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Introduction
The Court is called upon to determine the Chamber Summons dated 05 th December 2023, brought under Rule 44 of the Probate and Administration Rules, Sections 47 and 76 of the Law of Succession Act, and all enabling provisions of the law. The Applicant, Peter Nyachoti Ariaga, seeks leave for counsel to come on record after judgment, revocation of the Grant and Confirmed Grant issued on 29 th March 1996, cancellation of resultant subdivisions, and commencement of proper administration of the estate of the late Gori Siango.
The application is supported by the Applicant’s affidavit sworn on 05 th December 2023.
At the hearing, counsel for the Respondent indicated that the Respondent would rely solely on her Replying Affidavit and urged the Court to treat that affidavit as the response to this application. The Court therefore confines itself strictly to the application dated 05 th December 2023 and the response contained in the said affidavit.
I have considered the Chamber Summons dated 05 th December 2023 in light of the response by the Respondent, the Grant and Confirmed Grant issued on 29 th March 1996 and the pleadings on record. The issues arising for determination are:
Whether leave should be granted for the firm of Bundi Grace & Company Advocates to come on record after judgment;
Whether the Grant and Confirmed Grant issued on 29 th March 1996 should be revoked under Section 76 of the Law of Succession Act;
Whether the subdivisions and titles resulting from the impugned grant should be cancelled and the property reverted to the name of the deceased;
What directions should issue regarding fresh administration of the estate;
Costs.
Analysis and Determination
It is not in dispute that the deceased, Gori Siango, was the registered proprietor of land parcel NORTH MUGIRANGO/BOISANGA/1681 .
The Applicant contends that the Petitioner obtained the Grant and its Confirmation issued on 29 th March 1996 without disclosing all beneficiaries, without obtaining their consents, and without involving them in the succession process.
It is further averred that acting under the said grant, the Petitioner caused the subdivision of NORTH MUGIRANGO/BOISANGA/1681 into NORTH MUGIRANGO/BOISANGA/4531 and NORTH MUGIRANGO/BOISANGA/4532 and caused the resultant titles to be registered solely in his own name.
The Applicant states that several beneficiaries have since died while seeking regularisation of the estate, and the surviving family members now seek revocation of the defective grant and restoration of proper administration.
Whether leave should be granted for the firm of Bundi Grace & Company Advocates to come on record
Although Order 9 Rule 9 of the Civil Procedure Rules applies after judgment, it is imported into probate matters only to the extent permitted under Rule 63 of the Probate and Administration Rules. The probate court retains inherent discretion to allow change of advocates where no prejudice is shown.
The Respondent did not oppose the request and leave is therefore granted to the firm of Bundi & Co. Advocates to come on record for the Applicant.
Whether the Grant and Confirmed Grant issued on 29 th March 1996 should be revoked
The Applicant’s principal grounds for revocation are non-disclosure of beneficiaries, absence of mandatory consents, and unilateral administration of the estate. The Replying Affidavit of the Respondent neither denies these facts nor offers any explanation or justification for the failure to comply with statutory requirements.
Under Section 76(b) and (c) of the Law of Succession Act, a grant may be revoked where it was obtained fraudulently by concealment of material facts; or the proceedings were defective in substance.
The guiding authority is the Court of Appeal decision in Matheka & Another v Matheka (2005) 2 KLR 455 , where the Court held that non-disclosure of beneficiaries constitutes concealment of material facts and renders a grant liable to revocation.
The circumstances of this case fit firmly within that principle. A grant procured without full disclosure of all beneficiaries is fundamentally defective and cannot stand. It follows that the Grant and the Confirmed Grant issued on 29 th March 1996 are liable to revocation.
Whether the subdivisions and titles resulting from the impugned grant should be cancelled
It is undisputed that the Petitioner subdivided the original parcel NORTH MUGIRANGO/BOISANGA/1681 into NORTH MUGIRANGO/BOISANGA/4531 and NORTH MUGIRANGO/BOISANGA/ 4532 and registered both solely in his name under the authority of the now-revoked grant.
