1. The deceased, whose estate is the subject of these proceedings, died on 9th September 1982 from what is described in the Certificate of Death as ‘sudden death'. At the time of his demise, he was a 70-year-old peasant farmer resident in Tiwi Location of the then Kwale District (now Kwale County).
2. The 1st and 2nd respondents petitioned for letters of administration intestate of his estate vide petition dated 8th October 1996. Nkuria Saidi Malumbo variously described herself as daughter-in-law and widow of the deceased in Form P&A 80 and Form P&A 5, while Mwana Kombo Hamadi Mwasalimu was stated to be the granddaughter of the deceased. The Petition was gazetted on 14th March 1997 vide Kenya Gazette Notice No. 1237.
3. In the affidavit in support of the Petition, the 1st and 2nd Respondent listed the following as the only dependents of the deceased:-
1. Nkuria Saidi Malumbo (wrongly described as a widow)
2. Mwanakombo Hamadi Mwasalimu (described as a granddaughter, then aged 21 years old);
3. Mesalimu Hamadi Mwasalimu (described as a granddaughter aged 17 years old); and
4. Mgeni Hamadi Mwasalimu (described as a granddaughter aged 13 years old).
The only asset of the deceased was given as Plot No 1313, Tiwi Location, whose value was given as Kes 50,000.00
4. As no objection was filed, the grant of letters of administration intestate was issued to the two petitioners on 29th April 1997. The grant was, upon the application of the two respondents, confirmed by a certificate of confirmation of grant issued on 10th December 2003. The schedule to the Certificate of Confirmation of Grant listed the four persons aforementioned as the only beneficiaries and granted them 2/5 (for the daughters); no mention was made for other beneficiaries.
5. Upon the issuance of the Certificate of Confirmation of Grant, the file became dormant and nothing transpired until the 22nd February 2024, when Hamisi Ali Mwakutengeza filed the Summons for Revocation of Grant.
6. The Summons for Revocation and Annulment of Grant dated 22nd February 2024 seeks seven orders, of which three are now spent. Those that are relevant at this point are:-
4. That an entry concerning Title No Kwale/Tiwi/1313 made by the Respondents based on the impugned grant confirmed on 10th December 2003 be cancelled and the register be rectified quantum meruit;
5. That this honourable Court be pleased to grant a stay of further proceedings in Kwale Kadhi Court Succession Cause No E229 of 2023; in the matter of Ali Salim Mwakutengeza (deceased);
6. That the grant issued to the Respondent and confirmed on 10th December 2003 be revoked and or annulled for the reason of being defective and the same having been obtained fraudulently; and
7. That the costs of this application be provided for.
7. The basis upon which the summons was filed was that the grant was obtained fraudulently by misrepresentation made to this honourable Court by the respondents that they were the only persons who survived the deceased when they knew that the deceased had 21 dependants who survived him, that they did not inform the other dependants when they filed the petition herein and that a false death certificate was used. It was stated that the applicant became aware of this matter when he was served with the respondent’s application dated 2nd February 2024 in the Kwale Kadhi Court Succession Cause No E229 of 2023.
8. The applicant urged that it is not disputed that Kwale/Tiwi/1313 belonged to the deceased. He settled that this Succession Cause was filed secretly with the sole aim of disinheriting all other beneficiaries.
9. The Respondents opposed the application vide an affidavit sworn on 19th April 2024 by the 1st Respondent, Nkuria Said Malumbo, on her behalf and on behalf of her children, Mesalimu, Mgeni and Mwanakombo. The said deponent averred that she and the 2nd respondent were the owners of Title No. Kwale/Tiwi/1313, having transferred it to themselves upon confirming the grant. She averred that her ownership of the land was determined in Mombasa Kadhi’s Court Civil Case No 114 of 1997 between her and Binti Ali and Fatuma Ali after the said Court agreed with her that she and her husband Hamadi Mwasalimu were the first to find the property, to clear and to plant permanent trees thereon, to build 2 temporary houses and to farm it.
10. She stated that the property was registered in the name of the deceased, as her husband was unwell, and proposed that his father take over the land as a trustee so that it would not be lost in the event of his demise.
11. Nkuria deposed that after her husband died, there were attempts to evict her. She filed a claim before the Kadhi, who ruled in her favour. She averred that the suit property belonged to her and her husband and that they are the ones who claimed it first. In her view, the registration in her father-in-law's name was not meant to grant the said father-in-law a proprietary interest.
