2024 be revoked and that titles to land parcels in the name of Appellant and another be cancelled and to revert back in the name of the deceased.
Aggrieved by the said ruling, the Appellant filed his memorandum of appeal dated 17/2/2025 wherein he raised the following grounds of appeal:
That the learned magistrate erred in law and fact in failing to appreciate, sufficiently or at all, the nature of the application which was before him for determination and the grounds upon which the Respondents based their prayer for revocation of grant.
That the learned magistrate erred in law and fact in finding and holding that “… The Petitioner ( Appellant herein) in his replying affidavit admits to have registered other properties in his name by mistake” when no such admission was on record and no such allegation was made by the Respondents as a ground for seeking revocation of grant.
That the learned trial magistrate erred in law and fact by holding and ordering that …all properties which were registered in the name of the Petitioner ( Appellant) by mistake or otherwise to revert back to the name of the deceased to allow full participation of all the beneficiaries on the distribution of the deceased’s estate when there was no evidence before the court to support the finding that some properties of the deceased were registered in the name of the Appellant whether by mistake or otherwise.
That the learned magistrate erred in law and fact in finding and holding that “it appears the petitioner (Appellant) has failed to proceed diligently with the administration of the estate of the deceased …” an issue which was not canvassed by the parties before him as he was still prosecuting the suit, Busia ELC Case No. E004/2024, on behalf of the estate of the deceased to recover a parcel of land measuring 1.04 Hectare which forms part of the net estate of the deceased.
That the learned magistrate erred in law and fact in failing to correctly interpret and apply Section 76 of the Law of Succession Act, and further erred when he failed to find and hold that the Respondents had not made out a case for revocation of the grant issued to Appellant 0n 15/9/2021.
That the learned magistrate erred in law and fact in ignoring his own order dated 31/10/2024 by which he had set aside an exparte order dated 18/7/2023 revoking the grant issued to the Appellant on 15/9/2021 and reinstated the same grant.
That the learned magistrate erred in law and fact in ignoring the High Court order given on 25/1/2021in Siaya High Court Citation Cause NO. 1 of 2020 by which the Appellant as the Citor, was allowed and/or directed by the High Court by consent “…. To petition for grant of letters of administration intestate of the estate of the deceased Michael Massawa Ombayo…” By revoking the learned magistrate purported to countermand an order of a higher court which was in force at the time of his decision.
That the learned magistrate erred in law and fact in granting an order which was unjust in the circumstance, considering that the order left the estate of the deceased without an administrator for no good reason.
The Applicant therefore prays for the following orders that this appeal be allowed with costs; that the order dated 14/2/2025 revoking the grant made to the Appellant by the lower court on 15/9/2021 be set aside and in place of thereof be substituted with an order dismissing the Respondents’ summons for revocation of Grant dated 11/11/2024 with costs; and that such further or other order be granted as the court deems fit and just in the circumstance of this appeal.
This being the first appellate court, its duty is to analyze and evaluate the entire evidence by subjecting it to a fresh exhaustive scrutiny and to arrive at its own independent conclusion as to whether or not to uphold the decision of the trial court. This court must bear in mind that it did not have the opportunity to hear or see the witnesses and must give due allowance for that. (See Selle & Another vs Associated Motor Boat Company Ltd & others [1968] 1EA 123; Peters v. Sunday Post Ltd (1958) EA 424; Mary Wanjiku Gachigi v Ruth Muthoni Kamau (Civil Appeal No. 172 of 2000. (Tunoi, Bosire & Owuor JJA); Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another Civil Appeal No. 345 of 2000. (Okubasi, Githinji & Waki JJA ).
