1. The deceased Janendra Raichand Shah died on 8th June 2023 at Pandya Hospital. He was 81 years old. According to the death certificate, the deceased lived in Kizingo, Mombasa. The deceased was survived by his wife, Sushilaben Janendra Raichand Shah, and 2 sons, Kamal Janendra Raichand Shah and Vikesh Janendra Shah.
2. The deceased died testate. His will is dated 1st February 2019. The will appointed his 2 sons as executors and trustees. The executors petitioned for the grant of probate of the deceased's will, vide a petition dated 13th December 2023. The executors listed the deceased's properties and indicated that he had no liabilities.
3. The petition for the grant of probate of the written will of the deceased was gazetted on 23rd February 2024, vide Gazette Notice No.2127. There being no objection, the Grant of Probate of the Written Will of the deceased was issued on the 31st day of April 2024 to Kamal Janendra Raichand Shah and Vikesh Janendra Shah.
4. Upon the expiry of 6 months, the executors filed a summons for Confirmation of Grant dated 15th October 2024, by which they sought to have the grant of probate of the deceased's written will confirmed. The summons was heard on 16th October 2024. The beneficiaries of the estate appeared virtually in Court. Being satisfied that it was just and fair to do so, the Court confirmed the grant. It was ordered that the estate of the deceased would devolve in accordance with the deceased's written will dated 1st February 2019.
5. The Certificate of Confirmation of Grant was subsequently issued on 23rd January 2025.
6. After the grant of probate was confirmed, the objectors, through their counsel George Egunza & Associates, filed the Notice of Objection dated 19th December 2024. The ground for their objection was that they are residents and property owners with permanent structures on Plot No. Subdivision No.890 (Original No.284/99), Section III, Mainland North. They averred that the said land was the subject of a suit in ELC Case No. 225 of 2025 (OS); John Kiura Wilson & 165 Others v Janendra Raichand Shah.
7. The objectors appear to have abandoned the Notice of Objection to the making of the Grant, and wisely so, for by that time the grant had been issued and confirmed. Subsequently, they filed a summons for revocation of the Grant dated 5th February 2025, vide which they sought to have the certificate of confirmation of the grant dated 16th October 2024 revoked, for the revocation of the title in respect of Plot No. Subdivision No.890 (Original No.284/99), Section III, Mainland North, for costs to be provided for and for the court to issue any further orders in the interest of justice, as it may deem fit.
8. The objectors/applicants contend that the executors failed to disclose material information; to wit, that there were proceedings in the Environment and Land Court, to wit, ELC No.225 of 2021; John Kiura Wilson & 105 Others v Janendra Raichand Shah. It was urged that the objectors/applicants ought to have been served with a citation. They averred that the executors were in violation of their duty to this Honourable Court, were guilty of malfeasance and should be called to account by the court. The summons was supported by the affidavit of John Kiura Wilson, sworn on 5th February 2025, to which were attached various documents, including those in respect of the pending cause, to wit, Mombasa ELC Cause No. 225 of 2021 (OS).
9. The application was opposed vide sworn deposition of Mr K N Kibara, in which he stated that the objectors were not the children of the deceased, nor his survivors or dependants or beneficiaries under section 29 of the Law of Succession Act. He averred that this court had no jurisdiction to determine issues of ownership of land and that ELC Cause No.225 of 2021 (OS) was pending determination. He averred that the summons was premature. He prayed that the summons be dismissed with costs.
10. The summons was canvassed by way of written submissions. The submissions of the objectors/applicants were dated 29th September 2025. It was urged that the application was brought under section 76 of the Law of Succession Act and that under the said section a grant could be revoked where it had been obtained by fraudulent means and the concealment of relevant information. It was urged that the pendency of the ELC case was not disclosed.
11. Counsel relied on the case of the Estate of Mukhobi Namonya (deceased) and the Estate of Barrack Deya (deceased) [2018] eKLR for the proposition that the pendency of the suit and existence of certain interim orders ought to have been disclosed.
12. The submissions of the Executors/Respondents are dated 29th September 2025. It was urged that the summons had no merit and should be dismissed. The Executors/Respondent’s counsel identified issues coming up for determination as being:
i Whether the court has jurisdiction to determine the summons; and
ii Whether the objectors are entitled to the prayers sought.
13. On the first issue, it was urged that claims by third parties against the estate cannot be determined by the Probate & Administration Court. The Objectors’ claim concerned the title to land and, under Article 162(2) of the Constitution, should be heard and determined by the Environment & Land Court. Support for the suit proposition was drawn from the cases of the Estate of Hurbal Hussein (deceased) [2022]eKLR and the Estate of Prisca Ong’ayo Nande [2013]eKLR.
