1. The application before me is the Chamber Summons dated 4/9/2023.
2. It seeks orders inter alia :-
1) This Honourable Court be pleased to order that the property and specifically Land Parcel Number Nzaui/Kalamba/18 contained in the certificate of grant dated 11th November, 2005 and revoked on 2nd July, 2018 do revert to the names of the deceased herein being Stephen Kioko Mailu and the certificate of title issued pursuant to the said grant and issued in the names of the Co-administrator/Respondent be revoked.
3. The grounds for the application are set out on its face, and the affidavit of Oscar Kyalo Kioko sworn on 12/9/2023.
4. He depones that:-
1) That the written grant of representation of the estate of the late Stephen Kioko Mailu (Deceased) was made to my Co-administrator/respondent on 6th April, 2005 and confirmed on 11th November, 2005(herein marked as annexture “OKK 1” is a copy of the confirmed grant)
2) That I and the rest of the beneficiaries of the estate of the late Stephen Kioko Mailu (deceased) were not involved in the said succession cause and applied for revocation of the said grant which was revoked by a ruling of the High Court on 2nd July, 2013, (herein marked as annexture “OKK 2” is a copy of the said ruling)
3) That via a consent dated 6th June, 2019, grant of letters of Administration intestate were issued to the Co-administrator/Respondent and the late Priscilla Kavivi Kioko on 1st July, 2019(herein marked as annexture “OKK 3” is a copy of the said grant of letters of Administration estate).
4) That the subsequently passed away and via an application dated 28th October, 2022 the Honourable Court made directions that I be made a Co-administrator together with the Co-administrator/Respondent herein (herein marked as annexture “OKK 4” is a copy of the said grant of letters of administration intestate).
5) That before I could file the summons for confirmation of grant for the estate of the deceased herein, we discovered that the Co-administrator/Respondent herein had used certificate of grant dated 11th November, 2005 and revoked on 2nd July, 2018 to transfer Land Parcel Number Nzaui/Kalamba/18 from the deceased into her names leaving the estate with no property (herein marked as annexture “OKK5” is a copy the green card)
6) That it is imperative that the said land parcel Number Nzaui/Kalamba/18 named in the impugned confirmation of grant do revert to the deceased for proper distribution to all the beneficiaries and a restriction do issue preventing sale or transfer of the said parcel preserving the same to protect interest of the other beneficiaries.
5. The application is opposed by the respondent vide replying affidavit sworn on 20/3/2025.
6. The respondent depones that the Certificate of Confirmation of grant was made to her on 11/11/2005 and she registered the land to her name in 2006 following a legal process. She depones that her proprietary rights to the land are now protected by Land Registration Act - and can only be challenged on account of fraud/misrepresentation.
7. That when the grant was revoked in 2013- and orders for redistribution made there was nothing to redistribute as the land had been registered in her name way back in 2006 and that the only avenue available for the applicants was to seek cancellation of the title in the appropriate court.
8. Parties filed submissions which I have considered.
9. The only issue for determination is whether the application before me has merit.
10. Is the respondent’s title indefeasible as submitted or is it still subject to the law of succession?
11. To answer this question I have had to look at the ruling that revoked the grant. It emanated from an application dated 4/8/2008 whose grounds were: -
a) That the grant was obtained fraudulently without the consent of the objectors/applicants and other beneficiaries to the estate of the deceased.
b) That the proceedings to obtain grant are defective.
12. In the ruling delivered on 2/7/2013 the court stated:
1) A grant may be revoked or annulled if it is established that it was obtained fraudulently by making a false statement or by concealing from the court something material. (See section 76 of the Law of Succession Act.)
2) At the point of petitioning the court for letters of administration, the 1st and 2nd respondents were required to include all people who survived the deceased. This does not seem to have been the case. In the circumstances the existence of some beneficiaries was concealed from the court.
3) Having considered the application and submissions filed by counsel, I am satisfied that the grant was obtained through concealment of some material facts. Justice would require such a grant to be revoked to enable the court reconsider the case on merit.
4) In the premises, I do revoke/annul the grant issued to the respondent herein.
5) In the interest of justice, I do direct that the respondent do apply for confirmation of the grant with notice to the applicants herein.
13. A reading of the ruling as above indicates that the grounds upon which the ruling was made included fraudulent obtaining of the grant. The court found that the grant was obtained fraudulently - and proceeded t revoke it accordingly.