The record of the lower court indicates that the Appellant herein had earlier filed a citation at Siaya High Court vide Citation Cause No.1 of 2020 wherein a consent was reached between the Appellant and Citees and that the Appellant was allowed to proceed to take up letters of grant of letters of administration intestate. The Appellant therefore lodged succession cause No. E126/2021 wherein he obtained a grant dated 15/9/2021. The said grant was later revoked on 18/7/2023 after the Appellant failed to appear in court to show cause why he had not filed summons for confirmation of grant. The Appellant later filed an application dated 29/10/2024 seeking reinstatement of the dismissed cause which was allowed on 7/11/2024. The Respondents herein later filed summons for revocation of grant dated 11/10/2024 wherein they sought to have the grant issued on 15/9/2021 and reinstated on 31/10/2024. The said application was disposed of by way of written submissions in which both parties complied. The learned trial magistrate later ordered the revocation of the grant issued on 15/9/2021 and reinstated on 31/10/2024 and further ordered cancellation of titles in name of the Appellant and to revert in the name of the deceased. This thus precipitated to the present appeal.
The Respondents’ gravamen in their application dated 11/11/2024 was inter alia; that the proceedings to obtain the grant were defective in substance; that the grant was obtained fraudulently by the making of false statement; that the grant was obtained by the concealment from court of something material to the case; 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; that the administrator has failed to apply for confirmation of grant within the time allowed despite the notice in the issued grant; that the Appellant/Administrator had cited the Respondents vide Siaya HC Citation Cause No. 1/2020 and that a consent was recorded on 2/2/2021 in which the Appellant was allowed to petition for full grant; that the Appellant together with a brother to the Respondents by name Raphael Oghona Massawa were intermeddlers of the estate of the deceased as they gained registration of Land parcel No. Bukayo/Ebusibwabo/3105 without a full grant; that the transmission of the said parcel No. Bukayo/Ebusibwabo/3105 to the Appellant and Raphael Oghona Massawa was irregular and that the property should now revert back in the name of the deceased; that the Appellant also registered other two parcels of land in his name namely North/Ugenya/Siranga/1042 and 607.
The Appellant filed a replying affidavit sworn on 27/11/2024 wherein he averred inter alia; that he had filed a citation No. 1/2020 in which he had cited the Respondents to take up letters of grant and in which a consent was entered whereby he was allowed to proceed and file for letters of grant and that he was issued with the same on 15/9/2021; that the allegation raised by the Respondent are false; that the Applicants are mischievous; that the Respondents were unhappy with him after he filed a civil suit in Busia reference ELC No. E004/2024 to have the land the Respondents occupy in Bukhayo title LR No. Bukhayo/Ebusibwabo/3105 declared as belonging to the deceased and to be shared by the beneficiaries; that he and Raphael hold the same parcel of land in trust for the estate of the deceased; that parcel number Ugenya/Siranga/1042 is registered in his name but has been included in the list of asset of the deceased’s estate by mistake while parcel Number Ugenya/Siranga/609 belongs to the deceased.
Florence Akinyi swore a replying affidavit dated 29/11/2024 in support of the Appellant wherein she averred inter alia; that she is the 4 th born daughter of the deceased; that their home was in Bukhayo ward which had four houses and that she lived with her mother among other siblings on parcel number Bukhayo/Ebusibwabo/3105; that her father died before he could transfer the land in Bukhayo to his name from the main block of the late Noah Okuku who had sold the land to her father; that the family had to go to court to stop Noah Okuku’s family from attempting to deny the family of the deceased land and that the court in Kakamega ruled in their favour and that the land was registered in the name of Antony Massawa and Raphael Massawa to hold in trust; that the family later arranged for the meeting to distribute the property but her step mother Mary and her children who are the Respondents herein refused to attend the meeting; that the family later mandated the Appellant as the eldest son to apply for letters of administration; that the deceased had two parcels of land Bukhayo/Ebusibwabo/3105 and North/Ugenya/Siranga/607 that the Appellant has listed all the beneficiaries and left nobody out; that the objection raised by the Respondents is in bad faith since they had refused to attend the family meeting called on 21/11/2020; that the Respondents are enjoying the occupation of thirty acres in parcel number Bukhayo/Ebusibwabo/3105 while the other family members have nowhere to build their homes.
