A. INTRODUCTION
1. Jamin Lunana Agenya, the deceased in this cause, died intestate at Munoywa Sub-Location on 24th February 2014. On 9th March 2022 the Appellant, Hudson Agenya Jamina, who describes himself as a son of the deceased, petitioned the Principal Magistrate’s Court at Vihiga for letters of administration intestate. A grant issued to him alone on 7th July 2022. He thereafter took out a summons for confirmation of that grant dated 4th January 2023.
2. Those proceedings were met by a protest, and subsequently by an application for revocation of the grant. By a ruling delivered on 1st October 2024, the learned trial Magistrate dismissed the summons for confirmation, revoked the grant of 7th July 2022 on the ground that it had been obtained by the concealment of material facts, and made further orders which I set out in full below. It is against that ruling that the Appellant has come to this Court.
3. The Appellant filed a Memorandum of Appeal dated 11th October 2024 raising six grounds. He appeared in person when he lodged the appeal and prepared and certified the Record of Appeal himself, but has since instructed ABL Musiega & Company Advocates, who filed written submissions dated 9th April 2026. The Respondent, Elizabeth Kadogo Agenya, has acted in person throughout and filed a hand-drawn response in Kiswahili and English.
4. A preliminary matter of housekeeping should be recorded. The Record of Appeal is instituted as Succession Appeal No. E005 of 2024, the ruling of 23rd January 2025 refers to Vihiga High Court Succession Appeal No. 5 of 2024, while the parties’ written submissions are both instituted Succession Appeal No. E005 of 2025. It is common ground that these all refer to one and the same appeal. I adopt the citation used in the parties’ most recent filings, and the Deputy Registrar shall regularize the file number in the Court records accordingly.
B. BACKGROUND AND THE PROCEEDINGS BELOW
5. The single asset disclosed in the estate is described in the Appellant’s own affidavit in support of the petition (Form P&A 5, sworn on 9th March 2022) as “PART OF LAND PARCEL NO. KAKAMEGA/BUKULUNYA/515”, of an estimated value of Kshs. 1,000,000/=. Liabilities were declared as nil.
6. That same affidavit listed the persons surviving the deceased as follows: Hudson Agenya Jamina (son, the Petitioner), Wilson Liyosi Agenya (son), Kenneth Chore Agenya (son), Aggrey Kilaini Agenya (son), John Vunyali Agenya (son), Boaz Vusutu Agenya (son), Ronald Azinwa Agenya (son), Allan Muyenzi Lunawa (grandson), Geoffrey Inyumu Induri (grandson), Evans Muyenzi Lunana (deceased) and Henry Induri Lunana (deceased). Every person named is male. Not a single daughter of the deceased is disclosed.
7. The deceased estate entitled to be distributed was North Maragoli/Bukulunya/515. The initial grant of letters of administration dated 7th July 2022 was issued reading as follows:
BE IT KNOWN that on the 7th day of JULY 2022 letters of Administration intestate of all the estate of deceased late JAMIN LUNANA AGENYA of MUNOYWA SUB-LOCATION who died domiciled in Kenya on the 24TH FEBRUARY 2014 which by law devolves to and vests in his/her personal representative were granted by this Court to HUDSON AGENYA JAMINA having undertaken faithfully to administer such estate according to law and to render a just and true account thereof whenever required by law so to do. ISSUED by the Principal Magistrate's Court/through the registry at Vihiga this 7th day of July 2022.
8. Apparently on 23rd August 2023 Joseph Agenya Guda the husband to Elizabeth Agenya filed a protest affidavit asserting as follows against the confirmation of grant in favour of the Petitioner:
a. That I am a male adult of sound mind and the Objector/Protestor herein hence competent to swear this affidavit.
b. THAT I have read the affidavit in support of summons for confirmation of Grant filed by the administrator/Petitioner herein in this honourable Court on 4/1/2023, and I wish to respond thereto as follows:
c. THAT the deceased herein in which this succession cause relate to is my uncle by virtue of being the younger brother to my late father, ENDELEA GUDAAGENYA herein referred to as deceased their father and my grandfather being AGENYA S/O LUSANGALU.
d. THAT my grandfather, AGENYA S/O LUSANGALU had three sons namely: -Luka Vusutu Agenya, Endelea Guda Agenya and Jamin Lunana Agenya.
e. THAT prior to the demise of the said AGENYA S/O LUSANGALU heowned land parcel North Maragoli/Bukulunya/515 measuring 1.0Ha and North Maragoli/Bukulunya/697 which he registered in the names of thedeceased herein and Endelea Guda Agenya respectively to hold in trust for theentire family.
f. THAT land parcel North Maragoli/Bukulunya/515 is the ancestral landwhere all the family members of Agenya S/O Lusangalu lived and have continued to live peacefully and upon our grandfather and grandmother's demise, our parents and other deceased family members their remains were interred thereon without any complain from any family member.
g. THAT land parcel North Maragoli/Bukulunya/697 is (swampy) a valley where my father and the deceased herein used to only plant trees as per the boundary features marked on the ground which position, we have maintained and obeyed the said boundary features which we will also be shared accordingly.
h. THAT we have been utilizing and occupying these two land parcels with the deceased herein without any issue but he died before subdividing and sharing out this land which now this succession cause relates to.
i. THAT I have been living on this land parcel since I was born and I have extensively developed a portion of this parcel of land by building residential houses where my family reside to date, cultivating various types of crops and trees.
j. THAT I don't agree with the administrator's proposal on distribution of the deceased estate as set out in paragraph 6 of affidavit in support of confirmation of Grant on the following reasons; -
a) The administrator has failed disclose to Court all the beneficiaries and or dependants of the deceased herein
b) I have not been provided for despite the fact that I live on this land parcel which is ancestral.
c) The administrator filed this succession cause secretly despite the fact that I reside in Kitale where I do casual jobs but I occasionally visit my family at home.
k. THAT I am apprehensive that if the estate comprised in land parcel North Maragoli/Bukulunya/515 is distributed as per the application of confirmation filed in this honourable Court am bound to be disinherited and or left landless.
l. THAT I now propose that the mode of distribution of the estate comprised inland parcel North Maragoli/Bukulunya/515 measuring 1.0Ha should be distributed in two equal portions thus:
Jamin Lunana Agenya ... 0.5Ha. to be shared amongst his family members.
