INTRODUCTION
1. By way of summons for revocation of a grant dated 1st July 2024, the applicant applied that the letters of Administration Intestate issued on 5th July, 2012 and confirmed on 7th November, 2022 be revoked and/or annulled and/or cancelled and a fresh grant be issued to ALEXANDER INYANJE SHORELO and RASOHA M. INGOSI they sought for the following orders;
a) All the subdivisions and/or transactions effected to the land parcels known as KAKAMEGA/BULUKHOBA/229 be cancelled and/or revoked, and the title revert to the deceased;
b) The applicants herein be appointed as co-administrators in the estate of the deceased and be allowed to file a fresh summons for confirmation of the grant; and
c) Costs of this application are to be borne by the estate of the deceased.
2. The application is premised on the grounds set out on its face and the supporting affidavit sworn on the same day by the applicant, who swore it on behalf of the 2nd,3rd,4th, and 5th Applicants.
3. He averred that the 2nd, 3rd, 4th, and 5th Applicants were biological sons of the deceased Richard S. Anakwiri, who was the son of Abraham Anagwili Maseya, alias Abraham Anakwiri Maseya
4. According to him, their deceased father, Richard Anakwiri, had filed a petition, and a grant of letters of administration intestate was issued on 15th September.
5. He confirmed that on 5th July 2012, a grant of letters of administration intestate was issued to Ezina Khabutsi Machisu (the petitioner) and Richard S. Anakwiri, and Rasoha M. Ingosi, which is the current grant in this suit.
6. They assert that their father, one of the Administrators, Richard Anakwiri, passed away on 9th October 2013 so did Ezina Khabutsi Machisu, who passed on before the grant was confirmed.
7. They aver that, as children of Richard Anakwiri, who is now deceased, they are to take to inherit his share, although they had been omitted from the list of beneficiaries.
8. They further claim that the petitioners obtained the grant by untrue allegations and that the Petitioners included a stranger in the list of beneficiaries by the name JONATHAN AZALI MNGWALI who is neither a biological child, adopted child or a dependent of the deceased herein who does not qualify under the law of succession Act to be a beneficiary of the estate of the deceased and therefore causing him to inherit from an estate he is not a beneficiary.
9. The respondent filed his replying affidavit on 30th December 2024, where he avers that he bought the portion of the estate of the late Abraham Anagwili Maseya, measuring about 0.71 HA, from the daughters in the year 1989 and took immediate possession of the portion of land.
10. He avers that the 1st petitioner, Ezina Khabutsi Machisa, together with the 2nd and 3rd petitioners they had commenced proceedings.
11. He states that the proceedings were pending hearing, and the 1st and the 2nd petitioners passed on before the process.
12. He claimed that the 3rd petitioner failed to apply for the confirmation of the grant, and he applied for the grant, which was allowed by the court.
13. He confirms that the objectors/applicants filed their affidavit of protest and failed to appear in court at the time of confirmation of the grant.
14. He stated further that he made a proposed mode of distribution, and the applicants were given 0.835 HA for which they are in occupation, and that the trial court confirmed the grants of letters of administration.
15. He holds that the applicants were not entitled to interfere with the certificate of confirmation issued on 7th November 2022 since their interests were held by Inyangi Shoteli and Anyolo Shoteli, and further that this court was functus officio after issuing the confirmed grant.
16. He prays that the summons for revocation of the grant by the objector/Applicant be dismissed with costs as it lacks merit.
SUBMISSIONS
17. The applicants filed their submissions dated 19th May 2025, raising one main issue for determination, being whether the summons for revocation of the grant dated 1st July 2024 is merited; and
18. He addressed the various grounds for which a grant ought to be revoked, focusing on section 76 of the Law of Succession Act and relying on the case of Ogal & another v Owenje (Civil Appeal E009 of 2023) [2024] KEHC 5336 (KLR) (17 May 2024) (Judgment).
