Judgment
Introduction
1.The summons for revocation or annulment of the grant dated 29th October 2024 is for determination today. The same was brought before the court by Paul Rono, Joseph Kimutai Rono, Denis Kibet Langat, and Josephine Cherotich, who describe themselves as beneficiaries of the estate of the late Kipngetich Arap Kenik, alias Kipngetich A. Kenik.
2. The applicants seek a stay of execution of the confirmed grant and revocation or annulment of the grant confirmed on 24th October 2024. They also seek such further orders as the Court may deem just and costs of the application.
3. Pursuant to the directions of this Court issued on 2nd December 2025, the summons proceeded by way of written submissions. The Court has considered the summons, the affidavit in support sworn by Paul Rono, the replying affidavit sworn by Alexander Kipkurgat Tonui, the supplementary submissions and annexures, the witness statements filed by the parties and the written submissions on record.
4. The deceased had 3 wives, and he died intestate. It is common ground that he was survived by three sons, namely Kiprono Arap Ngetich, Kiptonui Ngetich and Kipkoech Ngetich. All the three sons are now deceased. The present contest is therefore between grandchildren and representatives of the three houses of the deceased
5. It is not in dispute that land parcel No. KERICHO/KAPKATET/1512, measuring approximately 28 acres, is the name of the deceased. The dispute is whether, in distributing that parcel, the administrator was entitled to take into account KERICHO/KAPKATET/1050 and KERICHO/KAPKATET/1051, which are alleged to be inter vivos gifts by the deceased to his first and third sons, respectively.
Applicants' Case
6. Paul Rono depones that he is a grandson of the deceased through the late Kiprono Arap Ngetich. He states that the deceased left three sons and that the branch of Kiprono Arap Ngetich was entitled to a fair share of the estate.
7. The applicants complain that the confirmation proceedings were conducted without their participation and that they were not informed of the proceedings before the Court. They further allege that the signatures appearing in the confirmation documents as their consents were forgeries and that they never consented either to the appointment of the petitioner as administrator or to the proposed mode of distribution.
8. The applicants contend that, although the parcel KERICHO/KAPKATET/1512 measures about 28 acres and ought to have been distributed equally among the three sons' branches, their branch was allocated only a small portion. In the affidavit and witness statements, the portion is referred to as about 4 acres; in the respondent's material, the portion allocated to the branch is described as 2.1 acres.
9. In their written submissions, the applicants argue that KERICHO/KAPKATET/1050 does not form part of the estate of the deceased but belongs to the estate of Kiprono Arap Ngetich. They rely on a green card for that parcel and submit that the respondent improperly used that parcel to justify a reduced allocation to the branch of Kiprono Arap Ngetich.
10. The applicants further submit that the confirmed grant was founded upon a mediation agreement or family arrangement in which they did not participate. They urge the Court to revoke the confirmed grant and direct that lKERICHO/KAPKATET/1512 be distributed equitably among the three branches.
Respondent's Case
11. The respondent, Alexander Kipkurgat Tonui, opposes the application. He states that he is the deceased's grandson through his father, Kiptonui Ngetich.
12. According to the respondent, during his lifetime the deceased transferred KERICHO/KAPKATET/1050, measuring approximately 14.354 acres, to Kiprono Arap Ngetich, the first son. He also states that the deceased transferred KERICHO/KAPKATET/1051, measuring approximately 7.42 acres, to Kipkoech Ngetich, the third son.
13. The respondent's position is that the confirmed mode of distribution of KERICHO/KAPKATET/1512 was meant to equalise the three houses after taking those previous benefits into account. He therefore says that the branch of Kiprono Arap Ngetich was to receive 2.1 acres out of KERICHO/KAPKATET/1512, the branch of Kipkoech Ngetich 9 acres, and the branch of Kiptonui Ngetich the balance of about 16.4 acres.
14. The respondent denies fraud and concealment. He states that the family had demarcated the land and agreed on the distribution before confirmation. He also states, however, that although some beneficiaries were absent from court during confirmation, the family was merely endorsing what had already been agreed upon.
15. In submissions, the respondent argues that the applicants have not met the threshold under section 76 of the Law of Succession Act and have not proved that parcels 1050 and 1051 were not previous benefits from the deceased. He relies on sections 107 and 108 of the Evidence Act on the burden of proof.
aIssues
16. Having considered the record, the Court takes the view that the issues for determination are whether the applicants have established a ground for revocation or annulment under section 76 of the Law of Succession Act; whether the confirmed mode of distribution could properly stand in light of the contested participation and consent of the applicants; and what orders should issue.