Joseph Agenya Guda ...0.5Ha.for Endelea Guda Agenya family
9. The summons for confirmation of grant dated 4th January 2023 was supported by a consent on the mode of distribution of the same date, under which the parcel was to be shared among the nine persons in the following portions: Geoffrey Inyumu Induri – 0.13 ha; Ronald Azinwa Agenya – 0.13 ha; Boaz Vusutu Agenya – 0.10 ha; Kenneth Chore Agenya – 0.11 ha; John Vunyali Agenya – 0.23 ha; Aggrey Kilaini Agenya – 0.10 ha; Wilson Liyosi
Agenya – 0.09 ha; Allan Muyenzi Lunawa – 0.08 ha; and Hudson Agenya Jamina – 0.08 ha. Again, all nine are male.
10. A protest was lodged by Joseph Agenya Guda, who swore an affidavit of protest on 23rd August 2023. His case, in substance, was that the two parcels North Maragoli/Bukulunya/515 and 697 had been registered by his grandfather Agenya son of Lusangalu in the name of Endelea Guda Agenya to hold in trust for the entire family; that parcel 515 was ancestral land upon which the family of Agenya son of Lusangalu had lived and upon which family members were interred; and that it fell to be divided in equal portions between the family of Jamin Lunana Agenya (0.5 ha) and the family of Endelea Guda Agenya (0.5 ha).
11. On 25th January 2024 the matter was referred to mediation in accordance with Article 159(2)(c) of the Constitution and Section59(B) of the CPA. The parties failed to agree, and directions were given for the protest to stand as a plaint, the summons for confirmation as a defence, and for the filing of witness statements and documents. The Appellant filed witness statements of Wilson Liyosi Mubirwa and Zedekiah Chore Ondego, both filed on 11th March 2024.
12. Joseph Agenya Guda died on 18th April 2024 while the proceedings were pending. On 2nd August 2024 the trial Court directed that his daughter file substitution proceedings so as to be enjoined, and thereafter file and serve
an application for revocation of the grant, upon which the Appellant would have seven days to respond. The Respondent, Elizabeth Kadogo Agenya, was duly substituted and filed her application dated 5th August 2024, together with an affidavit of protest sworn on 21st August 2024.
13. The Respondent’s case was that the Petitioner had excluded both her and the siblings together with her own sisters from the proceedings. As if that is not enough the female beneficiaries were unaware of the matter and were omitted from the consent on the mode of distribution notwithstanding that plot 515 was the ancestral land of Agenya son of Lusangalu upon which five family members lie buried, and that the Petitioner had obtained the grant, and thereafter title, fraudulently and by concealment of material evidence.
14. The Appellant filed a replying affidavit sworn on 15th August 2024. He denied that the Respondent or her late father had any entitlement. He deposed, at paragraph 7, that “my father one JAMIN LUNANA AGENYA whose estate is the subject of this succession, the late LUKA VUSUTU and the father to JOSEPH AGENYA GUDA one ENDELEA GUDA AGENYA were sons to AGENYA S/O LUSANGALU”; that Endelea Guda Agenya had been given parcel 697, which Joseph Agenya Guda had sold in 2019; that Luka Vusutu had been given a separate parcel; and that parcel 515 was “my father’s share” and belonged solely to the family of the deceased.
15. The Appellant was present in Court on 30th August 2024, when the Court recorded that the application for revocation and the replying affidavit were both on the file and fixed the ruling for 1st October 2024. He was again present on 1st October 2024 when the ruling was delivered.
16. The application was determined on the affidavit evidence. The proceedings disclose no hearing at which any witness was sworn, examined or crossexamined. I return to this point below.
C. THE RULING APPEALED FROM
17. The learned trial Magistrate identified the issue before her as “whether the Petitioner obtained the grant of letters of administration fraudulently.” She set out Section 66 of the Law of Succession Act and Rule 26(1) and (2) of the Probate and Administration Rules, the latter of which requires that letters of administration shall not be granted to any applicant without notice to any other person entitled in the same degree or in priority, and that an application by a person entitled in a degree equal to or lower than that of another shall, in default of communication or written consent in Form 38 or 39 by all persons so entitled, be supported by an affidavit and such other evidence as the Court may require.
18. She found that the Petitioner ought to have obtained the signatures of all the beneficiaries consenting to his appointment; that the affidavit in support contained no such consent; that the Area Chief’s letter could not sanitize that irregularity; that the applicant’s father, her siblings and the Petitioner’s own sisters had not renounced their rights and ought to have been notified; and that the burden to disprove the applicant’s case had shifted to the Petitioner, who called no evidence and offered no explanation. She then turned to Section 76 of the Act for the remedy of revocation.
19. She relied on Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] eKLR, Albert Imbuga Kisigwa v Rechal Kavai Kisigwa, Succession Cause No. 158 of 2000, and in Re Estate of Moses Wachira Kimotho (Deceased), Succession Cause No. 122 of 2002 [2009] eKLR, and concluded that the grant had been obtained fraudulently by concealment from the Court of something material to the case.
20. The operative orders of 1st October 2024 were these:
a. An order is issued that the summons for confirmation of grant is dismissed with no orders as to costs.
b. The grant of letters of administration intestate issued on 7th July 2022 is hereby revoked on ground that the grant was obtained fraudulently by concealing material facts from the Court relating to the estate.
c. Fresh grant in the estate of Agenya son of Lusangalu be obtained including two administrators Hudson Agenya Jamina and Elizabeth Kadogo Agenya in relation to land parcel L.R. North
Maragoli/Bukulunya/515 to be equally apportioned as 0.5 ha for the
family of Jamin Lunana Agenya and 0.5 ha for the family of Joseph Agenya Guda.
d. This being a family matter, each party shall bear own costs.
e. Any party aggrieved by the orders made in this ruling has leave of thirty
(30) days right of appeal.
21. By a further ruling of 23rd January 2025, the trial Court granted a stay of execution pending the hearing and determination of this appeal, on condition that the Appellant deposit Kshs. 30,000/= as security.
D. THE APPEAL AND THE SUBMISSIONS
22. The six grounds in the Memorandum of Appeal are, in summary, that the learned Magistrate erred in law and fact by (i) ignoring the Appellant’s evidence and that of his witnesses; (ii) bringing in extraneous issues not forming part of the evidence adduced; (iii) dismissing the application for confirmation of grant and at the same time proceeding to distribute the estate against the weight of the evidence; (iv) ignoring documentary evidence produced by the Appellant while relying on extraneous issues; (v) allowing persons not entitled to the estate; and (vi) failing to analyze correctly the evidence on record and thereby arriving at a wrong decision.
