1. This is a first appeal arising out of a succession dispute. The dispute emanates from the Chief Magistrate's Court at Malindi in Succession Cause No. E088 of 2021. The matter relates to the estate of the late Charo Thoya Baya.
Background Facts
2. The genesis of this dispute is relatively straightforward. The Respondents petitioned the lower Court for letters of administration intestate. They claimed the estate of their late father. The grant was issued on 4th August, 2021. The grant was subsequently confirmed on 8th June, 2022.
3. The twists and turns in this matter emerged shortly after the confirmation of the grant. The confirmed grant listed only one asset. This asset was a parcel of land known as Gede/Mijomboni/495. However, the deceased was not the registered proprietor of this land at the time of his death. The land was registered in the name of one Sarroney Athman Mesiaji Mnene.
4. The Respondents attempted to cure this anomaly. They filed a Chamber Summons dated 23rd June, 2022. They sought to revoke the title deed held by Sarroney Athman Mesiaji Mnene. They sought an order to reinstate the name of their late father on the register. They named Sarroney Athman and Mesiaji Mnene as the Respondents to that application.
5. The Appellants became aware of these proceedings upon service of the Chamber Summons to their caretaker. They swiftly moved the Court. They filed Summons for Revocation and or Annulment of Grant dated 20th September, 2022.
6. The Appellants adduced evidence indicating a long chain of title transfers. They demonstrated that the deceased sold the land to Sarroney Athman Mesiaji Mnene on 16th October, 1976. Sarroney Athman Mesiaji Mnene subsequently sold it to Davies Lyttetton Kiseu. Davies Lyttetton Kiseu then sold it to the 1st Appellant and the late Frankline Mwangolo Mbwana. The Appellants essentially accused the Respondents of fraudulently concealing these material facts from the succession court.
7. The Respondents retaliated. They filed a Notice of Preliminary Objection dated 27th September, 2022. They argued that the Appellants lacked locus standi. They contended the Appellants were neither beneficiaries nor creditors of the estate. The Trial Court directed that the Preliminary Objection be heard first. Parties duly filed their written submissions.
8. The Learned Trial Magistrate delivered the impugned ruling on 22nd February, 2023. He held that the Court was functus officio. He found that the Appellants drew their validity from a different estate and were not beneficiaries of Charo Thoya Baya. Consequently, he struck out the Appellants' Summons for Revocation. Curiously, he also struck out the Respondents' Chamber Summons.
9. The Appellants were aggrieved by the Trial Court's decision. They lodged the present appeal. They rely on the following grounds:
1. THAT the Learned Trial Magistrate erred in law and fact in condemning the Appellants unheard in as far as the Summons for revocation and annulment of grant 20th September, 2022, is concerned.
2. THAT the Learned Trial Magistrate erred in law and fact by pronouncing himself on the Summons for revocation and or annulment of grant dated 20th September, 2022, when it was not before him for determination.
3. THAT the Learned Trial Magistrate erred in law and fact by failing to pronounce himself on the Petitioners' Notice of Preliminary Objection dated 27th September, 2022, which was infact the application that was before him for determination.
4. THAT the Learned Trial Magistrate erred in law and fact by holding that the Appellants cannot seek for revocation of the grant of letters of administration issued to the estate of Charo Thoya Baya [Deceased].
5. THAT the Learned Trial Magistrate erred in law and fact by holding that the court is functus officio and has no jurisdiction to hear and determine the Summons for revocation and or annulment of grant dated 20th September, 2022.
6. THAT the Learned Trial Magistrate erred in law and fact by holding that the Summons for revocation and or annulment of grant dated 20th September, 2022, was not filed in the right court.
7. THAT the Learned Trial Magistrate erred in law and fact by striking out the Summons for revocation and or annulment of grant dated 20th September, 2022.
10. In the same vein, the Appellants sought the following reliefs in the Memorandum of Appeal:
a) The appeal be allowed and the Ruling dated 22nd February, 2022, be vacated and or set aside.
b) The costs of this Appeal be borne by the Respondents.
