JUDGMENT
Introduction
1. Before the Court for determination is the protestor’s summons for revocation and/or annulment of grant dated 15th October 2021. The protestor, James Kibeni Kibondori, seeks revocation of the grant of letters of administration intestate issued to Ebisiba Nyaboke Kibondori on 4th October 2001 and confirmed on 16th December 2002 in respect of the estate of the late Kibondori Motongwa.
2. The protestor further seeks consequential orders cancelling the subdivisions and transfers said to have arisen from the original parcel of land known as LR No. West Kitutu/Bokingoina/55, including parcels referred to in the pleadings and exhibits as West Kitutu/Bokingoina/2071, 2817, 2626, 2627 and 2628, and restoration of the original title into the name of the deceased for fresh administration.
3. The original administratrix, Ebisiba Nyaboke Kibondori, is deceased. The summons is opposed by Sibiah Moraa Kibondori, who participated in these proceedings as the Interested Party/Respondent.
4. The Court heard oral evidence and received written submissions. I have considered the pleadings, affidavits, oral testimony, documentary exhibits and the rival submissions by counsel.
Background
5. The deceased, Kibondori Motongwa, died intestate on or about 3rd July 1978. It is common ground that he was the registered proprietor of LR No. West Kitutu/Bokingoina/55. It is also not seriously disputed that he had a polygamous family comprising two houses associated with Ebisiba Nyaboke Kibondori and Loise Kerubo Kibondori.
6. In 2001, Ebisiba Nyaboke Kibondori petitioned for letters of administration intestate. A grant was issued to her on 4th October 2001 and confirmed on 16th December 2002. Following confirmation, the original parcel was transmitted to her and later subdivided.
7. The protestor’s case is that the succession proceedings were undertaken secretly, without the involvement or consent of all the beneficiaries, and that the estate was eventually subdivided in a manner that disinherited him and members of his mother’s household. He also contends that persons who were strangers to the estate were introduced and benefited from the estate.
8. The Interested Party/Respondent denies those allegations. Her position is that the succession cause was properly filed, gazetted and confirmed; that the Applicant and his mother were disclosed in the succession papers; that no objection was filed before confirmation; that the land was transmitted long ago; and that the present application is a stale demand and an afterthought brought about twenty years after confirmation of the grant.
The Applicant’s Case and Submissions
9. The Applicant testified that the deceased was his father. He stated that he only became aware of the succession proceedings after the land had been dealt with. He relied on the deceased’s death certificate, the green card for LR No. West Kitutu/Bokingoina/55, the succession proceedings and the chief’s letter dated 16th August 2021.
10. The Applicant contended that the Respondent failed to disclose all beneficiaries of the deceased and failed to obtain the family’s consent before petitioning for the grant. He submitted that the proceedings were defective in substance within the meaning of section 76 of the Law of Succession Act.
11. He further submitted that the Respondent introduced one Stevenson Nyamagero Obare, whom he described as a stranger, into the estate. According to him, the grant was thereafter used to subdivide the deceased’s land and transfer portions of the estate to persons who were not entitled to inherit.
12. The Applicant’s position was that the grant was obtained through fraud, concealment of material facts and misrepresentation. He urged the Court to revoke the grant, cancel the subdivisions and restore the original parcel to the deceased’s name so that the estate may be administered afresh.
13. The Applicant further submitted that delay is not a bar to revocation of the grant because section 76 of the Law of Succession Act provides that a grant may be revoked “at any time.” He therefore urged the Court not to shut him out merely because the application was filed after confirmation and transmission.
The Interested Party/Respondent’s Case and Submissions
14. The Interested Party/Respondent opposed the summons. She submitted that the grant was not obtained secretly or fraudulently. She maintained that the Applicant and his mother were disclosed in the documents filed in the succession cause, including the chief’s letter and Form P&A 5.
15. She further submitted that the succession cause was gazetted and that any person who wished to object had the opportunity to do so. No objection was filed. The grant was confirmed on 16th December 2002, and the estate was transmitted thereafter.