23. The Appellant prays that the appeal be allowed, the ruling set aside in its entirety, an order substituted confirming his grant and directing distribution exclusively among the lawful family members of the deceased as proposed in his affidavit in support of the summons for confirmation, a declaration that the Respondent and her late father are not entitled to any share, and costs here and below.
24. Learned Counsel’s submissions developed those grounds in the following narrative. First, is said that two credible and independent witnesses testified in support of the Appellant and were disregarded; second, that the Magistrate decided the matter on extraneous material contrary to Article 50(1) of the Constitution and the principle in Karanja v Republic [1983] KLR 360; third, that the correct sequence under the Act is grant, administration, confirmation and only then distribution, so that the Court could not revoke one grant and distribute in the same breath, relying on Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR and Ridge v Baldwin [1964] AC 40; that the Respondent is a daughter-in-law of the deceased’s brother and thus a stranger twice removed with no locus under sections 29 and 66 of the Act, relying on Githinji v Githinji [1971] EA 430; and that the decision was against the weight of the evidence, relying on Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 and Peters v Sunday Post Ltd [1958] EA 424.
25. The Respondent, who is unrepresented, filed a document headed “Maswali ya Elizabeth Kadogo kuelekeza kwa wakili wa baba, Hudson Agenya Jamina Agenya”. It is not drawn in the conventional form of submissions, and I have construed it benevolently, as a Court must where a litigant appears in person. Reduced to its substance, she asks: how the Appellant came to conduct the succession privately and by way of a Chief’s Letter; whether he can explain how and when he acquired the land he claims as his own; why he permitted five graves to be sited on land he says is exclusively his; why the deceased was buried there if it is his; why persons bearing no family name were called as witnesses to a family dispute; and why, while the cause was pending, he hived off a portion of the upper part of the parcel and erected three houses upon it. She states plainly that she has no complaint about the equal apportionment of 0.5 ha to each family ordered by the trial Court, asks this Court for direction, prays that the appeal be dismissed with costs, and pleads for an end to litigation that has run from 2022 to 2026.
E. THE DUTY OF THIS COURT
26. This is a first appeal. My duty is to reconsider and re-evaluate the whole of the evidence on record, weigh it, and draw my own conclusions, bearing in mind that I have neither seen nor heard the witnesses and must make proper allowance for that disadvantage: Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123. Equally, I will not lightly differ from findings of fact turning on credibility, but I will interfere where the trial Court failed to take account of material circumstances or probabilities, misapprehended the evidence, applied a wrong principle, or reached a conclusion no reasonable tribunal could have reached: Peters v Sunday Post Ltd [1958] EA 424.
27. That advantage of demeanour is, however, largely absent in this case. The revocation application was determined on affidavit evidence and on the Court’s own record. This Court is therefore in as good a position as the trial Court to assess that material, and the deference ordinarily owed is correspondingly reduced.
28. One further preliminary observation must be made. The Record of Appeal was prepared and certified by the Appellant himself. It is incomplete: of the eight pages of the typed proceedings, pages 2 and 4 are missing, as are the internal pages numbered 36 and 38. An appellant bears the burden of placing before the appellate Court a complete record of what occurred below, and where the record is deficient the appellate Court will not speculate in his favour as to what the missing pages might have contained.
F. ISSUES FOR DETERMINATION
29. Having considered the Record of Appeal, the grounds and the submissions, the issues that arise are:
i. What, in law and in fact, was the true effect of the orders made on 1st October 2024?
ii. Whether the learned trial Magistrate ignored the Appellant’s evidence and that of his witnesses;
iii. Whether she relied on extraneous matters not forming part of the record;
iv. Whether it was irregular, or a denial of a fair hearing, to revoke the grant and dismiss the summons for confirmation in one and the same ruling;
v. Whether the Respondent had locus standi, and whether persons not entitled were admitted to the estate;
vi. Whether order 3 of the ruling – directing a fresh grant in the estate of Agenya son of Lusangalu and apportioning parcel 515 between two families – can stand;
vii. Whether the decision was otherwise against the weight of the evidence; and
viii. What orders, including as to costs, should follow.
G. ANALYSIS AND DETERMINATION
(i) The true effect of the orders of 1st October 2024
30. It is necessary to begin here, because a substantial part of the Appellant’s case rests upon a description of the ruling which the ruling itself does not bear out. Both the Memorandum of Appeal and Counsel’s submissions assert repeatedly that the learned Magistrate “proceeded to distribute the estate of the deceased in favour of the Respondent, Elizabeth Kadogo Agenya, and other persons”.
31. She did no such thing. No share of the estate of Jamin Lunana Agenya was vested in the Respondent, or in any other named individual. What the Court did was to dismiss the summons, revoke the grant, and direct that a fresh grant be taken out – albeit in the estate of a different deceased person – with two co-administrators, and that parcel 515 be apportioned equally between two family branches. The Respondent received no personal entitlement whatever. An appeal must be argued on the order actually made, not on a paraphrase of it.
32. That correction disposes of a good deal of the argument advanced under grounds 3 and 5. It does not, however, dispose of order 3 itself, which raises a quite different and more serious difficulty that I address in Section(vi) below.
(ii) Ground 1: was the Appellant’s evidence, and that of his witnesses, ignored?
33. The premise of this ground is that Wilson Liyosi Mubirwa and Zedekiah Chore Ondego “both testified at the lower Court” and “gave sworn evidence”. The record does not support that. The typed proceedings certified by the Senior Principal Magistrate on 17th April 2025 disclose mentions, a referral to mediation, directions for filing, and the delivery of rulings. They disclose no hearing at which either witness was sworn, gave evidence in chief, or was cross-examined. The learned Magistrate expressly recorded that “the Petitioner did not call any evidence”, and nothing in the record contradicts her.
34. What existed were two witness statements filed on 11th March 2024. A witness statement filed but never adopted on oath is not evidence. It is a document indicating what a witness would say if called. The Appellant, who was present in Court on 30th August 2024 when the ruling date was fixed, did not apply to call his witnesses, did not object to the matter being determined on affidavits, and raised no complaint until this appeal. Even taken at their highest, the statements would not have availed him. The application before the Court was one under Section 76 for revocation on the ground of concealment. The question was not who ultimately owns parcel 515, but whether the grant of 7th July 2022 had been obtained by disclosing to the Court everything the law required to be disclosed. On that question the statements are silent. Worse still, Mr. Ondego’s statement cuts against the Appellant in two material respects. First, he deposes that the deceased “had 9 children in number” – whereas the Appellant’s own Form P&A 5 disclosed seven sons and two grandsons, and not one daughter. Secondly, he confirms that “JAMIN LUNANA AGENYA whose estate is the subject of this succession, the late LUKA VUSUTU and the father to JOSEPH AGENYA GUDA one ENDELEA GUDA AGENYA were sons to AGENYA S/O LUSANGALU” – the very ancestral connection the Appellant sought to deny, and which he himself admitted at paragraph 7 of his replying affidavit.