11. The Court notes that the reference to the year 2022 in prayer (a) is a typographical error. The ruling was delivered on 22nd February, 2023 and not 2022. The Court on its own Motion amends that portion of the relief so that it can deal with this Appeal conclusively. In doing so, the Court notes that the error was not picked by either party. Hence, no prejudice will be occasioned to the Respondents. In any event the Court would have been minded to grant such a routine amendment had such an application been made by the Appellants.
12. The Appellants mounted a vigorous challenge against the impugned ruling. They submitted that the Trial Court condemned them unheard. They argued that the Learned Trial Magistrate directed parties to file submissions strictly on the Preliminary Objection. However, the Learned Magistrate completely ignored the Preliminary Objection in his ruling. Instead, he struck out their substantive Summons for Revocation, which was never canvassed.
13. On the issue of locus standi, the Appellants submitted that Section 76 of the Law of Succession Act empowers "any interested party" to seek revocation of a grant. They argued that as purchasers for value, they possess a direct interest in the estate. They further submitted that a Succession Court cannot be functus officio when dealing with an application for revocation under Section 76.
14. The Appellants relied on a line of authorities. The Court acknowledges the authorities cited by the Appellants. They cited Said Juma Chitembwe v Edward Muriu Kamau & 4 others [2011] eKLR and Samuel Njagi Mwangi v James Kamau Wainaina [2018] eKLR to anchor their arguments on the right to a fair hearing. To support their arguments on locus standi, they relied on the Court of Appeal decisions in Ansazi Gambo Tinga & Another v Nicholas Patrice Tabuche [2019] eKLR and Musa Nyaribari Gekone & 2 Others v Peter Miyienda & another [2015] eKLR.
15. The Respondents filed brief submissions in this Appeal. They maintained that the Trial Court did give directions that written submissions be filed. Once this was done the Court delivered its Ruling on the Preliminary Objection and thus discharged its duty to the parties. The Respondents rely on Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd. [1969] EA 696 and John Musakali v Speaker County of Bungoma & 4 others [2015] KEHC 2131 (KLR).
16. They maintained that their Preliminary Objection raised pure points of law. That upon adjudicating on the Preliminary Objection, the Trial Court had no other business than to strike out the Summons for revocation of Grant. The Court has taken note of their position in the Lower Court, which is well documented. They argued that the Appellants lacked locus standi. They asserted that the Appellants were intermeddlers who were neither beneficiaries nor creditors of the deceased. They maintained that the suit property lawfully belonged to the deceased's estate.
Issues for Determination
17. The Court has carefully evaluated the pleadings, the record of appeal, the rival submissions, and the cited jurisprudence. The Court frames the following four issues for determination:
1. Whether the Trial Court erred in law by determining the substantive Summons for Revocation without pronouncing itself on the Preliminary Objection.
2. Whether the Appellants possess the requisite locus standi as "interested parties" under Section 76 of the Law of Succession Act.
3. Whether the Trial Court became functus officio upon the issuance and confirmation of the grant.
4. Whether the Notice of Preliminary Objection dated 27th September, 2022 was merited.
Analysis
18. This Court is sitting on a first appeal. The duty of a first Appellate Court is firmly settled in our jurisprudence. The Court is obligated to reconsider all the evidence and materials placed before the Trial Court. It must evaluate, re-assess, and re-analyze the record to draw its own independent conclusions.
19. The Court is guided by the binding pronouncement of the Court of Appeal in Ansazi Gambo Tinga & another v Nicholas Patrice Tabuche [2019] KECA 803 (KLR), which quoted with approval the case of Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR. The Court stated:
"This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way."
20. The Court also relies upon the celebrated case of Selle v Associated Motor Boat Company Ltd [1968] EA 123. The predecessor to the current Court of Appeal eloquently stated that a first appellate court must weigh conflicting evidence and draw its own inferences, bearing in mind that it has neither seen nor heard the witnesses.
(a) Whether the Trial Court erred in law by determining the substantive Summons for Revocation without pronouncing itself on the Preliminary Objection.
21. The record reveals a glaring procedural anomaly. On 30th November, 2022, the Learned Trial Magistrate directed parties to file submissions on the Preliminary Objection dated 27th September, 2022. The parties dutifully complied.
