1. The Appellant herein, who was the Objector in the Trial Court had approached the said Trial Court in ITEN SPM Succession Cause No. 4 of 2010 vide a Summons for Revocation of grant dated 10th May 2022 seeking the following orders;
a. Spent
b. That the grant of letters of administration issued on the 25th June 2010 to the Petitioner herein ROBERT KIPKURGAT KIPYEGO be revoked and annulled.
c. That upon granting prayer (b) above, the parcel CHERANGANY/CHEBORORWA/110 be reverted back to the estate of the deceased.
d. That the rightful heirs of the deceased pursue the succession cause.
e. That costs of the application be borne by the respondent.
2. The Respondent in the said cause opposed the summons vide a Replying Affidavit dated 6th June 2022 and in a nutshell, deposed that he instituted succession proceedings in this matter trial in the circumstances that he had purchased half of the land known as CHERANGANY/CHEBORORWA/110 from the objector who had no money to pay for succession. That the objector requested that the he pays for the succession and he brought to the Respondent all the necessary documentation necessary for the succession proceedings.
3. That however, he was erroneously listed in the said proceedings as a grandson to the deceased. He stated that the Appellant eventually appeared alongside him during the process of the confirmation of the grant and the court proceeded to confirm the grant in the presence of both of them. He therefore urged the court to dismiss the Summons.
4. The matter then proceeded for hearing where the parties tendered viva voce evidence in court. The trial court then considered the testimonies of the witnesses together with the evidence tendered in support of and against the Summons, the Submissions filed on behalf of the parties and dismissed the Summons for Revocation of Grant vide a Ruling delivered on 26th August 2024.
5. Being aggrieved with the Ruling, the Appellant instituted the present appeal vide a Memorandum of Appeal dated 6th September premised on the following 21 Grounds, reproduced verbatim;
1) The Learned Trial Magistrate erred both in law and fact in dismissing the Summons for Revocation by the Appellant, dated 10th May, 2010, without due regard to the relevant law.
2) The Learned Trial Magistrate erred both in law and fact by failing to consider that the Respondent is neither a dependent nor a relative of the deceased herein as per the provisions of Section 29 of the Law of Succession Act, hence lacks locus to administer the deceased's Estate.
3) The Learned Trial Magistrate erred both in law and fact by failing to consider the fact that the Appellant falls within the definition of dependents of the deceased, as per Section 29 of the Law of Succession Act, being a grandson to the deceased, hence best suited to administer the deceased's estate in priority to the Respondent.
4) The Learned Trial Magistrate erred both in law and fact by failing to consider the provisions of Section 68 of the Law of Succession Act, which sets out the preference in which the relatives of a deceased intestate can petition for a Grant of Letters of Administration Intestate.
5) The Learned Trial Magistrate erred in law and fact by failing to pay due regard to the fact that the Respondent does not fall within any of the priorities provided in Section 68 of the Law of Succession Act, hence issuing an erroneous Ruling.
6) The Learned Trial Magistrate erred in both law and fact by failing to acknowledge that the alleged sale of land out of CHERENGANY/CHEBORORWA/110 to the Respondent was illegal and unlawful and amounts to intermeddling with the deceased's Estate, to the detriment of its rightful beneficiaries.
7) The Learned Trial Magistrate erred in both law and fact by disregarding the fact that the Respondent did not provide anything in evidence to prove that he is a purchaser of a portion of land in the deceased's Estate.
8) The Learned Trial Magistrate erred both in law and fact by disregarding the fact that the Appellant's Summons for Revocation of Grant dated 10th May, 2022 met the threshold of revoking the Grant of Letters of Administration issued to the Respondent on 25th June, 2010.
9) The Learned Trial Magistrate erred both in law and fact by misdirecting herself in the interpretation of Section 76 of the Law of Succession Act hence arriving at an erroneous decision.
10) The Learned Trial Magistrate erred in law and fact by failing to consider the fact that the Appellant indeed raised valid grounds for revocation of the Grant of Letters issued on 25th June, 2010, particularly that the Grant was obtained by fraudulent means and that he discharged his evidentiary burden to the required standard of proof.
11) The Learned Trial Magistrate erred both in law and fact by disregarding the contentious issue raised by the Appellant, that he was not informed of the filing of the Succession proceedings of the deceased herein.
12) The Learned Trial Magistrate erred both in law and fact by disregarding the mandatory requirement that the Appellant ought to have given his consent to the filing of the succession of the deceased's estate herein, which was never sought.
13) The Learned Trial Magistrate erred both in law and fact by overlooking the critical fact that the Appellant did not sign P&A Form 38 in the filing of Succession proceedings, making the same defective.
14) The Learned Trial Magistrate erred both in law and fact by failing to consider the fact that the Respondent herein is an alleged purchaser of a portion of land in the deceased's Estate hence cannot administer the Estate in the best interest of the rest of the beneficiaries.
15) The Learned Trial Magistrate erred both in law and fact by failing to consider that the only way the Respondent would have triggered the filing of succession proceedings with regard to the estate of the deceased herein is through filing of Citation proceedings, which he never filed.
16) The Learned Trial Magistrate erred both in law and fact by failing to consider the fact that the Respondent ought to have been included as a liability to the deceased's Estate, to the extent of his interest and therefore cannot administer the whole Estate.