35. The complaint that documentary evidence was ignored fares no better. The Appellant does not identify what document was overlooked or how it would have altered the analysis. The area chief’s letter was expressly considered and held incapable of curing the absence of consents – a holding which, as I explain below, is correct in law. Grounds 1 and 4 accordingly fail.
(iii) Ground 2: reliance on “extraneous” matters
36. A ground of appeal must be specific. Order 42 rule 1(2) of the Civil Procedure Rules requires a memorandum of appeal to set forth concisely, and under distinct heads, the grounds of objection without argument or narrative. A bare assertion that a Court relied on “extraneous issues”, unaccompanied by any identification of what those issues were, gives the respondent nothing to answer and this Court nothing to review.
37. Neither the Memorandum of Appeal nor the written submissions names a single extraneous matter. I have examined the ruling for myself. Every fact relied upon by the learned Magistrate is traceable to the record: the petition and Form P&A 5; the affidavit of justification; the grant of 7th July 2022; the summons for confirmation of 4th January 2023 and the consent of the same date; the affidavit of protest of Joseph Agenya Guda sworn 23rd August 2023; the Respondent’s affidavit sworn 21st August 2024; and the Appellant’s own replying affidavit of 15th August 2024. A Court which reads its own file in the very cause before it is not straying beyond the evidence; it is doing its duty.
38. Karanja v Republic, relied upon by the Appellant, concerned a criminal trial in which the Magistrate acted upon material never placed before him.
That is not this case, and the authority does not assist. Ground 2 fails.
(iv) Ground 3: revocation and dismissal of the summons in a single ruling; fair hearing
39. The Appellant’s argument is that the Act prescribes a sequence – grant, administration, confirmation, distribution – from which a Court may not depart, and that it was irregular to revoke a grant and dispose of a confirmation summons in the same ruling.
40. The argument mistakes the statute. Section 76 of the Law of Succession Act provides that a grant of representation, “whether or not confirmed, may at any time be revoked or annulled if the Court decides” that the proceedings to obtain it were defective in substance, or that it was obtained fraudulently by the making of a false statement or by the concealment from the Court of something material to the case, or by means of an untrue allegation of a fact essential in point of law. The words “whether or not confirmed” and “at any time” are deliberate. There is no stage of the administration at which the Court is disabled from correcting a grant improperly obtained.
41. Furthermore, the two applications were not independent. They were inextricably linked. The summons sought confirmation of the very grant that was under attack. Once the Court concluded that the grant had been obtained by concealment and revoked it, there was simply nothing left to confirm. The dismissal of the summons was not a second and separate adjudication; it was the arithmetical consequence of the first. Had the Magistrate done otherwise – revoking a grant while leaving alive an application to confirm it – the ruling would have been incoherent.
42. The complaint of a denial of natural justice is likewise not made out on the record. The Appellant was directed on 2nd August 2024 that upon service he would have seven days to file a replying affidavit. He was served. He filed a replying affidavit sworn on 15th August 2024, running to fourteen paragraphs, in which he answered the allegations of concealment squarely. He was present in Court on 30th August 2024 when the ruling date was fixed, and present again on 1st October 2024. He was, in short, notified, he responded, and he was heard.
43. Ridge v Baldwin is the foundation of the modern law on the right to be heard, but it avails a party who was not heard. It does not assist a party who was given notice, filed his answer and attended Court. Samuel Kamau Macharia is authority on the jurisdiction of the Supreme Court and its retrospective reach; it does not establish the proposition for which it is cited.
44. There is a further answer. Even if the summons had been left formally pending, the Appellant could not have succeeded upon it. The consent on the mode of distribution which supported it was executed by nine persons, all male, and omitted the daughters of the deceased entirely. Section 71(2) of the Act forbids the confirmation of a grant unless the Court is satisfied as to the respective shares of all persons beneficially entitled. No Court properly directing itself could have confirmed that grant on that consent.
Ground 3 fails.
(v) Ground 5: locus standi of the Respondent and “persons not entitled”
45. It is convenient to dispose first of a factual error that runs through Counsel’s submissions. It is asserted at paragraph 6 that the Respondent “is the daughter-in-law of the Deceased having been married to the Deceased’s son Joseph Agenya Guda”. The record says otherwise, and so did the Appellant himself. The Respondent is the daughter of the late Joseph Agenya Guda; it was on that footing that the trial Court on 2nd August 2024 directed “the daughter to the protestor” to file substitution proceedings, and it was on that footing that the Appellant answered her at paragraph 13 of his replying affidavit. Joseph Agenya Guda was in turn the son of Endelea Guda Agenya, the deceased’s brother. The Respondent is therefore the deceased’s grand-niece, not his daughter-in-law.
46. That said, the Appellant is right that, on the pleadings as they presently stand, the Respondent is not a person entitled to share in the estate of Jamin Lunana Agenya under Sections 29, 35 or 38 of the Act. She is neither a surviving spouse, nor a child, nor – on any material before the Court – a dependant of that deceased.
47. But that is not the question that arose below, and conflating the two is where the Appellant’s argument goes astray. Section 76 permits an application for revocation to be made “by any interested party”. That phrase is deliberately wider than the class of beneficiaries. A person who asserts, on arguable grounds, a beneficial interest in property which the administrator has brought into the estate and proposes to distribute is plainly an interested party for the purpose of challenging the grant, whether or not she is ultimately entitled to inherit from that estate. Any other construction would allow an administrator to insulate an improperly obtained grant from challenge by the simple expedient of excluding the challenger.
48. The Respondent’s claim – that parcel 515 is the ancestral land of Agenya son of Lusangalu, held in trust for three branches, upon which five family members are buried – is precisely such an assertion. It was made first by her late father in August 2023, and adopted by her upon substitution. She had standing to bring the application.