16. The Interested Party/Respondent argued that the summons was filed nearly twenty years after confirmation of the grant. She submitted that the delay was inordinate and had not been satisfactorily explained. She further contended that the original administratrix had since died, making it prejudicial and unsafe to reopen the process on allegations which the administratrix could no longer answer.
17. It was also submitted that the Applicant’s mother, Loise Kerubo Kibondori, was alive and competent to pursue any claim she had. According to the Interested Party/Respondent, the Applicant had not demonstrated that he had authority or a special power of attorney to litigate on behalf of his mother or other alleged beneficiaries.
18. The Interested Party/Respondent further submitted that the Applicant had not proved that the subdivisions complained of interfered with the share occupied by his mother’s house. Her evidence was that the two houses had lived on the land with physical boundaries for many years, and that any subdivisions complained of arose from the share of the Respondent’s house.
19. She urged the Court to dismiss the summons with costs.
Issues for Determination
20. From the pleadings, evidence and submissions, the following issues arise for determination:
a. Whether the Applicant has established any ground for revocation of the grant under section 76 of the Law of Succession Act;
b. Whether the grant was obtained through fraud, concealment of material facts or defective proceedings;
c. Whether the alleged introduction of strangers and subsequent subdivisions justify cancellation of titles;
d. Whether delay is material to the exercise of the Court’s discretion; and
e. What orders should be issued.
The Law
21. Section 76 of the Law of Succession Act provides that a grant of representation may be revoked or annulled if the Court is satisfied that:
a. the proceedings to obtain the grant were defective in substance;
b. the grant was obtained fraudulently by making a false statement or by concealment from the Court of something material to the case;
c. the grant was obtained by means of an untrue allegation of fact essential in point of law to justify the grant;
d. the person to whom the grant was made has failed in the administration of the estate in the manner contemplated by the Act; or
e. the grant has become useless and inoperative through subsequent circumstances.
22. In Matheka and Another v Matheka [2005] 2 KLR 455, the Court stated that a grant may be revoked where the process of obtaining it was defective, where it was obtained fraudulently by false statements or concealment, or where it was obtained through untrue allegations of essential facts.
23. In In re Estate of G.K.K. (Deceased) [2017] eKLR, the Court emphasised that an applicant who alleges concealment must demonstrate that the alleged non-disclosure was material and that it affected the propriety of the grant.
24. Rule 26 of the Probate and Administration Rules requires consent, renunciation or citation where a petitioner seeks a grant while there exist other persons with equal or prior right to administration. The purpose of the rule is to ensure that the administration of estates is not undertaken behind the backs of persons who are equally entitled to participate.
25. The deceased died in 1978, before the commencement of the Law of Succession Act. Section 2(2) of the Act provides that the estates of persons who died before the commencement of the Act are, as to substantive distribution, governed by the written laws and customs applicable at the date of death, but the administration of such estates is to proceed, so far as possible, in accordance with the Act.
Analysis
Whether there was concealment of beneficiaries
26. The Applicant’s case is that the deceased was polygamous and that his estate ought to have been administered with full recognition of the two houses. That fact is not disputed by the Interested Party/Respondent.
27. The record indicates that the succession cause was filed on the basis of the chief’s letter dated 30th July 2001, which showed that the deceased was survived by the following persons:
a. Ebisiba Nyaboke Kibondori – 1st wife, deceased;
b. Loice Kerubo Kibondori – 2nd wife;
c. Beatrice Nyaboile Omwoyo;
d. Sibia Moraa Ogero – daughter;
e. Zaphania Mariita Kibindori – son; and
f. James Kibindori – son.
28. However, the evidence of DW5 and the chief’s letter dated 16th August 2021 indicate that the deceased had two houses and children as follows:
a. Ebisiba Nyaboke Kibondori – 1st wife, deceased;
b. Loice Kerubo Kibindori – 2nd wife;
c. Ruth Nyamoita Kibindori – daughter;
d. Joash Omwoyo Kibindori – son, deceased, represented by his wife Beatrice Nyaboile Omwoyo;
e. Sibia Moraa Ogero – daughter;
f. Zaphania Mariita Kibindori – son;
g. James Kibindori – son;
h. Sarait Nyamoita Ondicho – daughter; and
i. Alice Mongina Kibindori – daughter, deceased.