14. Upon the revocation of the grant, it goes without saying that the legal basis for the registration of the land in the name of the respondent was removed. The registration now stands on nothing. Clearly the purport of the revocation was to set the estate back to the status ante the grant meaning status quo before the grant was made, hence any act that was done under the grant became null and void, and the includes the said registration. .
15. As a result, the argument that the property now falls under a different legal regime other than the LOSA, cannot stand. In my view the matter squarely fits into the holding in Santuzza Bilioti alias Mei Santuzza (Deceased) v Giancarlo Falasconi [2014] eKLR where the court held that:-
There is no rule that any issue touching on land must be heard by the Environmental and Land Court even if the land is a subject of succession proceedings. Majority of succession cases involve the distribution of land. Where the deceased land has been sold before distribution is done, the succession court can hear both the administrator and the registered owner to determine whether the land is part of the estate or was lawfully sold
16. It is was submitted that the succession court empowered to order a title deed to revert to the names of a deceased person and that in effect amounts to cancelation of a title deed. Further that a succession court can order a cancellation of a title deed if a deceased’s property is being fraudulently taken away by non-beneficiaries such as where the property is being sold before a grant is confirmed.
17. In this case it is evident that the respondent went on to register the estate in her name while aware that there were other beneficiaries. The court actually found that the grant was obtained through a fraudulent process and that can only mean that even the registration was fraudulent.
18. The title obtained by the respondent was based on a grant that was obtained by way of fraud – concealing the existence of other beneficiaries from the court, and material facts as provided for under Section 76 of the Law of Succession Act. The respondent’s rights ceased to exist the moment the grant was revoked – as they founded on a nullity.
19. In the circumstances I find that the application is with merit and is allowed. The following orders do issue:
a. The registration in the name of the Respondent Esther Mwethya Kioko of LR Nzaui/Kalamba/18 be and is hereby revoked.
b. The Land Registrar is directed to cancel the title LR Nzaui/Kalamba/18 in the name o Esther Mwethya Kioko and revert it to the name of the deceased STEPHEN KIOKO MAILU.
c. Within 30 days of the cancellation by the land Registrar the administrators to file summons for confirmation of grant – jointly and if they are not agreed, the applicant to file a proposed mode of distribution and serve the respondent. The matter be mentioned within 60 days hereof for compliance.
d. Each party to bear its own costs.
Dated, signed and delivered virtually on 30th May 2025
Mumbua T Matheka
Judge
2. It seeks orders inter alia :-
1) This Honourable Court be pleased to order that the property and specifically Land Parcel Number Nzaui/Kalamba/18 contained in the certificate of grant dated 11th November, 2005 and revoked on 2nd July, 2018 do revert to the names of the deceased herein being Stephen Kioko Mailu and the certificate of title issued pursuant to the said grant and issued in the names of the Co-administrator/Respondent be revoked.
3. The grounds for the application are set out on its face, and the affidavit of Oscar Kyalo Kioko sworn on 12/9/2023.
4. He depones that:-
1) That the written grant of representation of the estate of the late Stephen Kioko Mailu (Deceased) was made to my Co-administrator/respondent on 6th April, 2005 and confirmed on 11th November, 2005(herein marked as annexture “OKK 1” is a copy of the confirmed grant)
2) That I and the rest of the beneficiaries of the estate of the late Stephen Kioko Mailu (deceased) were not involved in the said succession cause and applied for revocation of the said grant which was revoked by a ruling of the High Court on 2nd July, 2013, (herein marked as annexture “OKK 2” is a copy of the said ruling)
3) That via a consent dated 6th June, 2019, grant of letters of Administration intestate were issued to the Co-administrator/Respondent and the late Priscilla Kavivi Kioko on 1st July, 2019(herein marked as annexture “OKK 3” is a copy of the said grant of letters of Administration estate).
4) That the subsequently passed away and via an application dated 28th October, 2022 the Honourable Court made directions that I be made a Co-administrator together with the Co-administrator/Respondent herein (herein marked as annexture “OKK 4” is a copy of the said grant of letters of administration intestate).
5) That before I could file the summons for confirmation of grant for the estate of the deceased herein, we discovered that the Co-administrator/Respondent herein had used certificate of grant dated 11th November, 2005 and revoked on 2nd July, 2018 to transfer Land Parcel Number Nzaui/Kalamba/18 from the deceased into her names leaving the estate with no property (herein marked as annexture “OKK5” is a copy the green card)
6) That it is imperative that the said land parcel Number Nzaui/Kalamba/18 named in the impugned confirmation of grant do revert to the deceased for proper distribution to all the beneficiaries and a restriction do issue preventing sale or transfer of the said parcel preserving the same to protect interest of the other beneficiaries.