The law is clear that where a grant is revoked, all acts done pursuant to it collapse. Subdivisions and transfers effected under a defective or revoked grant are void.
For proper administration of the estate, the register must return to the pre-subdivision position, with the property restored to the deceased’s name.
Fresh Administration of the Estate
The Applicant urged that the administration of the estate begin afresh immediately. The Court considers that succession administration is a matter of collective family concern and should, where possible, be agreed upon by beneficiaries. Given the age of the matter, the death of some beneficiaries, and the need for inclusive decision-making, the Court shall not appoint administrators at this stage.
The matter will instead be mentioned to allow the family an opportunity to agree on suitable administrators. Failing agreement, the Court shall appoint administrators.
Costs
Given the family nature of succession proceedings, it is appropriate that costs be borne in the cause.
Disposition
The Chamber Summons dated 05 th December 2023 is allowed on the following terms: Leave is granted to the firm of Bundi Grace & Company Advocates to come on record for the Applicant
The Grant issued on 29 th March 1996 to Blasio Arani Gori is hereby revoked pursuant to Section 76 of the Law of Succession Act
The Confirmed Grant issued on the same date is likewise revoked
The subdivisions of NORTH MUGIRANGO/BOISANGA/1681, namely NORTH MUGIRANGO/BOISANGA/4531 and NORTH MUGIRANGO/BOISANGA/4532 are hereby cancelled
The Land Registrar, Nyamira County, is directed to forthwith cancel the said titles and restore the register to the original parcel, NORTH MUGIRANGO/BOISANGA/1681, in the name of the deceased Gori Siango, pending proper administration
Mention on 04 th December 2025 for the parties to confirm whether they have agreed on the persons to be appointed as administrators
Costs shall be in the cause.
Appearances
Court Assistant - Hilda
For Applicant - Ms. Bundi for Bundi Grace & Company Advocates
For Respondent - Mr. Nyamwange for Nyamwange & Co. Advocates
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Introduction
The Court is called upon to determine the Chamber Summons dated 05 th December 2023, brought under Rule 44 of the Probate and Administration Rules, Sections 47 and 76 of the Law of Succession Act, and all enabling provisions of the law. The Applicant, Peter Nyachoti Ariaga, seeks leave for counsel to come on record after judgment, revocation of the Grant and Confirmed Grant issued on 29 th March 1996, cancellation of resultant subdivisions, and commencement of proper administration of the estate of the late Gori Siango.
The application is supported by the Applicant’s affidavit sworn on 05 th December 2023.
At the hearing, counsel for the Respondent indicated that the Respondent would rely solely on her Replying Affidavit and urged the Court to treat that affidavit as the response to this application. The Court therefore confines itself strictly to the application dated 05 th December 2023 and the response contained in the said affidavit.
I have considered the Chamber Summons dated 05 th December 2023 in light of the response by the Respondent, the Grant and Confirmed Grant issued on 29 th March 1996 and the pleadings on record. The issues arising for determination are:
Whether leave should be granted for the firm of Bundi Grace & Company Advocates to come on record after judgment;
Whether the Grant and Confirmed Grant issued on 29 th March 1996 should be revoked under Section 76 of the Law of Succession Act;
Whether the subdivisions and titles resulting from the impugned grant should be cancelled and the property reverted to the name of the deceased;
What directions should issue regarding fresh administration of the estate;
Costs.
Analysis and Determination
It is not in dispute that the deceased, Gori Siango, was the registered proprietor of land parcel NORTH MUGIRANGO/BOISANGA/1681 .
The Applicant contends that the Petitioner obtained the Grant and its Confirmation issued on 29 th March 1996 without disclosing all beneficiaries, without obtaining their consents, and without involving them in the succession process.
It is further averred that acting under the said grant, the Petitioner caused the subdivision of NORTH MUGIRANGO/BOISANGA/1681 into NORTH MUGIRANGO/BOISANGA/4531 and NORTH MUGIRANGO/BOISANGA/4532 and caused the resultant titles to be registered solely in his own name.