19. He claimed that the respondent failed to disclose in applying for the grant that the applicants were the deceased grandchildren and they were inheriting from their father’s share
20. They denied the allegations that they had been summoned to court during the confirmation of the grant, claiming that the allegations were false and misleading to the court since they were never served in court. Stating that all the beneficiaries ought to be listed as per Rule 7 (1) (d) of the Probate and Administration Rules, 1980
21. The applicants hold that Jonathan Azali Mangwali had no authority to administer the estate of the deceased since he is a stranger to the estate and should not have obtained letters of administration since he failed to disclose that the applicants were the sons of Richard S. Anakwiri (deceased), who is the son of the late ABRAHAM ANAGWILI MASEYA ALIAS ABRAHAM ANAKWIRI MASEYA (DECEASED), whose estate these matters/proceedings relate to from the daughters in the year 1989.
22. They claim that the respondent/ petitioner intermeddled in the estate of the deceased, who stated that he bought the share of the estate from the daughter of ABRAHAM ANAGWILI MASEYA ALIAS ABRAHAM ANAKWIRI MASEYA (DECEASED) and not the original owner of the estate
23. They hold that the respondent does not hold a good title to the land since the daughter did not have the right to sell off her father’s estate and cannot purport to be a beneficiary. They further state that he failed to provide proof of sale, as he alleged
24. They claim that the petitioner in applying for the grant failed to prove to the court that he had any beneficial interest and further that he had any locus standi to apply for the letters of administration
25. Therefore, from the above, it is clear that Jonathan Azali Mangwali has no locus standi, authority, or capacity to make an application for confirmation of the grant in the estate of the deceased herein.
26. They pray that their application for revocation of the grant be allowed and that they be awarded the costs of the suit.
27. The respondent failed to file their submissions.
ANALYSIS AND DETERMINATION.
28. This court is called upon to determine the summons dated 1st July 2024, in which the Applicants seek the revocation of the letters of administration intestate issued on 5th July 2012 and confirmed on 7th November 2022 in respect of the estate of the deceased, Abraham Anagwili Maseya alias Abraham Anakwiri Maseya. The Applicants also seek cancellation of all subdivisions and transactions concerning land parcel KAKAMEGA/BULUKHOBA/229, and the appointment of new administrators.
29. The main contention is that the confirmed grant was obtained through concealment of material facts and that the respondent lacks legal standing to administer the estate of the deceased.
Issues for Determination
a) Whether the confirmed grant was obtained through concealment or misrepresentation of material facts under Section 76 of the Law of Succession Act.
b) Whether the Respondent, as a purchaser of a portion of the estate from a daughter of the deceased, had any locus standi to apply for confirmation or benefit from the estate.
c) Whether the Applicants, as grandchildren of the deceased through their deceased father (a co-administrator), were improperly excluded from the list of beneficiaries.
d) Whether the sale and subdivision of land parcel KAKAMEGA/BULUKHOBA/229 was valid under the Law of Succession Act.
e) Whether the Applicants have met the threshold for revocation of the grant.
30. Section 76 of the Law of Succession Act (Cap 160) provides:
A grant of representation... may at any time be revoked or annulled if the court decides...
(a) that the proceedings to obtain the grant were defective in substance;
(b) that the grant was obtained fraudulently by making a false statement or by concealment from the court of something material to the case...
31. Section 45 of the Act criminalizes intermeddling with estate property:
"No person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person..."
32. In Veronica Njoki Wakagoto (Deceased) [2013] eKLR, Musyoka J held:
"The property of a dead person cannot be lawfully dealt with by anybody unless such a person is authorized to do so by the Law. Such authority emanates from a grant of representation..."
33. The Respondent, Jonathan Azali Mangwali, claims to have purchased a 0.71 ha portion of the deceased’s land from one of the daughters of the deceased in 1989 that was well before any succession cause had been filed. He neither claims to be a biological child, spouse, nor dependent under Section 29 of the Act.