12. The matter was canvassed partly through viva voce evidence and partly by way of written submissions. I shall give a summary of the evidence of the 1st Respondent below. The applicant chose to rely wholly on the written submissions.
13. Ms Nkuria Saidi Malumbo testified that she is the owner of Title No. Kwale/Tiwi/1313. It was her evidence that she acquired with her late husband, Hamadi Ali Mwasalimu. During the land adjudication process, her husband was very ill. Her husband and her father-in-law agreed to have the property registered in the name of the latter. When her husband died, her sister in law, Fatuma Mwakutengeza and Binti Ali tried to evict her. She reported them to the authorities. The two, however, declined to meet the authorities. She thereafter filed a case at the Kadhi Court in Kwale. Although the case took a long time, she was successful in the end. With the orders from the said. In court, she was able to process the title to the land, which title is still in her possession.
14. She testified that in 2023, the heirs of her father-in-law's estate trespassed onto her land, wanting to sell it. Hamadi was the first to come, followed by Ali Mwakutengeza. Thereafter, she was served with a notice to leave the said parcel of land by Ms Luvumo, an advocate of this court.
15. When she searched the land, she found that the land was now registered in the name of four people, yet she hadn’t sold it to anyone. Being aggrieved, she went to the Kadhi as there is still a pending matter before the said Court.
16. She prayed that this Court help her get her land back.
17. The application was canvassed by way of written submissions. I shall refer to the submissions of the parties below.
18. The submissions of the applicant, Hamisi Ali Mwakutengeza, are dated 16th September 2024. Vide the said submissions, it was urged that the application be allowed. Counsel for the applicant submitted that the respondents obtained the grant by fraudulently misrepresenting to this honourable Court that they were the only two people who survived the deceased, which statement was untrue and that they concealed material information. It was also submitted that the respondents did not inform other family members of the application, nor did they seek their consent to the institution of the proceedings. Further, the respondents used a falsified death certificate.
19. The applicant identified three issues coming up for determination as being.
1. Whether the grant in this succession cause was obtained fraudulently;
2. Whether the dispute relating to Title No. Kwale/Tiwi/1313 was dealt with finality by the Kadhi Court; and
3. Whether this Court has supervisory jurisdiction over the Kadhi’s Court.
20. It was urged that there was no full disclosure of the beneficiaries of the estate. Counsel relied on the case of In re Estate of the Late Kipkoech arap Tallam (Deceased) [2022] KEHC 11848 (KLR).
21. It was urged that Mombasa Kadhi Court Civil Suit No 114 of 1987; Nkuria Binti Saidi v Fatuma Ali and Binti Ali was a nullity as it was commenced by a party who had not obtained a grant. Counsel submitted that dealing with the property of a deceased person without a grant amounted to intermeddling. This is a criminal offence under section 45 of the Law of Succession Act. Reliance was placed on the case of In the Matter of the estate of Veronica Njoki Wakagoto (Deceased) [2013] KEHC 1930 (KLR).
22. Counsel conceded that the High Court has supervisory powers over the subordinate Courts, and that, in particular, section 50 of the Law of Succession Act clothes this Court with the requisite powers.
23. Under the circumstances, it was urged that the application be allowed as prayed.
24. The submissions of the respondents are dated 3rd September 2024. The respondents submitted their application dated 19th March 2024, and that of the applicants dated 22nd February 2024, which they oppose.
25. It was urged that the respondents have been the registered owners of Title No Kwale/Tiwi/1313 since 2005, by dint of a confirmed grant issued in this suit in December 2003. They averred that the applicants had gone to the Kadhi’s Court at Kwale and proceeded to have the title cancelled in Succession Cause NO. E229 of 2023.
26. Mr. Mak’Owade, learned that counsel for the respondents urged that this Court has jurisdiction to hear and determine this matter. He saw mischief in the way the matter had proceeded.
27. Counsel identified issues coming up for determination as being:-
1. Whether the Court can revoke the confirmed grant issued on 10th December 2003 for being defective and having been obtained fraudulently?
2. Whether the Court should revoke the grant issued in respect of properties known as Title No Kwale/Tiwi/1312, 1562, 126 and 1381 by the Kadhi’s court; and
3. Whether the Court should grant a permanent injunction against the applicant restraining him from interfering with the respondents' possession and enjoyment of Title No Kwale/Tiwi/1313.
