1. This matter, as shown in the entire record has a long history having in the first
instance commenced in the year 1999 with the filing of succession cause no. 309
of 1999, five years or so after the death of the late Paulo Kimetto Mursoi
[deceased] on the 8
th March 1994 at the age of seventy-nine [79] years. He was
survived by his widow Sicilia Jerop Mursoi together with her sons and
daughters-in-law including John Kipkosgei Metto, Elizabeth Jebet Barngetuny,
Salina Chepketer Sambu, Christopher Kiplimo, David Kipchirchir Kosgei
and Paul Kuko Korir, all of whom petitioned for grant of letters of administration
respecting the estate of the deceased comprising of three parcels of land Viz
Nandi/Ndalat/274, Nandi/Ndalat/276 and Nandi/Ndalat/283.
2. An alleged son of the deceased, Kipkorir Barnaba Metto, filed a separate
Succession Cause No. 227 Of 2000 also seeking grant of letters of
administration for which the former Petitioner’s filed an objection dated 12
th March
2001, for reasons that the deceased had executed a written will dated 12
th
November 1988 on how his estate was to be shared amongst the beneficiaries.
In response, the later Petitioner [Barnaba] vide the summons dated 30
th June
2005 applied for determination of the validity or otherwise of the will
aforementioned, but it would appear that the application was ignored.
3. However, on the 25
th May 2009, the parties entered a consent withdrawing both
petitions for grant of letters of administration in Succession Cause No. 309 of
1999 and Succession Cause No. 227 of 2000. But, there was another
Succession Cause No. 210 of 2007 for letter of administration with will annexed
filed by the Petitioners widow Sicilia Jerop Mursoi vide the application dated
26
th June 2007.
Apparently, on the basis of the Gazette Notice No. 9122 issued on 28
th August
2009, the court issued the Grant of Probate of written Will on 15
th December 2009
notwithstanding that the gazette notice was specific in that the petition was for
grant of letters of administration intestate.
4. Be that as it may, an objection to the making of a grant dated 14
th June 2010 was
purportedly made by Barnaba Kipkorir [Objector] and it was allowed by
counsent of the parties on 26
th July 2010, even though no grant of letters of
administration intestate had been issued.
Seemingly, as a way of correcting the apparent error the Objector [Barnaba] vide
the summons for revocation of grant dated 15
th April 2011 applied for revocation
of the Grant of Probate issued on 15
th December 2009. Later, on the 6
th March
2012, the Objector ironically filed an answer to petition for grant and cross-
petition for grant of letters of administration intestate vide gazette notice No. 9122
aforementioned.
5. The court did on the 28
th November 2011 give directions on the hearing of the
objection dated 15
th December 2009 to the effect that it shall be heard by oral or
viva-voce evidence. Further similar direction were given on 18
th March 2013 after
the attempt by the parties to settle the matter failed. The hearing of the objection
commenced on 5
th March 2015 and continued on several occasions before
several judges at the High Court in Eldoret before it was transferred to this court.
6. At the time of the transfer, the Objector Barnaba Kipkorir Metto and a witness
David Kirwa Arap Singoei had testified as PW1 and PW2 respectively. The last
witness for the Objector/ Plaintiff was a court assistant, Kariuki Nyamu [PW3].
He testified before this court and so did the Petitioner/ Defendants witnesses i.e.
Mary Jepkemei Sang [DW1], Lydia Chepchirchir Mursoi [DW2], Salina
Sambu [DW3], Eusilah Jepchumba[DW4, Paul Murei Tei [DW5], John
Kipkosgei Metto [DW6], Christopher Kiplimo [DW7] and Philemon Willis
Songok [DW8].
7. In between the hearing, the Objector/ Plaintiff Barnaba Kipkorir Metto sadly
passed away on the 1
st September 2018, and was substituted in this matter with
Christopher Kemei. The Petitioner/Defendant widow of the deceased, passed
on earlier on the 3
rd May 2017 and was substituted in the matter with
Christopher Kiplimo and David Kipchirchir Kosgei.
At the conclusion of the trial both side filed their respective final submissions
through Messrs. Isiaho Sawe and Company Advocates for the Objector/
Plaintiffs and Messrs. Joseph C.K. Cheptarus & Company Advocates for the
Petitioners/Defendants together with Messrs. Rotich Langat and Partners
Advocates.
8. After due consideration of the court’s record, the evidence by both sides and the
rival submissions it became apparent to this court that what was litigated or the
subject of the litigation was the validity of the Will allegedly executed by the
deceased on distribution of his estate.
The parties lost sight of the actual contentious issue subject of the litigation i.e.
revocation and/or annulment of the impugned grant of probate dated 15
th
December 2009 and dwelt on the issue of the Will and its validity or lack of it.