The appeal was canvassed by way of written submissions. Both parties filed and exchanged submissions.
The Appellant’s submissions are dated 14 th July 2025 whereas those of Respondent are dated 21 st August 2025.
The counsel for Appellant submitted inter alia; that Siaya Magistrate’s Succession Cause No. E126/2021 was filed by the Appellant pursuant to an order which was given by the High Court (Aburili, J) on 2 nd February 2021, in Siaya High Court Cause No. 1 of 2020 as annexed in the record of appeal; that by the said citation cause, the Appellant had cited all the representatives of the deceased’s three (3) houses; the parties who were represented by the advocate then recorded a consent before Hon. Lady Justice Aburili, J that “by consent of both parties herein, the Citor herein, Antony Siwollo Massawa is hereby directed to petition for grant of letters of administration intestate of the estate of the deceased Michael Massawa Ombayo within the next 30 days of today, that the citation is closed and this file be marked as closed”; that pursuant to the aforementioned order, the Appellant moved and filed Siaya CM’s Succession Cause No. E126/2021 in the matter of the estate of Michael Massawa Ombayo (deceased) in compliance with the consent order and that the consent order has never been set aside or reviewed and it remains on record; that the Appellant needed to obtain the subject grant to enable him, as the eldest son of the deceased and one of the beneficiaries of the estate, to among other things collect and preserve the estate of the deceased pending confirmation of the grant and that one of the assets which the Appellant wanted to protect is a parcel of land known as Title No. Bukhayo/Ebusibwabo/3105 which is registered in the name of the Appellant jointly with Raphael Oghona Massawa, another son of the deceased from a different house, but is held by them in trust for the estate of the deceased; that unknown to the Appellant, the trial court had moved suo moto without any notice to any of the parties, and made an order on 18 th July 2023 revoking the Grant and closing the file and that the Appellant only became aware of the order revoking the grant from the pleading filed by Raphael Oghona Massawa in Busia ELC Case No. E004/2024 which the Appellant had filed in respect of Title No. Bukhayo/Ebusibwabo/3105; that immediately the Appellant became aware of the order dated 18/7/2023 revoking the grant, the Appellant filed an application dated 29/10/2024 praying for reinstatement of the revoked grant and re-opening of the file for the succession cause; that the Appellant’s application seeking reinstatement of the revoked grant was allowed by the lower court(Hon. B. Limo) on 7/11/2024 and that the grant was thereby reinstated; that upon becoming aware of the reinstatement of the grant dated 15/9/2021 and re-opening of the file for the cause, the Respondents filed the summons for revocation of grant dated 11/11/2024 alleging that “(1) the proceedings to obtain the grant were defective in substance, (2)the grant was obtained fraudulently by the making of false statement,(3) the grant was obtained by concealment from court of something material to the case, (4) the grant was obtained by means of untrue allegation of a fact essential on point of law to justify the grant, and (5) the administrator has failed to apply for confirmation of grant; that the application for revocation of the grant was strongly opposed by the Appellant who filed replying affidavits sworn by himself and Florence Akinyi Owiti, a daughter of the deceased where both parties also filed written submissions; that by the ruling delivered on 14/2/2025, the trial magistrate allowed the Respondent’s application and revoked the grant dated 15/9/2021 after finding and holding that the consent of all beneficiaries was not obtained, that the Petitioner in his replying affidavit admits to have registered other properties in his name by mistake and that the Petitioner has failed to proceed diligently with the administration of the estate.
Learned counsel further added that apart from revoking the grant, the trial magistrate proceeded to make an order that “…….it is the finding of the court that all properties which were registered in the name of the Petitioner by mistake or otherwise to revert back to the name of the deceased to allow full participation of beneficiaries on the distribution of the deceased’s estate” and yet such an order was never prayed for and neither did the Respondents allege that the Appellant had registered any property belonging to the deceased in his name by mistake.