49. As to the substance of the revocation, the trial Court’s findings are well supported. Rule 26(2) of the Probate and Administration Rules required the Appellant, as a son applying in a degr
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1. Jamin Lunana Agenya, the deceased in this cause, died intestate at Munoywa Sub-Location on 24th February 2014. On 9th March 2022 the Appellant, Hudson Agenya Jamina, who describes himself as a son of the deceased, petitioned the Principal Magistrate’s Court at Vihiga for letters of administration intestate. A grant issued to him alone on 7th July 2022. He thereafter took out a summons for confirmation of that grant dated 4th January 2023.
2. Those proceedings were met by a protest, and subsequently by an application for revocation of the grant. By a ruling delivered on 1st October 2024, the learned trial Magistrate dismissed the summons for confirmation, revoked the grant of 7th July 2022 on the ground that it had been obtained by the concealment of material facts, and made further orders which I set out in full below. It is against that ruling that the Appellant has come to this Court.
3. The Appellant filed a Memorandum of Appeal dated 11th October 2024 raising six grounds. He appeared in person when he lodged the appeal and prepared and certified the Record of Appeal himself, but has since instructed ABL Musiega & Company Advocates, who filed written submissions dated 9th April 2026. The Respondent, Elizabeth Kadogo Agenya, has acted in person throughout and filed a hand-drawn response in Kiswahili and English.
4. A preliminary matter of housekeeping should be recorded. The Record of Appeal is instituted as Succession Appeal No. E005 of 2024, the ruling of 23rd January 2025 refers to Vihiga High Court Succession Appeal No. 5 of 2024, while the parties’ written submissions are both instituted Succession Appeal No. E005 of 2025. It is common ground that these all refer to one and the same appeal. I adopt the citation used in the parties’ most recent filings, and the Deputy Registrar shall regularize the file number in the Court records accordingly.
B. BACKGROUND AND THE PROCEEDINGS BELOW
5. The single asset disclosed in the estate is described in the Appellant’s own affidavit in support of the petition (Form P&A 5, sworn on 9th March 2022) as “PART OF LAND PARCEL NO. KAKAMEGA/BUKULUNYA/515”, of an estimated value of Kshs. 1,000,000/=. Liabilities were declared as nil.
6. That same affidavit listed the persons surviving the deceased as follows: Hudson Agenya Jamina (son, the Petitioner), Wilson Liyosi Agenya (son), Kenneth Chore Agenya (son), Aggrey Kilaini Agenya (son), John Vunyali Agenya (son), Boaz Vusutu Agenya (son), Ronald Azinwa Agenya (son), Allan Muyenzi Lunawa (grandson), Geoffrey Inyumu Induri (grandson), Evans Muyenzi Lunana (deceased) and Henry Induri Lunana (deceased). Every person named is male. Not a single daughter of the deceased is disclosed.
7. The deceased estate entitled to be distributed was North Maragoli/Bukulunya/515. The initial grant of letters of administration dated 7th July 2022 was issued reading as follows:
BE IT KNOWN that on the 7th day of JULY 2022 letters of Administration intestate of all the estate of deceased late JAMIN LUNANA AGENYA of MUNOYWA SUB-LOCATION who died domiciled in Kenya on the 24TH FEBRUARY 2014 which by law devolves to and vests in his/her personal representative were granted by this Court to HUDSON AGENYA JAMINA having undertaken faithfully to administer such estate according to law and to render a just and true account thereof whenever required by law so to do. ISSUED by the Principal Magistrate's Court/through the registry at Vihiga this 7th day of July 2022.
8. Apparently on 23rd August 2023 Joseph Agenya Guda the husband to Elizabeth Agenya filed a protest affidavit asserting as follows against the confirmation of grant in favour of the Petitioner:
a. That I am a male adult of sound mind and the Objector/Protestor herein hence competent to swear this affidavit.
b. THAT I have read the affidavit in support of summons for confirmation of Grant filed by the administrator/Petitioner herein in this honourable Court on 4/1/2023, and I wish to respond thereto as follows:
c. THAT the deceased herein in which this succession cause relate to is my uncle by virtue of being the younger brother to my late father, ENDELEA GUDAAGENYA herein referred to as deceased their father and my grandfather being AGENYA S/O LUSANGALU.
d. THAT my grandfather, AGENYA S/O LUSANGALU had three sons namely: -Luka Vusutu Agenya, Endelea Guda Agenya and Jamin Lunana Agenya.
e. THAT prior to the demise of the said AGENYA S/O LUSANGALU heowned land parcel North Maragoli/Bukulunya/515 measuring 1.0Ha and North Maragoli/Bukulunya/697 which he registered in the names of thedeceased herein and Endelea Guda Agenya respectively to hold in trust for theentire family.
f. THAT land parcel North Maragoli/Bukulunya/515 is the ancestral landwhere all the family members of Agenya S/O Lusangalu lived and have continued to live peacefully and upon our grandfather and grandmother's demise, our parents and other deceased family members their remains were interred thereon without any complain from any family member.
g. THAT land parcel North Maragoli/Bukulunya/697 is (swampy) a valley where my father and the deceased herein used to only plant trees as per the boundary features marked on the ground which position, we have maintained and obeyed the said boundary features which we will also be shared accordingly.
h. THAT we have been utilizing and occupying these two land parcels with the deceased herein without any issue but he died before subdividing and sharing out this land which now this succession cause relates to.
i. THAT I have been living on this land parcel since I was born and I have extensively developed a portion of this parcel of land by building residential houses where my family reside to date, cultivating various types of crops and trees.
j. THAT I don't agree with the administrator's proposal on distribution of the deceased estate as set out in paragraph 6 of affidavit in support of confirmation of Grant on the following reasons; -
a) The administrator has failed disclose to Court all the beneficiaries and or dependants of the deceased herein
b) I have not been provided for despite the fact that I live on this land parcel which is ancestral.
c) The administrator filed this succession cause secretly despite the fact that I reside in Kitale where I do casual jobs but I occasionally visit my family at home.
k. THAT I am apprehensive that if the estate comprised in land parcel North Maragoli/Bukulunya/515 is distributed as per the application of confirmation filed in this honourable Court am bound to be disinherited and or left landless.
l. THAT I now propose that the mode of distribution of the estate comprised inland parcel North Maragoli/Bukulunya/515 measuring 1.0Ha should be distributed in two equal portions thus:
Jamin Lunana Agenya ... 0.5Ha. to be shared amongst his family members.
