REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
SUCCESSION CAUSE NO. 133 OF 2000
IN THE MATTER OF THE ESTATE OF NANDWOLI MASUNGO (DECEASED)
ERNEST MUNIALO NANDWOLI………………….………..PETITIONER
VERSUS
MOSES MBASHIRA NANDWOLI……………………………..APPLICANT
CHRISOSTIM BARASA NANDWOLI & OTHERS……….RESPONDENT
RULING
A. APPLICATION
1. Pursuant to Section 76 of the Law of Succession Act, Rule 44 and 73 of the Probate and Administration Rules, the Applicant/Objector herein filed Summons for Revocation and/or Annulment of Grant dated 18th July 2023, seeking orders for Revocation of Grant of Letters of Administration Intestate issued to the Petitioner herein (now deceased) and that the entries made on 3rd May 2019, with regards to L.R. No. N. Wanga/Matungu/704 be cancelled and deleted and the said parcel revert to the estate of the deceased herein.
2. The application is supported by the grounds on the face of it and by the Supporting Affidavit of the Applicant herein sworn on 18th July 2023, wherein he depones that he is a beneficiary to the estate of the deceased herein as he is one of the sons of the deceased; that the deceased estate is composed of land parcel LR. NO. N. Wanga/Matungu/704; that as a beneficiary he was allocated one (1) acre from land parcel LR. NO. N. Wanga/Matungu/704 which he no longer resides on as the same was taken away from him and he was not included in the land title that was obtained thereafter; that the persons appearing on the green card and the title deed are only the children of the deceased and he was intentionally left out during the transmission process; that he is aggrieved by the manner in which the Petitioner moved to swiftly implement the certificate of Confirmation of Grant and register themselves as the owners of the land awaiting the issuance of title deeds and that the Petitioner’s actions are fraudulent, criminal and amount to gross abuse of due process.
3. The Administrator/Respondent herein, Chrisostim Barasa Wandwoli, swore his Replying Affidavit on 26th March 2024 in opposition to the summons for revocation of grant, wherein he depones that the application is misconceived and is an abuse of the Court’s due process.
4. The administrator, one of the sons of the deceased, deposed that the deceased, Nandwoli Masungo had been the registered proprietor of all that parcel of land known as LR. NO. Wanga/Matungu/704 and that he had settled 5 of his sons namely: Ernest Munialo, Bonface Nyongesa; Bonventure Waswa and Charles Wafula; that the deceased allocated land parcel LR. NO. N. Wanga/Matungu/704 to namely: David Wafula, Chrisostim Barasa Wandwoli, Pelldo Wekesa, Godfrey Guchu and Felix Wanyama; that every person allocated a share from land parcel LR. NO. N. Wanga/Matungu/704 got equal acreage save for his share which was allocated as follows: Chrisostim Barasa-1 acre and Evans Walekhwa Wafula-1 ½ acre;.
5. That the Applicant/Objector herein is neither a beneficiary nor liability to the estate of the deceased; that the Applicant/Objector never raised any issue or claim during the lifetime of the deceased nor did he state any claim as per the luhya customs and that the Summons for Revocation dated 18th July 2023, lacks merit and should be dismissed with costs.
6. In response to the Replying Affidavit sworn Affidavit on 26th March 2024, the Applicant/Objector herein swore a further affidavit on 18th June 2024, wherein he depones that the deceased herein was survived by 3 wives and 11 children, and he duly subdivided his land to them; that the Administrator/Respondent was given land which the deceased had purchased from a neighbour measuring 1 ½ acres. That upon the demise of the deceased, the objector was raised by his brother Boniface Nyongesa. The objector further deposed that the Administrator/Respondent herein and the other beneficiaries grabbed the portion of land that the deceased had allocated him and that they shared it out among themselves as follows:
a. Chrisostm Barasa- ¾ of an acre.
b. Benedict Wekesa-¼of an acre.
7. The objector deposed that the deceased had constructed a house for his mother on the land that the administrator and the other beneficiaries had grabbed, for her to hold in trust for him. He further deposed that the Administrator/Respondent commenced the petitioning process without the consent and/or involvement of other beneficiaries.
8. Vide Court directions issued on 19th August 2024, the Objector’s Summons for Revocation dated 18th July 2023, proceed by way of viva voce evidence.
B. OBJECTOR/APPLICANT’S CASE
OB.PW1-Moses Mbashira Nandwoli
9. He testified that he is a child of the deceased herein who had 3 wives and that he hails from the last house. He told the Court that the 1st house had 7 (seven) sons and 3 (three) daughters, the 2nd house had 3 (three) sons and 3 (three) daughters and the 3rd house had 1 (one) son. It was his evidence that he has been marginalized because of his lonely status in the 3rd house and that the deceased had distributed his land to his 11 sons. He told the Court that his mother died and he was left an orphan and he had no one to assist him fight for his portion of land and lacked to funds to procure the services of an advocate.
