REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CAUSE NO. 283 OF 2010
IN THE MATTER OF THE ESTATE OF LIVINGSTONE WAKOLI (DECEASED)
MARK NAMBWILA SIMIYU………………….………APPLICANT
VERSUS
DAVID WAKOLI MASSA……… 1 st PETITIONER/RESPONDENT
ISAAC KHISA WAFULA…….… 2 nd PETITIONER/RESPONDENT
SYLVESTER WEBALE MAKHANU.........……3 rd RESPONDENT
GEORGE WAFULA WAMASEBE....................4 th RESPONDENT
JOSEPHAT BONONOLE WEPUKHULU.........5 th RESPONDENT
JOSHUA WAMANGA ......………………………6 th RESPONDENT
JOHN LUTAKAI MAINA .......…………………7 th RESPONDENT
GEOFFREY WANJALA SIMIYU..………………8 th RESPONDENT
ABEL KASUTI NABENDE……………………9 th RESPONDENT
ROBERT WANJALA JUMA …………………..10 th RESPONDENT
JANTRIX NAMBUSWA MAKENJL......…….....11 th RESPONDENT
STEPHEN BARASA MUNIALO.............…….....12 th RESPONDENT
PROTUS KHISA WALUBENGO.........................13 th RESPONDENT
RULING
1. Before the court is an Application for revocation of grant dated 21 st February, 2025 brought under the provisions of Section 48 and 76 of the Laws of Succession Act (Cap 160 Laws of Kenya) Rule 44 of the Probate & Administration Rules Section 68 of title land Registration Act.
2. The Application sought the following orders:
a) Spent
b) That pending the hearing and determination of the substantive application for revocation and/or annulment of Grant there be a stay of implementation, registration and any other mode of implementation and/or enforcement of the Certificate of Confirmation of Grant issued on 25 th October, 2023 .
c) That the Grant of Letters of Administration issued to the Petitioner herein on 29 th March, 2011 and subsequently confirmed on 25 th October, 2023 be revoked and/or annulled`.
d) That the certificate of confirmation of Grant issued to the petitioner herein dated 25 th October, 2023 be recalled and/or annulled.
e) That if any transactions have been effected on the registers of Parcel No: - S.MALAKISI/MWALIYE/654 on the strength of the said Grant of letters of Administration and the said Certificate of Confirmation of Grant, the same be cancelled and/or revoked.
f) That costs of this application be provided for.
Background
3. This succession cause was filed on 3 rd September, 2010 by the 1 st and 2 nd petitioner respondents who sought grant of letters of administration intestate over the estate of the deceased.
4. A letter dated 12 th July, 2010 authored by the locational chief for Malakisi Locations shows that the deceased left one surviving son shown to be the 1 st petitioner and seventeen (17) beneficiaries including the 2 nd petitioner respondent.
5. Robert Khaukha Namisi and Joshua Wamanga who are listed as the 5 th and 7 th beneficiaries respectively in the above cited letter signed a consent in form P&A 38 as persons entitled to apply for letters of administration in equality or priority to the petitioners.
6. It is apparent that the 1 st and 2 nd petitioners signed form P&A 80 in which the petitioners are described as sons of the deceased.
7. On 11 th April, 2011 the petitioners were granted letters of administration over the estate of the deceased and the grant was confirmed on 14 th November, 2011 with the estate being distributed to the 1 st and 2 nd petitioner administrators whose shares in the estate which comprised L. R. No. S. Malakasii/Mwalie/654 was ascertained as 40 and 12.5 acres respectively.
8. However, on 22 nd December, 2011 the 1 st to 12 th objectors filed summons for nullification of grant on the ground that they had been excluded in the distribution of the estate of the deceased and that they were facing threats of eviction by the administrators who were the sole beneficiaries as per the confirmed grant.
9. Vide an affidavit dated 20 th February, 2015 the applicant in the instant application averred that he purchased 6 acres from the 1 st petitioner respondent on 24 th September, 1998 out of the above-mentioned parcel of land registered in the name of the deceased.
10. On 23 rd May, 2022 the administrators and the objectors executed a consent withdrawing the summons for revocation of grant dated 22 nd December, 2011 to pave way for the survey and partitioning of the estate of the deceased to take into account the interests of the objectors.
11. On 5 th August, 2022 the issue of the mode of distribution of the estate of the deceased and the shares of each beneficiary was referred to mediation and the matter fixed for mention in court on 26 th September, 2022.
12. On 16 th December, 2022 the objectors and the administrators reached a mediation settlement agreement which was deposited at the Mediation Registry on the same date. The applicant whose Identity Card Number is shown as 0824437 appended his signature to the mediation agreement and his share of the estate is ascertained as being four (4) acres.
13. Pursuant to the mediation settlement the administrators filed summons for rectification of grant dated 23 rd February, 2023 and Justice D.K. Kemei issued a new grant on 20 th November, 2023 in which the estate of the deceased was distributed in accordance with the mediation settlement.
14. It is apparent that the applicant unsuccessfully challenged the mediation settlement and hence the instant application.
15. The grounds cited in support of the Application by Mark Nambwila Simiyu broadly are that the Grant was obtained by concealment of a material fact being that the 2 nd Petitioner herein is not a son of the deceased and that he had no capacity to represent the estate of the deceased as he has no relation to the deceased.
16. The Applicant alleges that the Petitioner has fraudulently misrepresented himself before this Honourable court as a son of the deceased in order to obtain the grant of letters of administration.
17. It is also averred that the Applicant has a valid, known and recognizable stake in the said estate of the deceased as a purchaser which is no different from the 2 nd Petitioner respondent who is also a purchaser.
18. The Applicant alleges that the procedure to obtain the Grant was defective both in form and substance for reasons of concealment of material facts from the court by the 2 nd Petitioner who is unfit to administer the estate of the deceased.