Joseph Agenya Guda ...0.5Ha.for Endelea Guda Agenya family
9. The summons for confirmation of grant dated 4th January 2023 was supported by a consent on the mode of distribution of the same date, under which the parcel was to be shared among the nine persons in the following portions: Geoffrey Inyumu Induri – 0.13 ha; Ronald Azinwa Agenya – 0.13 ha; Boaz Vusutu Agenya – 0.10 ha; Kenneth Chore Agenya – 0.11 ha; John Vunyali Agenya – 0.23 ha; Aggrey Kilaini Agenya – 0.10 ha; Wilson Liyosi
Agenya – 0.09 ha; Allan Muyenzi Lunawa – 0.08 ha; and Hudson Agenya Jamina – 0.08 ha. Again, all nine are male.
10. A protest was lodged by Joseph Agenya Guda, who swore an affidavit of protest on 23rd August 2023. His case, in substance, was that the two parcels North Maragoli/Bukulunya/515 and 697 had been registered by his grandfather Agenya son of Lusangalu in the name of Endelea Guda Agenya to hold in trust for the entire family; that parcel 515 was ancestral land upon which the family of Agenya son of Lusangalu had lived and upon which family members were interred; and that it fell to be divided in equal portions between the family of Jamin Lunana Agenya (0.5 ha) and the family of Endelea Guda Agenya (0.5 ha).
11. On 25th January 2024 the matter was referred to mediation in accordance with Article 159(2)(c) of the Constitution and Section59(B) of the CPA. The parties failed to agree, and directions were given for the protest to stand as a plaint, the summons for confirmation as a defence, and for the filing of witness statements and documents. The Appellant filed witness statements of Wilson Liyosi Mubirwa and Zedekiah Chore Ondego, both filed on 11th March 2024.
12. Joseph Agenya Guda died on 18th April 2024 while the proceedings were pending. On 2nd August 2024 the trial Court directed that his daughter file substitution proceedings so as to be enjoined, and thereafter file and serve
an application for revocation of the grant, upon which the Appellant would have seven days to respond. The Respondent, Elizabeth Kadogo Agenya, was duly substituted and filed her application dated 5th August 2024, together with an affidavit of protest sworn on 21st August 2024.
13. The Respondent’s case was that the Petitioner had excluded both her and the siblings together with her own sisters from the proceedings. As if that is not enough the female beneficiaries were unaware of the matter and were omitted from the consent on the mode of distribution notwithstanding that plot 515 was the ancestral land of Agenya son of Lusangalu upon which five family members lie buried, and that the Petitioner had obtained the grant, and thereafter title, fraudulently and by concealment of material evidence.
14. The Appellant filed a replying affidavit sworn on 15th August 2024. He denied that the Respondent or her late father had any entitlement. He deposed, at paragraph 7, that “my father one JAMIN LUNANA AGENYA whose estate is the subject of this succession, the late LUKA VUSUTU and the father to JOSEPH AGENYA GUDA one ENDELEA GUDA AGENYA were sons to AGENYA S/O LUSANGALU”; that Endelea Guda Agenya had been given parcel 697, which Joseph Agenya Guda had sold in 2019; that Luka Vusutu had been given a separate parcel; and that parcel 515 was “my father’s share” and belonged solely to the family of the deceased.
15. The Appellant was present in Court on 30th August 2024, when the Court recorded that the application for revocation and the replying affidavit were both on the file and fixed the ruling for 1st October 2024. He was again present on 1st October 2024 when the ruling was delivered.
16. The application was determined on the affidavit evidence. The proceedings disclose no hearing at which any witness was sworn, examined or crossexamined. I return to this point below.
C. THE RULING APPEALED FROM
17. The learned trial Magistrate identified the issue before her as “whether the Petitioner obtained the grant of letters of administration fraudulently.” She set out Section 66 of the Law of Succession Act and Rule 26(1) and (2) of the Probate and Administration Rules, the latter of which requires that letters of administration shall not be granted to any applicant without notice to any other person entitled in the same degree or in priority, and that an application by a person entitled in a degree equal to or lower than that of another shall, in default of communication or written consent in Form 38 or 39 by all persons so entitled, be supported by an affidavit and such other evidence as the Court may require.
18. She found that the Petitioner ought to have obtained the signatures of all the beneficiaries consenting to his appointment; that the affidavit in support contained no such consent; that the Area Chief’s letter could not sanitize that irregularity; that the applicant’s father, her siblings and the Petitioner’s own sisters had not renounced their rights and ought to have been notified; and that the burden to disprove the applicant’s case had shifted to the Petitioner, who called no evidence and offered no explanation. She then turned to Section 76 of the Act for the remedy of revocation.
19. She relied on Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] eKLR, Albert Imbuga Kisigwa v Rechal Kavai Kisigwa, Succession Cause No. 158 of 2000, and in Re Estate of Moses Wachira Kimotho (Deceased), Succession Cause No. 122 of 2002 [2009] eKLR, and concluded that the grant had been obtained fraudulently by concealment from the Court of something material to the case.
20. The operative orders of 1st October 2024 were these:
a. An order is issued that the summons for confirmation of grant is dismissed with no orders as to costs.
b. The grant of letters of administration intestate issued on 7th July 2022 is hereby revoked on ground that the grant was obtained fraudulently by concealing material facts from the Court relating to the estate.
c. Fresh grant in the estate of Agenya son of Lusangalu be obtained including two administrators Hudson Agenya Jamina and Elizabeth Kadogo Agenya in relation to land parcel L.R. North
Maragoli/Bukulunya/515 to be equally apportioned as 0.5 ha for the
family of Jamin Lunana Agenya and 0.5 ha for the family of Joseph Agenya Guda.
d. This being a family matter, each party shall bear own costs.
e. Any party aggrieved by the orders made in this ruling has leave of thirty
(30) days right of appeal.
21. By a further ruling of 23rd January 2025, the trial Court granted a stay of execution pending the hearing and determination of this appeal, on condition that the Appellant deposit Kshs. 30,000/= as security.
D. THE APPEAL AND THE SUBMISSIONS
22. The six grounds in the Memorandum of Appeal are, in summary, that the learned Magistrate erred in law and fact by (i) ignoring the Appellant’s evidence and that of his witnesses; (ii) bringing in extraneous issues not forming part of the evidence adduced; (iii) dismissing the application for confirmation of grant and at the same time proceeding to distribute the estate against the weight of the evidence; (iv) ignoring documentary evidence produced by the Appellant while relying on extraneous issues; (v) allowing persons not entitled to the estate; and (vi) failing to analyze correctly the evidence on record and thereby arriving at a wrong decision.