14. Counsel contended that, without jurisdiction, this court could not determine the matter. The court was referred to the Court of Appeal’s dictum in the case Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48 KLR.
15. Mr Kibara submitted that the matter in the ELC was pending. There was no judgment or decree in favour of the objectors. The court was thus urged to dismiss the Summons for Revocation of Grant.
16. I have considered the Summons for Revocation of Grant, the responses thereto, as well as the submissions of the parties. In my view, the issue I must determine is whether the issues raised by the objectors can be determined by the Probate & Administration Court, or if they are, in fact, contestations regarding ownership and title to land. If the former, whether on the available evidence, a case had been made for revocation of the grant. Thus, there is a jurisdiction question that this Court must settle before taking further steps.
17. In the case of Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] KESC 9 (KLR), the Supreme Court held that:
“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can exercise jurisdiction only as conferred by the Constitution or by written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the 1st and 2nd Respondents in his submissions that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction the court cannot entertain any proceedings.”
18. Where a jurisdiction question is raised, the court is obliged to determine it right away on material before it (see Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48 KLR).
19. In this case, the objectors are not the beneficiaries of the estate of the deceased. They are not his dependants nor his creditors; rather, they are plaintiffs in a cause of action against the deceased who claim an interest in a property the deceased owned, by way of adverse possession. The matter has not been determined; it is pending before the Environment & Land Court. It is that court that will determine questions of ownership.
20. Under Article 162(2)(b) as read with Article 165(5)(b) of the Constitution, this court has no jurisdiction to determine issues regarding title or occupation of land. Such matters are within the province of the Environment and Land Court.
21. The objectors aver that the petitioners/executors should have disclosed the pendency of the case in their petition. I must state at the outset that Section 76 of the Law of Succession Act lists the conditions under which a grant or representation may be revoked.
22. Section 76 of the Law of Succession Act states that:
“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.”
23. My view is that a petitioner/executor is not under an obligation to disclose in a petition pending litigation. A liability that must be disclosed is one that has crystallized; that is to say, where there is a judgment holding that the deceased had a defined debt. I am thus in agreement with the holding in the Estate of Hurbal Hussein (deceased) [2022] eKLR that:
“He must file his claim in the Environment & Land Court for determination. If and when the applicant obtains a judgment in his favour from the ELC, then he is at liberty to present the decree to this court for determination.”
24. The petitioners/executors cannot be accused of not disclosing what they were not under an obligation to disclose; that being the case, I am not persuaded that there are grounds to revoke the grant of probate.
25. I must also point out that the objectors seek to revoke the certificate of confirmation of the grant. The certificate of confirmation of grant is not the grant of representation. The certificate of confirmation of grant is incapable of being revoked under section 76 of the Law of Succession Act. The application is clearly bereft of merit. In making his determination, I am guided by the decision of Musyoka, J. in the Case of the In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR), where he stated that:
“13. Grants of representation take the form stated in sections 53 and 54 of the Law of Succession Act. They are either a grant of probate or of letters of administration intestate or of letters of administration with will annexed or limited grants. A certificate of confirmation of grant does not take any of those forms, and it cannot possibly, therefore, be a grant of representation. It is a document extracted from the orders that a court makes after confirmation of a grant under section 71 of the Law of Succession Act, as evidence the fact that a grant of representation has been confirmed. It should be emphasized that the confirmation process does not produce another grant. The grant sought to be confirmed, through that process, remains intact, after confirmation. Whereas a grant of representation appoints personal representatives or administrators, the certificate of confirmation does not do anything of that sort. All what it does is to confirm that the court has approved the persons appointed under the grant to continue to administer the estate, with a view to distribute it in accordance with the distribution schedule approved. A certificate of confirmation of grant is akin to that order or decree that is extracted from a ruling or judgement made by a court; it is an extract of the orders that the court makes on an application for confirmation of grant. Quite clearly, therefore, a certificate of confirmation of grant is not a grant of representation, and for that reason it is not available for revocation under section 76 of the Law of Succession Act.”
26. The summons is thus without merit. Having said that, I note the prejudice that allowing this application would cause. The objectors are presently litigating against the estate of the deceased, revoking the grant would have the collateral effect of rendering the suit as undefended, and thus the defence of the estate of the deceased may not be articulated before the land court.
27. Flowing from the foregoing, I find and hold that the summons dated 5th February 2025 has no merit. The same is dismissed.
28. What of costs? Although the general rule is that costs are not awarded on succession matters, courts do depart from that position where the court process has been used in bad faith, for example, for collateral reasons. In this case, I am of the view that the objectors/applicants have abused the court process. Consequently, I grant the petitioners/executors/respondents costs of the application.