Replying Affidavits
19. Sylvester Webale Makhanu and George Wafula Wamasebo who are the 1 st and 2 nd Objector respondents have jointly sworn a replying affidavit dated 24 th June, 2025 .
20. In their response they aver that the application dated 21 st February 2025 is an abuse to the Court process as the same is Res-judicata and ought to be struck out by the court.
21. It is deponed that during the Mediation process on 16 th December, 2022 the applicant failed to keep the terms of a Consent recorded by all the 12 objectors with the petitioners by producing several land purchase agreements regarding the same subject matter thus dishonoring this court’s orders.
22. It is further averred that the applicant was dissatisfied by the mediation report and filed an application dated 7 th February 2023 seeking to set aside the consent order which was dismissed by this honourable court on 21 st May 2023 by his Lordship Judge Kemei. Further that the Applicant was dissatisfied by the High Court’s Ruling, and thus filed an application dated 27 th January 2024 seeking for directions from the court of appeal which is still pending for hearing and determination.
23. David Wakoli Massa who is the 1 st petitioner respondent has also sworn a Replying Affidavit dated 24 th June, 2025 in which he states that he has the authority of the 2 nd Petitioner/Respondent to respond to the applicant’s application.
24. The 1 st Petitioner/Respondent depones that the application is res judicata and an abuse of the court process. For the reason that there was an earlier application for stay by the applicant pending an intended appeal filed on 12 th February, 2024.
25. It is deponed that the applicant has filed numerous applications within the instant succession cause with the objective of delaying the proceedings.
26. The 1 st Petitioner/Respondent asserts that the applicant (6th Objector) totally violated the consent recorded by all the parties for Revocation and or Annulment of the Grant filed through M/s P.L. Natwati & Co. Advocates dated 22 nd December 2011 which was marked as compromised by all the objectors dated 20th May 2022 and filed on 23 rd May 2022 .
27. It is further deponed that all the 12 objectors, their Advocate P.L. Natwati and the two Petitioners signed the consent which led to the Mediation Settlement on 16 th December 2022 presided by Mediator Edely Nekesa Marangachi. Further that in the Mediation settlement Agreement, the applicant (6th Objector) failed to meet the threshold of the consent clause 4 by lacking a genuine sale agreement as he had three contrasting agreements related to the same parcel of land. The 1 st Petitioner respondent has annexed an agreement dated 25 th April, 1979 between the applicant and the deceased which was characterized as false as the deceased had passed on the previous year in the month of August.
28. The 1 st respondent cited other agreements produced by the applicant which are said to be inconsistent and unbelievable.
29. It is further deponed that the applicant vehemently denied participating in the mediation process that was carried out on 16 th December 2022 and filed an application dated 7 th February 2023 which was dismissed by this court.
30. The 1 st Petitioner/Respondent further avers that the applicant lacks locus to seek for the revocation or annulment of the grant when he has no close links or connection to the late Livingstone Massa Wakoli.
31. The 1 st Petitioner/Respondent also deponed that the affidavit sworn on 7 th February, 2023 by the applicant at paragraph 7 indicates that he personally purchased 10 acres of land from the deceased in the year 1979 which is a falsehood before the court because the deceased had already passed on earlier in August 1978 before his alleged purchase.
32. Josephat Binonole Wepukhulu who appears as the 5 th Respondent also filed a replying affidavit dated 30 th October, 2025 describing himself as the 3 rd Objector and depones that he has the authority of the 4 th , 5 th ,7 th , 8 th ,9 th ,10 th , 11 th and 12 th Objectors.
33. He depones that the application for revocation of grant lacks merit hence an abuse of the due process of law and should be dismissed as it has not met the threshold for revocation of the grant.
34. It is deponed that the Applicant had earlier on filed a similar application seeking for revocation of grant that led to the rectification of grant hence this matter is res judicata. Further that prior to the filing of the application for revocation of grant dated 22 nd December, 2011 this honourable court had earlier on confirmed the grant and the estate of the deceased comprising land parcel No. S. MALAKISI/MALYE/654 distributed between the two Petitioners to the exclusion of other beneficiaries hence the application for revocation lodged by the applicant and the other eleven (11) Objectors.
35. He further depones that the applicant along with him and other beneficiaries filed an application for revocation of grant challenging the earlier grant issued herein and which dispute was subsequently referred to mediation where all parties including the applicant were present and they all fully participated. That during the mediation, the applicant’s claim to the estate was discussed comprehensively and he voluntarily accepted allocation of four (4) Acres of land in full and final settlement of his claim and signed the mediation settlement agreement and or report freely without any coercion, misrepresentation or mistake.
36. He depones that the mediation agreement was thereafter adopted as a judgement and or order of this honourable court on 23 rd January, 2023 . That following adoption of the mediation agreement, the court issued a rectified/confirmed grant reflecting the agreed mode of distribution.
37. The 5 th Respondent avers that the applicant, though a beneficiary of the said judgement, filed an application dated 7 th February, 2023 for review or setting aside of the mediation settlement but that it was subsequently dismissed on 2 nd July 2023 . Further, that the applicant again filed an application for stay pending appeal on 18 th July 2024 which he later withdrew.
38. It is averred that the present application is therefore res judicata, as the issues raised have been already conclusively determined through mediation and adopted as a court judgement.
Supplementary Affidavit
39. Pursuant to the leave of the court the applicant filed a supplementary affidavit dated 2 nd February, 2026 in which he depones that the respondents have not denied that lsaac Khisa Wafula is not a son of the deceased as earlier misrepresented and neither is he a relative of the deceased. Further that this is a material fact that was concealed from the court with the aim of misleading the court and influencing the outcome of the proceedings.