28. In respect of the first issue, it was urged that the property Title No Kwale/Tiwi/1313 belonged to Hamadi Ali Mwakutengeza, and not Ali Salim Mwakutengeza. Counsel denied that any information was concealed from this Court at the time the grant was issued. The Court, it was stated, was comprehensively briefed.
29. The respondent’s counsel submitted that this Court should revoke the grant issued by the Kadhi in Kwale in exercise of its supervisory jurisdiction under Article 165 (6) of the Constitution. The respondents, his clients, were aggrieved that the applicant used orders of the Kadhi Court to transfer Title No. 1313 to himself, thereby causing detriment to the respondents.
30. It was urged that this Court should issue a permanent injunction preventing the applicants from interfering with the respondents’ use and enjoyment of Title No Kwale/Tiwi/1313.
31. I have considered the applications dated 22nd February and 19th March 2024, the responses thereto, the evidence adduced in Court, as well as the parties' written submissions.
32. To my mind, the issues I am called upon to determine are:-
1. Whether the grant issued in this cause was obtained fraudulently, and if so, whether it should be revoked?
2. Whether the Court should exercise its supervisory jurisdiction over the Kadhi’s Court in Kwale.
33. The jurisdiction of the Court to revoke grants is given in section 76 of the Law of Succession Act, which provides as follows:-
“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion-
(a) that the proceedings to obtain the grant were defective in substance;
(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either-
(i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
(ii) to proceed diligently with the administration of the estate; or
(iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or (e) that the grant has become useless and inoperative through subsequent circumstances.”
34. The court in the case of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR) stated as follows:-
“8. Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”
35. The revocation of a grant is a discretionary power. The court in the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] eKLR stated that:-
“13. Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not a discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”
36. In this case, the respondents specifically petitioned the Court for the grant of representation in respect of the estate of Ali Salim Mwakutengeza, not that of the 1st respondent’s husband, Hamadi. Although they rightly described themselves in the petition, in the affidavit, they alleged that they were the widow and granddaughter, respectively, of the deceased. Only four people were named as beneficiaries.
37. In my view, an applicant must disclose all the material information so that the court handling the matter can make the right determination.
38. In Re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR Gikonyo, J stated as follows:-
“[13] Applying the test of law in section 76 of the Law of Succession Act, the fact that there was an agreement between the deceased and the Applicant for sale of the suit land is important to these proceedings. It seems also that consideration may have passed between the two parties. I am aware that this court does not have jurisdiction to determine the validity or enforceability of the said agreement. Environment and Land Court does; it is the court which is constitutionally mandated to determine such matters. But of relevance in these proceedings is that such material facts were never disclosed to this court during confirmation of the grant so as to enable the court make an informed decision on distribution of the estate. Needless to state that, in any judicial proceeding, parties must make full disclosures to the court of all material facts to the case including succession cases. This general rule of law emphasizes utmost good faith (uberimaefidei) from parties who take out or are subject of the court proceedings. The said responsibility is part of justice itself. Accordingly, non-disclosure of material facts undermines justice and introduces festering waters into the pure steams of justice; such must, immediately be subjected to serious reverse osmosis to purify the streams of justice, if society is to be accordingly regulated by law.”
39. As already stated, the petition in respect of this matter was filed in 1996. In the affidavit in support of the petition, the petitioners, Nkuria Saidi Malumbo and Mwanakombo Hamadi Mwasalimu, described themselves as being a widow and granddaughter, respectively, of the deceased, Ali Salimu Mwakutengeza.
40. They listed themselves together with Mesalimu Hamdi Mwasalimu and Mgeni Hamadi Mwasalimu as the only beneficiaries of the estate of the deceased.
41. It is evident from her testimony that Nkuria was not the wife of the deceased herein, but rather of his son, Hamadi Ali Mwakutengeza, who died in 1983. Further, she did not list all the dependents of the deceased.
42. I do not see how the petitioner could not have been aware that she was uttering falsehoods when she filed the petition. In the circumstances, I find and hold that the grant issued on 29th April 1997 and confirmed on 10th December 2003 was obtained fraudulently. The same is thus revoked.
43. I order the Applicant herein to file a petition for the grant of letters of administration intestate of the estate of the deceased within 30 days of the date hereof.