17) The Learned Trial Magistrate erred both in law and fact by despising the fact that the Respondent is only interested in the portion that he illegally purchased from the deceased's Estate and has no interest in the rest of the deceased's estate, hence cannot administer the whole Estate.
18) The Learned Trial Magistrate erred both in law and fact by failing to consider the fact that an Administrator's duty is a fiduciary one, i.e. he is supposed to hold and administer the deceased's Estate in trust for the rest of the beneficiaries. The Respondent being vested with self-interests, cannot effectively discharge that core duty.
19) The Learned Magistrate erred both in law and fact by failing to consider the fact that, the Appellant being a grandson of the deceased, falls within the 3rd category of priority to administer an intestate estate and is best suited to administer the deceased's Estate in priority to the Respondent.
20) The Learned Trial Magistrate erred both in law and fact by allowing the Respondent, who is a stranger to the Estate of the deceased, to continue administering the deceased's Estate, despite having illegally acquired a section therein.
21) The Learned Trial Magistrate erred both in law and fact by failing to consider the evidence presented by the Respondent to the effect that the Grant of Letters of Administration issued to the Respondent herein was fraudulently issued.
Evidence before the Trial Court.
6. PW1 was Julius Kiplagat Kipchoge, the Appellant. He adopted his witness statement as evidence in chief and prayed that his list of documents be adopted as his exhibits. In his statement dated 10th May 2022, he stated that he was the grandson to the deceased and that the Petitioner was his friend. Further, that he later discovered that the Petitioner had filed a land case against him to wit; ELC No. 33 of 2019. He urged the court to revoke the grant as it was based on the untrue allegation that the Petitioner was the grandson to the deceased.
7. During cross examination, he testified that the succession matter never involved the Petitioner and that the Succession Cause was filed when he wanted the title deed. He stated that this was the second time he had come for succession and that he was with Robert the first time. He denied knowing William Cheptoo or having gone to the chief. Further, he stated that Robert came to court alone.
8. PW2 was Jacob Kipruto Choge, who testified that the deceased was his grandmother, Robert was his neighbour and the Appellant his brother. Further, that they learnt that Robert had purported to be a grandchild of the deceased and that they prayed that the title be revoked or cancelled. During cross examination, he stated that he did not know the acreage of the land and that Julius sold land to Kenneth who is still occupying the land.
9. PW3 was Paul Kibiwott who stated that the Appellant was a grandchild to the deceased but the Respondent was not related to the deceased.
10. The Objectors closed their case and the Petitioner then proceeded with his defence.
11. DW1 was the Respondent herein. He adopted his witness statement as evidence in chief. It was his evidence that the Appellant borrowed Kshs. 100,000/- from him in 1997 and two weeks later, he requested that he lend him another Kshs. 10,000 which he did. Two weeks after that he came and requested that he give him more money on exchange for land parcel number 110. He requested that he come with his family and he later came with Christina and Zipporah Chege. He gave him Kshs. 20,000 which came to a total of Kshs. 10,000 including the previous loan.
12. They visited the site and agreed at Kshs. 60,000/- per acre and the Appellant wanted to sell 5 acres. He stated that on 11th March 1998 he paid him Kshs. 70,000/- and on 4th August 1998, the Appellant visited his home and he gave him Kshs. 40,000/- and, on 3rd February 1999 Julius Choge and Christine Choge came to his home and he gave them Kshs. 30,000/-The Appellant relocated to Eldoret and visited him in 2001 where he wanted some money and he gave him Kshs. 15,000/- and later, in 2003 he visited him again where he told him he needed money. He gave him Kshs. 50,000/- which he borrowed from ‘Kipserem’ and 3 bags of maize.
13. It was his testimony that they had agreed that he pay in instalments of Kshs. 30,000 per year which he did and in the year 2007 he paid the Appellant Kshs. 30,000/-. In total, he paid Kshs. 300,000/- which he finished in 2008. He additionally agreed to pay for the costs of succession and in 2010, he gave the Appellant, Zipporah, Tecla and Christine Kshs. 40,000/- at Iten and they finalized. They called the surveyor and agreed on a date but on that date the Appellant did not show up. He tried following up in 2012 but the Appellant refused to come and solve the issue. He paid Kshs. 45,000 and upon the lapse of three months the Appellant filed the objection.
14. That he later came to Iten and told him that they would sub divide the land with the individual he had found cultivating said land and then disappeared for 5 years. He stated that during the confirmation hearing for the grant, the appellant appeared alongside him in court. During cross examination he stated that the documents were genuine and that he had agreed with Julius that he be indicated as a grandson. He further stated that he did not have a sale agreement and that he bought the land at Kshs. 60,000/- per acre.
15. The matter was then referred for mediation but the same failed. It then proceeded for hearing where Musa Kiplimo Korir testified as DW2. The witness, a neighbour to both parties, testified that he knew that the Appellant had sold land to the respondent and that when the respondent started constriction of foundation, they started having issues and the respondent was stopped from constructing in 2013. In cross examination, he stated that he did not witness the sale agreement for the land.
16. DW3 was Wilson Simotwo, a neighbour to the parties who testified that he did not witness the agreement and did not have any documents on the survey.