34. He did not exhibit a valid sale agreement recognized under the land laws (including Land Control Board consent or registered transfer), and the court is not satisfied that any such interest was lawfully acquired.
35. In Re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR, the court emphasized that:
"Only a person with proper legal standing under section 66 and Rule 26 of the Probate and Administration Rules may petition for a grant of representation."
36. The Respondent was not a legal beneficiary nor an authorized purchaser from an administrator. His application and involvement in confirmation proceedings are therefore a nullity.
37. The land sale the Respondent relies upon occurred in 1989, long before any grant was issued in 2012 and confirmed in 2022. The sale was done without a grant of representation and before commencement of the succession cause.
38. This offends Section 45 and Section 82(b)(ii) of the Act, which prohibit the disposal of estate property without court authority and before confirmation of grant.
39. Drawing from the reasoning in the excerpt provided and consistent with In re Estate of Benson Mwangangi Muthui (Deceased) [2021] eKLR, such transactions are:
"Unlawful and void ab initio. Purchasers who derive title from such illegalities acquire no valid or enforceable interest."
40. Thus, the respondent's alleged sale is void and cannot form a basis for resisting revocation under Section 76. He may, however, pursue a civil claim in the Environment and Land Court, as probate courts do not resolve ownership disputes arising from unlawful transactions.
41. The Applicants have proven that they are sons of the deceased’s son, Richard Anakwiri, who was an administrator but passed away before confirmation. As such, the Applicants are entitled to inherit through representation of their father’s share (per Section 41 of the Act).
42. Yet, they were excluded from the list of beneficiaries and were not served with notice of the confirmation proceedings. This constitutes a fundamental violation of Rule 7(1)(d) of the Probate and Administration Rules and amounts to concealment of material facts as envisaged under Section 76(b).
43. The court in Ogal & Another v Owenje (Civil Appeal E009 of 2023) [2024] KEHC 5336 (KLR) reaffirmed:
"Any omission of lawful heirs from the proceedings for grant or confirmation amounts to concealment and justifies revocation."
44. This court takes judicial notice of the Respondent's participation in the distribution process despite not being a rightful heir. His actions amount to intermeddling with the estate.
45. Although the Respondent may have entered possession with the understanding of a sale, the absence of legal authority and the premature transaction violate the provisions of the Succession Act.
46. It is the finding of this court that:
a. The confirmation of the grant issued on 7th November 2022 was obtained through concealment of material facts, including omission of rightful heirs.
b. The Respondent had no legal standing to petition for the grant or participate in the confirmation.
c. The alleged sale of land in 1989 by a daughter (before any grant) is null and void, and cannot support any proprietary claim.
d. The Respondent's involvement amounts to intermeddling, contrary to Section 45 of the Law of Succession Act.
e. The Applicants have established a legal basis for revocation of the grant under Section 76 (b) and (c).
Final Orders
a) The summons dated 1st July 2024 for revocation of grant is allowed.
b) The grant issued on 5th July 2012 and confirmed on 7th November 2022 is hereby revoked and annulled.
c) All subdivisions and transactions relating to land parcel KAKAMEGA/BULUKHOBA/229 arising from the revoked grant are cancelled, and the title shall revert to the name of the deceased.
d) A fresh grant of letters of administration shall issue to Alexander Inyanje Shorelo and Rasoha M. Ingosi.
e) The administrators are directed to file fresh summons for confirmation of grant within 90 days of this ruling.
f) The Respondent may pursue any proprietary claims (if any) in the Environment and Land Court, being the appropriate forum.
g) Costs of the application shall be borne by the Respondent.
DATED SIGNED, and DELIVERED in open court at KAKAMEGA THIS 23RD OF SEPTEMBER , 2025.
S.N. MBUNGI
JUDGE
In The Prescence of;
CA: Ang’onga
Rasoha 3rd petitioner.
2nd Petitioner absent.
Mr Godia for the 1st and 2nd Applicant present.
Mr. Orute for Manyoni for interested party, absent.