5. The application is opposed by the respondent vide replying affidavit sworn on 20/3/2025.
6. The respondent depones that the Certificate of Confirmation of grant was made to her on 11/11/2005 and she registered the land to her name in 2006 following a legal process. She depones that her proprietary rights to the land are now protected by Land Registration Act - and can only be challenged on account of fraud/misrepresentation.
7. That when the grant was revoked in 2013- and orders for redistribution made there was nothing to redistribute as the land had been registered in her name way back in 2006 and that the only avenue available for the applicants was to seek cancellation of the title in the appropriate court.
8. Parties filed submissions which I have considered.
9. The only issue for determination is whether the application before me has merit.
10. Is the respondent’s title indefeasible as submitted or is it still subject to the law of succession?
11. To answer this question I have had to look at the ruling that revoked the grant. It emanated from an application dated 4/8/2008 whose grounds were: -
a) That the grant was obtained fraudulently without the consent of the objectors/applicants and other beneficiaries to the estate of the deceased.
b) That the proceedings to obtain grant are defective.
12. In the ruling delivered on 2/7/2013 the court stated:
1) A grant may be revoked or annulled if it is established that it was obtained fraudulently by making a false statement or by concealing from the court something material. (See section 76 of the Law of Succession Act.)
2) At the point of petitioning the court for letters of administration, the 1st and 2nd respondents were required to include all people who survived the deceased. This does not seem to have been the case. In the circumstances the existence of some beneficiaries was concealed from the court.
3) Having considered the application and submissions filed by counsel, I am satisfied that the grant was obtained through concealment of some material facts. Justice would require such a grant to be revoked to enable the court reconsider the case on merit.
4) In the premises, I do revoke/annul the grant issued to the respondent herein.
5) In the interest of justice, I do direct that the respondent do apply for confirmation of the grant with notice to the applicants herein.
13. A reading of the ruling as above indicates that the grounds upon which the ruling was made included fraudulent obtaining of the grant. The court found that the grant was obtained fraudulently - and proceeded t revoke it accordingly.
14. Upon the revocation of the grant, it goes without saying that the legal basis for the registration of the land in the name of the respondent was removed. The registration now stands on nothing. Clearly the purport of the revocation was to set the estate back to the status ante the grant meaning status quo before the grant was made, hence any act that was done under the grant became null and void, and the includes the said registration. .
15. As a result, the argument that the property now falls under a different legal regime other than the LOSA, cannot stand. In my view the matter squarely fits into the holding in Santuzza Bilioti alias Mei Santuzza (Deceased) v Giancarlo Falasconi [2014] eKLR where the court held that:-
There is no rule that any issue touching on land must be heard by the Environmental and Land Court even if the land is a subject of succession proceedings. Majority of succession cases involve the distribution of land. Where the deceased land has been sold before distribution is done, the succession court can hear both the administrator and the registered owner to determine whether the land is part of the estate or was lawfully sold
16. It is was submitted that the succession court empowered to order a title deed to revert to the names of a deceased person and that in effect amounts to cancelation of a title deed. Further that a succession court can order a cancellation of a title deed if a deceased’s property is being fraudulently taken away by non-beneficiaries such as where the property is being sold before a grant is confirmed.
17. In this case it is evident that the respondent went on to register the estate in her name while aware that there were other beneficiaries. The court actually found that the grant was obtained through a fraudulent process and that can only mean that even the registration was fraudulent.
18. The title obtained by the respondent was based on a grant that was obtained by way of fraud – concealing the existence of other beneficiaries from the court, and material facts as provided for under Section 76 of the Law of Succession Act. The respondent’s rights ceased to exist the moment the grant was revoked – as they founded on a nullity.
19. In the circumstances I find that the application is with merit and is allowed. The following orders do issue:
a. The registration in the name of the Respondent Esther Mwethya Kioko of LR Nzaui/Kalamba/18 be and is hereby revoked.
b. The Land Registrar is directed to cancel the title LR Nzaui/Kalamba/18 in the name o Esther Mwethya Kioko and revert it to the name of the deceased STEPHEN KIOKO MAILU.
c. Within 30 days of the cancellation by the land Registrar the administrators to file summons for confirmation of grant – jointly and if they are not agreed, the applicant to file a proposed mode of distribution and serve the respondent. The matter be mentioned within 60 days hereof for compliance.
d. Each party to bear its own costs.
Dated, signed and delivered virtually on 30th May 2025
Mumbua T Matheka
Judge