29. I order and direct that this matter be mentioned before Visram J, on 15th July 2026, for the purposes of ascertaining if the executors have complied with Section 83 of the Law of Succession Act.
30. It is so ordered.
Dated and signed in Nairobi, this 5th day of June 2026.
2. The deceased died testate. His will is dated 1st February 2019. The will appointed his 2 sons as executors and trustees. The executors petitioned for the grant of probate of the deceased's will, vide a petition dated 13th December 2023. The executors listed the deceased's properties and indicated that he had no liabilities.
3. The petition for the grant of probate of the written will of the deceased was gazetted on 23rd February 2024, vide Gazette Notice No.2127. There being no objection, the Grant of Probate of the Written Will of the deceased was issued on the 31st day of April 2024 to Kamal Janendra Raichand Shah and Vikesh Janendra Shah.
4. Upon the expiry of 6 months, the executors filed a summons for Confirmation of Grant dated 15th October 2024, by which they sought to have the grant of probate of the deceased's written will confirmed. The summons was heard on 16th October 2024. The beneficiaries of the estate appeared virtually in Court. Being satisfied that it was just and fair to do so, the Court confirmed the grant. It was ordered that the estate of the deceased would devolve in accordance with the deceased's written will dated 1st February 2019.
5. The Certificate of Confirmation of Grant was subsequently issued on 23rd January 2025.
6. After the grant of probate was confirmed, the objectors, through their counsel George Egunza & Associates, filed the Notice of Objection dated 19th December 2024. The ground for their objection was that they are residents and property owners with permanent structures on Plot No. Subdivision No.890 (Original No.284/99), Section III, Mainland North. They averred that the said land was the subject of a suit in ELC Case No. 225 of 2025 (OS); John Kiura Wilson & 165 Others v Janendra Raichand Shah.
7. The objectors appear to have abandoned the Notice of Objection to the making of the Grant, and wisely so, for by that time the grant had been issued and confirmed. Subsequently, they filed a summons for revocation of the Grant dated 5th February 2025, vide which they sought to have the certificate of confirmation of the grant dated 16th October 2024 revoked, for the revocation of the title in respect of Plot No. Subdivision No.890 (Original No.284/99), Section III, Mainland North, for costs to be provided for and for the court to issue any further orders in the interest of justice, as it may deem fit.
8. The objectors/applicants contend that the executors failed to disclose material information; to wit, that there were proceedings in the Environment and Land Court, to wit, ELC No.225 of 2021; John Kiura Wilson & 105 Others v Janendra Raichand Shah. It was urged that the objectors/applicants ought to have been served with a citation. They averred that the executors were in violation of their duty to this Honourable Court, were guilty of malfeasance and should be called to account by the court. The summons was supported by the affidavit of John Kiura Wilson, sworn on 5th February 2025, to which were attached various documents, including those in respect of the pending cause, to wit, Mombasa ELC Cause No. 225 of 2021 (OS).
9. The application was opposed vide sworn deposition of Mr K N Kibara, in which he stated that the objectors were not the children of the deceased, nor his survivors or dependants or beneficiaries under section 29 of the Law of Succession Act. He averred that this court had no jurisdiction to determine issues of ownership of land and that ELC Cause No.225 of 2021 (OS) was pending determination. He averred that the summons was premature. He prayed that the summons be dismissed with costs.
10. The summons was canvassed by way of written submissions. The submissions of the objectors/applicants were dated 29th September 2025. It was urged that the application was brought under section 76 of the Law of Succession Act and that under the said section a grant could be revoked where it had been obtained by fraudulent means and the concealment of relevant information. It was urged that the pendency of the ELC case was not disclosed.
11. Counsel relied on the case of the Estate of Mukhobi Namonya (deceased) and the Estate of Barrack Deya (deceased) [2018] eKLR for the proposition that the pendency of the suit and existence of certain interim orders ought to have been disclosed.
12. The submissions of the Executors/Respondents are dated 29th September 2025. It was urged that the summons had no merit and should be dismissed. The Executors/Respondent’s counsel identified issues coming up for determination as being:
i Whether the court has jurisdiction to determine the summons; and
ii Whether the objectors are entitled to the prayers sought.
13. On the first issue, it was urged that claims by third parties against the estate cannot be determined by the Probate & Administration Court. The Objectors’ claim concerned the title to land and, under Article 162(2) of the Constitution, should be heard and determined by the Environment & Land Court. Support for the suit proposition was drawn from the cases of the Estate of Hurbal Hussein (deceased) [2022]eKLR and the Estate of Prisca Ong’ayo Nande [2013]eKLR.
14. Counsel contended that, without jurisdiction, this court could not determine the matter. The court was referred to the Court of Appeal’s dictum in the case Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48 KLR.