10. On cross-examination, he told the Court the deceased divided his land, but he is not sure in which year he did so and that when the deceased died he was only 6 (six) years old. He told the Court that the deceased had constructed a house for his late mother, but he is not sure where exactly the same was built. He told the Court that the late Esther Namulanda was the 1st wife and she was buried on land parcel LR. NO. N. Wanga/Matungu/704, but he was not sure about the date of her death. Also, he told the Court that the 2nd wife, the late Aleso Namenge, died in a year that he could not recall and she was also buried on land parcel LR. NO. N. Wanga/Matungu/704. As for the late Magdalina Nawonywe alias Natalia, she died in the year 2014 and she was buried at Sioya at the parcel of her 1st husband on Makuto. He told the Court that Makuto and the Nandwoli were siblings and his late mother had two children with Makuto namely: Patrick Were and Carolyne Nekesa; both are deceased. He told the Court that Were was buried at Sioya and Nekesa was buried were she was married. It was his evidence that, Makuto died prior to his birth and it was after that Nandwoli inherited his late mother, and that his mother was living at Makuto when his father died. He did not confirm whether the beneficiaries resided in land parcel LR. NO. N. Wanga/Matungu/704 as indicated in the green card and insisted that his mother had a house at land parcel LR. NO. N. Wanga/Matungu/704. He told the Court that the deceased died when he was 6-7 years old and that one Bonface used to assist to pay his school fee as he was living with him. He told the Court that the Grant left out some of the beneficiaries and he is aware that a fresh Grant was issued to the Administrator/Respondent herein and he does not object the same. He told the Court that there was no entry dated 3rd May 2019 as alleged in his affidavit and that he only served the Administrator/Respondent and one Benedict as they were the ones who grabbed his land. He told the Court that he attended the lufu ceremony, but could not recall the name of the clan chairman and that it was a lie that he was never mentioned as a son of the deceased herein.
11. On re-examination, he reiterated that he was present during the lufu ceremony and was given cows, but his siblings took the same. He told the Court that his surname is Nandwoli and when he was born his late mother and the deceased resided together and the deceased even built her a house. He insisted that the deceased distributed his land before he died to him and his late mother.
OB.PW2-David Wafula Nandwali
12. Adopted his recorded statement filed on 10th September 2024 as his evidence in chief. He testified that the Administrator/Respondent herein is his brother and that his late father had 3 wives. He told the Court that the Applicant/Objector herein is the only son of his late step-mother, Natalia Nandwoli, who was his late father’s 3rd wife and that the deceased married the 3rd wife while he was mature enough. He told the Court that the deceased built a house for his late 3rd wife and that every person in their area is aware about that and that the Administrator/Respondent and Benedict Wekesa Nandwoli grabbed the Applicant/Objector’s share of land giving rise to the dispute before the Court. He told the Court that the are chief visited the land and authenticated the demarcations and the Deputy County Commissioner also proved the same.
13. On cross-examination, he told the Court that the deceased herein divided his land in the year 1972 and later died in the year 1975. According to him, all this occurred when he was in std. 6 and he was already circumcised. He told the Court that the Administrator/Respondent herein was very young when it all occurred.
OB.PW3-Kennedy Muse Sawa
14. Adopted his recorded statement as his evidence in chief. He told the Court that the deceased herein is his cousin and the Applicant/Objector herein is a son to the deceased herein and his mother was the late Natalia Nandwoli. According to him, prior to his demise the deceased had allocated all his sons their respective shares including the Applicant/Objector who was allocated a share in land parcel land parcel LR. NO. N. Wanga/Matungu/704. He insisted that he knew the Applicant/Objector as an heir to the deceased herein and his allocated portion is still intact.
15. On cross-examination, he told the Court that he was present when the deceased distributed his land, but could not recall the year. He told the Court that the Administrator/Respondent was given 2 acres and David Wafula was also given 2 acres.
OB.PW4-Christopher Sifuna Munyereti
16. Adopted his recorded statement as his evidence in chief. He told the Court that the Applicant/Objector herein is his cousin and his mother the late Natalia Nandwoli died when he was young and he was given 1 acre by his deceased father herein.
17. On cross-examination, he told the Court that she does not know where exactly the late Natalia Nandwoli was buried and did not know is she was married to Makuto. According to him, from the year 1974 he saw the late Natalia Nandwoli reside with the deceased herein and she was given land in the year 1964. He told the Court that he was 10 years old when all this occurred.
18. On cross-examination by the Court, he told the Court that the Applicant/Objector was not born in 1964 when the land was been given to the late Natalia Nandwoli and that he was older than the Applicant/Objector.