The counsel for Appellant has put forth eight grounds of appeal and in clusters; that ground 1,2, and 3 is that the trial magistrate committed a grave error by finding and holding that the Appellant had admitted to have registered other properties of the deceased in his name by mistake yet there was no such admission and that the alleged admission was invented by the trial magistrate. That not even the Respondents had made such an allegation and it was not one of the grounds upon which the Respondents had based their application for revocation of grant. The Appellant further submitted that he had informed the court in his replying affidavit sworn on 27/11/2024, and at paragraph 7,8,and 9 thereof, that the Applicants are being mischievous, and that he was aware that the Applicants and their other siblings, are not happy with him for filing a suit (Busia ELC No. E004 of 2024) to have the land they occupy in Bukhayo/Ebusibwabo/3105) declared to be belonging to the deceased’s estate and shared among all beneficiaries of the deceased’s estate; that although the said title No. Bukhayo/Ebusibwabo/3105 is registered in his name jointly with Raphael Oghona Massawa, they hold the land in trust for the estate of the deceased and that all the deceased’s heir/dependants are entitled to a share of the land and that the title No. North/Ugenya/Siranga/1042 is however registered in his name and the same was included in the list of assets of the estate by mistake, that title No. North Ugenya/Siranga/609 belongs to the deceased who was also known by an alias of Michael Ochieng; that from the above sentiments, the Appellant did not admit that he registered some of the deceased’s land in his name by mistake.
It was further submitted that the Appellant was actually informing the court that he needed the grant, and he had used it, to file a case in Busia Environment and Land Court to recover on behalf of the estate of the deceased land which was registered in his name jointly with Raphael Oghona Massawa but which land the Appellant was aware belonged to the deceased’s estate and was being held by him and the said Raphael Oghona Massawa in trust for the estate and all the heirs of the deceased. That the Appellant also revealed to the court hat he had actually filed a case in court to recover the land on behalf of the estate using the grant; that the Appellant had further informed the court that his own property had been listed as part of the deceased’s estates by mistake and that it did not mean that the Appellant had admitted to have registered land belonging to the deceased in his name by mistake; that according to the holding by the trial magistrate that the Appellant had admitted that he had registered some properties belonging to the deceased in his name by mistake was wholly erroneous and was not supported by the evidence which was on record and consequently, the order directing that all properties which were registered in the name of the Petitioner by mistake or otherwise to revert back to the name of the deceased was given in error and in vain and that the orders should be set aside.
Further, it was submitted that the trial magistrate erred by holding that the Appellant had failed to proceed diligently with the administration of the estate of the deceased and that the trial magistrate ignored his own order dated 31/10/2024 by which he had set aside his earlier order dated 18/7/2023 revoking the grant.
Further, on ground 4,5, and 6 of the appeal, it was submitted that the trial magistrate also erred by ignoring the fact that his earlier order of reinstatement of grant was not challenged by the Respondents and no appeal or application to set aside the order had been filed by the Respondents. That by making an application to revoke the grant which had been reinstated by an order dated 31/10/2024 and which was not being challenged, the Respondents’ application was incompetent and ought not to have been entertained or allowed; that the trial magistrate also erred in allowing an application which did not meet the threshold prescribed by Section 76 of the Law of succession Act because none of the grounds which the Respondents relied on was proved. That no fraud, concealment of material facts or procedural error or failure to administer the estate was demonstrated or proved by the Respondents. That on contrary, the Appellant had demonstrated that he had applied for and obtained the grant quite procedurally and lawfully and that the delay in making an application for confirmation of the grant was because the Appellant still needed to pursue Title No. Bukhayo/Ebusibwabu/1305 on behalf of the estate of the deceased for the benefit of all beneficiaries including the Respondents.