44. As this is a succession matter, I order that the parties bear their costs.
45. It is so ordered.
Dated and signed at Mombasa, this 5th day of November 2024. Delivered virtually through Microsoft TEAMS.
2. The 1st and 2nd respondents petitioned for letters of administration intestate of his estate vide petition dated 8th October 1996. Nkuria Saidi Malumbo variously described herself as daughter-in-law and widow of the deceased in Form P&A 80 and Form P&A 5, while Mwana Kombo Hamadi Mwasalimu was stated to be the granddaughter of the deceased. The Petition was gazetted on 14th March 1997 vide Kenya Gazette Notice No. 1237.
3. In the affidavit in support of the Petition, the 1st and 2nd Respondent listed the following as the only dependents of the deceased:-
1. Nkuria Saidi Malumbo (wrongly described as a widow)
2. Mwanakombo Hamadi Mwasalimu (described as a granddaughter, then aged 21 years old);
3. Mesalimu Hamadi Mwasalimu (described as a granddaughter aged 17 years old); and
4. Mgeni Hamadi Mwasalimu (described as a granddaughter aged 13 years old).
The only asset of the deceased was given as Plot No 1313, Tiwi Location, whose value was given as Kes 50,000.00
4. As no objection was filed, the grant of letters of administration intestate was issued to the two petitioners on 29th April 1997. The grant was, upon the application of the two respondents, confirmed by a certificate of confirmation of grant issued on 10th December 2003. The schedule to the Certificate of Confirmation of Grant listed the four persons aforementioned as the only beneficiaries and granted them 2/5 (for the daughters); no mention was made for other beneficiaries.
5. Upon the issuance of the Certificate of Confirmation of Grant, the file became dormant and nothing transpired until the 22nd February 2024, when Hamisi Ali Mwakutengeza filed the Summons for Revocation of Grant.
6. The Summons for Revocation and Annulment of Grant dated 22nd February 2024 seeks seven orders, of which three are now spent. Those that are relevant at this point are:-
4. That an entry concerning Title No Kwale/Tiwi/1313 made by the Respondents based on the impugned grant confirmed on 10th December 2003 be cancelled and the register be rectified quantum meruit;
5. That this honourable Court be pleased to grant a stay of further proceedings in Kwale Kadhi Court Succession Cause No E229 of 2023; in the matter of Ali Salim Mwakutengeza (deceased);
6. That the grant issued to the Respondent and confirmed on 10th December 2003 be revoked and or annulled for the reason of being defective and the same having been obtained fraudulently; and
7. That the costs of this application be provided for.
7. The basis upon which the summons was filed was that the grant was obtained fraudulently by misrepresentation made to this honourable Court by the respondents that they were the only persons who survived the deceased when they knew that the deceased had 21 dependants who survived him, that they did not inform the other dependants when they filed the petition herein and that a false death certificate was used. It was stated that the applicant became aware of this matter when he was served with the respondent’s application dated 2nd February 2024 in the Kwale Kadhi Court Succession Cause No E229 of 2023.
8. The applicant urged that it is not disputed that Kwale/Tiwi/1313 belonged to the deceased. He settled that this Succession Cause was filed secretly with the sole aim of disinheriting all other beneficiaries.
9. The Respondents opposed the application vide an affidavit sworn on 19th April 2024 by the 1st Respondent, Nkuria Said Malumbo, on her behalf and on behalf of her children, Mesalimu, Mgeni and Mwanakombo. The said deponent averred that she and the 2nd respondent were the owners of Title No. Kwale/Tiwi/1313, having transferred it to themselves upon confirming the grant. She averred that her ownership of the land was determined in Mombasa Kadhi’s Court Civil Case No 114 of 1997 between her and Binti Ali and Fatuma Ali after the said Court agreed with her that she and her husband Hamadi Mwasalimu were the first to find the property, to clear and to plant permanent trees thereon, to build 2 temporary houses and to farm it.
10. She stated that the property was registered in the name of the deceased, as her husband was unwell, and proposed that his father take over the land as a trustee so that it would not be lost in the event of his demise.
11. Nkuria deposed that after her husband died, there were attempts to evict her. She filed a claim before the Kadhi, who ruled in her favour. She averred that the suit property belonged to her and her husband and that they are the ones who claimed it first. In her view, the registration in her father-in-law's name was not meant to grant the said father-in-law a proprietary interest.