C. PETITIONER’S CASE
PET.PW1-Chrisostm Barasa Nandwoli
19. Adopted his Replying Affidavit sworn on 26th March 2024, and annexures thereto as his evidence in chief. The annexures were produced in Court as the Administrator/Respondent’s exhibits. It was his testimony that he is the Administrator to the estate of the deceased herein; that prior to the demise of the deceased he had settled 5 of his sons namely: Ernest Munialo, Bonface Nyongesa; Bonventure Waswa and Charles Wafula; that the deceased allocated land parcel LR. NO. N. Wanga/Matungu/704 to namely: David Wafula, Chrisostim Barasa Wandwoli, Pelldo Wekesa, Godfrey Guchu and Felix Wanyama; that every person allocated a share from land parcel LR. NO. N. Wanga/Matungu/704 got equal acreage save for his share which was allocated as follows: Chrisostim Barasa-1 acre and Evans Walekhwa Wafula-1 ½ acre; that the Applicant/Objector herein is neither a beneficiary nor liability to the estate of the deceased; that the Applicant/Objector never raised any issue or claim during the lifetime of the deceased nor did he state any claim as per the luhya customs and that the Summons for Revocation dated 18th July 2023, lacks merit and should be dismissed with costs.
20. On cross-examination, he told the Court that Natalia was not a wife of the deceased herein and the deceased herein never built any house for her. According to him, the deceased never listed the Applicant/Objector herein as his son. He told the Court that he does not recognise the Applicant/Objector herein and he does not have any share in land parcel LR. NO. N. Wanga/Matungu/704. He insisted that the area D.O even advised the Applicant/Objector to conduct a search on the same land and that the deceased sub-divided the land in the year 1974 and placed the names of 5 of his sons on their respective portions.
PET.PW2-Bonventure Waswa Nandwoli
21. Adopted his recorded statement dated 18th December 2024, as his evidence in chief. He told the Court that he is a son of the deceased herein and the Administrator/Respondent is the 2nd born to the deceased herein. According to him, the Applicant/Objector is a stranger to them and that the deceased had only two wives namely: Esther Khisa Nandwoli and Prsicah Nabwile Nandwoli. He insisted that the deceased was survived with 16 children namely: Joseph Wafula Nandwoli, Ernest Munialo Nandwoli, Bonface Nyongesa Nandwoli, Charles Wafula Nandwoli, David Wafula Nandwoli, Godfrey Guchu Nandwoli, Felix Wanyama Nandwoli, Bonventure Waswa Nandwoli, Chrisostim Barasa Nandwoli, Benedict Wamalwa Nandwoli alias Pelido Wekesa Nadwoli, Juliana Nakumicha Nandwoli, Gladys Machuma Nandwoli, Rosemary Nasimiyu Wasike, Margaret Nangila Wesamba, Teresa Nasiebanda Mang’eni and Betna Nafuna Manya.
22. He told the Court that prior to the demise of the deceased herein, the deceased had already settled 5 of his sons namely: Ernest Munialo, Bonface Nyongesa Bonventure Waswa and Charles Wafula. He also told the Court that the deceased allocated land parcel LR. NO. N. Wanga/Matungu/704 to his following sons: David Wafula, Chrisostim Barasa, Pelido Wekesa, Godfrey Guchu and Felix Wanyama on equal basis.
23. On cross-examination, he told the Court that he did not know the Applicant/Objector herein and insisted that the deceased herein had 16 children, 10 sons and 6 daughters. According to him, the deceased shared his land to his 10 sons when he was still alive and his deceased father had only 2 (two) wives. He told the Court that during the lufu ceremony which was conducted on 7th April 1975, Daniel Sawa was the chairman and he inquired about the heirs of the deceased herein and his brother noted that the deceased had 16 children and the Applicant/Objector was not present.
24. At the close of the Administrator/Respondent’s case, this Court directed the parties to file and exchange their written submissions. Both parties complied with the Court directive.
D. ANALYSIS AND DETERMINATION
25. I have considered the application together with the rival affidavits as well as submissions. The issue for determination is whether the application has merit.
26. Revocation of grants is found in Section 76 of the Law of Succession Act. The same provides as follows:
“Revocation or annulment of grant
“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by an interested party or of its own motion. -
f. That the proceedings to obtain the grant were defective in substance;
g. that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to that case;
h. That the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant not withstanding that the allegation was made in ignorance or inadvertently;
i. That the person to whom the grant was made has failed, after due notice and without reasonable cause either-
a. To apply for confirmation of grant within one year from the date thereof, or such longer period as the court order or allow; or
b. To proceed diligently with the administration of the estate; or
c. To produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraph (e) and (g) of Section 83 or has produced any such inventory or account which is false in any material particular; or
j. That the grant has become useless and inoperative through subsequent circumstances.
