1. This is an appeal against the decision of the Court below arising from the summons for revocation of grant filed by the appellant, by which he sought to have the grant issued to the respondent revoked on the grounds, inter alia, that there was a material non-disclosure of the fact that the appellant was a purchaser of Title No Mbooni/ Itetani/183, which was sold to him and to Mr Pius Jimmy Musyoki by the deceased on 28th March 1985, and that the sale was confirmed by the deceased’s first wife, Anastacia Luisa Katina, on 29th April 1996.
2. In a ruling delivered on 23rd January 2025, the Hon JB Kalo found that the alleged sale had not been disclosed to the respondent; for that reason, she couldn’t be accused of material non-disclosure. Secondly, he found that the appellant had no valid claim to the land, as his interest had been extinguished upon the lapse of 12 years. Further, the Court held that the alleged sale was void because no consent from the land control board was obtained within the statutory period.
3. The Court therefore found that the appellant failed to prove his case and dismissed the notice of motion dated 2nd August 2024, with costs to the petitioner.
4. Being aggrieved, the appellant filed an appeal to this Court. The memorandum of appeal is dated 5th February 2025. The appeal raises 17 grounds. By the said memorandum of appeal, the appellant seeks to have the impugned ruling set aside, to have the summons for revocation of grant dated 2nd August 2024 allowed as prayed, to have the Land Registrar Makueni ordered to transfer Land parcel No Mbooni/Itetani/146 to the appellant, and to have the Court below ordered to expedite the hearing of the probate and administration cause in respect of the estate of Rafael Kavuti Simba aka Kavuti Simba (deceased).
5. An application for stay pending appeal was filed by the appellant concomitantly with the appeal. The relevant notice of motion is dated 10th February 2025. The application was compromised on 26th February 2025. The parties agreed to maintain the status quo in situ pending the hearing and determination of the appeal. The Court, on its part, directed that the appeal would be canvassed by way of written submissions.
6. This is the first appeal. The duty of the first appellate Court was settled in the case of Selle & another v Associated Motor Board Company Ltd & others (1968) EA 123, where the Court stated that:
“…An appeal to this Court from the trial by the High Court is by way of a retrial, and the principles upon which the Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind it had neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound to follow the trial judge’s findings of fact if it appears that either he failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence on the case generally…”
7. In the case of Mbogo & another v Shah [1968] EA 93, it was held that:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior Court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on a matter on which it should not have acted, or because it failed to take into consideration matters it should have taken into consideration, and in doing so arrived at a wrong conclusion.”
8. The instant appeal was canvassed by way of written submissions. The appellant's submissions are dated 20th September 2025. Those of the Respondent, on the other hand, are dated 28th October 2025. I have carefully considered the said submissions.
9. I have also considered the Memorandum and the Record of Appeal, the submissions of the parties, as well as applicable law. It would seem to me that the issues I must consider are as follows:-
1. Whether there were grounds to revoke the grant of representation issued to the respondent; and
2. If the Probate & Administration Court could determine the question of ownership or title to land.
10. The Court below had a discretion under section 76 of the Law of Succession Act to revoke a grant under certain circumstances. The said section provides that:-
“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 orders or allows; or
(ii) to proceed diligently with the administration of the estate; or
(iii) 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; or
(e) that the grant has become useless and inoperative through subsequent circumstances.”
11. In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR), the Court held that:
“13. Power to revoke a grant is 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 for the Court to revoke or annul a grant. And where a Court is called upon to exercise this discretion, it must take into account the interests of all beneficiaries entitled to the deceased’s estate, for the interest of justice.”
12. I have perused the proceedings and the record of the Court below. I note that the grant of representation was issued to the respondent on 8th March 2019 and confirmed on 8th November 2019. The sole asset of the deceased was identified as Title No Mbooni/Itetani/183, which the respondent was required to hold in trust for herself and on behalf of the other beneficiaries.
13. The appellant submits that the respondent filed a case in the Makueni Environment and Land Court on 7th December 2020 seeking to evict the appellant. The judgment in respect of the said matter was delivered by her Ladyship, Lady Justice T Murigi. In the subject judgment, the Court found that the appellant purchased the subject parcel of land. In particular, the learned Judge held that:
“Having purchased half portion of the suit properly land parcel No Mbooni/Itetani/1831 from his late brother, this Court finds and holds that his claim lies with his estate and not with the plaintiff.”
14. From what I have seen in the record, it appears to me that the respondent was aware of the contestation regarding the said parcel of land. However, there were no court proceedings regarding the same at the time. The land was registered in the name of the deceased. In my view, therefore, she did not engage in fraud, nor were the proceedings defective, nor did she conceal material information.
15. Having found as above, I am unable to agree with the appellant’s counsel’s submissions that the learned magistrate was wrong in not allowing the summons for revocation of the grant. In my view, no sufficient case was made to warrant the revocation of the grant.
16. The decision of the learned Magistrate was partly predicated on the issue of the validity of the sale. The learned Magistrate found and held that the said transaction was void. With respect to the said Magistrate, he had no business engaging in the question of the validity of the title. He was sitting in the Probate & Administration Court, considering a succession matter. To that extent, the learned Magistrate was wrong.
17. Having so stated, nothing turns on my latter finding. The Court below properly found that the summons for revocation of the grant was unmerited. The learned magistrate was right in that respect. In the circumstances, I am unable to course disturb his finding.
18. I must note that the Court emphasizes the situation the Respondent finds himself in. He, however, has recourse elsewhere.