Hearing of the Appeal
17. The Appeal was canvassed by way of written submissions with the Appellant filing submissions dated 7th April 2025 through the firm of Messrs Koech-Lelei & Co Advocates whereas the Respondent filed submissions dated 2nd May 2025 through the firm of Messrs Ego Kipkemboi & Company Advocates.
Appellants’ submissions
18. Learned Counsel for the Appellant argued that the Petitioner misrepresented himself and fraudulently applied for letters of administration as grandson. That the objector produced a chief's letter dated 18th October 2021 clearly showing that the petitioner is not related to the deceased herein. In this regard, he cited Section 29 of the Succession Act which defines the persons who ought to be construed to be a “dependant “of a deceased person. He referred to the testimonies of his witnesses in support of the submission that the Trial Magistrate erred in both law and fact by disregarding the fact that the Respondent did not provide anything in evidence to prove that he is a purchaser of a portion of land in the deceased's Estate.
19. Further, Counsel submitted that the confirmation by the respondent that he is not a grandson clearly helps this case and so the grant as confirmed should be revoked and the parcel reverts back to the estate.
20. Counsel cited Section 76 of the Law of Succession Act in relation to when a Grant can be revoked. He stated that in this case, the respondent obtained the grant fraudulently by making false statement that he is the grandson of the deceased which is an untrue allegation of a fact. He cited the case of the Estate Magangi Obuki (Deceased) (2020) eKLR and submitted that it is trite law that all beneficiaries of the estate must appear before the Court for a grant to be confirmed and the relevant Certificate of Confirmation of Grant issued.
21. That from the court record, the appellant, being the grandson of the deceased herein never appeared before court and neither did his siblings. That the proceedings of 14th July 2010 show that only the respondent appeared before the court and the grant was confirmed. He prayed that the court revokes the grant and order that the parcel be reverts back to estate for the rightful beneficiaries to distribute the estate. He urged the court to allow the appeal with costs.
Respondents’ Submissions
22. Learned counsel for the respondent laid down the background of the case and stressed the importance of noting that at the confirmation stage, the Appellant was present in court. On whether the Appellant was fraudulent in his undertaking, Counsel placed reliance on the case of Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2009] eKLR where the Court held that in an allegation of fraud, the same as alleged must be specifically pleaded and the particulars thereof stated on the face of the pleadings, the acts alleged to be fraudulent set out and that it is not allowable to leave fraud to be inferred from the facts.
23. Further, Counsel urged that the Appellant did not approach the Magistrate’s Court with clean hands in that he misled the Court in stating that the Respondent did not seek consent from him while applying for grant of letters of administration whereas they were together to the point of confirmation and that in the Petition he appears as a surety.
24. Counsel urged that the Respondent is catered for under Section 66 of the Law of Succession Act provides for creditors also as persons to whom grant of letters of administration can issue. He also submitted that the Appellant did not meet the standard of proof as set out in the case of Kinyanjui Kamau v George Kamau [2015] eKLR wherein the holding in the Vijay Case (Supra) was reiterated.
25. On the issue of being named as a grandson, Counsel urged that the Respondent was not named as such in the Chief’s Letter and that this was entirely an error at the Iten Law Court which error the Appellant had a chance to raise an objection to at that time and at the point of Confirmation. He stated that the Appellant brought this suit as an afterthought only after the respondent instituted a suit against the applicant ELC NO.33 of 2019.
26. Counsel pointed out that it is important to note that the Respondent has been in possession of half of the suit land since the year 2000. He placed reliance on the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No. 158 OF 2000 and urged that the Appellant failed to prove his case against the respondent on a balance of probabilities. He urged the court to dismiss the Appeal with costs to the respondent, placing reliance on Section 27 of the Civil Procedure Act.
Analysis & Determination
27. This being a first appellate court, it is duty bound to re-evaluate, reanalyse and reconsider the evidence before it and come up with independent findings of course bearing in mind that it did not have the advantage to see witnesses testifying, unlike the trial court and therefore give due allowance for that. See: Selle & Another V Associated Motor Boat Company Ltd & Others, [1968] EA 123 and Peters V Sunday Post Limited, [1958] EA 424.
28. The above said, I have considered the Application, the proceedings before the Trial Court, the impugned judgement of the Learned Trial Magistrate as well as the Submissions filed on behalf of the Parties. The position pertaining at the Trial Court is that the Appellant appeared with the Respondent and participated throughout the entire process of obtaining the grant of letters of administration and more particularly on the date of the confirmation of grant.
29. The evidence of the Respondent is to the effect t that the two had agreed to the Applicant does sell a portion of land comprising the deceased estate to the Respondent so as to enable him fund the succession proceedings due to the fact that the Applicant did not have the requisite funds to pay for succession proceedings. That the Respondent therefore stepped in and paid for the same but he was erroneously indicated in the proceedings therein as a grandson of the deceased, when he was actually a purchaser.
30. The court notes that in his testimony, the Appellant admits that the Respondent is his friend and largely and almost exclusively dwelt on his averment that the Respondent in seeking to obtain the grant of letters of administration, misrepresented himself as a grandson of the deceased yet he was not. In this regard, the court notes that the Applicant completely avoided delving into the averment by the Respondent on the sale of a portion of the estate for purposes of funding the succession proceedings in his testimony and it was only briefly brought up in the submissions to the effect that the Respondent did not avail any proof of sale.