“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;”
27. It is noted that the Applicant/Objector’s grouse with the Administrator/Respondent is the petition of the Grant of Letters of Administration through making false statements and concealment from the Court of material facts. On perusal of the Applicant/Objector’s Supporting Affidavit it is clear that his contention arises from the mode of distribution and the implementation of the certificate of confirmation of Grant. On my strict perusal of the Court record from the initial petitioning process it is clear as day that the Applicant/Objector herein was involved in the process. Form P&A 5 clearly captured him as one of the surviving heirs to the estate of the deceased herein; the introductory letter from the chief dated 9th August 2000, captured him as one of the surviving heirs to the deceased herein. Further, P&A 38 clearly shows the affixed signature of the Applicant/Objector herein consenting to the succession proceedings as was commenced by the then Administrator, Ernest Munialo Nandwoli. Looking at the forms, it is my considered view that there is no anomaly going to the root of the succession and that the same is curable under Rule 73 of the Probate and Administration Rules which provide that nothing shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. It is noted that this matter involves one family and there is need to prevent a situation where issues are polarized as this will antagonize the parties and thereby delay the conclusion of the succession cause. It is in the interest of the parties to work together towards the distribution of the estate as this is the sole duty of the Court.
28. It is clear that the late Administrator, Ernest Munialo Nandwoli, had already filed Summons for Confirmation of Grant date 2nd November 2011, and an Affidavit in Support of the Summons dated 4th November 2011, prior to his demise. On my strict perusal of the Court records it is elaborate that the Administrator/Respondent herein by way of Chamber Summons sought to have himself and one Evans Joseph Welekhwa Wafula substituted as the Administrators to the estate of the deceased herein. On 18th October 2023, this Court under the stewardship of my colleague, D. K. Kemei J., issued fresh Grant Letters of Administration Intestate to the Administrator/Respondent herein and the parties were expected to proceed to Confirmation of Grant pursuant to Section 71 of the Law of Succession Act. I find the Applicant/Objector’s claim that the not convincing as it is clear from the petitioning processes commenced by the former Administrator, Ernest Munialo, that the Applicant/Objector’s interest has been catered for as well as other beneficiaries. Should the Applicant/Objector feel that the distribution is not agreeable to him, he is at liberty to file the requisite affidavit of protest together with his proposed schedule of distribution if need be. It is instructive that the former Administrator had already filed summons for confirmation of grant dated 2nd November 2011, which is pending directions. Once directions are given then the Applicant/Objector will have the opportunity to respond to the same. It would appear to me that the Applicant/Objector will not need to checkmate the Administrator/Respondent in these proceedings. I find that is not necessary because the interest of the parties is the distribution of the estate so that every beneficiary gets the entitlements under the estate The claim by the Administrator/Respondent that the Applicant/Objector is not the son of the deceased herein will surely fall because his name has been captured on the chief’s letter as a beneficiary and further the P&A form 5 and 38 respectively as one of the beneficiaries and he consented to the petitioning process. At this juncture it is important to note that the purported Objection dated 8th August 2001, by Bonface Nadwoli, wherein he was alleging the Applicant/Objector was a stranger to his brother’s estate was struck out by the Court on 22nd October 2004. This Court only revoked the Grant issued to Ernest Munialo, but never declared that the Applicant/Objector herein was not a son of the deceased herein.
29. Flowing from the foregoing observations, it is appropriate for the parties to proceed with the pending Summons for Confirmation of Grant so that the estate can be distributed. It is clear that the parties lacked the requisite authority to change ownership with regards to from land parcel LR. NO. N. Wanga/Matungu/704 as the grant herein had not been confirmed.
E. CONCLUSION
30. On the balance, the Applicant/Objector’s Summons for Revocation of Grant dated 18th July 2023, partially succeeds as regards the ambit of ownership of land parcel LR. NO. N. Wanga/Matungu/704. I thus make the following orders:
i) The registration of any other person other than the deceased as the proprietor of parcel No LR. NO. N. Wanga/Matungu/704 is hereby cancelled and the said parcel to forthwith revert to the name of Nandwoli Masungo, the deceased herein.
ii) ii) The Land Registrar Bungoma is ordered to effect the said reversion of parcel LR. NO. N. Wanga/Matungu/704 to the name of Nandwoli Masungo.
iii) The parties are directed to set down the Summons for Confirmation of Grant dated 2nd November 2011, for hearing as a matter of priority.
iv) Given that this is a family matter each party shall bear it’s own costs.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 19th day of February 2026.
