JORAM NGUNGURU ALIAS JORAM NGURUNGURU MIRIANGA VS JOHN NJERU NGUNGURU

1. The objector/applicants filed summons for revocation of grant dated 28^th February 2024. The petitioners/respondents filed a notice of preliminary objection dated 04^th February 2024 against the said application. The preliminary objection is premised on the following grounds:
2. That there is no provision under the Law of the Succession Act or any other law to revoke or annul a certificate of confirmation of grant or an amended certificate of confirmation of grant; and
3. That the summons dated 28^th February 2024 is therefore incompetent and should be struck out with costs to the respondent.
4. The court directed that the preliminary objection be canvassed by way of written submissions but none of the parties complied.
5. The issue for determination is whether the notice of preliminary objection is merited.
6. In the case of Hassan Ali Joho & Another v. Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013 [2014] eKLR the Supreme Court stated that:

“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit”

1. It is trite that if a preliminary objection if allowed, the same may dispose of the entire suit without giving parties the opportunity to be heard.  Therefore, this has to be done with caution given that the court has a duty to hear all parties and determine the case on merit.  In addition, this court has also a duty to safeguard itself against abuse of its process.
2. Through the preliminary objection, the petitioners/respondents raised the point of law that there is no provision in the Law of Succession Act that provides for revocation of an amended certificate of confirmation of grant. From a perusal of the summons for revocation, the objector/applicants’ prayers are centered on the amended certificate of confirmation of grant and not the grant itself. Section 76 of the Law of Succession Act provides for revocation of a grant anytime before or after its confirmation. It states:

“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-……”

It is important to note that only a grant of representation is one envisioned under section 53 and 54 of the Law of Succession Act.

53. Forms of grant

A court may -

(a) where a deceased person is proved (whether by production of a will or an authenticated copy thereof or by oral evidence of its contents) to have left a valid will, grant, in respect of all property to which such will applies, either -

(i) probate of the will to one or more of the executors named therein; or

(ii) if there is no proving executor, letters of administration with the will annexed; and

(b) if and so far as there may be intestacy, letters of administration in respect of the intestate estate.

54. Limited grants

A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act.

1. A court is at liberty to revoke a grant of representation only where the applicant has satisfied the circumstances provided under section 76 of the Law of Succession Act. However, the law does not classify a certificate of confirmation of grant as a grant of representation. Moreover, in the case of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR the court stated:

“In principle, the applicants appear to be unhappy with the confirmation process. That is what comes out from the body of the application and the affidavits sworn in support of the application, as well as the oral testimonies of the applicant, his witnesses and his written submissions. The principal prayer in the application is for revocation of the certificate of confirmation of grant…..A certificate of confirmation of grant does not take any of those forms, and it cannot possibly, therefore, be a grant of representation. It is a document extracted from the orders that a court makes after confirmation of a grant under section 71 of the Law of Succession Act, as evidence of the fact that a grant of representation has been confirmed. It should be emphasized that the confirmation process does not produce another grant. The grant sought to be confirmed, through that process, remains intact, after confirmation.”

1. Having stated the above, it is my view that a certificate of confirmation of grant cannot be revoked or annulled but rather it can only be set aside or appealed against. If the court were to revoke or annul the certificate of confirmation of a grant, what is to stop the parties from extracting another one? (see the case of In Re Estate of Joel Cheruiyot Ronoh [2016] eKLR). The fact remains that since there are no legal grounds for revocation or annulment of the certificate of confirmation of grant, the grant of representation itself remains to be the only proclamation/order of the court that can be legally revoked or annulled.
2. In light of the above, the preliminary objection is allowed with costs. Consequently, the summons dated 28^th February 2024 for revocation of grant is hereby struck out.
3. It is so ordered.

Delivered, dated and signed at Embu this 9^th day of October, 2024.