This was demonstrated more by the Petitioner/ Defendant in opposing the
summons for revocation of grant filed by the Objector/ Plaintiff pursuant to the
provisions of Section 76 of the Law of Succession Act.
9. In itself, the objection as well as the grant of probate were both a misconception
regard being given to the fact that although the issuance of the grant of probate
pre supposed or proceeded as if this succession cause was a testate succession,
the enabling Gazette Notice No. 9122 of 28
th August 2009, presupposed an
intestate succession in as much as it showed that the petition was actually for
grant of letters of administration intestate, meaning that this was an intestate,
succession.
10. It therefore followed that the issuance of the grant for probate and the
proceedings in relation thereto were erroneous and a nullity and so to were the
proceedings in relation to the summons for revocation of the grant of probate. It
is unfortunate that the parties took an inordinate period of time in chasing what
was not legally tenable. As it were, they were chasing the wind when engaging
on the matter with a view to recording a consent and when litigating on a non-
existent issue.
11. Clearly, the filing of the application for grant of probate and for the
revocation of the grant was a product of a flowed and defective process which
can only be rightened or undone by revocation of the impugned grant of probate
and dismissal of the impugned summons for revocation of grant so as to allow the
parties to restart a fresh process for obtaining grant of representation either as a
testate succession or an intestate succession.
12. Given the inordinate length of time that this matter has been in the court
corridors it would be prudent and less stressing if the parties would agree to re-
engage on the matter with a view to arriving at an amicable settlement. They
should in that regard consider a process under the Alternative Justice System
[AJS]. Otherwise, with the revocation of the subject grant of probate and
dismissal of the summons for revocation of grant all because of defective
proceedings this file be closed after the expiry of thirty [30] days from this date
hereof regard being given to the right of either party to appeal this ruling and/or
judgment.
13. In any event, Under Section 76 [a] of the Succession Act, 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 its own motion
that the proceedings to obtain the grant were defective in substance. Ultimately,
none of the parties could gain on account of a flowed process that has led them
to where they find themselves at this juncture.
In sum, the application vide the summons for revocation of grant dated 15
th April
2011 is hereby dismissed and the grant of probate issued on 15
th December 2009
is hereby revoked.
Dated and Delivered this 2
nd day of April, 2026
instance commenced in the year 1999 with the filing of succession cause no. 309
of 1999, five years or so after the death of the late Paulo Kimetto Mursoi
[deceased] on the 8
th March 1994 at the age of seventy-nine [79] years. He was
survived by his widow Sicilia Jerop Mursoi together with her sons and
daughters-in-law including John Kipkosgei Metto, Elizabeth Jebet Barngetuny,
Salina Chepketer Sambu, Christopher Kiplimo, David Kipchirchir Kosgei
and Paul Kuko Korir, all of whom petitioned for grant of letters of administration
respecting the estate of the deceased comprising of three parcels of land Viz
Nandi/Ndalat/274, Nandi/Ndalat/276 and Nandi/Ndalat/283.
2. An alleged son of the deceased, Kipkorir Barnaba Metto, filed a separate
Succession Cause No. 227 Of 2000 also seeking grant of letters of
administration for which the former Petitioner’s filed an objection dated 12
th March
2001, for reasons that the deceased had executed a written will dated 12
th
November 1988 on how his estate was to be shared amongst the beneficiaries.
In response, the later Petitioner [Barnaba] vide the summons dated 30
th June
2005 applied for determination of the validity or otherwise of the will
aforementioned, but it would appear that the application was ignored.
3. However, on the 25
th May 2009, the parties entered a consent withdrawing both
petitions for grant of letters of administration in Succession Cause No. 309 of
1999 and Succession Cause No. 227 of 2000. But, there was another
Succession Cause No. 210 of 2007 for letter of administration with will annexed
filed by the Petitioners widow Sicilia Jerop Mursoi vide the application dated
26
th June 2007.
Apparently, on the basis of the Gazette Notice No. 9122 issued on 28
th August
2009, the court issued the Grant of Probate of written Will on 15
th December 2009
notwithstanding that the gazette notice was specific in that the petition was for
grant of letters of administration intestate.
4. Be that as it may, an objection to the making of a grant dated 14
th June 2010 was
purportedly made by Barnaba Kipkorir [Objector] and it was allowed by
counsent of the parties on 26
th July 2010, even though no grant of letters of
administration intestate had been issued.