40. It is further deponed that as per the attached Chief’s letter dated 12 th July, 2010 the deceased had only one surviving son and that the 2 nd Petitioner is a purchaser of a portion of the estate just like the applicant. The further supplementary affidavit dated 3 rd July, 2026 reiterates the contents of the applicant’s supporting affidavit with the applicant asserting that the 1 st and 2 nd Petitioners have not materially challenged his application.
41. This matter was ordered to be canvassed by way of written submissions and the parties have filed their respective submissions.
Applicant’s submissions
42. Counsel for the applicant submits that it has not been denied that the 2 nd Petitioner is neither a relative of the deceased nor a son of the deceased as misrepresented in the application to obtain the grant. That therefore the grant was obtained by making a false statement that the 2 nd Petitioner is a son of the deceased when he is not thus concealing a material fact from the court.
43. It is submitted that this untrue allegation of fact, essential in a point of law as to justify the revocation of grant for misrepresenting to the court that the 2 nd Petitioner is indeed a son to the deceased when he was not. Further, that this rendered the process of getting the grant defective in substance and as such the same should be revoked and or annulled as per the provisions of the Law of Succession Act, Section 76 .
Respondent’s Submissions
44. Counsel for the respondents submits that the parties herein including the applicant through an application dated 22 nd December 2011 sought for a revocation of grant that was issued to the petitioners herein on 14 th November 2011 , that the matter was referred to court annexed mediation where all parties including the present applicant fully participated.
45. It is submitted that the applicant voluntarily accepted allocations of four (4) Acres in full and final settlement of his claim and he signed the mediation settlement agreement. That the mediation agreement was adopted as a judgement and or order of this honourable court and a rectified and or confirmed grant was subsequently issued. It is submitted that the applicant has never appealed against or sought to review and or to set aside the consent judgement. The present application therefore seeks to re-open matters that were conclusively determined.
46. Counsel submits that Section 7 of the Civil Procedure Act provides that a matter directly and substantially in issue that has been heard and finally determined cannot be re-litigated. That the applicant's entitlement to acreage, the status of beneficiaries and administrators were directly in issue during mediation and were conclusively determined. The applicant is said to have signed the settlement and is bound by it. The court therefore lacks jurisdiction to re-open the same issues. Reliance was paced on the case of ET Verses Attorney General & Another [2012] eKLR .
47. It is submitted that a mediation settlement adopted by the court has the force of a consent judgement. The law is settled that a consent judgement is binding and can only be set aside on limited grounds such as fraud, mistake, misrepresentation or coercion which all must be proved. Reliance was placed on the case of Flora N Wasike Verses Destimo Wamboko [1988] eKLR and Brook Liebig (T) Ltd verses Mallya [1975] EA 266. Counsel argues that the applicant in this case has not alleged or proved fraud, coercion, mistake and or misrepresentation, he merely wishes to renegotiate acreage, which is legally impermissible and therefore urges this court not to allow parties to approbate and reprobate at the same time.
48. It is submitted that under the Law of Succession Act, Section 76 the applicant has not demonstrated any of the statutory grounds for revocation of grant. That dissatisfaction with acreage allocation or buyer status is not a ground recognized under section 76, therefore revocation as sought is legally untenable.
49. Counsel further submits that the applicant having voluntarily executed the mediation agreement, and benefited from it, he should be estopped from challenging the same. Reliance was placed on the case of Kenya Commercial Bank Verses Specialized Engineering Co. Ltd [1982] eKLR 485 , where the court held that a party cannot resile from a position he previously accepted to the detriment of others.
50. Lastly, counsel submits that the applicant cannot now claim 6 Acres after accepting 4 Acres in a court sanctioned settlement. That the allegations that the 2 nd petitioner is not a son of the deceased is an afterthought, this fact was well within the applicant's knowledge during mediation and confirmation of grant, he never objected at that time, the issue is therefore overtaken by events and he is equally barred by res judicata.
Issues for determination
51. Having considered the application, the replying and supplementary affidavits, and the submissions of counsel, this court finds the following issues commending themselves for determination:
i. Whether the present application is barred by the doctrine of res judicata
ii. Whether the Grant dated 11 th April, 2011 was procured by concealment of a material fact, or by an untrue allegation of fact. essential in point of law to justify the annulment of the said grant,
iii. What appropriate orders to issue upon determination of issue (i) and (ii) above?
Analysis & Determination
i) Whether the present application is barred by res judicata
52. It falls for determination the issue as to whether this present application is res judicata and/or is otherwise foreclosed by the consent recorded on 16 th December 2022 , the resultant mediation settlement, and the Certificate of Confirmation of Grant issued on 20 th November, 2023 .
53. The Civil Procedure Act , Section 7 provides that:
No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
54. In Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR) the Court stated that:
Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms;
a. The suit or issue was directly and substantially in issue in the former suit.
b. That former suit was between the same parties or parties under whom they or any of them claim.
c. Those parties were litigating under the same title.
d. The issue was heard and finally determined in the former suit.
e. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.
55. It is not in dispute that an earlier application for revocation of the Grant, dated 22 nd December, 2011 was filed herein by, among others, the present applicant. In an affidavit sworn by the applicant on 20 th February, 2015 the applicant refers to the Chief’s letter which is explicit that the deceased had only one son with everyone else interest being noted as ‘beneficiaries. This is the very factual premise now advanced as a fraudulent concealment to the effect that the 2nd petitioner is not a son of the deceased but a buyer who purchased into the estate. This was squarely known to, and pleaded by, the applicant as far back as 2015.
56. That 2011 application proceeded to court-annexed mediation on 16 th December, 2022 , before Mediator Edely Nekesa Marangachi, in which the applicant participated as the 6th Objector alongside eleven other objectors, the two petitioners, and their advocates. The resulting Mediation Settlement Agreement was adopted as a judgment/order of this court, and it is that settlement which gave rise to the rectified Certificate of Confirmation of Grant dated 20 th November, 2023 apportioning to each party including the applicant who received four (4) acres their respective shares of the estate.