1. By way of summons for revocation of a grant dated 1st July 2024, the applicant applied that the letters of Administration Intestate issued on 5th July, 2012 and confirmed on 7th November, 2022 be revoked and/or annulled and/or cancelled and a fresh grant be issued to ALEXANDER INYANJE SHORELO and RASOHA M. INGOSI they sought for the following orders;
a) All the subdivisions and/or transactions effected to the land parcels known as KAKAMEGA/BULUKHOBA/229 be cancelled and/or revoked, and the title revert to the deceased;
b) The applicants herein be appointed as co-administrators in the estate of the deceased and be allowed to file a fresh summons for confirmation of the grant; and
c) Costs of this application are to be borne by the estate of the deceased.
2. The application is premised on the grounds set out on its face and the supporting affidavit sworn on the same day by the applicant, who swore it on behalf of the 2nd,3rd,4th, and 5th Applicants.
3. He averred that the 2nd, 3rd, 4th, and 5th Applicants were biological sons of the deceased Richard S. Anakwiri, who was the son of Abraham Anagwili Maseya, alias Abraham Anakwiri Maseya
4. According to him, their deceased father, Richard Anakwiri, had filed a petition, and a grant of letters of administration intestate was issued on 15th September.
5. He confirmed that on 5th July 2012, a grant of letters of administration intestate was issued to Ezina Khabutsi Machisu (the petitioner) and Richard S. Anakwiri, and Rasoha M. Ingosi, which is the current grant in this suit.
6. They assert that their father, one of the Administrators, Richard Anakwiri, passed away on 9th October 2013 so did Ezina Khabutsi Machisu, who passed on before the grant was confirmed.
7. They aver that, as children of Richard Anakwiri, who is now deceased, they are to take to inherit his share, although they had been omitted from the list of beneficiaries.
8. They further claim that the petitioners obtained the grant by untrue allegations and that the Petitioners included a stranger in the list of beneficiaries by the name JONATHAN AZALI MNGWALI who is neither a biological child, adopted child or a dependent of the deceased herein who does not qualify under the law of succession Act to be a beneficiary of the estate of the deceased and therefore causing him to inherit from an estate he is not a beneficiary.
9. The respondent filed his replying affidavit on 30th December 2024, where he avers that he bought the portion of the estate of the late Abraham Anagwili Maseya, measuring about 0.71 HA, from the daughters in the year 1989 and took immediate possession of the portion of land.
10. He avers that the 1st petitioner, Ezina Khabutsi Machisa, together with the 2nd and 3rd petitioners they had commenced proceedings.
11. He states that the proceedings were pending hearing, and the 1st and the 2nd petitioners passed on before the process.
12. He claimed that the 3rd petitioner failed to apply for the confirmation of the grant, and he applied for the grant, which was allowed by the court.
13. He confirms that the objectors/applicants filed their affidavit of protest and failed to appear in court at the time of confirmation of the grant.
14. He stated further that he made a proposed mode of distribution, and the applicants were given 0.835 HA for which they are in occupation, and that the trial court confirmed the grants of letters of administration.
15. He holds that the applicants were not entitled to interfere with the certificate of confirmation issued on 7th November 2022 since their interests were held by Inyangi Shoteli and Anyolo Shoteli, and further that this court was functus officio after issuing the confirmed grant.
16. He prays that the summons for revocation of the grant by the objector/Applicant be dismissed with costs as it lacks merit.
SUBMISSIONS
17. The applicants filed their submissions dated 19th May 2025, raising one main issue for determination, being whether the summons for revocation of the grant dated 1st July 2024 is merited; and
18. He addressed the various grounds for which a grant ought to be revoked, focusing on section 76 of the Law of Succession Act and relying on the case of Ogal & another v Owenje (Civil Appeal E009 of 2023) [2024] KEHC 5336 (KLR) (17 May 2024) (Judgment).