On Ground 7 and 8, counsel submitted that the Appellant had petitioned the court for the grant in compliance with a court order which had been given by a Judge in Citation Cause No. 1 of 2020. That the High Court (Aburili J) had made an order on 2/2/2020 directing the Appellant… to petition for grant of letters of administration intestate of the deceased Michael Massawa Ombayo w ithin 30 days..’’ and that the order was never set aside or reviewed and is still intact to date. That the Appellant submitted that the lower court had no powers or jurisdiction to delve into the circumstances under which the Grant was obtained or to hold that “the consent of all the beneficiaries was not obtained to enable proper succession proceedings take place.” This is more so considering that the Respondents who had applied for revocation of the grant were all included in the list of beneficiaries and they stood to lose nothing.
It was further submitted that in view of the fact that the Respondents were all included in the petition as beneficiaries, and which petition was filed pursuant to a commanding High Court order dated 2/2/2021, there was absolutely no basis for the complaints that were raised by the Respondents and that the trial magistrate was wrong in revoking the Grant dated 15/9/2023 and that by revoking the Grant and making no order for any other grant to be issued to anybody, the trial magistrate occasioned a serious miscarriage of justice because the revocation left the deceased’s estate without an administrator, for no good reason and that the revocation order left the Appellant without power or capacity to prosecute Busia ELC Case No. E004 of 2024 on the strength of the same grant.
Counsel placed reliance in the case of In re Estate of William Mbogo Njunu (deceased) [2022] Eklr, where Njuguna, J held as follows
“35 However, revoking a grant means that the estate will be left without an administrator and which is against the objective of the Law of Succession Act and the duties of the Probate Court. Section 66 of the Law of Succession Act bestows this court with the discretion as to the person or persons to whom a grant of letters of administration shall, in the best interest of all concerned, be made…….”
Further, reliance was placed in Re Estate of late Simon Ndungu Njoroge (deceased) [2024] Eklr where H.M.Nyaga, J held as follows:
“ 43. In view of the above, I find that there are sufficient grounds to revoke the grant. However, in the interest of expediting this matter, I will not revoke the grant as prayed. This will leave the estate without an administrator and thus at risk of wastage. Under Section 56(1) (b) of the Succession Act, a court can appoint up to a maximum of 4 administrators of the estate of the deceased. Thus, the grant herein is to be rectified and a fresh one to issue in the name of the three existing administrators and the Applicant herein.
That in the instant case, the trial magistrate revoked the grant and failed to protect the estate in any way. That this was highly imprudent and against the law.
It was finally submitted that the trial magistrate granted an order which the Respondents were not entitled to, with the result that a serious miscarriage of justice was occasioned not only to the Appellant but also to the estate of the deceased and all the heirs/dependants who are entitled to have the estate administered, preserved, collected and thereafter distributed in accordance with the law.
Therefore, the Appellant prays that this appeal be allowed with costs, that the lower court order dated 14/2/2025 be set aside and in place thereof be substituted with an order dismissing the Respondents’ summons for revocation of grant dated 11/11/2024 with costs and such further or other order be granted as the court will deem just and expedient.
The 1 st and 2 nd Respondent filed submissions dated 21 st August 2025.