57. Section 7 of the Civil Procedure Act bars re-litigation of a matter directly and substantially in issue in a former proceeding between the same parties, which has been heard and finally determined by a court of competent jurisdiction. If the applicant was dissatisfied by the judgment which resulted from the mediation process the only remedy available to the applicant is to challenge the judgment on appeal.
58. A consent judgment stands on the same footing as a judgment on merit and imports as complete a determination as an adjudicated finding by the court; it may be set aside only on grounds that would vitiate any contract being fraud, mistake, misrepresentation, or coercion and only by a party who has pleaded and proved such a ground against the consent itself, not merely against a fact that predates and was subsumed within it. This court finds persuasion in the case of Nancy Wanja Gatabaki, Josephine Beatrice Gathoni & Esther Susan Wangari Gatabaki suing as ad litem representatives of Samuel Mundati Gatabaki (Deceased) & another v Muga Developers Limited & 11 others [2020] KEHC 10332 (KLR) where Majanja J. (as he then was) held thus;
“The Plaintiffs seem to suggest that the Consent Order is not a judgment or a determination of the suit on its merits. A consent order is an order whose terms are settled and agreed to by the parties and having been sanctioned by the court, the consent order has the effect of res judicata in respect of the matters dealt with…”
59. A consent judgement can only be challenged on the grounds of fraud, mistake, misrepresentation, or coercion. No such ground is pleaded against the 2022 consent or the mediation settlement in the present application. The applicant does not allege that his own consent to the settlement was procured by fraud, mistake, misrepresentation or coercion; he instead seeks to reopen, as if newly discovered, a fact he had himself deponed to thirteen years earlier and which was live at the time he entered into the settlement that he has since acted upon.
60. This is a case where a party already challenged a consent judgement, on an application brought specifically for that purpose, and was unsuccessful.
61. For these reasons, the applicant's own affidavit dated 20 th February, 2015 acknowledging the 2nd Petitioner's true status; the equivalence of the 2022 consent to a final determination and the fact that the applicant's own attempt to set aside that very consent has already been heard and dismissed this court finds that the present application is barred by the doctrine of res judicata.
ii) Whether the Grant dated 11 th April, 2011 was procured by concealment of a material fact, or by an untrue allegation of fact.
62. The applicant contends that the grant dated 11 th April, 2011 was procured by concealment of a material fact, or by an untrue allegation of fact. Within the meaning of Section 76(b) and (c) of the Law of Succession Act , by reason of the 2nd Petitioner's inclusion in the petition and supporting P&A Form 5 as a survivor/beneficiary of the deceased when, on the material now on record, he is a purchaser of a portion of the estate and not a son of the deceased.
63. The Law of Succession Act, Section 76 on revocation or annulment of grant 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.
64. It is now common ground that the deceased died in 1978; that the Chief's letter dated 12 th July, 2010 in the court's file from the outset of the petition for grant was categorical that the deceased had only one surviving son, the 1st Petitioner; and that the 2nd Petitioner is, and has at all times been, a purchaser who bought into the estate, properly characterized as a creditor of the estate rather than a beneficiary.
65. The P&A Form 5 filed in support of the petition nonetheless listed the 2nd Petitioner among those who had survived the deceased, it does not describe him as a son, a relative, or a beneficiary of any particular class.
66. The applicant's case, as pleaded and submitted, is that the 2 nd petitioner fraudulently misrepresented himself before the Honourable court as a son of the deceased. That allegation cannot be reconciled with a document that makes no such claim. To say that a person "survived the deceased" is true of any person alive when the deceased died, whatever their relationship to him or the estate; it is not, without more, an assertion of sonship, kinship, or beneficial entitlement. There is accordingly no false statement in the petition documents to engage the Law of Succession Act, Section 76(b) as the alleged misrepresentation is one the applicant has read into the word "survived," not one the petitioners made.
67. Section 76(b) of the Law of Succession Act requires a false statement or concealment that misled the court; Section 76(c) requires an untrue allegation of fact essential in point of law to justify the grant, whether made knowingly or in ignorance. The concealment limb is difficult to sustain: as in his own 2015 affidavit, the applicant knew that the deceased had only one son. A fact cannot operate to conceal from, or mislead, the one person who demonstrably already knew and said so at the time.
68. Revocation under the Law of Succession Act, Section 76 is a discretionary jurisdiction to be exercised judiciously and with regard to the interests of all beneficiaries and the interests of justice, not merely on proof of a technical irregularity capable of being and in substance already having been resolved by consent of the persons affected by it.
69. Accordingly, even taken on its own merits and without regard to res judicata or estoppel, this court is not satisfied that no ground under the Law of Succession Act, Section 76(b) or (c) has been made out to the standard required to disturb a grant that has stood, confirmed, for over a decade and a half after the underlying facts were known to those now complaining of it.
70. For the foregoing reasons, this court makes the following orders:
a) The application dated 21 st February, 2025 is dismissed in its entirety.
b) Costs are awarded to the respondents.
Ruling read, dated and delivered in the open court this 17 th day of September, 2026
R. K.Koech
JUDGE
In the presence of:
The 1 st ,2 nd ,3 rd , 5 th , 6 th , 7 th , 9 th , 10 th , and 12 th Respondents
Mr. Enock Wakhu, C.A.
But in the absence of the Applicant, the 4 th , 8 th , 11 th and 13 th Respondents.
Right of appeal within 30 days, mention on 18/11/2026 to confirm distribution of the estate.