29. It is clear from the foregoing that the initial chief’s letter did not disclose all the family members of the deceased. Section 51(1) and 51(2)(g) of the Law of Succession Act provides that every application for a grant of representation shall be made in the prescribed form, and that an application shall include, in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any deceased child of the deceased.
30. That omission was material and went to the root of the succession proceedings because the Court was not presented with a full and accurate picture of the deceased’s survivors before the grant was issued and confirmed.
31. More significantly, the confirmed grant dated 16th December 2002 indicates that Ebisiba Nyaboke Kibondori was made the sole absolute beneficiary of LR No. West Kitutu/Bokingoina/55, to the exclusion of the other beneficiaries. That was a serious irregularity in view of the undisputed fact that the deceased had a polygamous family comprising two houses.
32. The evidence further shows that the deceased had settled his two houses on specific portions of LR No. West Kitutu/Bokingoina/55. Whether distribution was ultimately to be governed by the applicable customary law under section 2(2) of the Law of Succession Act or by principles of fairness and equity in administration, the estate could not lawfully be transmitted wholly to one house to the exclusion of the other.
33. The confirmation of the grant in favour of Ebisiba Nyaboke Kibondori as the sole beneficiary, therefore, had the effect of excluding the second house from inheritance. It has also emerged that she later subdivided the land, resulting in parcels including West Kitutu/Bokingoina/2626, 2627 and 2628.
34. DW1 testified that parcels 2627 and 2628 were transferred to her children, while Ebisiba remained with parcel 2626, which was said to be available for the second house. However, the difficulty with that position is that the second house was not involved in the confirmation process, and the confirmed grant did not recognise its entitlement. The distribution was therefore founded on a grant whose confirmation had been procured without full disclosure and without the participation of all persons beneficially entitled.
35. I therefore find that the confirmed grant was obtained through concealment of material facts, particularly the full composition of the deceased’s family and the entitlement to the second house. The concealment was material and affected the integrity of the grant and the confirmation proceedings.
Whether the want of consent invalidated the grant
36. There is merit in the protestor’s submission that, in a family comprising two houses, the succession process ought to have been inclusive. The administratrix was under a duty to disclose all beneficiaries and to obtain the necessary consents from adult beneficiaries, or to cause citation to issue to those who did not consent. No consent of the other family members was filed. Consent is a mandatory requirement under Rule 26 of the Probate and Administration Rules. The purpose of consent in succession proceedings is not merely procedural. It protects beneficiaries’ rights to be heard and to participate in the administration of the estate. Where a grant is obtained and confirmed without involving persons equally entitled to participate, the Court is entitled to intervene under section 76 of the Law of Succession Act.
37. The absence of consent, taken together with the non-disclosure of some beneficiaries and the eventual transmission of the entire estate to one house, rendered the proceedings defective in substance.
Whether the delay defeats the summons
38. The Interested Party/Respondent urged the Court to dismiss the summons on the basis that it was filed nearly twenty years after confirmation of the grant. It is true that there has been a substantial lapse of time between confirmation of the grant and the filing of the present summons.
39. However, section 76 of the Law of Succession Act expressly provides that a grant may be revoked or annulled “at any time” if any of the statutory grounds are established. While delay may be relevant in assessing prejudice, credibility and the propriety of consequential orders, it does not bar the Court from revoking a grant where fraud, concealment of material facts or defective proceedings have been proved.
40. In the present case, the defect goes to the foundation of the grant. The Court is dealing with a confirmed grant through which one house of a polygamous family was effectively excluded from inheritance. Time cannot be used to validate a grant obtained and confirmed through the concealment of material facts.
Whether the Applicant proved disinheritance
41. The protestor’s case is anchored on disinheritance. He is the deceased’s son. The deceased was polygamous. The evidence shows that the administratrix caused the estate to be transmitted to herself as the sole beneficiary and later subdivided and transferred portions of the land to her grandchildren.