22. However, the impugned ruling dated 22nd February, 2023, is conspicuously silent on the Preliminary Objection. Apart from a passing mention, the Learned Trial Magistrate made no specific finding on it. Instead, he delved into the merits of the Appellants' Summons for Revocation. He struck it out. The Summons for Revocation was not slated for hearing. The Court delivered itself as follows:
“Any disputes over ownership of the parcel in question should therefore be sited in the land Court with jurisdiction to make decisions over ownership. All the applications therefore filed after confirmation of grant are dismissed for having been filed in the wrong platform. There is nothing left to litigate under the law of succession. Each party to bear its own costs.”
23. It is a fundamental tenet of our justice system that a party must be heard before an adverse decision is rendered against them. Article 50(1) of the Constitution guarantees the right to a fair hearing. By striking out the substantive application before parties could canvass it, the Learned Trial Magistrate ambushed the Appellants.
24. This procedural misstep offends the rules of natural justice. The Court is persuaded by the High Court decision in Samuel Njagi Samuel Njagi Mwangi v James Kamau Wainaina [2018] KEHC 8235 (KLR). The Court quoted from the Court of Appeal decision in Said Juma Chitembwe v Edward Muriu Kamau & 4 others [2011] eKLR, stating:
"It is the basic tenet of our law that no man or woman may be condemned unheard. As the cardinal rules of natural justice were breached by the order of stay granted on 11th June, 2010, it has to be varied to exclude the applicant."
25. The Trial Court's failure to explicitly determine the Preliminary Objection, while simultaneously utilizing its underlying arguments to strike out the main application, was irregular and unlawful. This ground of appeal succeeds.
(b) Whether the Appellants possess the requisite locus standi as "interested parties" under Section 76 of the Law of Succession Act.
26. The Learned Trial Magistrate held that the Appellants were not beneficiaries of Charo Thoya Baya. He ruled that they drew their validity from a different estate. Consequently, he found they had no locus standi to seek revocation. This finding is fundamentally flawed in law.
27. The correct law in relation to the revocation of grants is found in Section 76 of the Law of Succession Act. The section explicitly permits "any interested party" to apply for the revocation or annulment of a grant.
28. Historically, there was a restrictive view held by some High Court benches, such as in Kennedy Opiche Olela v. William Ogida Ochuodho & Another [2014] eKLR. The restrictive view posited that an "interested party" under Section 76 must be an eligible administrator envisioned under Section 66 of the Act.
29. This conflict was firmly and decisively resolved by the Court of Appeal. The Appellate Court overturned the restrictive interpretation. The jurisprudence is now settled. A purchaser or a creditor is an interested party.
30. In Musa Nyaribari Gekone & 2 others v Peter Miyienda & another [2015] KECA 573 (KLR), the Court of Appeal rendered itself in extenso on this exact point:
"The expression "any interested party" as used in that provision, in its plain and ordinary meaning, is in our view wide enough to accommodate any person with a right or expectancy in the estate. We are not persuaded, as Mr. Oguttu urged, that that expression is limited by or should be construed against the provisions of sections 66 and 39 of the Law of Succession Act... There is therefore no merit in the complaint that the learned judge paid undue premium or undue regard to section 76 of the Law of Succession Act when he held that the 1st respondent has the locus standi to present the application for revocation of the grant. We agree with the learned Judge that the 1st respondent's interest as a purchaser of the property of the deceased qualifies him as an 'interested party' with standing to challenge the grant."
31. This progressive stance was reiterated by the Court of Appeal in Ansazi Gambo Tinga & Another v Nicholas Patrice Tabuche [2019] eKLR. The court affirmed as follows:
"As stated by this Court above and as rightly pointed out in Re Estate of Shongo Omedo [2018] eKLR; persons with locus standi to seek revocation of grant includes any person with a right or expectancy to the estate. It therefore follows that an 'interested person' under Section 76 does not only envision the heirs enumerated under Section 66 of the Act; rather, it includes a person who can show an interest in the estate."