Page 1Page 1BUNGOMA SUCCESSION CAUSE NO. 283 OF 2010
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CAUSE NO. 283 OF 2010
IN THE MATTER OF THE ESTATE OF LIVINGSTONE WAKOLI (DECEASED)
MARK NAMBWILA SIMIYU………………….………APPLICANT
VERSUS
DAVID WAKOLI MASSA……… 1 st PETITIONER/RESPONDENT
ISAAC KHISA WAFULA…….… 2 nd PETITIONER/RESPONDENT
SYLVESTER WEBALE MAKHANU.........……3 rd RESPONDENT
GEORGE WAFULA WAMASEBE....................4 th RESPONDENT
JOSEPHAT BONONOLE WEPUKHULU.........5 th RESPONDENT
JOSHUA WAMANGA ......………………………6 th RESPONDENT
JOHN LUTAKAI MAINA .......…………………7 th RESPONDENT
GEOFFREY WANJALA SIMIYU..………………8 th RESPONDENT
ABEL KASUTI NABENDE……………………9 th RESPONDENT
ROBERT WANJALA JUMA …………………..10 th RESPONDENT
JANTRIX NAMBUSWA MAKENJL......…….....11 th RESPONDENT
STEPHEN BARASA MUNIALO.............…….....12 th RESPONDENT
PROTUS KHISA WALUBENGO.........................13 th RESPONDENT
RULING
1. Before the court is an Application for revocation of grant dated 21 st February, 2025 brought under the provisions of Section 48 and 76 of the Laws of Succession Act (Cap 160 Laws of Kenya) Rule 44 of the Probate & Administration Rules Section 68 of title land Registration Act.
2. The Application sought the following orders:
a) Spent
b) That pending the hearing and determination of the substantive application for revocation and/or annulment of Grant there be a stay of implementation, registration and any other mode of implementation and/or enforcement of the Certificate of Confirmation of Grant issued on 25 th October, 2023 .
c) That the Grant of Letters of Administration issued to the Petitioner herein on 29 th March, 2011 and subsequently confirmed on 25 th October, 2023 be revoked and/or annulled`.
d) That the certificate of confirmation of Grant issued to the petitioner herein dated 25 th October, 2023 be recalled and/or annulled.
e) That if any transactions have been effected on the registers of Parcel No: - S.MALAKISI/MWALIYE/654 on the strength of the said Grant of letters of Administration and the said Certificate of Confirmation of Grant, the same be cancelled and/or revoked.
f) That costs of this application be provided for.
Background
3. This succession cause was filed on 3 rd September, 2010 by the 1 st and 2 nd petitioner respondents who sought grant of letters of administration intestate over the estate of the deceased.
4. A letter dated 12 th July, 2010 authored by the locational chief for Malakisi Locations shows that the deceased left one surviving son shown to be the 1 st petitioner and seventeen (17) beneficiaries including the 2 nd petitioner respondent.
5. Robert Khaukha Namisi and Joshua Wamanga who are listed as the 5 th and 7 th beneficiaries respectively in the above cited letter signed a consent in form P&A 38 as persons entitled to apply for letters of administration in equality or priority to the petitioners.
6. It is apparent that the 1 st and 2 nd petitioners signed form P&A 80 in which the petitioners are described as sons of the deceased.
7. On 11 th April, 2011 the petitioners were granted letters of administration over the estate of the deceased and the grant was confirmed on 14 th November, 2011 with the estate being distributed to the 1 st and 2 nd petitioner administrators whose shares in the estate which comprised L. R. No. S. Malakasii/Mwalie/654 was ascertained as 40 and 12.5 acres respectively.
8. However, on 22 nd December, 2011 the 1 st to 12 th objectors filed summons for nullification of grant on the ground that they had been excluded in the distribution of the estate of the deceased and that they were facing threats of eviction by the administrators who were the sole beneficiaries as per the confirmed grant.
9. Vide an affidavit dated 20 th February, 2015 the applicant in the instant application averred that he purchased 6 acres from the 1 st petitioner respondent on 24 th September, 1998 out of the above-mentioned parcel of land registered in the name of the deceased.
10. On 23 rd May, 2022 the administrators and the objectors executed a consent withdrawing the summons for revocation of grant dated 22 nd December, 2011 to pave way for the survey and partitioning of the estate of the deceased to take into account the interests of the objectors.
11. On 5 th August, 2022 the issue of the mode of distribution of the estate of the deceased and the shares of each beneficiary was referred to mediation and the matter fixed for mention in court on 26 th September, 2022.
12. On 16 th December, 2022 the objectors and the administrators reached a mediation settlement agreement which was deposited at the Mediation Registry on the same date. The applicant whose Identity Card Number is shown as 0824437 appended his signature to the mediation agreement and his share of the estate is ascertained as being four (4) acres.
13. Pursuant to the mediation settlement the administrators filed summons for rectification of grant dated 23 rd February, 2023 and Justice D.K. Kemei issued a new grant on 20 th November, 2023 in which the estate of the deceased was distributed in accordance with the mediation settlement.
14. It is apparent that the applicant unsuccessfully challenged the mediation settlement and hence the instant application.
15. The grounds cited in support of the Application by Mark Nambwila Simiyu broadly are that the Grant was obtained by concealment of a material fact being that the 2 nd Petitioner herein is not a son of the deceased and that he had no capacity to represent the estate of the deceased as he has no relation to the deceased.
16. The Applicant alleges that the Petitioner has fraudulently misrepresented himself before this Honourable court as a son of the deceased in order to obtain the grant of letters of administration.
17. It is also averred that the Applicant has a valid, known and recognizable stake in the said estate of the deceased as a purchaser which is no different from the 2 nd Petitioner respondent who is also a purchaser.
18. The Applicant alleges that the procedure to obtain the Grant was defective both in form and substance for reasons of concealment of material facts from the court by the 2 nd Petitioner who is unfit to administer the estate of the deceased.