31. In light of the fact that the Respondent has in his Replying Affidavit admitted that he is indeed not a grandson of the deceased and has attributed any reference to him as such as an error that occurred at the SPM’s Court at ITEN the circumstances of how he came to apply for and obtained the grant of letters of Administration for the deceased estate as herein explained dovetails to support his averment that he is a purchaser of a portion of land comprising the estate as herein explained.
32. In these circumstances, the court is of the considered opinion that whereas it is not within its jurisdiction and mandate to determine the merits or otherwise of the purported purchase of the land the subject matter of these proceedings for reasons that this belongs to the jurisdiction of the Environment and land Court, for purposes of determining the legality or otherwise of the letters of administration herein issued to the Respondent, the court is clothed with the requisite jurisdiction under the provisions of Rule 73 of the Probate and Administration Rules which grants the court the inherent power to make such orders as maybe necessary for the ends of justice or to prevent abuse of the court process.
33. In this regard, for purposes of determining the succession cause, based on the evidence on record the court will proceed on the premise that the Respondent has sufficiently demonstrated on a balance of probabilities, that he is as a purchaser of the land in question and is therefore participating in these proceedings as such.
34. The above being the case then, it is my considered opinion that the following are the issues that arise for determination;
(i) The circumstances under which a purchaser can apply for Grant of letters of Administration of a deceased Estate
(ii) Whether, the Application has met the threshold for revocation as set out in Section 76 of the Succession Act
35. Section 66 of the Law of Succession Act provides the order of preference to be given to certain persons to apply for a certificate of confirmation of grant where the deceased died intestate. It states thus;
When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference
(a) surviving spouse or spouses, with or without association of other beneficiaries;
(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
(c) the Public Trustee; and
(d) creditors:
Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.
29. Further, Rule 26(1) of the Probate and Administration Rules provides guidelines on making of grants. It provides;
26. Grants of letters of administration
(1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.
(2) An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.
30. In light of the fact that the Respondent herein by his own admission is not at all related to the deceased but was a purchaser, it follows then that under Section 66 of the Law of Succession Act, he qualifies as a creditor in the circumstances of this cause. As such, he ranks lower in priority to the Appellant. It follows therefore that as provided for under Section 62 of the Act and as and governed by Rule 22 of the Probate and Administration Rules the Respondent ought to have firstly issued a Citation to the beneficiaries of the estate.
31. The said Rule 22 of the Probate and Administration Rules provides as follows;
(1) A citation may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.
32. In the case of Josiah Muli Wambua – deceased, Nairobi Succession Cause No. 2557 of 2012 [2014] eKLR W. Musyoka – J explained the same as follows: -
“In intestacy, citation issue only in cases where no petition has been lodged in court. Citations are intended to trigger the process of applying for letters of administration intestate in circumstances where the persons entitled to apply are not willing or are slow in moving the court in that behalf. The citor should not be a person who has himself already applied for the grant, for the citor should only apply for grant after the citee fails to so apply.”
32. Thereafter, he would then have applied for a grant under Rule 26(1) of the Probate and Administration Rules herein cited, wherein he was required to support his Petition with an affidavit, preferably with the sale agreement or any other evidence for the court then to exercise discretion in his favour and grant him the grant of letters of administration as envisaged under Section 66 of the Act.
33. The provisions of Section 76 of the law of Succession provides for the circumstances under which the court can annul or revoke a grant and it states as follows;
“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;
34. It has been argued by the Respondent that the allegation that the grant was obtained by way of fraud cannot stand for reasons that as is required by the law, the issue of fraud was not specifically pleaded and the particulars of the alleged fraud laid out as already herein summarised. This then raises the issue of whether the requirement to plead and particularise fraud in pleadings applies to Succession proceedings.
35. The requirement to particularize fraud in pleadings is provided for under Order 2 Rule 4 of the Civil Procedure Rules as follows;
Particulars of pleading [Order 2, rule 4]
(1) Subject to sub rule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing
(a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and
(b) where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies.
36. Rule 63 of the Probate and Administration Rules lists the provisions of the Civil Procedure Rules that apply to Probate and Administration proceedings. It states;
(1) Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.
37. From the above provision of the Rule 63 of the Probate and Administration Rules, it is clear that it is not requirement for a party seeking for a revocation of grant on the grounds of fraud to state the particulars of the alleged fraud in its pleadings.
38. In light of the foregoing, it is my considered opinion that the grant was not obtained fraudulently as envisaged by the provisions of Section 76(b) of the Law of Succession Act, but the proceedings to obtain the same grant were defective in substance as provided under Section 76(a) thereof and further that the same was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding the fact that the allegation could have been made in ignorance or inadvertently.
39. All considered therefore, in light of my conclusions herein whose effect is that the two issues raised for determination have been answered in the affirmative, it is my finding that the Learned Magistrate misdirected herself in the impugned judgement in dismissing the Summons for the Revocation of the grant for the reasons therein given as herein discussed.
40. I therefore find that the Appellant’s Appeal has merit and the same is now hereby allowed in its entirety. The Grant of Letters of Administration issued to the Respondent ROBERT KIPKURGAT KIPYEGO dated 23rd June 2010 and confirmed on 25th June 2010 is now hereby revoked and the Land Parcel Number CHERANGANY/CHEBORORWA/110 is to be reverted back to the estate of the deceased.