M. S. Shariff
Judge
In the presence of :
Ms Wakasa Holding brief for Mr Murunga for the Administrator/Petitioner
Moses Mbashira Nandoli Applicant
Chrisostim Barasa
Peter Machoni - Court Assistant
IN THE HIGH COURT OF KENYA
AT BUNGOMA
SUCCESSION CAUSE NO. 133 OF 2000
IN THE MATTER OF THE ESTATE OF NANDWOLI MASUNGO (DECEASED)
ERNEST MUNIALO NANDWOLI………………….………..PETITIONER
VERSUS
MOSES MBASHIRA NANDWOLI……………………………..APPLICANT
CHRISOSTIM BARASA NANDWOLI & OTHERS……….RESPONDENT
RULING
A. APPLICATION
1. Pursuant to Section 76 of the Law of Succession Act, Rule 44 and 73 of the Probate and Administration Rules, the Applicant/Objector herein filed Summons for Revocation and/or Annulment of Grant dated 18th July 2023, seeking orders for Revocation of Grant of Letters of Administration Intestate issued to the Petitioner herein (now deceased) and that the entries made on 3rd May 2019, with regards to L.R. No. N. Wanga/Matungu/704 be cancelled and deleted and the said parcel revert to the estate of the deceased herein.
2. The application is supported by the grounds on the face of it and by the Supporting Affidavit of the Applicant herein sworn on 18th July 2023, wherein he depones that he is a beneficiary to the estate of the deceased herein as he is one of the sons of the deceased; that the deceased estate is composed of land parcel LR. NO. N. Wanga/Matungu/704; that as a beneficiary he was allocated one (1) acre from land parcel LR. NO. N. Wanga/Matungu/704 which he no longer resides on as the same was taken away from him and he was not included in the land title that was obtained thereafter; that the persons appearing on the green card and the title deed are only the children of the deceased and he was intentionally left out during the transmission process; that he is aggrieved by the manner in which the Petitioner moved to swiftly implement the certificate of Confirmation of Grant and register themselves as the owners of the land awaiting the issuance of title deeds and that the Petitioner’s actions are fraudulent, criminal and amount to gross abuse of due process.
3. The Administrator/Respondent herein, Chrisostim Barasa Wandwoli, swore his Replying Affidavit on 26th March 2024 in opposition to the summons for revocation of grant, wherein he depones that the application is misconceived and is an abuse of the Court’s due process.
4. The administrator, one of the sons of the deceased, deposed that the deceased, Nandwoli Masungo had been the registered proprietor of all that parcel of land known as LR. NO. Wanga/Matungu/704 and that he had settled 5 of his sons namely: Ernest Munialo, Bonface Nyongesa; Bonventure Waswa and Charles Wafula; that the deceased allocated land parcel LR. NO. N. Wanga/Matungu/704 to namely: David Wafula, Chrisostim Barasa Wandwoli, Pelldo Wekesa, Godfrey Guchu and Felix Wanyama; that every person allocated a share from land parcel LR. NO. N. Wanga/Matungu/704 got equal acreage save for his share which was allocated as follows: Chrisostim Barasa-1 acre and Evans Walekhwa Wafula-1 ½ acre;.
5. That the Applicant/Objector herein is neither a beneficiary nor liability to the estate of the deceased; that the Applicant/Objector never raised any issue or claim during the lifetime of the deceased nor did he state any claim as per the luhya customs and that the Summons for Revocation dated 18th July 2023, lacks merit and should be dismissed with costs.
6. In response to the Replying Affidavit sworn Affidavit on 26th March 2024, the Applicant/Objector herein swore a further affidavit on 18th June 2024, wherein he depones that the deceased herein was survived by 3 wives and 11 children, and he duly subdivided his land to them; that the Administrator/Respondent was given land which the deceased had purchased from a neighbour measuring 1 ½ acres. That upon the demise of the deceased, the objector was raised by his brother Boniface Nyongesa. The objector further deposed that the Administrator/Respondent herein and the other beneficiaries grabbed the portion of land that the deceased had allocated him and that they shared it out among themselves as follows:
a. Chrisostm Barasa- ¾ of an acre.
b. Benedict Wekesa-¼of an acre.
7. The objector deposed that the deceased had constructed a house for his mother on the land that the administrator and the other beneficiaries had grabbed, for her to hold in trust for him. He further deposed that the Administrator/Respondent commenced the petitioning process without the consent and/or involvement of other beneficiaries.
8. Vide Court directions issued on 19th August 2024, the Objector’s Summons for Revocation dated 18th July 2023, proceed by way of viva voce evidence.
B. OBJECTOR/APPLICANT’S CASE
OB.PW1-Moses Mbashira Nandwoli
9. He testified that he is a child of the deceased herein who had 3 wives and that he hails from the last house. He told the Court that the 1st house had 7 (seven) sons and 3 (three) daughters, the 2nd house had 3 (three) sons and 3 (three) daughters and the 3rd house had 1 (one) son. It was his evidence that he has been marginalized because of his lonely status in the 3rd house and that the deceased had distributed his land to his 11 sons. He told the Court that his mother died and he was left an orphan and he had no one to assist him fight for his portion of land and lacked to funds to procure the services of an advocate.