19. He claimed that the respondent failed to disclose in applying for the grant that the applicants were the deceased grandchildren and they were inheriting from their father’s share
20. They denied the allegations that they had been summoned to court during the confirmation of the grant, claiming that the allegations were false and misleading to the court since they were never served in court. Stating that all the beneficiaries ought to be listed as per Rule 7 (1) (d) of the Probate and Administration Rules, 1980
21. The applicants hold that Jonathan Azali Mangwali had no authority to administer the estate of the deceased since he is a stranger to the estate and should not have obtained letters of administration since he failed to disclose that the applicants were the sons of Richard S. Anakwiri (deceased), who is the son of the late ABRAHAM ANAGWILI MASEYA ALIAS ABRAHAM ANAKWIRI MASEYA (DECEASED), whose estate these matters/proceedings relate to from the daughters in the year 1989.
22. They claim that the respondent/ petitioner intermeddled in the estate of the deceased, who stated that he bought the share of the estate from the daughter of ABRAHAM ANAGWILI MASEYA ALIAS ABRAHAM ANAKWIRI MASEYA (DECEASED) and not the original owner of the estate
23. They hold that the respondent does not hold a good title to the land since the daughter did not have the right to sell off her father’s estate and cannot purport to be a beneficiary. They further state that he failed to provide proof of sale, as he alleged
24. They claim that the petitioner in applying for the grant failed to prove to the court that he had any beneficial interest and further that he had any locus standi to apply for the letters of administration
25. Therefore, from the above, it is clear that Jonathan Azali Mangwali has no locus standi, authority, or capacity to make an application for confirmation of the grant in the estate of the deceased herein.
26. They pray that their application for revocation of the grant be allowed and that they be awarded the costs of the suit.
27. The respondent failed to file their submissions.
ANALYSIS AND DETERMINATION.
28. This court is called upon to determine the summons dated 1st July 2024, in which the Applicants seek the revocation of the letters of administration intestate issued on 5th July 2012 and confirmed on 7th November 2022 in respect of the estate of the deceased, Abraham Anagwili Maseya alias Abraham Anakwiri Maseya. The Applicants also seek cancellation of all subdivisions and transactions concerning land parcel KAKAMEGA/BULUKHOBA/229, and the appointment of new administrators.
29. The main contention is that the confirmed grant was obtained through concealment of material facts and that the respondent lacks legal standing to administer the estate of the deceased.
Issues for Determination
a) Whether the confirmed grant was obtained through concealment or misrepresentation of material facts under Section 76 of the Law of Succession Act.
b) Whether the Respondent, as a purchaser of a portion of the estate from a daughter of the deceased, had any locus standi to apply for confirmation or benefit from the estate.
c) Whether the Applicants, as grandchildren of the deceased through their deceased father (a co-administrator), were improperly excluded from the list of beneficiaries.
d) Whether the sale and subdivision of land parcel KAKAMEGA/BULUKHOBA/229 was valid under the Law of Succession Act.
e) Whether the Applicants have met the threshold for revocation of the grant.
30. Section 76 of the Law of Succession Act (Cap 160) provides:
A grant of representation... may at any time be revoked or annulled if the court decides...
(a) that the proceedings to obtain the grant were defective in substance;
(b) that the grant was obtained fraudulently by making a false statement or by concealment from the court of something material to the case...
31. Section 45 of the Act criminalizes intermeddling with estate property:
"No person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person..."
32. In Veronica Njoki Wakagoto (Deceased) [2013] eKLR, Musyoka J held:
"The property of a dead person cannot be lawfully dealt with by anybody unless such a person is authorized to do so by the Law. Such authority emanates from a grant of representation..."
33. The Respondent, Jonathan Azali Mangwali, claims to have purchased a 0.71 ha portion of the deceased’s land from one of the daughters of the deceased in 1989 that was well before any succession cause had been filed. He neither claims to be a biological child, spouse, nor dependent under Section 29 of the Act.