41. Each party is to bear its own costs.
Read Dated and Signed at ELDORET on 9th July 2025.
a. Spent
b. That the grant of letters of administration issued on the 25th June 2010 to the Petitioner herein ROBERT KIPKURGAT KIPYEGO be revoked and annulled.
c. That upon granting prayer (b) above, the parcel CHERANGANY/CHEBORORWA/110 be reverted back to the estate of the deceased.
d. That the rightful heirs of the deceased pursue the succession cause.
e. That costs of the application be borne by the respondent.
2. The Respondent in the said cause opposed the summons vide a Replying Affidavit dated 6th June 2022 and in a nutshell, deposed that he instituted succession proceedings in this matter trial in the circumstances that he had purchased half of the land known as CHERANGANY/CHEBORORWA/110 from the objector who had no money to pay for succession. That the objector requested that the he pays for the succession and he brought to the Respondent all the necessary documentation necessary for the succession proceedings.
3. That however, he was erroneously listed in the said proceedings as a grandson to the deceased. He stated that the Appellant eventually appeared alongside him during the process of the confirmation of the grant and the court proceeded to confirm the grant in the presence of both of them. He therefore urged the court to dismiss the Summons.
4. The matter then proceeded for hearing where the parties tendered viva voce evidence in court. The trial court then considered the testimonies of the witnesses together with the evidence tendered in support of and against the Summons, the Submissions filed on behalf of the parties and dismissed the Summons for Revocation of Grant vide a Ruling delivered on 26th August 2024.
5. Being aggrieved with the Ruling, the Appellant instituted the present appeal vide a Memorandum of Appeal dated 6th September premised on the following 21 Grounds, reproduced verbatim;
1) The Learned Trial Magistrate erred both in law and fact in dismissing the Summons for Revocation by the Appellant, dated 10th May, 2010, without due regard to the relevant law.
2) The Learned Trial Magistrate erred both in law and fact by failing to consider that the Respondent is neither a dependent nor a relative of the deceased herein as per the provisions of Section 29 of the Law of Succession Act, hence lacks locus to administer the deceased's Estate.
3) The Learned Trial Magistrate erred both in law and fact by failing to consider the fact that the Appellant falls within the definition of dependents of the deceased, as per Section 29 of the Law of Succession Act, being a grandson to the deceased, hence best suited to administer the deceased's estate in priority to the Respondent.
4) The Learned Trial Magistrate erred both in law and fact by failing to consider the provisions of Section 68 of the Law of Succession Act, which sets out the preference in which the relatives of a deceased intestate can petition for a Grant of Letters of Administration Intestate.
5) The Learned Trial Magistrate erred in law and fact by failing to pay due regard to the fact that the Respondent does not fall within any of the priorities provided in Section 68 of the Law of Succession Act, hence issuing an erroneous Ruling.
6) The Learned Trial Magistrate erred in both law and fact by failing to acknowledge that the alleged sale of land out of CHERENGANY/CHEBORORWA/110 to the Respondent was illegal and unlawful and amounts to intermeddling with the deceased's Estate, to the detriment of its rightful beneficiaries.
7) The Learned Trial Magistrate erred in both law and fact by disregarding the fact that the Respondent did not provide anything in evidence to prove that he is a purchaser of a portion of land in the deceased's Estate.
8) The Learned Trial Magistrate erred both in law and fact by disregarding the fact that the Appellant's Summons for Revocation of Grant dated 10th May, 2022 met the threshold of revoking the Grant of Letters of Administration issued to the Respondent on 25th June, 2010.
9) The Learned Trial Magistrate erred both in law and fact by misdirecting herself in the interpretation of Section 76 of the Law of Succession Act hence arriving at an erroneous decision.
10) The Learned Trial Magistrate erred in law and fact by failing to consider the fact that the Appellant indeed raised valid grounds for revocation of the Grant of Letters issued on 25th June, 2010, particularly that the Grant was obtained by fraudulent means and that he discharged his evidentiary burden to the required standard of proof.
11) The Learned Trial Magistrate erred both in law and fact by disregarding the contentious issue raised by the Appellant, that he was not informed of the filing of the Succession proceedings of the deceased herein.
12) The Learned Trial Magistrate erred both in law and fact by disregarding the mandatory requirement that the Appellant ought to have given his consent to the filing of the succession of the deceased's estate herein, which was never sought.
13) The Learned Trial Magistrate erred both in law and fact by overlooking the critical fact that the Appellant did not sign P&A Form 38 in the filing of Succession proceedings, making the same defective.
14) The Learned Trial Magistrate erred both in law and fact by failing to consider the fact that the Respondent herein is an alleged purchaser of a portion of land in the deceased's Estate hence cannot administer the Estate in the best interest of the rest of the beneficiaries.
15) The Learned Trial Magistrate erred both in law and fact by failing to consider that the only way the Respondent would have triggered the filing of succession proceedings with regard to the estate of the deceased herein is through filing of Citation proceedings, which he never filed.
16) The Learned Trial Magistrate erred both in law and fact by failing to consider the fact that the Respondent ought to have been included as a liability to the deceased's Estate, to the extent of his interest and therefore cannot administer the whole Estate.