The Respondents’ counsel gave a brief history of the matter and submitted that the appeal emanates from the ruling and order of the Chief Magistrate’s Court at Siaya (Hon. Benjamin Byson Limo (PM) dated 14 th February,2025 in Succession Cause No. E126 of 2021). That by the Respondent’s application dated 11 th November,2024 , the trial court allowed the said application as prayed and being dissatisfied with said ruling and order, the Appellant preferred this appeal by a memorandum of appeal dated 17 th February,2025 where he raised eight (8) grounds of appeal. A brief historical background of the litigation is inter alia; that Siaya Chief’s Magistrate’s succession cause No. E126 of 2021 was filed by the Appellant pursuant to an order which was given by the High Court (Hon. Aburili, Judge) on 2 nd February,2021 in Siaya High Court Citation Cause No.1 of 2020(page 12 of the record); that by the said Citation Cause, the Appellant cited only five persons who are beneficiaries, Mary Anyango Massawa, Rathatphael Oghona Massawa, Henry Massawa, Jude Thaddeus Massawa, Paul Agoyo Massawa (page 38 of the record) of the deceased’s estate and that the purported five had authority/consent from their houses to represent them in the succession cause that had been filed; that pursuant to the order dated 2 nd February,2021 the Appellant filed Siaya Chief Magistrate’s Court Succession Cause. No. E126 of 2021 –In the estate of Michael Massawa Ombayo (deceased) in compliance with the consent order between the parties therein. (page 23 of the record); that the Succession Cause was gazetted and Grant of Letters of Administration Intestate was issued to the Appellant on the 15 th September,2021(page 11 of the record); that the Appellant then used the grant to file a case in Busia Law Courts, that is Busia ELC Case No. E004 of 2024 in respect of Title No. Bukhayo/Ebusibwabo/3105 registered in the names of the Appellant and Raphael Oghona Massawa as joint proprietors. (page 101 to 104 of the record); that the Defendant in Busia ELC Case No. E004 of 2024, one Raphael Oghona Massawa then filed a Preliminary Objection to the suit dated 24 th October,2024. (page 105 to 106 of the record) to the effect that the grant which clothed the Appellant therein as plaintiff with authority to file the Busia ELC suit had been revoked; that on realizing the grant had been revoked, the Appellant filed ex-parte summons for reinstatement of the revoked grant dated 29 th October,2024 ( See page 96 to 108 of the record); that the court on the 7 th November,2024 reinstated the grant by allowing the summons and granted prayer 2 and 3 of the same; that on the 11 th November,2024, the 1 st Respondent herein filed summons for revocation of grant issued on the 15 th September,2021 claiming lack of consent, concealment of material facts by the Appellant herein ( See page 4 to 26 of the record); that on the 14 th February,2025, the Siaya Chief Magistrate’s Court revoked the grant that had been reinstated on the 7 th November,2024 hence the filing of this appeal dated the 17 th February,2025 (See page 81 to 82 of the record).
24. Learned counsel submitted that Section 76 of the Law of Succession Act provides for the instances in which the Magistrate’s Court can revoke a grant of representation of a deceased person’s estate. That section provides in part 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—
that the proceedings to obtain the grant were defective in substance;
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” [Emphasis supplied].
Reliance was placed In Matheka & Another vs. Matheka [2005] 2KLR 455 the Court of Appeal construed Section 76 of the Law of Succession Act and laid down the following guiding principles: -
“ i. A grant may be revoked either by the application by an interested party, or by the court on its own motion.
ii. Even when revocation is by the court upon its 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 the making of a false statement or by concealment of something material to the case or that the grant was obtained by means of untrue allegation of facts essential in point of law or that the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the estate.” [Emphasis supplied].
In the instant appeal, the Appellants’ claim is that that the Learned Magistrate erred in law and fact in failing to correctly interpret and apply section 76 of the Law of Succession Act in its ruling .
The Respondent had the duty to prove any of the grounds set out in Section 76 of the Law of Succession Act before the grant issued on the 15 th February,2025 was revoked. In the persuasive decision of the High Court, Mwita, J. in Albert Imbuga Kisigwa vs. Recho Kavai Kisigwa , Succession Cause No. 158 of 2000 stated as follows: -
“[13] Power to revoke a grant is a discretionary power that must be exercised judiciously and on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrongdoing for the court to invoke Section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”
Further, Rule 26 of Probate and Administration Rules states that letters of administration shall not be granted to any applicant without notice to every person entitled in the same degree as or in priority to the applicant . In Re Estate of Wahome Mwenje Ngonoro (2016) eKLR it was held: -
“It is trite law that if a grant was obtained fraudulently by making of a false statement or by the concealment from the court of something material to the case; or that the grant was obtained by means of untrue allegation of fact essential in point of law to justify the grant not withstanding that the allegation was made in ignorance or inadvertently, such a grant can be revoked or annulled. The law permits the court to revoke a grant on its own motion or on application by an
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