32. Applying this settled jurisprudence to the present appeal, the Appellants exhibited sale agreements and deeds of indemnity. They demonstrated a clear and direct interest in Gede/Mijomboni/495, which the Respondents had listed as an asset of the estate. The Appellants unequivocally qualify as interested parties. The Learned Trial Magistrate misdirected himself in law by finding otherwise.
(c) Whether the Trial Court became functus officio upon the issuance and confirmation of the grant.
33. The Learned Trial Magistrate held that upon issuing and confirming the grant, the Court became functus officio. He ruled that the Lower Court had no jurisdiction to entertain the applications. This reasoning is legally untenable in succession matters.
34. Section 48 of the Law of Succession Act vests magistrates with the jurisdiction to entertain any application and determine any dispute under the Act, subject to pecuniary limits.
35. The doctrine of functus officio dictates that once a Court renders a final decision, it lacks the authority to revisit or alter that decision. However, this general rule has statutory exceptions. Section 76 of the Law of Succession Act is one such explicit exception.
36. Section 76 expressly provides that a grant of representation, "whether or not confirmed, may at any time be revoked or annulled." The phrase "at any time" is a clear legislative ouster of the functus officio doctrine in revocation proceedings. A Succession Court retains supervisory jurisdiction over the estate. If allegations are raised that a grant was obtained fraudulently by concealing material facts—such as listing property belonging to third parties—the court is statutorily mandated to interrogate the claims.
37. The Court is persuaded by the decision of Mabeya J. in In re Estate of Lawrence Akini Oile (Deceased) [2026] KEHC 5393 (KLR). The Court noted that while Courts generally become functus officio after final judgment, statutory frameworks providing for review or specific interventions preserve the Court's jurisdiction. Section 76 perfectly embodies this preservation. The Lower Court was not functus officio.
(d) Whether the Notice of Preliminary Objection dated 27th September, 2022 was merited.
38. Though the Trial Court did not render itself on the Notice of Preliminary Objection, all the submissions were placed before it. The Leading decision on Preliminary Objections is Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd. [1969] EA 696. Time without number, the Courts have stated that Preliminary Objections ought not to be raised frivolously but only on pure points of law. Any objection based on arguments that call for factual evidences is not a candidate of a pure point of law. Issues of locus standi, whether the Appellants were creditors or beneficiaries of the Estate, whether there were liabilities to be paid from the Estate call for factual arguments. They can only be responded to by way of a Replying Affidavit. This calls for factual analysis and hence cease to be pure point of law. The Notice of Preliminary Objection was therefore not well taken.
39. The impugned ruling of the Lower Court is riddled with procedural and substantive errors. The Appellants were denied a fair hearing. They possess the requisite locus standi to challenge the grant. The Trial Court is fully vested with the jurisdiction to hear and determine the Summons for Revocation on its merits.
40. On costs, the same lie at the discretion of this Court and ordinarily follow the event. The Court is persuaded that the Appellants are deserving of the costs of this Appeal and of the Preliminary Objection raised in the Court below.
Determination
41. The appeal is meritorious and is allowed in the following terms:
a) The Appeal is hereby allowed.
b) The Ruling and Order of the Lower Court delivered on 22nd February, 2023, striking out the Appellants' Summons for Revocation of Grant dated 20th September, 2022 and the Respondents’ Chamber Summons application dated 23rd June, 2022 is HEREBY quashed and set aside. It is instead HEREBY replaced and substituted with an Order overruling the Notice of Preliminary Objection dated 27th September, 2022 which is HEREBY struck out.
c) The Appellants' Summons for Revocation of Grant dated 20th September, 2022 and the Respondents’ Chamber Summons application dated 23rd June, 2022 are HEREBY reinstated for hearing before the Trial Court.
d) The succession cause is remitted back to the Chief Magistrate's Court at Malindi, to be heard and determined on merits by a Magistrate other than Hon. James Ongondo SPM.
e) The costs of this appeal shall be borne by the Respondents who shall also bear the costs of the Lower Court in respect to the Notice of Preliminary Objection which has been struck out.
42. Orders accordingly.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Lewa for the Appellants.
Mr. Michira for the Respondents.
Mr. Mohamed - Court Assistant.