42. In my view, this is a clear case of disinheritance. The second house was not given a lawful opportunity to participate in the confirmation of the grant. The confirmed grant did not recognise the entitlement to that house. The subsequent dealings with the land were therefore founded on a defective and impeachable grant.
43. The protestor has established a legitimate beneficial interest in the estate. He has also established that the deceased’s family comprised two houses and that the administration of the estate was not conducted in a manner that recognised both houses.
44. I therefore find that the protestor has proved grounds for revocation of the grant under section 76 of the Law of Succession Act.
Whether the resultant titles should be cancelled
45. The protestor seeks cancellation of titles arising from the confirmed grant and restoration of the original title to the name of the deceased. Once a grant is revoked on the ground that it was obtained through concealment of material facts and defective proceedings, the Court has jurisdiction to make consequential orders necessary to preserve the estate and return it to the proper succession process.
46. The subdivisions and transfers complained of were founded on the impugned confirmed grant. Since the grant cannot stand, the resultant dealings cannot be allowed to defeat the rights of beneficiaries who were excluded from the process.
47. The appropriate order is therefore to revoke the grant, nullify the resultant titles arising from the confirmed grant, restore the original parcel to the name of the deceased, and require fresh confirmation proceedings in which all beneficiaries are disclosed and served.
48. Given that there is evidence that the deceased had settled his two houses on specific portions of the land, it is also necessary to obtain a ground status report before fresh confirmation. Such a report will assist the Court in determining the historical occupation of the two houses and in fashioning a fair mode of distribution.
49. On the issue of administration, it is not disputed that the administratrix is deceased. It is therefore necessary to appoint new administrators to implement the orders herein. I proceed to appoint James Kibeni Kibondori and Sibia Moraa Ogero as joint administrators of the estate of the deceased.
Determination
50. I am satisfied that the Applicant has established grounds for revocation of the grant issued to Ebisiba Nyaboke Kibondori on 4th October 2001 and confirmed on 16th December 2002.
51. The grant was confirmed on the basis of material non-disclosure. The full list of the deceased’s beneficiaries was not disclosed. The second house was not properly involved. The entire estate was transmitted to one house to the exclusion of the other. The proceedings were therefore defective in substance, and the confirmed grant cannot stand.
52. The summons dated 15th October 2021, therefore, succeeds.
Orders
53. Accordingly, I make the following orders:
a. The summons for revocation and/or annulment of grant dated 15th October 2021 is hereby allowed.
b. The grant of letters of administration intestate issued to Ebisiba Nyaboke Kibondori on 4th October 2001 and confirmed on 16th December 2002 in respect of the estate of Kibondori Motongwa is hereby revoked.
c. James Kibeni Kibondori and Sibia Moraa Ogero are hereby appointed as joint administrators of the estate of the deceased.
d. Any titles, subdivisions, transfers or registrations arising from the said confirmed grant in respect of LR No. West Kitutu/Bokingoina/55 are hereby declared null and void.
e. LR No. West Kitutu/Bokingoina/55 shall revert to the name of the deceased, Kibondori Motongwa, for purposes of fresh administration of the estate.
f. The Land Registrar, Kisii County, shall give effect to order (e) above and cancel all entries, subdivisions and resultant titles arising from the revoked grant, subject to compliance with all lawful land registration procedures.
g. The Kisii County Surveyor shall visit LR No. West Kitutu/Bokingoina/55 and establish the ground occupation of the two houses before and after the demise of the deceased, and shall file a report in Court within forty-five (45) days from the date hereof.
h. Fresh summons for confirmation of grant shall be filed and served upon all beneficiaries/survivors of the deceased within sixty (60) days from today.
i. This being a family succession dispute, each party shall bear their own costs.
j. The matter shall be mentioned before Hon. Justice Professor Sifuna for further directions on 30th July 2026.
54. Orders accordingly.
T. A. ODERA
JUDGE
26.5.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 26TH DAY OF MAY 2026 IN THE PRESENCE OF CA OSEKO. PARTIES ABSENT.