10. On cross-examination, he told the Court the deceased divided his land, but he is not sure in which year he did so and that when the deceased died he was only 6 (six) years old. He told the Court that the deceased had constructed a house for his late mother, but he is not sure where exactly the same was built. He told the Court that the late Esther Namulanda was the 1st wife and she was buried on land parcel LR. NO. N. Wanga/Matungu/704, but he was not sure about the date of her death. Also, he told the Court that the 2nd wife, the late Aleso Namenge, died in a year that he could not recall and she was also buried on land parcel LR. NO. N. Wanga/Matungu/704. As for the late Magdalina Nawonywe alias Natalia, she died in the year 2014 and she was buried at Sioya at the parcel of her 1st husband on Makuto. He told the Court that Makuto and the Nandwoli were siblings and his late mother had two children with Makuto namely: Patrick Were and Carolyne Nekesa; both are deceased. He told the Court that Were was buried at Sioya and Nekesa was buried were she was married. It was his evidence that, Makuto died prior to his birth and it was after that Nandwoli inherited his late mother, and that his mother was living at Makuto when his father died. He did not confirm whether the beneficiaries resided in land parcel LR. NO. N. Wanga/Matungu/704 as indicated in the green card and insisted that his mother had a house at land parcel LR. NO. N. Wanga/Matungu/704. He told the Court that the deceased died when he was 6-7 years old and that one Bonface used to assist to pay his school fee as he was living with him. He told the Court that the Grant left out some of the beneficiaries and he is aware that a fresh Grant was issued to the Administrator/Respondent herein and he does not object the same. He told the Court that there was no entry dated 3rd May 2019 as alleged in his affidavit and that he only served the Administrator/Respondent and one Benedict as they were the ones who grabbed his land. He told the Court that he attended the lufu ceremony, but could not recall the name of the clan chairman and that it was a lie that he was never mentioned as a son of the deceased herein.
11. On re-examination, he reiterated that he was present during the lufu ceremony and was given cows, but his siblings took the same. He told the Court that his surname is Nandwoli and when he was born his late mother and the deceased resided together and the deceased even built her a house. He insisted that the deceased distributed his land before he died to him and his late mother.
OB.PW2-David Wafula Nandwali
12. Adopted his recorded statement filed on 10th September 2024 as his evidence in chief. He testified that the Administrator/Respondent herein is his brother and that his late father had 3 wives. He told the Court that the Applicant/Objector herein is the only son of his late step-mother, Natalia Nandwoli, who was his late father’s 3rd wife and that the deceased married the 3rd wife while he was mature enough. He told the Court that the deceased built a house for his late 3rd wife and that every person in their area is aware about that and that the Administrator/Respondent and Benedict Wekesa Nandwoli grabbed the Applicant/Objector’s share of land giving rise to the dispute before the Court. He told the Court that the are chief visited the land and authenticated the demarcations and the Deputy County Commissioner also proved the same.
13. On cross-examination, he told the Court that the deceased herein divided his land in the year 1972 and later died in the year 1975. According to him, all this occurred when he was in std. 6 and he was already circumcised. He told the Court that the Administrator/Respondent herein was very young when it all occurred.
OB.PW3-Kennedy Muse Sawa
14. Adopted his recorded statement as his evidence in chief. He told the Court that the deceased herein is his cousin and the Applicant/Objector herein is a son to the deceased herein and his mother was the late Natalia Nandwoli. According to him, prior to his demise the deceased had allocated all his sons their respective shares including the Applicant/Objector who was allocated a share in land parcel land parcel LR. NO. N. Wanga/Matungu/704. He insisted that he knew the Applicant/Objector as an heir to the deceased herein and his allocated portion is still intact.
15. On cross-examination, he told the Court that he was present when the deceased distributed his land, but could not recall the year. He told the Court that the Administrator/Respondent was given 2 acres and David Wafula was also given 2 acres.
OB.PW4-Christopher Sifuna Munyereti
16. Adopted his recorded statement as his evidence in chief. He told the Court that the Applicant/Objector herein is his cousin and his mother the late Natalia Nandwoli died when he was young and he was given 1 acre by his deceased father herein.
17. On cross-examination, he told the Court that she does not know where exactly the late Natalia Nandwoli was buried and did not know is she was married to Makuto. According to him, from the year 1974 he saw the late Natalia Nandwoli reside with the deceased herein and she was given land in the year 1964. He told the Court that he was 10 years old when all this occurred.
18. On cross-examination by the Court, he told the Court that the Applicant/Objector was not born in 1964 when the land was been given to the late Natalia Nandwoli and that he was older than the Applicant/Objector.