Replying Affidavits
19. Sylvester Webale Makhanu and George Wafula Wamasebo who are the 1 st and 2 nd Objector respondents have jointly sworn a replying affidavit dated 24 th June, 2025 .
20. In their response they aver that the application dated 21 st February 2025 is an abuse to the Court process as the same is Res-judicata and ought to be struck out by the court.
21. It is deponed that during the Mediation process on 16 th December, 2022 the applicant failed to keep the terms of a Consent recorded by all the 12 objectors with the petitioners by producing several land purchase agreements regarding the same subject matter thus dishonoring this court’s orders.
22. It is further averred that the applicant was dissatisfied by the mediation report and filed an application dated 7 th February 2023 seeking to set aside the consent order which was dismissed by this honourable court on 21 st May 2023 by his Lordship Judge Kemei. Further that the Applicant was dissatisfied by the High Court’s Ruling, and thus filed an application dated 27 th January 2024 seeking for directions from the court of appeal which is still pending for hearing and determination.
23. David Wakoli Massa who is the 1 st petitioner respondent has also sworn a Replying Affidavit dated 24 th June, 2025 in which he states that he has the authority of the 2 nd Petitioner/Respondent to respond to the applicant’s application.
24. The 1 st Petitioner/Respondent depones that the application is res judicata and an abuse of the court process. For the reason that there was an earlier application for stay by the applicant pending an intended appeal filed on 12 th February, 2024.
25. It is deponed that the applicant has filed numerous applications within the instant succession cause with the objective of delaying the proceedings.
26. The 1 st Petitioner/Respondent asserts that the applicant (6th Objector) totally violated the consent recorded by all the parties for Revocation and or Annulment of the Grant filed through M/s P.L. Natwati & Co. Advocates dated 22 nd December 2011 which was marked as compromised by all the objectors dated 20th May 2022 and filed on 23 rd May 2022 .
27. It is further deponed that all the 12 objectors, their Advocate P.L. Natwati and the two Petitioners signed the consent which led to the Mediation Settlement on 16 th December 2022 presided by Mediator Edely Nekesa Marangachi. Further that in the Mediation settlement Agreement, the applicant (6th Objector) failed to meet the threshold of the consent clause 4 by lacking a genuine sale agreement as he had three contrasting agreements related to the same parcel of land. The 1 st Petitioner respondent has annexed an agreement dated 25 th April, 1979 between the applicant and the deceased which was characterized as false as the deceased had passed on the previous year in the month of August.
28. The 1 st respondent cited other agreements produced by the applicant which are said to be inconsistent and unbelievable.
29. It is further deponed that the applicant vehemently denied participating in the mediation process that was carried out on 16 th December 2022 and filed an application dated 7 th February 2023 which was dismissed by this court.
30. The 1 st Petitioner/Respondent further avers that the applicant lacks locus to seek for the revocation or annulment of the grant when he has no close links or connection to the late Livingstone Massa Wakoli.
31. The 1 st Petitioner/Respondent also deponed that the affidavit sworn on 7 th February, 2023 by the applicant at paragraph 7 indicates that he personally purchased 10 acres of land from the deceased in the year 1979 which is a falsehood before the court because the deceased had already passed on earlier in August 1978 before his alleged purchase.
32. Josephat Binonole Wepukhulu who appears as the 5 th Respondent also filed a replying affidavit dated 30 th October, 2025 describing himself as the 3 rd Objector and depones that he has the authority of the 4 th , 5 th ,7 th , 8 th ,9 th ,10 th , 11 th and 12 th Objectors.
33. He depones that the application for revocation of grant lacks merit hence an abuse of the due process of law and should be dismissed as it has not met the threshold for revocation of the grant.
34. It is deponed that the Applicant had earlier on filed a similar application seeking for revocation of grant that led to the rectification of grant hence this matter is res judicata. Further that prior to the filing of the application for revocation of grant dated 22 nd December, 2011 this honourable court had earlier on confirmed the grant and the estate of the deceased comprising land parcel No. S. MALAKISI/MALYE/654 distributed between the two Petitioners to the exclusion of other beneficiaries hence the application for revocation lodged by the applicant and the other eleven (11) Objectors.
35. He further depones that the applicant along with him and other beneficiaries filed an application for revocation of grant challenging the earlier grant issued herein and which dispute was subsequently referred to mediation where all parties including the applicant were present and they all fully participated. That during the mediation, the applicant’s claim to the estate was discussed comprehensively and he voluntarily accepted allocation of four (4) Acres of land in full and final settlement of his claim and signed the mediation settlement agreement and or report freely without any coercion, misrepresentation or mistake.
36. He depones that the mediation agreement was thereafter adopted as a judgement and or order of this honourable court on 23 rd January, 2023 . That following adoption of the mediation agreement, the court issued a rectified/confirmed grant reflecting the agreed mode of distribution.
37. The 5 th Respondent avers that the applicant, though a beneficiary of the said judgement, filed an application dated 7 th February, 2023 for review or setting aside of the mediation settlement but that it was subsequently dismissed on 2 nd July 2023 . Further, that the applicant again filed an application for stay pending appeal on 18 th July 2024 which he later withdrew.
38. It is averred that the present application is therefore res judicata, as the issues raised have been already conclusively determined through mediation and adopted as a court judgement.
Supplementary Affidavit
39. Pursuant to the leave of the court the applicant filed a supplementary affidavit dated 2 nd February, 2026 in which he depones that the respondents have not denied that lsaac Khisa Wafula is not a son of the deceased as earlier misrepresented and neither is he a relative of the deceased. Further that this is a material fact that was concealed from the court with the aim of misleading the court and influencing the outcome of the proceedings.