Seemingly, as a way of correcting the apparent error the Objector [Barnaba] vide
the summons for revocation of grant dated 15
th April 2011 applied for revocation
of the Grant of Probate issued on 15
th December 2009. Later, on the 6
th March
2012, the Objector ironically filed an answer to petition for grant and cross-
petition for grant of letters of administration intestate vide gazette notice No. 9122
aforementioned.
5. The court did on the 28
th November 2011 give directions on the hearing of the
objection dated 15
th December 2009 to the effect that it shall be heard by oral or
viva-voce evidence. Further similar direction were given on 18
th March 2013 after
the attempt by the parties to settle the matter failed. The hearing of the objection
commenced on 5
th March 2015 and continued on several occasions before
several judges at the High Court in Eldoret before it was transferred to this court.
6. At the time of the transfer, the Objector Barnaba Kipkorir Metto and a witness
David Kirwa Arap Singoei had testified as PW1 and PW2 respectively. The last
witness for the Objector/ Plaintiff was a court assistant, Kariuki Nyamu [PW3].
He testified before this court and so did the Petitioner/ Defendants witnesses i.e.
Mary Jepkemei Sang [DW1], Lydia Chepchirchir Mursoi [DW2], Salina
Sambu [DW3], Eusilah Jepchumba[DW4, Paul Murei Tei [DW5], John
Kipkosgei Metto [DW6], Christopher Kiplimo [DW7] and Philemon Willis
Songok [DW8].
7. In between the hearing, the Objector/ Plaintiff Barnaba Kipkorir Metto sadly
passed away on the 1
st September 2018, and was substituted in this matter with
Christopher Kemei. The Petitioner/Defendant widow of the deceased, passed
on earlier on the 3
rd May 2017 and was substituted in the matter with
Christopher Kiplimo and David Kipchirchir Kosgei.
At the conclusion of the trial both side filed their respective final submissions
through Messrs. Isiaho Sawe and Company Advocates for the Objector/
Plaintiffs and Messrs. Joseph C.K. Cheptarus & Company Advocates for the
Petitioners/Defendants together with Messrs. Rotich Langat and Partners
Advocates.
8. After due consideration of the court’s record, the evidence by both sides and the
rival submissions it became apparent to this court that what was litigated or the
subject of the litigation was the validity of the Will allegedly executed by the
deceased on distribution of his estate.
The parties lost sight of the actual contentious issue subject of the litigation i.e.
revocation and/or annulment of the impugned grant of probate dated 15
th
December 2009 and dwelt on the issue of the Will and its validity or lack of it.
This was demonstrated more by the Petitioner/ Defendant in opposing the
summons for revocation of grant filed by the Objector/ Plaintiff pursuant to the
provisions of Section 76 of the Law of Succession Act.
9. In itself, the objection as well as the grant of probate were both a misconception
regard being given to the fact that although the issuance of the grant of probate
pre supposed or proceeded as if this succession cause was a testate succession,
the enabling Gazette Notice No. 9122 of 28
th August 2009, presupposed an
intestate succession in as much as it showed that the petition was actually for
grant of letters of administration intestate, meaning that this was an intestate,
succession.
10. It therefore followed that the issuance of the grant for probate and the
proceedings in relation thereto were erroneous and a nullity and so to were the
proceedings in relation to the summons for revocation of the grant of probate. It
is unfortunate that the parties took an inordinate period of time in chasing what
was not legally tenable. As it were, they were chasing the wind when engaging
on the matter with a view to recording a consent and when litigating on a non-
existent issue.
11. Clearly, the filing of the application for grant of probate and for the
revocation of the grant was a product of a flowed and defective process which
can only be rightened or undone by revocation of the impugned grant of probate
and dismissal of the impugned summons for revocation of grant so as to allow the
parties to restart a fresh process for obtaining grant of representation either as a
testate succession or an intestate succession.
12. Given the inordinate length of time that this matter has been in the court
corridors it would be prudent and less stressing if the parties would agree to re-
engage on the matter with a view to arriving at an amicable settlement. They
should in that regard consider a process under the Alternative Justice System
[AJS]. Otherwise, with the revocation of the subject grant of probate and
dismissal of the summons for revocation of grant all because of defective
proceedings this file be closed after the expiry of thirty [30] days from this date
hereof regard being given to the right of either party to appeal this ruling and/or
judgment.
13. In any event, Under Section 76 [a] of the Succession Act, 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 its own motion
that the proceedings to obtain the grant were defective in substance. Ultimately,
none of the parties could gain on account of a flowed process that has led them
to where they find themselves at this juncture.
In sum, the application vide the summons for revocation of grant dated 15
th April
2011 is hereby dismissed and the grant of probate issued on 15
th December 2009
is hereby revoked.
Dated and Delivered this 2
nd day of April, 2026