23. The Appellant prays that the appeal be allowed, the ruling set aside in its entirety, an order substituted confirming his grant and directing distribution exclusively among the lawful family members of the deceased as proposed in his affidavit in support of the summons for confirmation, a declaration that the Respondent and her late father are not entitled to any share, and costs here and below.
24. Learned Counsel’s submissions developed those grounds in the following narrative. First, is said that two credible and independent witnesses testified in support of the Appellant and were disregarded; second, that the Magistrate decided the matter on extraneous material contrary to Article 50(1) of the Constitution and the principle in Karanja v Republic [1983] KLR 360; third, that the correct sequence under the Act is grant, administration, confirmation and only then distribution, so that the Court could not revoke one grant and distribute in the same breath, relying on Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR and Ridge v Baldwin [1964] AC 40; that the Respondent is a daughter-in-law of the deceased’s brother and thus a stranger twice removed with no locus under sections 29 and 66 of the Act, relying on Githinji v Githinji [1971] EA 430; and that the decision was against the weight of the evidence, relying on Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 and Peters v Sunday Post Ltd [1958] EA 424.
25. The Respondent, who is unrepresented, filed a document headed “Maswali ya Elizabeth Kadogo kuelekeza kwa wakili wa baba, Hudson Agenya Jamina Agenya”. It is not drawn in the conventional form of submissions, and I have construed it benevolently, as a Court must where a litigant appears in person. Reduced to its substance, she asks: how the Appellant came to conduct the succession privately and by way of a Chief’s Letter; whether he can explain how and when he acquired the land he claims as his own; why he permitted five graves to be sited on land he says is exclusively his; why the deceased was buried there if it is his; why persons bearing no family name were called as witnesses to a family dispute; and why, while the cause was pending, he hived off a portion of the upper part of the parcel and erected three houses upon it. She states plainly that she has no complaint about the equal apportionment of 0.5 ha to each family ordered by the trial Court, asks this Court for direction, prays that the appeal be dismissed with costs, and pleads for an end to litigation that has run from 2022 to 2026.
E. THE DUTY OF THIS COURT
26. This is a first appeal. My duty is to reconsider and re-evaluate the whole of the evidence on record, weigh it, and draw my own conclusions, bearing in mind that I have neither seen nor heard the witnesses and must make proper allowance for that disadvantage: Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123. Equally, I will not lightly differ from findings of fact turning on credibility, but I will interfere where the trial Court failed to take account of material circumstances or probabilities, misapprehended the evidence, applied a wrong principle, or reached a conclusion no reasonable tribunal could have reached: Peters v Sunday Post Ltd [1958] EA 424.
27. That advantage of demeanour is, however, largely absent in this case. The revocation application was determined on affidavit evidence and on the Court’s own record. This Court is therefore in as good a position as the trial Court to assess that material, and the deference ordinarily owed is correspondingly reduced.
28. One further preliminary observation must be made. The Record of Appeal was prepared and certified by the Appellant himself. It is incomplete: of the eight pages of the typed proceedings, pages 2 and 4 are missing, as are the internal pages numbered 36 and 38. An appellant bears the burden of placing before the appellate Court a complete record of what occurred below, and where the record is deficient the appellate Court will not speculate in his favour as to what the missing pages might have contained.
F. ISSUES FOR DETERMINATION
29. Having considered the Record of Appeal, the grounds and the submissions, the issues that arise are:
i. What, in law and in fact, was the true effect of the orders made on 1st October 2024?
ii. Whether the learned trial Magistrate ignored the Appellant’s evidence and that of his witnesses;
iii. Whether she relied on extraneous matters not forming part of the record;
iv. Whether it was irregular, or a denial of a fair hearing, to revoke the grant and dismiss the summons for confirmation in one and the same ruling;
v. Whether the Respondent had locus standi, and whether persons not entitled were admitted to the estate;
vi. Whether order 3 of the ruling – directing a fresh grant in the estate of Agenya son of Lusangalu and apportioning parcel 515 between two families – can stand;
vii. Whether the decision was otherwise against the weight of the evidence; and
viii. What orders, including as to costs, should follow.
G. ANALYSIS AND DETERMINATION
(i) The true effect of the orders of 1st October 2024
30. It is necessary to begin here, because a substantial part of the Appellant’s case rests upon a description of the ruling which the ruling itself does not bear out. Both the Memorandum of Appeal and Counsel’s submissions assert repeatedly that the learned Magistrate “proceeded to distribute the estate of the deceased in favour of the Respondent, Elizabeth Kadogo Agenya, and other persons”.
31. She did no such thing. No share of the estate of Jamin Lunana Agenya was vested in the Respondent, or in any other named individual. What the Court did was to dismiss the summons, revoke the grant, and direct that a fresh grant be taken out – albeit in the estate of a different deceased person – with two co-administrators, and that parcel 515 be apportioned equally between two family branches. The Respondent received no personal entitlement whatever. An appeal must be argued on the order actually made, not on a paraphrase of it.
32. That correction disposes of a good deal of the argument advanced under grounds 3 and 5. It does not, however, dispose of order 3 itself, which raises a quite different and more serious difficulty that I address in Section(vi) below.
(ii) Ground 1: was the Appellant’s evidence, and that of his witnesses, ignored?
33. The premise of this ground is that Wilson Liyosi Mubirwa and Zedekiah Chore Ondego “both testified at the lower Court” and “gave sworn evidence”. The record does not support that. The typed proceedings certified by the Senior Principal Magistrate on 17th April 2025 disclose mentions, a referral to mediation, directions for filing, and the delivery of rulings. They disclose no hearing at which either witness was sworn, gave evidence in chief, or was cross-examined. The learned Magistrate expressly recorded that “the Petitioner did not call any evidence”, and nothing in the record contradicts her.
34. What existed were two witness statements filed on 11th March 2024. A witness statement filed but never adopted on oath is not evidence. It is a document indicating what a witness would say if called. The Appellant, who was present in Court on 30th August 2024 when the ruling date was fixed, did not apply to call his witnesses, did not object to the matter being determined on affidavits, and raised no complaint until this appeal. Even taken at their highest, the statements would not have availed him. The application before the Court was one under Section 76 for revocation on the ground of concealment. The question was not who ultimately owns parcel 515, but whether the grant of 7th July 2022 had been obtained by disclosing to the Court everything the law required to be disclosed. On that question the statements are silent. Worse still, Mr. Ondego’s statement cuts against the Appellant in two material respects. First, he deposes that the deceased “had 9 children in number” – whereas the Appellant’s own Form P&A 5 disclosed seven sons and two grandsons, and not one daughter. Secondly, he confirms that “JAMIN LUNANA AGENYA whose estate is the subject of this succession, the late LUKA VUSUTU and the father to JOSEPH AGENYA GUDA one ENDELEA GUDA AGENYA were sons to AGENYA S/O LUSANGALU” – the very ancestral connection the Appellant sought to deny, and which he himself admitted at paragraph 7 of his replying affidavit.