40. It is further deponed that as per the attached Chief’s letter dated 12 th July, 2010 the deceased had only one surviving son and that the 2 nd Petitioner is a purchaser of a portion of the estate just like the applicant. The further supplementary affidavit dated 3 rd July, 2026 reiterates the contents of the applicant’s supporting affidavit with the applicant asserting that the 1 st and 2 nd Petitioners have not materially challenged his application.
41. This matter was ordered to be canvassed by way of written submissions and the parties have filed their respective submissions.
Applicant’s submissions
42. Counsel for the applicant submits that it has not been denied that the 2 nd Petitioner is neither a relative of the deceased nor a son of the deceased as misrepresented in the application to obtain the grant. That therefore the grant was obtained by making a false statement that the 2 nd Petitioner is a son of the deceased when he is not thus concealing a material fact from the court.
43. It is submitted that this untrue allegation of fact, essential in a point of law as to justify the revocation of grant for misrepresenting to the court that the 2 nd Petitioner is indeed a son to the deceased when he was not. Further, that this rendered the process of getting the grant defective in substance and as such the same should be revoked and or annulled as per the provisions of the Law of Succession Act, Section 76 .
Respondent’s Submissions
44. Counsel for the respondents submits that the parties herein including the applicant through an application dated 22 nd December 2011 sought for a revocation of grant that was issued to the petitioners herein on 14 th November 2011 , that the matter was referred to court annexed mediation where all parties including the present applicant fully participated.
45. It is submitted that the applicant voluntarily accepted allocations of four (4) Acres in full and final settlement of his claim and he signed the mediation settlement agreement. That the mediation agreement was adopted as a judgement and or order of this honourable court and a rectified and or confirmed grant was subsequently issued. It is submitted that the applicant has never appealed against or sought to review and or to set aside the consent judgement. The present application therefore seeks to re-open matters that were conclusively determined.
46. Counsel submits that Section 7 of the Civil Procedure Act provides that a matter directly and substantially in issue that has been heard and finally determined cannot be re-litigated. That the applicant's entitlement to acreage, the status of beneficiaries and administrators were directly in issue during mediation and were conclusively determined. The applicant is said to have signed the settlement and is bound by it. The court therefore lacks jurisdiction to re-open the same issues. Reliance was paced on the case of ET Verses Attorney General & Another [2012] eKLR .
47. It is submitted that a mediation settlement adopted by the court has the force of a consent judgement. The law is settled that a consent judgement is binding and can only be set aside on limited grounds such as fraud, mistake, misrepresentation or coercion which all must be proved. Reliance was placed on the case of Flora N Wasike Verses Destimo Wamboko [1988] eKLR and Brook Liebig (T) Ltd verses Mallya [1975] EA 266. Counsel argues that the applicant in this case has not alleged or proved fraud, coercion, mistake and or misrepresentation, he merely wishes to renegotiate acreage, which is legally impermissible and therefore urges this court not to allow parties to approbate and reprobate at the same time.
48. It is submitted that under the Law of Succession Act, Section 76 the applicant has not demonstrated any of the statutory grounds for revocation of grant. That dissatisfaction with acreage allocation or buyer status is not a ground recognized under section 76, therefore revocation as sought is legally untenable.
49. Counsel further submits that the applicant having voluntarily executed the mediation agreement, and benefited from it, he should be estopped from challenging the same. Reliance was placed on the case of Kenya Commercial Bank Verses Specialized Engineering Co. Ltd [1982] eKLR 485 , where the court held that a party cannot resile from a position he previously accepted to the detriment of others.
50. Lastly, counsel submits that the applicant cannot now claim 6 Acres after accepting 4 Acres in a court sanctioned settlement. That the allegations that the 2 nd petitioner is not a son of the deceased is an afterthought, this fact was well within the applicant's knowledge during mediation and confirmation of grant, he never objected at that time, the issue is therefore overtaken by events and he is equally barred by res judicata.
Issues for determination
51. Having considered the application, the replying and supplementary affidavits, and the submissions of counsel, this court finds the following issues commending themselves for determination:
i. Whether the present application is barred by the doctrine of res judicata
ii. Whether the Grant dated 11 th April, 2011 was procured by concealment of a material fact, or by an untrue allegation of fact. essential in point of law to justify the annulment of the said grant,
iii. What appropriate orders to issue upon determination of issue (i) and (ii) above?
Analysis & Determination
i) Whether the present application is barred by res judicata
52. It falls for determination the issue as to whether this present application is res judicata and/or is otherwise foreclosed by the consent recorded on 16 th December 2022 , the resultant mediation settlement, and the Certificate of Confirmation of Grant issued on 20 th November, 2023 .
53. The Civil Procedure Act , Section 7 provides that:
No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
54. In Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR) the Court stated that:
Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms;
a. The suit or issue was directly and substantially in issue in the former suit.
b. That former suit was between the same parties or parties under whom they or any of them claim.
c. Those parties were litigating under the same title.
d. The issue was heard and finally determined in the former suit.
e. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.
55. It is not in dispute that an earlier application for revocation of the Grant, dated 22 nd December, 2011 was filed herein by, among others, the present applicant. In an affidavit sworn by the applicant on 20 th February, 2015 the applicant refers to the Chief’s letter which is explicit that the deceased had only one son with everyone else interest being noted as ‘beneficiaries. This is the very factual premise now advanced as a fraudulent concealment to the effect that the 2nd petitioner is not a son of the deceased but a buyer who purchased into the estate. This was squarely known to, and pleaded by, the applicant as far back as 2015.
56. That 2011 application proceeded to court-annexed mediation on 16 th December, 2022 , before Mediator Edely Nekesa Marangachi, in which the applicant participated as the 6th Objector alongside eleven other objectors, the two petitioners, and their advocates. The resulting Mediation Settlement Agreement was adopted as a judgment/order of this court, and it is that settlement which gave rise to the rectified Certificate of Confirmation of Grant dated 20 th November, 2023 apportioning to each party including the applicant who received four (4) acres their respective shares of the estate.