17) The Learned Trial Magistrate erred both in law and fact by despising the fact that the Respondent is only interested in the portion that he illegally purchased from the deceased's Estate and has no interest in the rest of the deceased's estate, hence cannot administer the whole Estate.
18) The Learned Trial Magistrate erred both in law and fact by failing to consider the fact that an Administrator's duty is a fiduciary one, i.e. he is supposed to hold and administer the deceased's Estate in trust for the rest of the beneficiaries. The Respondent being vested with self-interests, cannot effectively discharge that core duty.
19) The Learned Magistrate erred both in law and fact by failing to consider the fact that, the Appellant being a grandson of the deceased, falls within the 3rd category of priority to administer an intestate estate and is best suited to administer the deceased's Estate in priority to the Respondent.
20) The Learned Trial Magistrate erred both in law and fact by allowing the Respondent, who is a stranger to the Estate of the deceased, to continue administering the deceased's Estate, despite having illegally acquired a section therein.
21) The Learned Trial Magistrate erred both in law and fact by failing to consider the evidence presented by the Respondent to the effect that the Grant of Letters of Administration issued to the Respondent herein was fraudulently issued.
Evidence before the Trial Court.
6. PW1 was Julius Kiplagat Kipchoge, the Appellant. He adopted his witness statement as evidence in chief and prayed that his list of documents be adopted as his exhibits. In his statement dated 10th May 2022, he stated that he was the grandson to the deceased and that the Petitioner was his friend. Further, that he later discovered that the Petitioner had filed a land case against him to wit; ELC No. 33 of 2019. He urged the court to revoke the grant as it was based on the untrue allegation that the Petitioner was the grandson to the deceased.
7. During cross examination, he testified that the succession matter never involved the Petitioner and that the Succession Cause was filed when he wanted the title deed. He stated that this was the second time he had come for succession and that he was with Robert the first time. He denied knowing William Cheptoo or having gone to the chief. Further, he stated that Robert came to court alone.
8. PW2 was Jacob Kipruto Choge, who testified that the deceased was his grandmother, Robert was his neighbour and the Appellant his brother. Further, that they learnt that Robert had purported to be a grandchild of the deceased and that they prayed that the title be revoked or cancelled. During cross examination, he stated that he did not know the acreage of the land and that Julius sold land to Kenneth who is still occupying the land.
9. PW3 was Paul Kibiwott who stated that the Appellant was a grandchild to the deceased but the Respondent was not related to the deceased.
10. The Objectors closed their case and the Petitioner then proceeded with his defence.
11. DW1 was the Respondent herein. He adopted his witness statement as evidence in chief. It was his evidence that the Appellant borrowed Kshs. 100,000/- from him in 1997 and two weeks later, he requested that he lend him another Kshs. 10,000 which he did. Two weeks after that he came and requested that he give him more money on exchange for land parcel number 110. He requested that he come with his family and he later came with Christina and Zipporah Chege. He gave him Kshs. 20,000 which came to a total of Kshs. 10,000 including the previous loan.
12. They visited the site and agreed at Kshs. 60,000/- per acre and the Appellant wanted to sell 5 acres. He stated that on 11th March 1998 he paid him Kshs. 70,000/- and on 4th August 1998, the Appellant visited his home and he gave him Kshs. 40,000/- and, on 3rd February 1999 Julius Choge and Christine Choge came to his home and he gave them Kshs. 30,000/-The Appellant relocated to Eldoret and visited him in 2001 where he wanted some money and he gave him Kshs. 15,000/- and later, in 2003 he visited him again where he told him he needed money. He gave him Kshs. 50,000/- which he borrowed from ‘Kipserem’ and 3 bags of maize.
13. It was his testimony that they had agreed that he pay in instalments of Kshs. 30,000 per year which he did and in the year 2007 he paid the Appellant Kshs. 30,000/-. In total, he paid Kshs. 300,000/- which he finished in 2008. He additionally agreed to pay for the costs of succession and in 2010, he gave the Appellant, Zipporah, Tecla and Christine Kshs. 40,000/- at Iten and they finalized. They called the surveyor and agreed on a date but on that date the Appellant did not show up. He tried following up in 2012 but the Appellant refused to come and solve the issue. He paid Kshs. 45,000 and upon the lapse of three months the Appellant filed the objection.
14. That he later came to Iten and told him that they would sub divide the land with the individual he had found cultivating said land and then disappeared for 5 years. He stated that during the confirmation hearing for the grant, the appellant appeared alongside him in court. During cross examination he stated that the documents were genuine and that he had agreed with Julius that he be indicated as a grandson. He further stated that he did not have a sale agreement and that he bought the land at Kshs. 60,000/- per acre.
15. The matter was then referred for mediation but the same failed. It then proceeded for hearing where Musa Kiplimo Korir testified as DW2. The witness, a neighbour to both parties, testified that he knew that the Appellant had sold land to the respondent and that when the respondent started constriction of foundation, they started having issues and the respondent was stopped from constructing in 2013. In cross examination, he stated that he did not witness the sale agreement for the land.
16. DW3 was Wilson Simotwo, a neighbour to the parties who testified that he did not witness the agreement and did not have any documents on the survey.
Hearing of the Appeal
17. The Appeal was canvassed by way of written submissions with the Appellant filing submissions dated 7th April 2025 through the firm of Messrs Koech-Lelei & Co Advocates whereas the Respondent filed submissions dated 2nd May 2025 through the firm of Messrs Ego Kipkemboi & Company Advocates.