34. He did not exhibit a valid sale agreement recognized under the land laws (including Land Control Board consent or registered transfer), and the court is not satisfied that any such interest was lawfully acquired.
35. In Re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR, the court emphasized that:
"Only a person with proper legal standing under section 66 and Rule 26 of the Probate and Administration Rules may petition for a grant of representation."
36. The Respondent was not a legal beneficiary nor an authorized purchaser from an administrator. His application and involvement in confirmation proceedings are therefore a nullity.
37. The land sale the Respondent relies upon occurred in 1989, long before any grant was issued in 2012 and confirmed in 2022. The sale was done without a grant of representation and before commencement of the succession cause.
38. This offends Section 45 and Section 82(b)(ii) of the Act, which prohibit the disposal of estate property without court authority and before confirmation of grant.
39. Drawing from the reasoning in the excerpt provided and consistent with In re Estate of Benson Mwangangi Muthui (Deceased) [2021] eKLR, such transactions are:
"Unlawful and void ab initio. Purchasers who derive title from such illegalities acquire no valid or enforceable interest."
40. Thus, the respondent's alleged sale is void and cannot form a basis for resisting revocation under Section 76. He may, however, pursue a civil claim in the Environment and Land Court, as probate courts do not resolve ownership disputes arising from unlawful transactions.
41. The Applicants have proven that they are sons of the deceased’s son, Richard Anakwiri, who was an administrator but passed away before confirmation. As such, the Applicants are entitled to inherit through representation of their father’s share (per Section 41 of the Act).
42. Yet, they were excluded from the list of beneficiaries and were not served with notice of the confirmation proceedings. This constitutes a fundamental violation of Rule 7(1)(d) of the Probate and Administration Rules and amounts to concealment of material facts as envisaged under Section 76(b).
43. The court in Ogal & Another v Owenje (Civil Appeal E009 of 2023) [2024] KEHC 5336 (KLR) reaffirmed:
"Any omission of lawful heirs from the proceedings for grant or confirmation amounts to concealment and justifies revocation."
44. This court takes judicial notice of the Respondent's participation in the distribution process despite not being a rightful heir. His actions amount to intermeddling with the estate.
45. Although the Respondent may have entered possession with the understanding of a sale, the absence of legal authority and the premature transaction violate the provisions of the Succession Act.
46. It is the finding of this court that:
a. The confirmation of the grant issued on 7th November 2022 was obtained through concealment of material facts, including omission of rightful heirs.
b. The Respondent had no legal standing to petition for the grant or participate in the confirmation.
c. The alleged sale of land in 1989 by a daughter (before any grant) is null and void, and cannot support any proprietary claim.
d. The Respondent's involvement amounts to intermeddling, contrary to Section 45 of the Law of Succession Act.
e. The Applicants have established a legal basis for revocation of the grant under Section 76 (b) and (c).
Final Orders
a) The summons dated 1st July 2024 for revocation of grant is allowed.
b) The grant issued on 5th July 2012 and confirmed on 7th November 2022 is hereby revoked and annulled.
c) All subdivisions and transactions relating to land parcel KAKAMEGA/BULUKHOBA/229 arising from the revoked grant are cancelled, and the title shall revert to the name of the deceased.
d) A fresh grant of letters of administration shall issue to Alexander Inyanje Shorelo and Rasoha M. Ingosi.
e) The administrators are directed to file fresh summons for confirmation of grant within 90 days of this ruling.
f) The Respondent may pursue any proprietary claims (if any) in the Environment and Land Court, being the appropriate forum.
g) Costs of the application shall be borne by the Respondent.
DATED SIGNED, and DELIVERED in open court at KAKAMEGA THIS 23RD OF SEPTEMBER , 2025.
S.N. MBUNGI
JUDGE
In The Prescence of;
CA: Ang’onga
Rasoha 3rd petitioner.
2nd Petitioner absent.
Mr Godia for the 1st and 2nd Applicant present.
Mr. Orute for Manyoni for interested party, absent.