Background Facts
2. The genesis of this dispute is relatively straightforward. The Respondents petitioned the lower Court for letters of administration intestate. They claimed the estate of their late father. The grant was issued on 4th August, 2021. The grant was subsequently confirmed on 8th June, 2022.
3. The twists and turns in this matter emerged shortly after the confirmation of the grant. The confirmed grant listed only one asset. This asset was a parcel of land known as Gede/Mijomboni/495. However, the deceased was not the registered proprietor of this land at the time of his death. The land was registered in the name of one Sarroney Athman Mesiaji Mnene.
4. The Respondents attempted to cure this anomaly. They filed a Chamber Summons dated 23rd June, 2022. They sought to revoke the title deed held by Sarroney Athman Mesiaji Mnene. They sought an order to reinstate the name of their late father on the register. They named Sarroney Athman and Mesiaji Mnene as the Respondents to that application.
5. The Appellants became aware of these proceedings upon service of the Chamber Summons to their caretaker. They swiftly moved the Court. They filed Summons for Revocation and or Annulment of Grant dated 20th September, 2022.
6. The Appellants adduced evidence indicating a long chain of title transfers. They demonstrated that the deceased sold the land to Sarroney Athman Mesiaji Mnene on 16th October, 1976. Sarroney Athman Mesiaji Mnene subsequently sold it to Davies Lyttetton Kiseu. Davies Lyttetton Kiseu then sold it to the 1st Appellant and the late Frankline Mwangolo Mbwana. The Appellants essentially accused the Respondents of fraudulently concealing these material facts from the succession court.
7. The Respondents retaliated. They filed a Notice of Preliminary Objection dated 27th September, 2022. They argued that the Appellants lacked locus standi. They contended the Appellants were neither beneficiaries nor creditors of the estate. The Trial Court directed that the Preliminary Objection be heard first. Parties duly filed their written submissions.
8. The Learned Trial Magistrate delivered the impugned ruling on 22nd February, 2023. He held that the Court was functus officio. He found that the Appellants drew their validity from a different estate and were not beneficiaries of Charo Thoya Baya. Consequently, he struck out the Appellants' Summons for Revocation. Curiously, he also struck out the Respondents' Chamber Summons.
9. The Appellants were aggrieved by the Trial Court's decision. They lodged the present appeal. They rely on the following grounds:
1. THAT the Learned Trial Magistrate erred in law and fact in condemning the Appellants unheard in as far as the Summons for revocation and annulment of grant 20th September, 2022, is concerned.
2. THAT the Learned Trial Magistrate erred in law and fact by pronouncing himself on the Summons for revocation and or annulment of grant dated 20th September, 2022, when it was not before him for determination.
3. THAT the Learned Trial Magistrate erred in law and fact by failing to pronounce himself on the Petitioners' Notice of Preliminary Objection dated 27th September, 2022, which was infact the application that was before him for determination.
4. THAT the Learned Trial Magistrate erred in law and fact by holding that the Appellants cannot seek for revocation of the grant of letters of administration issued to the estate of Charo Thoya Baya [Deceased].
5. THAT the Learned Trial Magistrate erred in law and fact by holding that the court is functus officio and has no jurisdiction to hear and determine the Summons for revocation and or annulment of grant dated 20th September, 2022.
6. THAT the Learned Trial Magistrate erred in law and fact by holding that the Summons for revocation and or annulment of grant dated 20th September, 2022, was not filed in the right court.
7. THAT the Learned Trial Magistrate erred in law and fact by striking out the Summons for revocation and or annulment of grant dated 20th September, 2022.
10. In the same vein, the Appellants sought the following reliefs in the Memorandum of Appeal:
a) The appeal be allowed and the Ruling dated 22nd February, 2022, be vacated and or set aside.
b) The costs of this Appeal be borne by the Respondents.
11. The Court notes that the reference to the year 2022 in prayer (a) is a typographical error. The ruling was delivered on 22nd February, 2023 and not 2022. The Court on its own Motion amends that portion of the relief so that it can deal with this Appeal conclusively. In doing so, the Court notes that the error was not picked by either party. Hence, no prejudice will be occasioned to the Respondents. In any event the Court would have been minded to grant such a routine amendment had such an application been made by the Appellants.