12. The matter was canvassed partly through viva voce evidence and partly by way of written submissions. I shall give a summary of the evidence of the 1st Respondent below. The applicant chose to rely wholly on the written submissions.
13. Ms Nkuria Saidi Malumbo testified that she is the owner of Title No. Kwale/Tiwi/1313. It was her evidence that she acquired with her late husband, Hamadi Ali Mwasalimu. During the land adjudication process, her husband was very ill. Her husband and her father-in-law agreed to have the property registered in the name of the latter. When her husband died, her sister in law, Fatuma Mwakutengeza and Binti Ali tried to evict her. She reported them to the authorities. The two, however, declined to meet the authorities. She thereafter filed a case at the Kadhi Court in Kwale. Although the case took a long time, she was successful in the end. With the orders from the said. In court, she was able to process the title to the land, which title is still in her possession.
14. She testified that in 2023, the heirs of her father-in-law's estate trespassed onto her land, wanting to sell it. Hamadi was the first to come, followed by Ali Mwakutengeza. Thereafter, she was served with a notice to leave the said parcel of land by Ms Luvumo, an advocate of this court.
15. When she searched the land, she found that the land was now registered in the name of four people, yet she hadn’t sold it to anyone. Being aggrieved, she went to the Kadhi as there is still a pending matter before the said Court.
16. She prayed that this Court help her get her land back.
17. The application was canvassed by way of written submissions. I shall refer to the submissions of the parties below.
18. The submissions of the applicant, Hamisi Ali Mwakutengeza, are dated 16th September 2024. Vide the said submissions, it was urged that the application be allowed. Counsel for the applicant submitted that the respondents obtained the grant by fraudulently misrepresenting to this honourable Court that they were the only two people who survived the deceased, which statement was untrue and that they concealed material information. It was also submitted that the respondents did not inform other family members of the application, nor did they seek their consent to the institution of the proceedings. Further, the respondents used a falsified death certificate.
19. The applicant identified three issues coming up for determination as being.
1. Whether the grant in this succession cause was obtained fraudulently;
2. Whether the dispute relating to Title No. Kwale/Tiwi/1313 was dealt with finality by the Kadhi Court; and
3. Whether this Court has supervisory jurisdiction over the Kadhi’s Court.
20. It was urged that there was no full disclosure of the beneficiaries of the estate. Counsel relied on the case of In re Estate of the Late Kipkoech arap Tallam (Deceased) [2022] KEHC 11848 (KLR).
21. It was urged that Mombasa Kadhi Court Civil Suit No 114 of 1987; Nkuria Binti Saidi v Fatuma Ali and Binti Ali was a nullity as it was commenced by a party who had not obtained a grant. Counsel submitted that dealing with the property of a deceased person without a grant amounted to intermeddling. This is a criminal offence under section 45 of the Law of Succession Act. Reliance was placed on the case of In the Matter of the estate of Veronica Njoki Wakagoto (Deceased) [2013] KEHC 1930 (KLR).
22. Counsel conceded that the High Court has supervisory powers over the subordinate Courts, and that, in particular, section 50 of the Law of Succession Act clothes this Court with the requisite powers.
23. Under the circumstances, it was urged that the application be allowed as prayed.
24. The submissions of the respondents are dated 3rd September 2024. The respondents submitted their application dated 19th March 2024, and that of the applicants dated 22nd February 2024, which they oppose.
25. It was urged that the respondents have been the registered owners of Title No Kwale/Tiwi/1313 since 2005, by dint of a confirmed grant issued in this suit in December 2003. They averred that the applicants had gone to the Kadhi’s Court at Kwale and proceeded to have the title cancelled in Succession Cause NO. E229 of 2023.
26. Mr. Mak’Owade, learned that counsel for the respondents urged that this Court has jurisdiction to hear and determine this matter. He saw mischief in the way the matter had proceeded.
27. Counsel identified issues coming up for determination as being:-
1. Whether the Court can revoke the confirmed grant issued on 10th December 2003 for being defective and having been obtained fraudulently?
2. Whether the Court should revoke the grant issued in respect of properties known as Title No Kwale/Tiwi/1312, 1562, 126 and 1381 by the Kadhi’s court; and
3. Whether the Court should grant a permanent injunction against the applicant restraining him from interfering with the respondents' possession and enjoyment of Title No Kwale/Tiwi/1313.