19. The upshot pf the foregoing is that I find no merit in the appeal. The same is dismissed. Each party shall bear his/her own costs of the appeal.
20. It is so ordered.
Dated and signed this 30th day of April 2026. Delivered virtually through Microsoft TEAMS.
2. In a ruling delivered on 23rd January 2025, the Hon JB Kalo found that the alleged sale had not been disclosed to the respondent; for that reason, she couldn’t be accused of material non-disclosure. Secondly, he found that the appellant had no valid claim to the land, as his interest had been extinguished upon the lapse of 12 years. Further, the Court held that the alleged sale was void because no consent from the land control board was obtained within the statutory period.
3. The Court therefore found that the appellant failed to prove his case and dismissed the notice of motion dated 2nd August 2024, with costs to the petitioner.
4. Being aggrieved, the appellant filed an appeal to this Court. The memorandum of appeal is dated 5th February 2025. The appeal raises 17 grounds. By the said memorandum of appeal, the appellant seeks to have the impugned ruling set aside, to have the summons for revocation of grant dated 2nd August 2024 allowed as prayed, to have the Land Registrar Makueni ordered to transfer Land parcel No Mbooni/Itetani/146 to the appellant, and to have the Court below ordered to expedite the hearing of the probate and administration cause in respect of the estate of Rafael Kavuti Simba aka Kavuti Simba (deceased).
5. An application for stay pending appeal was filed by the appellant concomitantly with the appeal. The relevant notice of motion is dated 10th February 2025. The application was compromised on 26th February 2025. The parties agreed to maintain the status quo in situ pending the hearing and determination of the appeal. The Court, on its part, directed that the appeal would be canvassed by way of written submissions.
6. This is the first appeal. The duty of the first appellate Court was settled in the case of Selle & another v Associated Motor Board Company Ltd & others (1968) EA 123, where the Court stated that:
“…An appeal to this Court from the trial by the High Court is by way of a retrial, and the principles upon which the Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind it had neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound to follow the trial judge’s findings of fact if it appears that either he failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence on the case generally…”
7. In the case of Mbogo & another v Shah [1968] EA 93, it was held that:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior Court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on a matter on which it should not have acted, or because it failed to take into consideration matters it should have taken into consideration, and in doing so arrived at a wrong conclusion.”
8. The instant appeal was canvassed by way of written submissions. The appellant's submissions are dated 20th September 2025. Those of the Respondent, on the other hand, are dated 28th October 2025. I have carefully considered the said submissions.
9. I have also considered the Memorandum and the Record of Appeal, the submissions of the parties, as well as applicable law. It would seem to me that the issues I must consider are as follows:-
1. Whether there were grounds to revoke the grant of representation issued to the respondent; and
2. If the Probate & Administration Court could determine the question of ownership or title to land.
10. The Court below had a discretion under section 76 of the Law of Succession Act to revoke a grant under certain circumstances. The said section provides that:-
“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 orders or allows; or
(ii) to proceed diligently with the administration of the estate; or
(iii) 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; or
(e) that the grant has become useless and inoperative through subsequent circumstances.”
11. In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR), the Court held that:
“13. Power to revoke a grant is 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 for the Court to revoke or annul a grant. And where a Court is called upon to exercise this discretion, it must take into account the interests of all beneficiaries entitled to the deceased’s estate, for the interest of justice.”
12. I have perused the proceedings and the record of the Court below. I note that the grant of representation was issued to the respondent on 8th March 2019 and confirmed on 8th November 2019. The sole asset of the deceased was identified as Title No Mbooni/Itetani/183, which the respondent was required to hold in trust for herself and on behalf of the other beneficiaries.
13. The appellant submits that the respondent filed a case in the Makueni Environment and Land Court on 7th December 2020 seeking to evict the appellant. The judgment in respect of the said matter was delivered by her Ladyship, Lady Justice T Murigi. In the subject judgment, the Court found that the appellant purchased the subject parcel of land. In particular, the learned Judge held that:
“Having purchased half portion of the suit properly land parcel No Mbooni/Itetani/1831 from his late brother, this Court finds and holds that his claim lies with his estate and not with the plaintiff.”
14. From what I have seen in the record, it appears to me that the respondent was aware of the contestation regarding the said parcel of land. However, there were no court proceedings regarding the same at the time. The land was registered in the name of the deceased. In my view, therefore, she did not engage in fraud, nor were the proceedings defective, nor did she conceal material information.
15. Having found as above, I am unable to agree with the appellant’s counsel’s submissions that the learned magistrate was wrong in not allowing the summons for revocation of the grant. In my view, no sufficient case was made to warrant the revocation of the grant.
16. The decision of the learned Magistrate was partly predicated on the issue of the validity of the sale. The learned Magistrate found and held that the said transaction was void. With respect to the said Magistrate, he had no business engaging in the question of the validity of the title. He was sitting in the Probate & Administration Court, considering a succession matter. To that extent, the learned Magistrate was wrong.
17. Having so stated, nothing turns on my latter finding. The Court below properly found that the summons for revocation of the grant was unmerited. The learned magistrate was right in that respect. In the circumstances, I am unable to course disturb his finding.
18. I must note that the Court emphasizes the situation the Respondent finds himself in. He, however, has recourse elsewhere.
19. The upshot pf the foregoing is that I find no merit in the appeal. The same is dismissed. Each party shall bear his/her own costs of the appeal.
20. It is so ordered.
Dated and signed this 30th day of April 2026. Delivered virtually through Microsoft TEAMS.