Appellants’ submissions
18. Learned Counsel for the Appellant argued that the Petitioner misrepresented himself and fraudulently applied for letters of administration as grandson. That the objector produced a chief's letter dated 18th October 2021 clearly showing that the petitioner is not related to the deceased herein. In this regard, he cited Section 29 of the Succession Act which defines the persons who ought to be construed to be a “dependant “of a deceased person. He referred to the testimonies of his witnesses in support of the submission that the Trial Magistrate erred in both law and fact by disregarding the fact that the Respondent did not provide anything in evidence to prove that he is a purchaser of a portion of land in the deceased's Estate.
19. Further, Counsel submitted that the confirmation by the respondent that he is not a grandson clearly helps this case and so the grant as confirmed should be revoked and the parcel reverts back to the estate.
20. Counsel cited Section 76 of the Law of Succession Act in relation to when a Grant can be revoked. He stated that in this case, the respondent obtained the grant fraudulently by making false statement that he is the grandson of the deceased which is an untrue allegation of a fact. He cited the case of the Estate Magangi Obuki (Deceased) (2020) eKLR and submitted that it is trite law that all beneficiaries of the estate must appear before the Court for a grant to be confirmed and the relevant Certificate of Confirmation of Grant issued.
21. That from the court record, the appellant, being the grandson of the deceased herein never appeared before court and neither did his siblings. That the proceedings of 14th July 2010 show that only the respondent appeared before the court and the grant was confirmed. He prayed that the court revokes the grant and order that the parcel be reverts back to estate for the rightful beneficiaries to distribute the estate. He urged the court to allow the appeal with costs.
Respondents’ Submissions
22. Learned counsel for the respondent laid down the background of the case and stressed the importance of noting that at the confirmation stage, the Appellant was present in court. On whether the Appellant was fraudulent in his undertaking, Counsel placed reliance on the case of Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2009] eKLR where the Court held that in an allegation of fraud, the same as alleged must be specifically pleaded and the particulars thereof stated on the face of the pleadings, the acts alleged to be fraudulent set out and that it is not allowable to leave fraud to be inferred from the facts.
23. Further, Counsel urged that the Appellant did not approach the Magistrate’s Court with clean hands in that he misled the Court in stating that the Respondent did not seek consent from him while applying for grant of letters of administration whereas they were together to the point of confirmation and that in the Petition he appears as a surety.
24. Counsel urged that the Respondent is catered for under Section 66 of the Law of Succession Act provides for creditors also as persons to whom grant of letters of administration can issue. He also submitted that the Appellant did not meet the standard of proof as set out in the case of Kinyanjui Kamau v George Kamau [2015] eKLR wherein the holding in the Vijay Case (Supra) was reiterated.
25. On the issue of being named as a grandson, Counsel urged that the Respondent was not named as such in the Chief’s Letter and that this was entirely an error at the Iten Law Court which error the Appellant had a chance to raise an objection to at that time and at the point of Confirmation. He stated that the Appellant brought this suit as an afterthought only after the respondent instituted a suit against the applicant ELC NO.33 of 2019.
26. Counsel pointed out that it is important to note that the Respondent has been in possession of half of the suit land since the year 2000. He placed reliance on the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No. 158 OF 2000 and urged that the Appellant failed to prove his case against the respondent on a balance of probabilities. He urged the court to dismiss the Appeal with costs to the respondent, placing reliance on Section 27 of the Civil Procedure Act.
Analysis & Determination
27. This being a first appellate court, it is duty bound to re-evaluate, reanalyse and reconsider the evidence before it and come up with independent findings of course bearing in mind that it did not have the advantage to see witnesses testifying, unlike the trial court and therefore give due allowance for that. See: Selle & Another V Associated Motor Boat Company Ltd & Others, [1968] EA 123 and Peters V Sunday Post Limited, [1958] EA 424.
28. The above said, I have considered the Application, the proceedings before the Trial Court, the impugned judgement of the Learned Trial Magistrate as well as the Submissions filed on behalf of the Parties. The position pertaining at the Trial Court is that the Appellant appeared with the Respondent and participated throughout the entire process of obtaining the grant of letters of administration and more particularly on the date of the confirmation of grant.
29. The evidence of the Respondent is to the effect t that the two had agreed to the Applicant does sell a portion of land comprising the deceased estate to the Respondent so as to enable him fund the succession proceedings due to the fact that the Applicant did not have the requisite funds to pay for succession proceedings. That the Respondent therefore stepped in and paid for the same but he was erroneously indicated in the proceedings therein as a grandson of the deceased, when he was actually a purchaser.
30. The court notes that in his testimony, the Appellant admits that the Respondent is his friend and largely and almost exclusively dwelt on his averment that the Respondent in seeking to obtain the grant of letters of administration, misrepresented himself as a grandson of the deceased yet he was not. In this regard, the court notes that the Applicant completely avoided delving into the averment by the Respondent on the sale of a portion of the estate for purposes of funding the succession proceedings in his testimony and it was only briefly brought up in the submissions to the effect that the Respondent did not avail any proof of sale.