Introduction
1. Before the Court for determination is the protestor’s summons for revocation and/or annulment of grant dated 15th October 2021. The protestor, James Kibeni Kibondori, seeks revocation of the grant of letters of administration intestate issued to Ebisiba Nyaboke Kibondori on 4th October 2001 and confirmed on 16th December 2002 in respect of the estate of the late Kibondori Motongwa.
2. The protestor further seeks consequential orders cancelling the subdivisions and transfers said to have arisen from the original parcel of land known as LR No. West Kitutu/Bokingoina/55, including parcels referred to in the pleadings and exhibits as West Kitutu/Bokingoina/2071, 2817, 2626, 2627 and 2628, and restoration of the original title into the name of the deceased for fresh administration.
3. The original administratrix, Ebisiba Nyaboke Kibondori, is deceased. The summons is opposed by Sibiah Moraa Kibondori, who participated in these proceedings as the Interested Party/Respondent.
4. The Court heard oral evidence and received written submissions. I have considered the pleadings, affidavits, oral testimony, documentary exhibits and the rival submissions by counsel.
Background
5. The deceased, Kibondori Motongwa, died intestate on or about 3rd July 1978. It is common ground that he was the registered proprietor of LR No. West Kitutu/Bokingoina/55. It is also not seriously disputed that he had a polygamous family comprising two houses associated with Ebisiba Nyaboke Kibondori and Loise Kerubo Kibondori.
6. In 2001, Ebisiba Nyaboke Kibondori petitioned for letters of administration intestate. A grant was issued to her on 4th October 2001 and confirmed on 16th December 2002. Following confirmation, the original parcel was transmitted to her and later subdivided.
7. The protestor’s case is that the succession proceedings were undertaken secretly, without the involvement or consent of all the beneficiaries, and that the estate was eventually subdivided in a manner that disinherited him and members of his mother’s household. He also contends that persons who were strangers to the estate were introduced and benefited from the estate.
8. The Interested Party/Respondent denies those allegations. Her position is that the succession cause was properly filed, gazetted and confirmed; that the Applicant and his mother were disclosed in the succession papers; that no objection was filed before confirmation; that the land was transmitted long ago; and that the present application is a stale demand and an afterthought brought about twenty years after confirmation of the grant.
The Applicant’s Case and Submissions
9. The Applicant testified that the deceased was his father. He stated that he only became aware of the succession proceedings after the land had been dealt with. He relied on the deceased’s death certificate, the green card for LR No. West Kitutu/Bokingoina/55, the succession proceedings and the chief’s letter dated 16th August 2021.
10. The Applicant contended that the Respondent failed to disclose all beneficiaries of the deceased and failed to obtain the family’s consent before petitioning for the grant. He submitted that the proceedings were defective in substance within the meaning of section 76 of the Law of Succession Act.
11. He further submitted that the Respondent introduced one Stevenson Nyamagero Obare, whom he described as a stranger, into the estate. According to him, the grant was thereafter used to subdivide the deceased’s land and transfer portions of the estate to persons who were not entitled to inherit.
12. The Applicant’s position was that the grant was obtained through fraud, concealment of material facts and misrepresentation. He urged the Court to revoke the grant, cancel the subdivisions and restore the original parcel to the deceased’s name so that the estate may be administered afresh.
13. The Applicant further submitted that delay is not a bar to revocation of the grant because section 76 of the Law of Succession Act provides that a grant may be revoked “at any time.” He therefore urged the Court not to shut him out merely because the application was filed after confirmation and transmission.
The Interested Party/Respondent’s Case and Submissions
14. The Interested Party/Respondent opposed the summons. She submitted that the grant was not obtained secretly or fraudulently. She maintained that the Applicant and his mother were disclosed in the documents filed in the succession cause, including the chief’s letter and Form P&A 5.
15. She further submitted that the succession cause was gazetted and that any person who wished to object had the opportunity to do so. No objection was filed. The grant was confirmed on 16th December 2002, and the estate was transmitted thereafter.