57. Section 7 of the Civil Procedure Act bars re-litigation of a matter directly and substantially in issue in a former proceeding between the same parties, which has been heard and finally determined by a court of competent jurisdiction. If the applicant was dissatisfied by the judgment which resulted from the mediation process the only remedy available to the applicant is to challenge the judgment on appeal.
58. A consent judgment stands on the same footing as a judgment on merit and imports as complete a determination as an adjudicated finding by the court; it may be set aside only on grounds that would vitiate any contract being fraud, mistake, misrepresentation, or coercion and only by a party who has pleaded and proved such a ground against the consent itself, not merely against a fact that predates and was subsumed within it. This court finds persuasion in the case of Nancy Wanja Gatabaki, Josephine Beatrice Gathoni & Esther Susan Wangari Gatabaki suing as ad litem representatives of Samuel Mundati Gatabaki (Deceased) & another v Muga Developers Limited & 11 others [2020] KEHC 10332 (KLR) where Majanja J. (as he then was) held thus;
“The Plaintiffs seem to suggest that the Consent Order is not a judgment or a determination of the suit on its merits. A consent order is an order whose terms are settled and agreed to by the parties and having been sanctioned by the court, the consent order has the effect of res judicata in respect of the matters dealt with…”
59. A consent judgement can only be challenged on the grounds of fraud, mistake, misrepresentation, or coercion. No such ground is pleaded against the 2022 consent or the mediation settlement in the present application. The applicant does not allege that his own consent to the settlement was procured by fraud, mistake, misrepresentation or coercion; he instead seeks to reopen, as if newly discovered, a fact he had himself deponed to thirteen years earlier and which was live at the time he entered into the settlement that he has since acted upon.
60. This is a case where a party already challenged a consent judgement, on an application brought specifically for that purpose, and was unsuccessful.
61. For these reasons, the applicant's own affidavit dated 20 th February, 2015 acknowledging the 2nd Petitioner's true status; the equivalence of the 2022 consent to a final determination and the fact that the applicant's own attempt to set aside that very consent has already been heard and dismissed this court finds that the present application is barred by the doctrine of res judicata.
ii) Whether the Grant dated 11 th April, 2011 was procured by concealment of a material fact, or by an untrue allegation of fact.
62. The applicant contends that the grant dated 11 th April, 2011 was procured by concealment of a material fact, or by an untrue allegation of fact. Within the meaning of Section 76(b) and (c) of the Law of Succession Act , by reason of the 2nd Petitioner's inclusion in the petition and supporting P&A Form 5 as a survivor/beneficiary of the deceased when, on the material now on record, he is a purchaser of a portion of the estate and not a son of the deceased.
63. The Law of Succession Act, Section 76 on revocation or annulment of grant 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.
64. It is now common ground that the deceased died in 1978; that the Chief's letter dated 12 th July, 2010 in the court's file from the outset of the petition for grant was categorical that the deceased had only one surviving son, the 1st Petitioner; and that the 2nd Petitioner is, and has at all times been, a purchaser who bought into the estate, properly characterized as a creditor of the estate rather than a beneficiary.
65. The P&A Form 5 filed in support of the petition nonetheless listed the 2nd Petitioner among those who had survived the deceased, it does not describe him as a son, a relative, or a beneficiary of any particular class.
66. The applicant's case, as pleaded and submitted, is that the 2 nd petitioner fraudulently misrepresented himself before the Honourable court as a son of the deceased. That allegation cannot be reconciled with a document that makes no such claim. To say that a person "survived the deceased" is true of any person alive when the deceased died, whatever their relationship to him or the estate; it is not, without more, an assertion of sonship, kinship, or beneficial entitlement. There is accordingly no false statement in the petition documents to engage the Law of Succession Act, Section 76(b) as the alleged misrepresentation is one the applicant has read into the word "survived," not one the petitioners made.
67. Section 76(b) of the Law of Succession Act requires a false statement or concealment that misled the court; Section 76(c) requires an untrue allegation of fact essential in point of law to justify the grant, whether made knowingly or in ignorance. The concealment limb is difficult to sustain: as in his own 2015 affidavit, the applicant knew that the deceased had only one son. A fact cannot operate to conceal from, or mislead, the one person who demonstrably already knew and said so at the time.
68. Revocation under the Law of Succession Act, Section 76 is a discretionary jurisdiction to be exercised judiciously and with regard to the interests of all beneficiaries and the interests of justice, not merely on proof of a technical irregularity capable of being and in substance already having been resolved by consent of the persons affected by it.
69. Accordingly, even taken on its own merits and without regard to res judicata or estoppel, this court is not satisfied that no ground under the Law of Succession Act, Section 76(b) or (c) has been made out to the standard required to disturb a grant that has stood, confirmed, for over a decade and a half after the underlying facts were known to those now complaining of it.
70. For the foregoing reasons, this court makes the following orders:
a) The application dated 21 st February, 2025 is dismissed in its entirety.
b) Costs are awarded to the respondents.
Ruling read, dated and delivered in the open court this 17 th day of September, 2026
R. K.Koech
JUDGE
In the presence of:
The 1 st ,2 nd ,3 rd , 5 th , 6 th , 7 th , 9 th , 10 th , and 12 th Respondents
Mr. Enock Wakhu, C.A.
But in the absence of the Applicant, the 4 th , 8 th , 11 th and 13 th Respondents.
Right of appeal within 30 days, mention on 18/11/2026 to confirm distribution of the estate.
Page 1Page 1BUNGOMA SUCCESSION CAUSE NO. 283 OF 2010