C. PETITIONER’S CASE
PET.PW1-Chrisostm Barasa Nandwoli
19. Adopted his Replying Affidavit sworn on 26th March 2024, and annexures thereto as his evidence in chief. The annexures were produced in Court as the Administrator/Respondent’s exhibits. It was his testimony that he is the Administrator to the estate of the deceased herein; that prior to the demise of the deceased he had settled 5 of his sons namely: Ernest Munialo, Bonface Nyongesa; Bonventure Waswa and Charles Wafula; that the deceased allocated land parcel LR. NO. N. Wanga/Matungu/704 to namely: David Wafula, Chrisostim Barasa Wandwoli, Pelldo Wekesa, Godfrey Guchu and Felix Wanyama; that every person allocated a share from land parcel LR. NO. N. Wanga/Matungu/704 got equal acreage save for his share which was allocated as follows: Chrisostim Barasa-1 acre and Evans Walekhwa Wafula-1 ½ acre; that the Applicant/Objector herein is neither a beneficiary nor liability to the estate of the deceased; that the Applicant/Objector never raised any issue or claim during the lifetime of the deceased nor did he state any claim as per the luhya customs and that the Summons for Revocation dated 18th July 2023, lacks merit and should be dismissed with costs.
20. On cross-examination, he told the Court that Natalia was not a wife of the deceased herein and the deceased herein never built any house for her. According to him, the deceased never listed the Applicant/Objector herein as his son. He told the Court that he does not recognise the Applicant/Objector herein and he does not have any share in land parcel LR. NO. N. Wanga/Matungu/704. He insisted that the area D.O even advised the Applicant/Objector to conduct a search on the same land and that the deceased sub-divided the land in the year 1974 and placed the names of 5 of his sons on their respective portions.
PET.PW2-Bonventure Waswa Nandwoli
21. Adopted his recorded statement dated 18th December 2024, as his evidence in chief. He told the Court that he is a son of the deceased herein and the Administrator/Respondent is the 2nd born to the deceased herein. According to him, the Applicant/Objector is a stranger to them and that the deceased had only two wives namely: Esther Khisa Nandwoli and Prsicah Nabwile Nandwoli. He insisted that the deceased was survived with 16 children namely: Joseph Wafula Nandwoli, Ernest Munialo Nandwoli, Bonface Nyongesa Nandwoli, Charles Wafula Nandwoli, David Wafula Nandwoli, Godfrey Guchu Nandwoli, Felix Wanyama Nandwoli, Bonventure Waswa Nandwoli, Chrisostim Barasa Nandwoli, Benedict Wamalwa Nandwoli alias Pelido Wekesa Nadwoli, Juliana Nakumicha Nandwoli, Gladys Machuma Nandwoli, Rosemary Nasimiyu Wasike, Margaret Nangila Wesamba, Teresa Nasiebanda Mang’eni and Betna Nafuna Manya.
22. He told the Court that prior to the demise of the deceased herein, the deceased had already settled 5 of his sons namely: Ernest Munialo, Bonface Nyongesa Bonventure Waswa and Charles Wafula. He also told the Court that the deceased allocated land parcel LR. NO. N. Wanga/Matungu/704 to his following sons: David Wafula, Chrisostim Barasa, Pelido Wekesa, Godfrey Guchu and Felix Wanyama on equal basis.
23. On cross-examination, he told the Court that he did not know the Applicant/Objector herein and insisted that the deceased herein had 16 children, 10 sons and 6 daughters. According to him, the deceased shared his land to his 10 sons when he was still alive and his deceased father had only 2 (two) wives. He told the Court that during the lufu ceremony which was conducted on 7th April 1975, Daniel Sawa was the chairman and he inquired about the heirs of the deceased herein and his brother noted that the deceased had 16 children and the Applicant/Objector was not present.
24. At the close of the Administrator/Respondent’s case, this Court directed the parties to file and exchange their written submissions. Both parties complied with the Court directive.
D. ANALYSIS AND DETERMINATION
25. I have considered the application together with the rival affidavits as well as submissions. The issue for determination is whether the application has merit.
26. Revocation of grants is found in Section 76 of the Law of Succession Act. The same provides as follows:
“Revocation or annulment of grant
“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by an interested party or of its own motion. -
f. That the proceedings to obtain the grant were defective in substance;
g. that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to that case;
h. That the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant not withstanding that the allegation was made in ignorance or inadvertently;
i. That the person to whom the grant was made has failed, after due notice and without reasonable cause either-
a. To apply for confirmation of grant within one year from the date thereof, or such longer period as the court order or allow; or
b. To proceed diligently with the administration of the estate; or
c. To produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraph (e) and (g) of Section 83 or has produced any such inventory or account which is false in any material particular; or
j. That the grant has become useless and inoperative through subsequent circumstances.