16. The Interested Party/Respondent argued that the summons was filed nearly twenty years after confirmation of the grant. She submitted that the delay was inordinate and had not been satisfactorily explained. She further contended that the original administratrix had since died, making it prejudicial and unsafe to reopen the process on allegations which the administratrix could no longer answer.
17. It was also submitted that the Applicant’s mother, Loise Kerubo Kibondori, was alive and competent to pursue any claim she had. According to the Interested Party/Respondent, the Applicant had not demonstrated that he had authority or a special power of attorney to litigate on behalf of his mother or other alleged beneficiaries.
18. The Interested Party/Respondent further submitted that the Applicant had not proved that the subdivisions complained of interfered with the share occupied by his mother’s house. Her evidence was that the two houses had lived on the land with physical boundaries for many years, and that any subdivisions complained of arose from the share of the Respondent’s house.
19. She urged the Court to dismiss the summons with costs.
Issues for Determination
20. From the pleadings, evidence and submissions, the following issues arise for determination:
a. Whether the Applicant has established any ground for revocation of the grant under section 76 of the Law of Succession Act;
b. Whether the grant was obtained through fraud, concealment of material facts or defective proceedings;
c. Whether the alleged introduction of strangers and subsequent subdivisions justify cancellation of titles;
d. Whether delay is material to the exercise of the Court’s discretion; and
e. What orders should be issued.
The Law
21. Section 76 of the Law of Succession Act provides that a grant of representation may be revoked or annulled if the Court is satisfied that:
a. the proceedings to obtain the grant were defective in substance;
b. the grant was obtained fraudulently by making a false statement or by concealment from the Court of something material to the case;
c. the grant was obtained by means of an untrue allegation of fact essential in point of law to justify the grant;
d. the person to whom the grant was made has failed in the administration of the estate in the manner contemplated by the Act; or
e. the grant has become useless and inoperative through subsequent circumstances.
22. In Matheka and Another v Matheka [2005] 2 KLR 455, the Court stated that a grant may be revoked where the process of obtaining it was defective, where it was obtained fraudulently by false statements or concealment, or where it was obtained through untrue allegations of essential facts.
23. In In re Estate of G.K.K. (Deceased) [2017] eKLR, the Court emphasised that an applicant who alleges concealment must demonstrate that the alleged non-disclosure was material and that it affected the propriety of the grant.
24. Rule 26 of the Probate and Administration Rules requires consent, renunciation or citation where a petitioner seeks a grant while there exist other persons with equal or prior right to administration. The purpose of the rule is to ensure that the administration of estates is not undertaken behind the backs of persons who are equally entitled to participate.
25. The deceased died in 1978, before the commencement of the Law of Succession Act. Section 2(2) of the Act provides that the estates of persons who died before the commencement of the Act are, as to substantive distribution, governed by the written laws and customs applicable at the date of death, but the administration of such estates is to proceed, so far as possible, in accordance with the Act.
Analysis
Whether there was concealment of beneficiaries
26. The Applicant’s case is that the deceased was polygamous and that his estate ought to have been administered with full recognition of the two houses. That fact is not disputed by the Interested Party/Respondent.
27. The record indicates that the succession cause was filed on the basis of the chief’s letter dated 30th July 2001, which showed that the deceased was survived by the following persons:
a. Ebisiba Nyaboke Kibondori – 1st wife, deceased;
b. Loice Kerubo Kibondori – 2nd wife;
c. Beatrice Nyaboile Omwoyo;
d. Sibia Moraa Ogero – daughter;
e. Zaphania Mariita Kibindori – son; and
f. James Kibindori – son.
28. However, the evidence of DW5 and the chief’s letter dated 16th August 2021 indicate that the deceased had two houses and children as follows:
a. Ebisiba Nyaboke Kibondori – 1st wife, deceased;
b. Loice Kerubo Kibindori – 2nd wife;
c. Ruth Nyamoita Kibindori – daughter;
d. Joash Omwoyo Kibindori – son, deceased, represented by his wife Beatrice Nyaboile Omwoyo;
e. Sibia Moraa Ogero – daughter;
f. Zaphania Mariita Kibindori – son;
g. James Kibindori – son;
h. Sarait Nyamoita Ondicho – daughter; and
i. Alice Mongina Kibindori – daughter, deceased.