15. Mr Kibara submitted that the matter in the ELC was pending. There was no judgment or decree in favour of the objectors. The court was thus urged to dismiss the Summons for Revocation of Grant.
16. I have considered the Summons for Revocation of Grant, the responses thereto, as well as the submissions of the parties. In my view, the issue I must determine is whether the issues raised by the objectors can be determined by the Probate & Administration Court, or if they are, in fact, contestations regarding ownership and title to land. If the former, whether on the available evidence, a case had been made for revocation of the grant. Thus, there is a jurisdiction question that this Court must settle before taking further steps.
17. In the case of Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] KESC 9 (KLR), the Supreme Court held that:
“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can exercise jurisdiction only as conferred by the Constitution or by written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the 1st and 2nd Respondents in his submissions that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction the court cannot entertain any proceedings.”
18. Where a jurisdiction question is raised, the court is obliged to determine it right away on material before it (see Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48 KLR).
19. In this case, the objectors are not the beneficiaries of the estate of the deceased. They are not his dependants nor his creditors; rather, they are plaintiffs in a cause of action against the deceased who claim an interest in a property the deceased owned, by way of adverse possession. The matter has not been determined; it is pending before the Environment & Land Court. It is that court that will determine questions of ownership.
20. Under Article 162(2)(b) as read with Article 165(5)(b) of the Constitution, this court has no jurisdiction to determine issues regarding title or occupation of land. Such matters are within the province of the Environment and Land Court.
21. The objectors aver that the petitioners/executors should have disclosed the pendency of the case in their petition. I must state at the outset that Section 76 of the Law of Succession Act lists the conditions under which a grant or representation may be revoked.
22. Section 76 of the Law of Succession Act states that:
“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.”
23. My view is that a petitioner/executor is not under an obligation to disclose in a petition pending litigation. A liability that must be disclosed is one that has crystallized; that is to say, where there is a judgment holding that the deceased had a defined debt. I am thus in agreement with the holding in the Estate of Hurbal Hussein (deceased) [2022] eKLR that:
“He must file his claim in the Environment & Land Court for determination. If and when the applicant obtains a judgment in his favour from the ELC, then he is at liberty to present the decree to this court for determination.”
24. The petitioners/executors cannot be accused of not disclosing what they were not under an obligation to disclose; that being the case, I am not persuaded that there are grounds to revoke the grant of probate.
25. I must also point out that the objectors seek to revoke the certificate of confirmation of the grant. The certificate of confirmation of grant is not the grant of representation. The certificate of confirmation of grant is incapable of being revoked under section 76 of the Law of Succession Act. The application is clearly bereft of merit. In making his determination, I am guided by the decision of Musyoka, J. in the Case of the In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR), where he stated that:
“13. Grants of representation take the form stated in sections 53 and 54 of the Law of Succession Act. They are either a grant of probate or of letters of administration intestate or of letters of administration with will annexed or limited grants. A certificate of confirmation of grant does not take any of those forms, and it cannot possibly, therefore, be a grant of representation. It is a document extracted from the orders that a court makes after confirmation of a grant under section 71 of the Law of Succession Act, as evidence the fact that a grant of representation has been confirmed. It should be emphasized that the confirmation process does not produce another grant. The grant sought to be confirmed, through that process, remains intact, after confirmation. Whereas a grant of representation appoints personal representatives or administrators, the certificate of confirmation does not do anything of that sort. All what it does is to confirm that the court has approved the persons appointed under the grant to continue to administer the estate, with a view to distribute it in accordance with the distribution schedule approved. A certificate of confirmation of grant is akin to that order or decree that is extracted from a ruling or judgement made by a court; it is an extract of the orders that the court makes on an application for confirmation of grant. Quite clearly, therefore, a certificate of confirmation of grant is not a grant of representation, and for that reason it is not available for revocation under section 76 of the Law of Succession Act.”
26. The summons is thus without merit. Having said that, I note the prejudice that allowing this application would cause. The objectors are presently litigating against the estate of the deceased, revoking the grant would have the collateral effect of rendering the suit as undefended, and thus the defence of the estate of the deceased may not be articulated before the land court.
27. Flowing from the foregoing, I find and hold that the summons dated 5th February 2025 has no merit. The same is dismissed.
28. What of costs? Although the general rule is that costs are not awarded on succession matters, courts do depart from that position where the court process has been used in bad faith, for example, for collateral reasons. In this case, I am of the view that the objectors/applicants have abused the court process. Consequently, I grant the petitioners/executors/respondents costs of the application.
29. I order and direct that this matter be mentioned before Visram J, on 15th July 2026, for the purposes of ascertaining if the executors have complied with Section 83 of the Law of Succession Act.
30. It is so ordered.
Dated and signed in Nairobi, this 5th day of June 2026.