28. In respect of the first issue, it was urged that the property Title No Kwale/Tiwi/1313 belonged to Hamadi Ali Mwakutengeza, and not Ali Salim Mwakutengeza. Counsel denied that any information was concealed from this Court at the time the grant was issued. The Court, it was stated, was comprehensively briefed.
29. The respondent’s counsel submitted that this Court should revoke the grant issued by the Kadhi in Kwale in exercise of its supervisory jurisdiction under Article 165 (6) of the Constitution. The respondents, his clients, were aggrieved that the applicant used orders of the Kadhi Court to transfer Title No. 1313 to himself, thereby causing detriment to the respondents.
30. It was urged that this Court should issue a permanent injunction preventing the applicants from interfering with the respondents’ use and enjoyment of Title No Kwale/Tiwi/1313.
31. I have considered the applications dated 22nd February and 19th March 2024, the responses thereto, the evidence adduced in Court, as well as the parties' written submissions.
32. To my mind, the issues I am called upon to determine are:-
1. Whether the grant issued in this cause was obtained fraudulently, and if so, whether it should be revoked?
2. Whether the Court should exercise its supervisory jurisdiction over the Kadhi’s Court in Kwale.
33. The jurisdiction of the Court to revoke grants is given in section 76 of the Law of Succession Act, which provides as follows:-
“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion-
(a) that the proceedings to obtain the grant were defective in substance;
(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either-
(i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
(ii) to proceed diligently with the administration of the estate; or
(iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or (e) that the grant has become useless and inoperative through subsequent circumstances.”
34. The court in the case of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR) stated as follows:-
“8. Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”
35. The revocation of a grant is a discretionary power. The court in the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] eKLR stated that:-
“13. Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not a discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”
36. In this case, the respondents specifically petitioned the Court for the grant of representation in respect of the estate of Ali Salim Mwakutengeza, not that of the 1st respondent’s husband, Hamadi. Although they rightly described themselves in the petition, in the affidavit, they alleged that they were the widow and granddaughter, respectively, of the deceased. Only four people were named as beneficiaries.
37. In my view, an applicant must disclose all the material information so that the court handling the matter can make the right determination.
38. In Re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR Gikonyo, J stated as follows:-
“[13] Applying the test of law in section 76 of the Law of Succession Act, the fact that there was an agreement between the deceased and the Applicant for sale of the suit land is important to these proceedings. It seems also that consideration may have passed between the two parties. I am aware that this court does not have jurisdiction to determine the validity or enforceability of the said agreement. Environment and Land Court does; it is the court which is constitutionally mandated to determine such matters. But of relevance in these proceedings is that such material facts were never disclosed to this court during confirmation of the grant so as to enable the court make an informed decision on distribution of the estate. Needless to state that, in any judicial proceeding, parties must make full disclosures to the court of all material facts to the case including succession cases. This general rule of law emphasizes utmost good faith (uberimaefidei) from parties who take out or are subject of the court proceedings. The said responsibility is part of justice itself. Accordingly, non-disclosure of material facts undermines justice and introduces festering waters into the pure steams of justice; such must, immediately be subjected to serious reverse osmosis to purify the streams of justice, if society is to be accordingly regulated by law.”
39. As already stated, the petition in respect of this matter was filed in 1996. In the affidavit in support of the petition, the petitioners, Nkuria Saidi Malumbo and Mwanakombo Hamadi Mwasalimu, described themselves as being a widow and granddaughter, respectively, of the deceased, Ali Salimu Mwakutengeza.
40. They listed themselves together with Mesalimu Hamdi Mwasalimu and Mgeni Hamadi Mwasalimu as the only beneficiaries of the estate of the deceased.
41. It is evident from her testimony that Nkuria was not the wife of the deceased herein, but rather of his son, Hamadi Ali Mwakutengeza, who died in 1983. Further, she did not list all the dependents of the deceased.
42. I do not see how the petitioner could not have been aware that she was uttering falsehoods when she filed the petition. In the circumstances, I find and hold that the grant issued on 29th April 1997 and confirmed on 10th December 2003 was obtained fraudulently. The same is thus revoked.
43. I order the Applicant herein to file a petition for the grant of letters of administration intestate of the estate of the deceased within 30 days of the date hereof.
44. As this is a succession matter, I order that the parties bear their costs.
45. It is so ordered.
Dated and signed at Mombasa, this 5th day of November 2024. Delivered virtually through Microsoft TEAMS.