29. It is clear from the foregoing that the initial chief’s letter did not disclose all the family members of the deceased. Section 51(1) and 51(2)(g) of the Law of Succession Act provides that every application for a grant of representation shall be made in the prescribed form, and that an application shall include, in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any deceased child of the deceased.
30. That omission was material and went to the root of the succession proceedings because the Court was not presented with a full and accurate picture of the deceased’s survivors before the grant was issued and confirmed.
31. More significantly, the confirmed grant dated 16th December 2002 indicates that Ebisiba Nyaboke Kibondori was made the sole absolute beneficiary of LR No. West Kitutu/Bokingoina/55, to the exclusion of the other beneficiaries. That was a serious irregularity in view of the undisputed fact that the deceased had a polygamous family comprising two houses.
32. The evidence further shows that the deceased had settled his two houses on specific portions of LR No. West Kitutu/Bokingoina/55. Whether distribution was ultimately to be governed by the applicable customary law under section 2(2) of the Law of Succession Act or by principles of fairness and equity in administration, the estate could not lawfully be transmitted wholly to one house to the exclusion of the other.
33. The confirmation of the grant in favour of Ebisiba Nyaboke Kibondori as the sole beneficiary, therefore, had the effect of excluding the second house from inheritance. It has also emerged that she later subdivided the land, resulting in parcels including West Kitutu/Bokingoina/2626, 2627 and 2628.
34. DW1 testified that parcels 2627 and 2628 were transferred to her children, while Ebisiba remained with parcel 2626, which was said to be available for the second house. However, the difficulty with that position is that the second house was not involved in the confirmation process, and the confirmed grant did not recognise its entitlement. The distribution was therefore founded on a grant whose confirmation had been procured without full disclosure and without the participation of all persons beneficially entitled.
35. I therefore find that the confirmed grant was obtained through concealment of material facts, particularly the full composition of the deceased’s family and the entitlement to the second house. The concealment was material and affected the integrity of the grant and the confirmation proceedings.
Whether the want of consent invalidated the grant
36. There is merit in the protestor’s submission that, in a family comprising two houses, the succession process ought to have been inclusive. The administratrix was under a duty to disclose all beneficiaries and to obtain the necessary consents from adult beneficiaries, or to cause citation to issue to those who did not consent. No consent of the other family members was filed. Consent is a mandatory requirement under Rule 26 of the Probate and Administration Rules. The purpose of consent in succession proceedings is not merely procedural. It protects beneficiaries’ rights to be heard and to participate in the administration of the estate. Where a grant is obtained and confirmed without involving persons equally entitled to participate, the Court is entitled to intervene under section 76 of the Law of Succession Act.
37. The absence of consent, taken together with the non-disclosure of some beneficiaries and the eventual transmission of the entire estate to one house, rendered the proceedings defective in substance.
Whether the delay defeats the summons
38. The Interested Party/Respondent urged the Court to dismiss the summons on the basis that it was filed nearly twenty years after confirmation of the grant. It is true that there has been a substantial lapse of time between confirmation of the grant and the filing of the present summons.
39. However, section 76 of the Law of Succession Act expressly provides that a grant may be revoked or annulled “at any time” if any of the statutory grounds are established. While delay may be relevant in assessing prejudice, credibility and the propriety of consequential orders, it does not bar the Court from revoking a grant where fraud, concealment of material facts or defective proceedings have been proved.
40. In the present case, the defect goes to the foundation of the grant. The Court is dealing with a confirmed grant through which one house of a polygamous family was effectively excluded from inheritance. Time cannot be used to validate a grant obtained and confirmed through the concealment of material facts.
Whether the Applicant proved disinheritance
41. The protestor’s case is anchored on disinheritance. He is the deceased’s son. The deceased was polygamous. The evidence shows that the administratrix caused the estate to be transmitted to herself as the sole beneficiary and later subdivided and transferred portions of the land to her grandchildren.