Law
17. Section 76 of the Law of Succession Act empowers the Court to revoke or annul a grant, whether or not confirmed, where the proceedings to obtain it were defective in substance, where it was obtained fraudulently by making a false statement or by concealment of something material, or where it was obtained by means of an untrue allegation .
18. The power under section 76 is discretionary, but it must be exercised judicially. The object is not to punish parties for every procedural irregularity. It is to protect the estate, the beneficiaries and the integrity of the confirmation process where a grant or confirmed grant has been procured on a materially defective foundation.
19. Where a deceased died intestate leaving children, but no spouse, the guiding principle under section 38 of the Act is equal distribution among the children, subject to the other relevant provisions of the Act. Where a child of the deceased predeceased the intestate, section 41 preserves the entitlement of that child's issue through representation.
20. Section 42 of the Act is also relevant. It provides that where an intestate, during his lifetime or by will, paid, gave or settled property to or for the benefit of a child, grandchild or house, that property is to be taken into account in determining the share finally accruing to that child, grandchild or house.
21. It follows that any previous provision may lawfully be taken into account. However, the fact of such previous provision must be proved by credible material, especially where the consequence is to substantially reduce the share of one branch in the remaining estate property.
Analysis
22. There is no dispute that the applicants are beneficiaries or persons beneficially interested in the estate. Their standing to bring the summons is therefore established.
23. The first question is whether the confirmation process was materially defective. The applicants say they were not notified, did not attend, did not participate in mediation and did not sign the consents relied upon. The respondent's submissions assert that all beneficiaries were present in open court on 24th October 2024. However, the respondent's own replying affidavit and witness statements state that some beneficiaries were absent during confirmation.
24. A confirmed grant distributes beneficial interests in the estate. Where adult beneficiaries are alleged to have consented, the Court must be satisfied that the consent is real, informed and attributable to the persons whose interests are affected. Once the applicants denied the signatures and denied participation, the confirmation could not safely rest on a disputed consent or mediation record without clearer proof
25. The respondent's admission that some beneficiaries were absent, coupled with the applicants' denial of pahis Court is not satisfied that the confirmed grant was founded on the participation and consent of all the affected adult beneficiaries.rticipation in the mediation or confirmation process, brings the matter within section 76.of the Act. The proceedings leading to the confirmation were defective in substance and were also affected by a material non-disclosure or untrue impression that all affected beneficiaries had agreed to the mode of distribution.
26. The second issue concerns the treatment of KERICHO/KAPKATET/1050 and KERICHO/KAPKATET/1051. The confirmed distribution of KERICHO/KAPKATET/1512 was justified on the footing that the deceased had previously provided parcels 1050 and 1051 to the first and third sons respectively. If proved, that would be a relevant consideration under section 42 of the Act.
27. The difficulty is that the proof on record is not sufficient to sustain a final distribution that gives one branch only 2.1 acres out of parcel 1512 while another branch retains about 16.4 acres. The applicants have produced a green card which, on their argument, shows that parcel 1050 is registered in the name of Kiprono Arap Ngetich. The respondent insists that the parcel was gifted to the applicants intervivos by deceased. That issue cannot be resolved by assertion but by way of evidence .
28. The proper course is for official searches and full green cards for KERICHO/KAPKATET/1050, KERICHO/KAPKATET/1051 and KERICHO/KAPKATET/1512 to be placed before the Court at the fresh confirmation stage. If the respondent or any other beneficiary relies on section 42, the particulars and documentary proof of the alleged lifetime gift or settlement must be provided.
29. I therefore decline to make a final order at this stage that parcel 1512 must be shared equally in three portions of about 9 acres. Such an order would determine the distribution without a fully tested record of the alleged prior benefits and without the participation of all beneficiaries.
30. In the foregoing circumstances, it is clear that the confirmed grant issued on 24th October 2024 cannot stand. The interests of justice require that the confirmation be set aside and that the estate proceed to a fresh, transparent confirmation process in which every adult beneficiary is notified, signs and attends court
Disposition
31. For the foregoing reasons, the summons for revocation or annulment of grant dated 29th October 2024 succeeds in part. I make the following orders:
1. The certificate of confirmation of grant arising from the confirmation made on 24th October 2024 is hereby revoked and set aside.
2. The parties are to attempt a settlement, and in case of a disagreement, a fresh mode of distribution be filed and served , within thirty (30 ) days from today. The fresh mode of distribution shall disclose all beneficiaries, their respective houses and the proposed mode of distribution.
3. Mention on 30.7.26 .
4. This being a family succession dispute, costs of the summons shall be in the cause.
T.A ODERA
JUDGE
2.7.27
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 2ND DAY OF JULY 2026.
In the presence of:
Court Assistant: Busienei
Mr Malei For the protestors/Objectors
Mr Koskei for the Respondent/Petitioner
.