31. In light of the fact that the Respondent has in his Replying Affidavit admitted that he is indeed not a grandson of the deceased and has attributed any reference to him as such as an error that occurred at the SPM’s Court at ITEN the circumstances of how he came to apply for and obtained the grant of letters of Administration for the deceased estate as herein explained dovetails to support his averment that he is a purchaser of a portion of land comprising the estate as herein explained.
32. In these circumstances, the court is of the considered opinion that whereas it is not within its jurisdiction and mandate to determine the merits or otherwise of the purported purchase of the land the subject matter of these proceedings for reasons that this belongs to the jurisdiction of the Environment and land Court, for purposes of determining the legality or otherwise of the letters of administration herein issued to the Respondent, the court is clothed with the requisite jurisdiction under the provisions of Rule 73 of the Probate and Administration Rules which grants the court the inherent power to make such orders as maybe necessary for the ends of justice or to prevent abuse of the court process.
33. In this regard, for purposes of determining the succession cause, based on the evidence on record the court will proceed on the premise that the Respondent has sufficiently demonstrated on a balance of probabilities, that he is as a purchaser of the land in question and is therefore participating in these proceedings as such.
34. The above being the case then, it is my considered opinion that the following are the issues that arise for determination;
(i) The circumstances under which a purchaser can apply for Grant of letters of Administration of a deceased Estate
(ii) Whether, the Application has met the threshold for revocation as set out in Section 76 of the Succession Act
35. Section 66 of the Law of Succession Act provides the order of preference to be given to certain persons to apply for a certificate of confirmation of grant where the deceased died intestate. It states thus;
When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference
(a) surviving spouse or spouses, with or without association of other beneficiaries;
(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
(c) the Public Trustee; and
(d) creditors:
Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.
29. Further, Rule 26(1) of the Probate and Administration Rules provides guidelines on making of grants. It provides;
26. Grants of letters of administration
(1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.
(2) An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.
30. In light of the fact that the Respondent herein by his own admission is not at all related to the deceased but was a purchaser, it follows then that under Section 66 of the Law of Succession Act, he qualifies as a creditor in the circumstances of this cause. As such, he ranks lower in priority to the Appellant. It follows therefore that as provided for under Section 62 of the Act and as and governed by Rule 22 of the Probate and Administration Rules the Respondent ought to have firstly issued a Citation to the beneficiaries of the estate.
31. The said Rule 22 of the Probate and Administration Rules provides as follows;
(1) A citation may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.
32. In the case of Josiah Muli Wambua – deceased, Nairobi Succession Cause No. 2557 of 2012 [2014] eKLR W. Musyoka – J explained the same as follows: -
“In intestacy, citation issue only in cases where no petition has been lodged in court. Citations are intended to trigger the process of applying for letters of administration intestate in circumstances where the persons entitled to apply are not willing or are slow in moving the court in that behalf. The citor should not be a person who has himself already applied for the grant, for the citor should only apply for grant after the citee fails to so apply.”
32. Thereafter, he would then have applied for a grant under Rule 26(1) of the Probate and Administration Rules herein cited, wherein he was required to support his Petition with an affidavit, preferably with the sale agreement or any other evidence for the court then to exercise discretion in his favour and grant him the grant of letters of administration as envisaged under Section 66 of the Act.
33. The provisions of Section 76 of the law of Succession provides for the circumstances under which the court can annul or revoke a grant and it states as follows;
“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;
34. It has been argued by the Respondent that the allegation that the grant was obtained by way of fraud cannot stand for reasons that as is required by the law, the issue of fraud was not specifically pleaded and the particulars of the alleged fraud laid out as already herein summarised. This then raises the issue of whether the requirement to plead and particularise fraud in pleadings applies to Succession proceedings.
35. The requirement to particularize fraud in pleadings is provided for under Order 2 Rule 4 of the Civil Procedure Rules as follows;
Particulars of pleading [Order 2, rule 4]
(1) Subject to sub rule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing
(a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and
(b) where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies.
36. Rule 63 of the Probate and Administration Rules lists the provisions of the Civil Procedure Rules that apply to Probate and Administration proceedings. It states;
(1) Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.
37. From the above provision of the Rule 63 of the Probate and Administration Rules, it is clear that it is not requirement for a party seeking for a revocation of grant on the grounds of fraud to state the particulars of the alleged fraud in its pleadings.
38. In light of the foregoing, it is my considered opinion that the grant was not obtained fraudulently as envisaged by the provisions of Section 76(b) of the Law of Succession Act, but the proceedings to obtain the same grant were defective in substance as provided under Section 76(a) thereof and further that the same was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding the fact that the allegation could have been made in ignorance or inadvertently.
39. All considered therefore, in light of my conclusions herein whose effect is that the two issues raised for determination have been answered in the affirmative, it is my finding that the Learned Magistrate misdirected herself in the impugned judgement in dismissing the Summons for the Revocation of the grant for the reasons therein given as herein discussed.
40. I therefore find that the Appellant’s Appeal has merit and the same is now hereby allowed in its entirety. The Grant of Letters of Administration issued to the Respondent ROBERT KIPKURGAT KIPYEGO dated 23rd June 2010 and confirmed on 25th June 2010 is now hereby revoked and the Land Parcel Number CHERANGANY/CHEBORORWA/110 is to be reverted back to the estate of the deceased.
41. Each party is to bear its own costs.
Read Dated and Signed at ELDORET on 9th July 2025.