42. In my view, this is a clear case of disinheritance. The second house was not given a lawful opportunity to participate in the confirmation of the grant. The confirmed grant did not recognise the entitlement to that house. The subsequent dealings with the land were therefore founded on a defective and impeachable grant.
43. The protestor has established a legitimate beneficial interest in the estate. He has also established that the deceased’s family comprised two houses and that the administration of the estate was not conducted in a manner that recognised both houses.
44. I therefore find that the protestor has proved grounds for revocation of the grant under section 76 of the Law of Succession Act.
Whether the resultant titles should be cancelled
45. The protestor seeks cancellation of titles arising from the confirmed grant and restoration of the original title to the name of the deceased. Once a grant is revoked on the ground that it was obtained through concealment of material facts and defective proceedings, the Court has jurisdiction to make consequential orders necessary to preserve the estate and return it to the proper succession process.
46. The subdivisions and transfers complained of were founded on the impugned confirmed grant. Since the grant cannot stand, the resultant dealings cannot be allowed to defeat the rights of beneficiaries who were excluded from the process.
47. The appropriate order is therefore to revoke the grant, nullify the resultant titles arising from the confirmed grant, restore the original parcel to the name of the deceased, and require fresh confirmation proceedings in which all beneficiaries are disclosed and served.
48. Given that there is evidence that the deceased had settled his two houses on specific portions of the land, it is also necessary to obtain a ground status report before fresh confirmation. Such a report will assist the Court in determining the historical occupation of the two houses and in fashioning a fair mode of distribution.
49. On the issue of administration, it is not disputed that the administratrix is deceased. It is therefore necessary to appoint new administrators to implement the orders herein. I proceed to appoint James Kibeni Kibondori and Sibia Moraa Ogero as joint administrators of the estate of the deceased.
Determination
50. I am satisfied that the Applicant has established grounds for revocation of the grant issued to Ebisiba Nyaboke Kibondori on 4th October 2001 and confirmed on 16th December 2002.
51. The grant was confirmed on the basis of material non-disclosure. The full list of the deceased’s beneficiaries was not disclosed. The second house was not properly involved. The entire estate was transmitted to one house to the exclusion of the other. The proceedings were therefore defective in substance, and the confirmed grant cannot stand.
52. The summons dated 15th October 2021, therefore, succeeds.
Orders
53. Accordingly, I make the following orders:
a. The summons for revocation and/or annulment of grant dated 15th October 2021 is hereby allowed.
b. The grant of letters of administration intestate issued to Ebisiba Nyaboke Kibondori on 4th October 2001 and confirmed on 16th December 2002 in respect of the estate of Kibondori Motongwa is hereby revoked.
c. James Kibeni Kibondori and Sibia Moraa Ogero are hereby appointed as joint administrators of the estate of the deceased.
d. Any titles, subdivisions, transfers or registrations arising from the said confirmed grant in respect of LR No. West Kitutu/Bokingoina/55 are hereby declared null and void.
e. LR No. West Kitutu/Bokingoina/55 shall revert to the name of the deceased, Kibondori Motongwa, for purposes of fresh administration of the estate.
f. The Land Registrar, Kisii County, shall give effect to order (e) above and cancel all entries, subdivisions and resultant titles arising from the revoked grant, subject to compliance with all lawful land registration procedures.
g. The Kisii County Surveyor shall visit LR No. West Kitutu/Bokingoina/55 and establish the ground occupation of the two houses before and after the demise of the deceased, and shall file a report in Court within forty-five (45) days from the date hereof.
h. Fresh summons for confirmation of grant shall be filed and served upon all beneficiaries/survivors of the deceased within sixty (60) days from today.
i. This being a family succession dispute, each party shall bear their own costs.
j. The matter shall be mentioned before Hon. Justice Professor Sifuna for further directions on 30th July 2026.
54. Orders accordingly.
T. A. ODERA
JUDGE
26.5.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 26TH DAY OF MAY 2026 IN THE PRESENCE OF CA OSEKO. PARTIES ABSENT.