The Applicant states that several beneficiaries have since died while seeking regularisation of the estate, and the surviving family members now seek revocation of the defective grant and restoration of proper administration.
Whether leave should be granted for the firm of Bundi Grace & Company Advocates to come on record
Although Order 9 Rule 9 of the Civil Procedure Rules applies after judgment, it is imported into probate matters only to the extent permitted under Rule 63 of the Probate and Administration Rules. The probate court retains inherent discretion to allow change of advocates where no prejudice is shown.
The Respondent did not oppose the request and leave is therefore granted to the firm of Bundi & Co. Advocates to come on record for the Applicant.
Whether the Grant and Confirmed Grant issued on 29 th March 1996 should be revoked
The Applicant’s principal grounds for revocation are non-disclosure of beneficiaries, absence of mandatory consents, and unilateral administration of the estate. The Replying Affidavit of the Respondent neither denies these facts nor offers any explanation or justification for the failure to comply with statutory requirements.
Under Section 76(b) and (c) of the Law of Succession Act, a grant may be revoked where it was obtained fraudulently by concealment of material facts; or the proceedings were defective in substance.
The guiding authority is the Court of Appeal decision in Matheka & Another v Matheka (2005) 2 KLR 455 , where the Court held that non-disclosure of beneficiaries constitutes concealment of material facts and renders a grant liable to revocation.
The circumstances of this case fit firmly within that principle. A grant procured without full disclosure of all beneficiaries is fundamentally defective and cannot stand. It follows that the Grant and the Confirmed Grant issued on 29 th March 1996 are liable to revocation.
Whether the subdivisions and titles resulting from the impugned grant should be cancelled
It is undisputed that the Petitioner subdivided the original parcel NORTH MUGIRANGO/BOISANGA/1681 into NORTH MUGIRANGO/BOISANGA/4531 and NORTH MUGIRANGO/BOISANGA/ 4532 and registered both solely in his name under the authority of the now-revoked grant.
The law is clear that where a grant is revoked, all acts done pursuant to it collapse. Subdivisions and transfers effected under a defective or revoked grant are void.
For proper administration of the estate, the register must return to the pre-subdivision position, with the property restored to the deceased’s name.
Fresh Administration of the Estate
The Applicant urged that the administration of the estate begin afresh immediately. The Court considers that succession administration is a matter of collective family concern and should, where possible, be agreed upon by beneficiaries. Given the age of the matter, the death of some beneficiaries, and the need for inclusive decision-making, the Court shall not appoint administrators at this stage.
The matter will instead be mentioned to allow the family an opportunity to agree on suitable administrators. Failing agreement, the Court shall appoint administrators.
Costs
Given the family nature of succession proceedings, it is appropriate that costs be borne in the cause.
Disposition
The Chamber Summons dated 05 th December 2023 is allowed on the following terms: Leave is granted to the firm of Bundi Grace & Company Advocates to come on record for the Applicant
The Grant issued on 29 th March 1996 to Blasio Arani Gori is hereby revoked pursuant to Section 76 of the Law of Succession Act
The Confirmed Grant issued on the same date is likewise revoked
The subdivisions of NORTH MUGIRANGO/BOISANGA/1681, namely NORTH MUGIRANGO/BOISANGA/4531 and NORTH MUGIRANGO/BOISANGA/4532 are hereby cancelled
The Land Registrar, Nyamira County, is directed to forthwith cancel the said titles and restore the register to the original parcel, NORTH MUGIRANGO/BOISANGA/1681, in the name of the deceased Gori Siango, pending proper administration
Mention on 04 th December 2025 for the parties to confirm whether they have agreed on the persons to be appointed as administrators
Costs shall be in the cause.
Appearances
Court Assistant - Hilda
For Applicant - Ms. Bundi for Bundi Grace & Company Advocates
For Respondent - Mr. Nyamwange for Nyamwange & Co. Advocates
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