35. The complaint that documentary evidence was ignored fares no better. The Appellant does not identify what document was overlooked or how it would have altered the analysis. The area chief’s letter was expressly considered and held incapable of curing the absence of consents – a holding which, as I explain below, is correct in law. Grounds 1 and 4 accordingly fail.
(iii) Ground 2: reliance on “extraneous” matters
36. A ground of appeal must be specific. Order 42 rule 1(2) of the Civil Procedure Rules requires a memorandum of appeal to set forth concisely, and under distinct heads, the grounds of objection without argument or narrative. A bare assertion that a Court relied on “extraneous issues”, unaccompanied by any identification of what those issues were, gives the respondent nothing to answer and this Court nothing to review.
37. Neither the Memorandum of Appeal nor the written submissions names a single extraneous matter. I have examined the ruling for myself. Every fact relied upon by the learned Magistrate is traceable to the record: the petition and Form P&A 5; the affidavit of justification; the grant of 7th July 2022; the summons for confirmation of 4th January 2023 and the consent of the same date; the affidavit of protest of Joseph Agenya Guda sworn 23rd August 2023; the Respondent’s affidavit sworn 21st August 2024; and the Appellant’s own replying affidavit of 15th August 2024. A Court which reads its own file in the very cause before it is not straying beyond the evidence; it is doing its duty.
38. Karanja v Republic, relied upon by the Appellant, concerned a criminal trial in which the Magistrate acted upon material never placed before him.
That is not this case, and the authority does not assist. Ground 2 fails.
(iv) Ground 3: revocation and dismissal of the summons in a single ruling; fair hearing
39. The Appellant’s argument is that the Act prescribes a sequence – grant, administration, confirmation, distribution – from which a Court may not depart, and that it was irregular to revoke a grant and dispose of a confirmation summons in the same ruling.
40. The argument mistakes the statute. Section 76 of the Law of Succession Act provides that a grant of representation, “whether or not confirmed, may at any time be revoked or annulled if the Court decides” that the proceedings to obtain it were defective in substance, or that it was obtained fraudulently by the making of a false statement or by the concealment from the Court of something material to the case, or by means of an untrue allegation of a fact essential in point of law. The words “whether or not confirmed” and “at any time” are deliberate. There is no stage of the administration at which the Court is disabled from correcting a grant improperly obtained.
41. Furthermore, the two applications were not independent. They were inextricably linked. The summons sought confirmation of the very grant that was under attack. Once the Court concluded that the grant had been obtained by concealment and revoked it, there was simply nothing left to confirm. The dismissal of the summons was not a second and separate adjudication; it was the arithmetical consequence of the first. Had the Magistrate done otherwise – revoking a grant while leaving alive an application to confirm it – the ruling would have been incoherent.
42. The complaint of a denial of natural justice is likewise not made out on the record. The Appellant was directed on 2nd August 2024 that upon service he would have seven days to file a replying affidavit. He was served. He filed a replying affidavit sworn on 15th August 2024, running to fourteen paragraphs, in which he answered the allegations of concealment squarely. He was present in Court on 30th August 2024 when the ruling date was fixed, and present again on 1st October 2024. He was, in short, notified, he responded, and he was heard.
43. Ridge v Baldwin is the foundation of the modern law on the right to be heard, but it avails a party who was not heard. It does not assist a party who was given notice, filed his answer and attended Court. Samuel Kamau Macharia is authority on the jurisdiction of the Supreme Court and its retrospective reach; it does not establish the proposition for which it is cited.
44. There is a further answer. Even if the summons had been left formally pending, the Appellant could not have succeeded upon it. The consent on the mode of distribution which supported it was executed by nine persons, all male, and omitted the daughters of the deceased entirely. Section 71(2) of the Act forbids the confirmation of a grant unless the Court is satisfied as to the respective shares of all persons beneficially entitled. No Court properly directing itself could have confirmed that grant on that consent.
Ground 3 fails.
(v) Ground 5: locus standi of the Respondent and “persons not entitled”
45. It is convenient to dispose first of a factual error that runs through Counsel’s submissions. It is asserted at paragraph 6 that the Respondent “is the daughter-in-law of the Deceased having been married to the Deceased’s son Joseph Agenya Guda”. The record says otherwise, and so did the Appellant himself. The Respondent is the daughter of the late Joseph Agenya Guda; it was on that footing that the trial Court on 2nd August 2024 directed “the daughter to the protestor” to file substitution proceedings, and it was on that footing that the Appellant answered her at paragraph 13 of his replying affidavit. Joseph Agenya Guda was in turn the son of Endelea Guda Agenya, the deceased’s brother. The Respondent is therefore the deceased’s grand-niece, not his daughter-in-law.
46. That said, the Appellant is right that, on the pleadings as they presently stand, the Respondent is not a person entitled to share in the estate of Jamin Lunana Agenya under Sections 29, 35 or 38 of the Act. She is neither a surviving spouse, nor a child, nor – on any material before the Court – a dependant of that deceased.
47. But that is not the question that arose below, and conflating the two is where the Appellant’s argument goes astray. Section 76 permits an application for revocation to be made “by any interested party”. That phrase is deliberately wider than the class of beneficiaries. A person who asserts, on arguable grounds, a beneficial interest in property which the administrator has brought into the estate and proposes to distribute is plainly an interested party for the purpose of challenging the grant, whether or not she is ultimately entitled to inherit from that estate. Any other construction would allow an administrator to insulate an improperly obtained grant from challenge by the simple expedient of excluding the challenger.
48. The Respondent’s claim – that parcel 515 is the ancestral land of Agenya son of Lusangalu, held in trust for three branches, upon which five family members are buried – is precisely such an assertion. It was made first by her late father in August 2023, and adopted by her upon substitution. She had standing to bring the application.
49. As to the substance of the revocation, the trial Court’s findings are well supported. Rule 26(2) of the Probate and Administration Rules required the Appellant, as a son applying in a degr
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