“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;”
27. It is noted that the Applicant/Objector’s grouse with the Administrator/Respondent is the petition of the Grant of Letters of Administration through making false statements and concealment from the Court of material facts. On perusal of the Applicant/Objector’s Supporting Affidavit it is clear that his contention arises from the mode of distribution and the implementation of the certificate of confirmation of Grant. On my strict perusal of the Court record from the initial petitioning process it is clear as day that the Applicant/Objector herein was involved in the process. Form P&A 5 clearly captured him as one of the surviving heirs to the estate of the deceased herein; the introductory letter from the chief dated 9th August 2000, captured him as one of the surviving heirs to the deceased herein. Further, P&A 38 clearly shows the affixed signature of the Applicant/Objector herein consenting to the succession proceedings as was commenced by the then Administrator, Ernest Munialo Nandwoli. Looking at the forms, it is my considered view that there is no anomaly going to the root of the succession and that the same is curable under Rule 73 of the Probate and Administration Rules which provide that nothing shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. It is noted that this matter involves one family and there is need to prevent a situation where issues are polarized as this will antagonize the parties and thereby delay the conclusion of the succession cause. It is in the interest of the parties to work together towards the distribution of the estate as this is the sole duty of the Court.
28. It is clear that the late Administrator, Ernest Munialo Nandwoli, had already filed Summons for Confirmation of Grant date 2nd November 2011, and an Affidavit in Support of the Summons dated 4th November 2011, prior to his demise. On my strict perusal of the Court records it is elaborate that the Administrator/Respondent herein by way of Chamber Summons sought to have himself and one Evans Joseph Welekhwa Wafula substituted as the Administrators to the estate of the deceased herein. On 18th October 2023, this Court under the stewardship of my colleague, D. K. Kemei J., issued fresh Grant Letters of Administration Intestate to the Administrator/Respondent herein and the parties were expected to proceed to Confirmation of Grant pursuant to Section 71 of the Law of Succession Act. I find the Applicant/Objector’s claim that the not convincing as it is clear from the petitioning processes commenced by the former Administrator, Ernest Munialo, that the Applicant/Objector’s interest has been catered for as well as other beneficiaries. Should the Applicant/Objector feel that the distribution is not agreeable to him, he is at liberty to file the requisite affidavit of protest together with his proposed schedule of distribution if need be. It is instructive that the former Administrator had already filed summons for confirmation of grant dated 2nd November 2011, which is pending directions. Once directions are given then the Applicant/Objector will have the opportunity to respond to the same. It would appear to me that the Applicant/Objector will not need to checkmate the Administrator/Respondent in these proceedings. I find that is not necessary because the interest of the parties is the distribution of the estate so that every beneficiary gets the entitlements under the estate The claim by the Administrator/Respondent that the Applicant/Objector is not the son of the deceased herein will surely fall because his name has been captured on the chief’s letter as a beneficiary and further the P&A form 5 and 38 respectively as one of the beneficiaries and he consented to the petitioning process. At this juncture it is important to note that the purported Objection dated 8th August 2001, by Bonface Nadwoli, wherein he was alleging the Applicant/Objector was a stranger to his brother’s estate was struck out by the Court on 22nd October 2004. This Court only revoked the Grant issued to Ernest Munialo, but never declared that the Applicant/Objector herein was not a son of the deceased herein.
29. Flowing from the foregoing observations, it is appropriate for the parties to proceed with the pending Summons for Confirmation of Grant so that the estate can be distributed. It is clear that the parties lacked the requisite authority to change ownership with regards to from land parcel LR. NO. N. Wanga/Matungu/704 as the grant herein had not been confirmed.
E. CONCLUSION
30. On the balance, the Applicant/Objector’s Summons for Revocation of Grant dated 18th July 2023, partially succeeds as regards the ambit of ownership of land parcel LR. NO. N. Wanga/Matungu/704. I thus make the following orders:
i) The registration of any other person other than the deceased as the proprietor of parcel No LR. NO. N. Wanga/Matungu/704 is hereby cancelled and the said parcel to forthwith revert to the name of Nandwoli Masungo, the deceased herein.
ii) ii) The Land Registrar Bungoma is ordered to effect the said reversion of parcel LR. NO. N. Wanga/Matungu/704 to the name of Nandwoli Masungo.
iii) The parties are directed to set down the Summons for Confirmation of Grant dated 2nd November 2011, for hearing as a matter of priority.
iv) Given that this is a family matter each party shall bear it’s own costs.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 19th day of February 2026.
M. S. Shariff
Judge
In the presence of :
Ms Wakasa Holding brief for Mr Murunga for the Administrator/Petitioner
Moses Mbashira Nandoli Applicant
Chrisostim Barasa
Peter Machoni - Court Assistant