Introduction
1.The summons for revocation or annulment of the grant dated 29th October 2024 is for determination today. The same was brought before the court by Paul Rono, Joseph Kimutai Rono, Denis Kibet Langat, and Josephine Cherotich, who describe themselves as beneficiaries of the estate of the late Kipngetich Arap Kenik, alias Kipngetich A. Kenik.
2. The applicants seek a stay of execution of the confirmed grant and revocation or annulment of the grant confirmed on 24th October 2024. They also seek such further orders as the Court may deem just and costs of the application.
3. Pursuant to the directions of this Court issued on 2nd December 2025, the summons proceeded by way of written submissions. The Court has considered the summons, the affidavit in support sworn by Paul Rono, the replying affidavit sworn by Alexander Kipkurgat Tonui, the supplementary submissions and annexures, the witness statements filed by the parties and the written submissions on record.
4. The deceased had 3 wives, and he died intestate. It is common ground that he was survived by three sons, namely Kiprono Arap Ngetich, Kiptonui Ngetich and Kipkoech Ngetich. All the three sons are now deceased. The present contest is therefore between grandchildren and representatives of the three houses of the deceased
5. It is not in dispute that land parcel No. KERICHO/KAPKATET/1512, measuring approximately 28 acres, is the name of the deceased. The dispute is whether, in distributing that parcel, the administrator was entitled to take into account KERICHO/KAPKATET/1050 and KERICHO/KAPKATET/1051, which are alleged to be inter vivos gifts by the deceased to his first and third sons, respectively.
Applicants' Case
6. Paul Rono depones that he is a grandson of the deceased through the late Kiprono Arap Ngetich. He states that the deceased left three sons and that the branch of Kiprono Arap Ngetich was entitled to a fair share of the estate.
7. The applicants complain that the confirmation proceedings were conducted without their participation and that they were not informed of the proceedings before the Court. They further allege that the signatures appearing in the confirmation documents as their consents were forgeries and that they never consented either to the appointment of the petitioner as administrator or to the proposed mode of distribution.
8. The applicants contend that, although the parcel KERICHO/KAPKATET/1512 measures about 28 acres and ought to have been distributed equally among the three sons' branches, their branch was allocated only a small portion. In the affidavit and witness statements, the portion is referred to as about 4 acres; in the respondent's material, the portion allocated to the branch is described as 2.1 acres.
9. In their written submissions, the applicants argue that KERICHO/KAPKATET/1050 does not form part of the estate of the deceased but belongs to the estate of Kiprono Arap Ngetich. They rely on a green card for that parcel and submit that the respondent improperly used that parcel to justify a reduced allocation to the branch of Kiprono Arap Ngetich.
10. The applicants further submit that the confirmed grant was founded upon a mediation agreement or family arrangement in which they did not participate. They urge the Court to revoke the confirmed grant and direct that lKERICHO/KAPKATET/1512 be distributed equitably among the three branches.
Respondent's Case
11. The respondent, Alexander Kipkurgat Tonui, opposes the application. He states that he is the deceased's grandson through his father, Kiptonui Ngetich.
12. According to the respondent, during his lifetime the deceased transferred KERICHO/KAPKATET/1050, measuring approximately 14.354 acres, to Kiprono Arap Ngetich, the first son. He also states that the deceased transferred KERICHO/KAPKATET/1051, measuring approximately 7.42 acres, to Kipkoech Ngetich, the third son.
13. The respondent's position is that the confirmed mode of distribution of KERICHO/KAPKATET/1512 was meant to equalise the three houses after taking those previous benefits into account. He therefore says that the branch of Kiprono Arap Ngetich was to receive 2.1 acres out of KERICHO/KAPKATET/1512, the branch of Kipkoech Ngetich 9 acres, and the branch of Kiptonui Ngetich the balance of about 16.4 acres.
14. The respondent denies fraud and concealment. He states that the family had demarcated the land and agreed on the distribution before confirmation. He also states, however, that although some beneficiaries were absent from court during confirmation, the family was merely endorsing what had already been agreed upon.
15. In submissions, the respondent argues that the applicants have not met the threshold under section 76 of the Law of Succession Act and have not proved that parcels 1050 and 1051 were not previous benefits from the deceased. He relies on sections 107 and 108 of the Evidence Act on the burden of proof.
aIssues
16. Having considered the record, the Court takes the view that the issues for determination are whether the applicants have established a ground for revocation or annulment under section 76 of the Law of Succession Act; whether the confirmed mode of distribution could properly stand in light of the contested participation and consent of the applicants; and what orders should issue.