12. The Appellants mounted a vigorous challenge against the impugned ruling. They submitted that the Trial Court condemned them unheard. They argued that the Learned Trial Magistrate directed parties to file submissions strictly on the Preliminary Objection. However, the Learned Magistrate completely ignored the Preliminary Objection in his ruling. Instead, he struck out their substantive Summons for Revocation, which was never canvassed.
13. On the issue of locus standi, the Appellants submitted that Section 76 of the Law of Succession Act empowers "any interested party" to seek revocation of a grant. They argued that as purchasers for value, they possess a direct interest in the estate. They further submitted that a Succession Court cannot be functus officio when dealing with an application for revocation under Section 76.
14. The Appellants relied on a line of authorities. The Court acknowledges the authorities cited by the Appellants. They cited Said Juma Chitembwe v Edward Muriu Kamau & 4 others [2011] eKLR and Samuel Njagi Mwangi v James Kamau Wainaina [2018] eKLR to anchor their arguments on the right to a fair hearing. To support their arguments on locus standi, they relied on the Court of Appeal decisions in Ansazi Gambo Tinga & Another v Nicholas Patrice Tabuche [2019] eKLR and Musa Nyaribari Gekone & 2 Others v Peter Miyienda & another [2015] eKLR.
15. The Respondents filed brief submissions in this Appeal. They maintained that the Trial Court did give directions that written submissions be filed. Once this was done the Court delivered its Ruling on the Preliminary Objection and thus discharged its duty to the parties. The Respondents rely on Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd. [1969] EA 696 and John Musakali v Speaker County of Bungoma & 4 others [2015] KEHC 2131 (KLR).
16. They maintained that their Preliminary Objection raised pure points of law. That upon adjudicating on the Preliminary Objection, the Trial Court had no other business than to strike out the Summons for revocation of Grant. The Court has taken note of their position in the Lower Court, which is well documented. They argued that the Appellants lacked locus standi. They asserted that the Appellants were intermeddlers who were neither beneficiaries nor creditors of the deceased. They maintained that the suit property lawfully belonged to the deceased's estate.
Issues for Determination
17. The Court has carefully evaluated the pleadings, the record of appeal, the rival submissions, and the cited jurisprudence. The Court frames the following four issues for determination:
1. Whether the Trial Court erred in law by determining the substantive Summons for Revocation without pronouncing itself on the Preliminary Objection.
2. Whether the Appellants possess the requisite locus standi as "interested parties" under Section 76 of the Law of Succession Act.
3. Whether the Trial Court became functus officio upon the issuance and confirmation of the grant.
4. Whether the Notice of Preliminary Objection dated 27th September, 2022 was merited.
Analysis
18. This Court is sitting on a first appeal. The duty of a first Appellate Court is firmly settled in our jurisprudence. The Court is obligated to reconsider all the evidence and materials placed before the Trial Court. It must evaluate, re-assess, and re-analyze the record to draw its own independent conclusions.
19. The Court is guided by the binding pronouncement of the Court of Appeal in Ansazi Gambo Tinga & another v Nicholas Patrice Tabuche [2019] KECA 803 (KLR), which quoted with approval the case of Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR. The Court stated:
"This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way."
20. The Court also relies upon the celebrated case of Selle v Associated Motor Boat Company Ltd [1968] EA 123. The predecessor to the current Court of Appeal eloquently stated that a first appellate court must weigh conflicting evidence and draw its own inferences, bearing in mind that it has neither seen nor heard the witnesses.
(a) Whether the Trial Court erred in law by determining the substantive Summons for Revocation without pronouncing itself on the Preliminary Objection.
21. The record reveals a glaring procedural anomaly. On 30th November, 2022, the Learned Trial Magistrate directed parties to file submissions on the Preliminary Objection dated 27th September, 2022. The parties dutifully complied.