Law
17. Section 76 of the Law of Succession Act empowers the Court to revoke or annul a grant, whether or not confirmed, where the proceedings to obtain it were defective in substance, where it was obtained fraudulently by making a false statement or by concealment of something material, or where it was obtained by means of an untrue allegation .
18. The power under section 76 is discretionary, but it must be exercised judicially. The object is not to punish parties for every procedural irregularity. It is to protect the estate, the beneficiaries and the integrity of the confirmation process where a grant or confirmed grant has been procured on a materially defective foundation.
19. Where a deceased died intestate leaving children, but no spouse, the guiding principle under section 38 of the Act is equal distribution among the children, subject to the other relevant provisions of the Act. Where a child of the deceased predeceased the intestate, section 41 preserves the entitlement of that child's issue through representation.
20. Section 42 of the Act is also relevant. It provides that where an intestate, during his lifetime or by will, paid, gave or settled property to or for the benefit of a child, grandchild or house, that property is to be taken into account in determining the share finally accruing to that child, grandchild or house.
21. It follows that any previous provision may lawfully be taken into account. However, the fact of such previous provision must be proved by credible material, especially where the consequence is to substantially reduce the share of one branch in the remaining estate property.
Analysis
22. There is no dispute that the applicants are beneficiaries or persons beneficially interested in the estate. Their standing to bring the summons is therefore established.
23. The first question is whether the confirmation process was materially defective. The applicants say they were not notified, did not attend, did not participate in mediation and did not sign the consents relied upon. The respondent's submissions assert that all beneficiaries were present in open court on 24th October 2024. However, the respondent's own replying affidavit and witness statements state that some beneficiaries were absent during confirmation.
24. A confirmed grant distributes beneficial interests in the estate. Where adult beneficiaries are alleged to have consented, the Court must be satisfied that the consent is real, informed and attributable to the persons whose interests are affected. Once the applicants denied the signatures and denied participation, the confirmation could not safely rest on a disputed consent or mediation record without clearer proof
25. The respondent's admission that some beneficiaries were absent, coupled with the applicants' denial of pahis Court is not satisfied that the confirmed grant was founded on the participation and consent of all the affected adult beneficiaries.rticipation in the mediation or confirmation process, brings the matter within section 76.of the Act. The proceedings leading to the confirmation were defective in substance and were also affected by a material non-disclosure or untrue impression that all affected beneficiaries had agreed to the mode of distribution.
26. The second issue concerns the treatment of KERICHO/KAPKATET/1050 and KERICHO/KAPKATET/1051. The confirmed distribution of KERICHO/KAPKATET/1512 was justified on the footing that the deceased had previously provided parcels 1050 and 1051 to the first and third sons respectively. If proved, that would be a relevant consideration under section 42 of the Act.
27. The difficulty is that the proof on record is not sufficient to sustain a final distribution that gives one branch only 2.1 acres out of parcel 1512 while another branch retains about 16.4 acres. The applicants have produced a green card which, on their argument, shows that parcel 1050 is registered in the name of Kiprono Arap Ngetich. The respondent insists that the parcel was gifted to the applicants intervivos by deceased. That issue cannot be resolved by assertion but by way of evidence .
28. The proper course is for official searches and full green cards for KERICHO/KAPKATET/1050, KERICHO/KAPKATET/1051 and KERICHO/KAPKATET/1512 to be placed before the Court at the fresh confirmation stage. If the respondent or any other beneficiary relies on section 42, the particulars and documentary proof of the alleged lifetime gift or settlement must be provided.
29. I therefore decline to make a final order at this stage that parcel 1512 must be shared equally in three portions of about 9 acres. Such an order would determine the distribution without a fully tested record of the alleged prior benefits and without the participation of all beneficiaries.
30. In the foregoing circumstances, it is clear that the confirmed grant issued on 24th October 2024 cannot stand. The interests of justice require that the confirmation be set aside and that the estate proceed to a fresh, transparent confirmation process in which every adult beneficiary is notified, signs and attends court
Disposition
31. For the foregoing reasons, the summons for revocation or annulment of grant dated 29th October 2024 succeeds in part. I make the following orders:
1. The certificate of confirmation of grant arising from the confirmation made on 24th October 2024 is hereby revoked and set aside.
2. The parties are to attempt a settlement, and in case of a disagreement, a fresh mode of distribution be filed and served , within thirty (30 ) days from today. The fresh mode of distribution shall disclose all beneficiaries, their respective houses and the proposed mode of distribution.
3. Mention on 30.7.26 .
4. This being a family succession dispute, costs of the summons shall be in the cause.
T.A ODERA
JUDGE
2.7.27
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 2ND DAY OF JULY 2026.
In the presence of:
Court Assistant: Busienei
Mr Malei For the protestors/Objectors
Mr Koskei for the Respondent/Petitioner
.