22. However, the impugned ruling dated 22nd February, 2023, is conspicuously silent on the Preliminary Objection. Apart from a passing mention, the Learned Trial Magistrate made no specific finding on it. Instead, he delved into the merits of the Appellants' Summons for Revocation. He struck it out. The Summons for Revocation was not slated for hearing. The Court delivered itself as follows:
“Any disputes over ownership of the parcel in question should therefore be sited in the land Court with jurisdiction to make decisions over ownership. All the applications therefore filed after confirmation of grant are dismissed for having been filed in the wrong platform. There is nothing left to litigate under the law of succession. Each party to bear its own costs.”
23. It is a fundamental tenet of our justice system that a party must be heard before an adverse decision is rendered against them. Article 50(1) of the Constitution guarantees the right to a fair hearing. By striking out the substantive application before parties could canvass it, the Learned Trial Magistrate ambushed the Appellants.
24. This procedural misstep offends the rules of natural justice. The Court is persuaded by the High Court decision in Samuel Njagi Samuel Njagi Mwangi v James Kamau Wainaina [2018] KEHC 8235 (KLR). The Court quoted from the Court of Appeal decision in Said Juma Chitembwe v Edward Muriu Kamau & 4 others [2011] eKLR, stating:
"It is the basic tenet of our law that no man or woman may be condemned unheard. As the cardinal rules of natural justice were breached by the order of stay granted on 11th June, 2010, it has to be varied to exclude the applicant."
25. The Trial Court's failure to explicitly determine the Preliminary Objection, while simultaneously utilizing its underlying arguments to strike out the main application, was irregular and unlawful. This ground of appeal succeeds.
(b) Whether the Appellants possess the requisite locus standi as "interested parties" under Section 76 of the Law of Succession Act.
26. The Learned Trial Magistrate held that the Appellants were not beneficiaries of Charo Thoya Baya. He ruled that they drew their validity from a different estate. Consequently, he found they had no locus standi to seek revocation. This finding is fundamentally flawed in law.
27. The correct law in relation to the revocation of grants is found in Section 76 of the Law of Succession Act. The section explicitly permits "any interested party" to apply for the revocation or annulment of a grant.
28. Historically, there was a restrictive view held by some High Court benches, such as in Kennedy Opiche Olela v. William Ogida Ochuodho & Another [2014] eKLR. The restrictive view posited that an "interested party" under Section 76 must be an eligible administrator envisioned under Section 66 of the Act.
29. This conflict was firmly and decisively resolved by the Court of Appeal. The Appellate Court overturned the restrictive interpretation. The jurisprudence is now settled. A purchaser or a creditor is an interested party.
30. In Musa Nyaribari Gekone & 2 others v Peter Miyienda & another [2015] KECA 573 (KLR), the Court of Appeal rendered itself in extenso on this exact point:
"The expression "any interested party" as used in that provision, in its plain and ordinary meaning, is in our view wide enough to accommodate any person with a right or expectancy in the estate. We are not persuaded, as Mr. Oguttu urged, that that expression is limited by or should be construed against the provisions of sections 66 and 39 of the Law of Succession Act... There is therefore no merit in the complaint that the learned judge paid undue premium or undue regard to section 76 of the Law of Succession Act when he held that the 1st respondent has the locus standi to present the application for revocation of the grant. We agree with the learned Judge that the 1st respondent's interest as a purchaser of the property of the deceased qualifies him as an 'interested party' with standing to challenge the grant."
31. This progressive stance was reiterated by the Court of Appeal in Ansazi Gambo Tinga & Another v Nicholas Patrice Tabuche [2019] eKLR. The court affirmed as follows:
"As stated by this Court above and as rightly pointed out in Re Estate of Shongo Omedo [2018] eKLR; persons with locus standi to seek revocation of grant includes any person with a right or expectancy to the estate. It therefore follows that an 'interested person' under Section 76 does not only envision the heirs enumerated under Section 66 of the Act; rather, it includes a person who can show an interest in the estate."
32. Applying this settled jurisprudence to the present appeal, the Appellants exhibited sale agreements and deeds of indemnity. They demonstrated a clear and direct interest in Gede/Mijomboni/495, which the Respondents had listed as an asset of the estate. The Appellants unequivocally qualify as interested parties. The Learned Trial Magistrate misdirected himself in law by finding otherwise.
(c) Whether the Trial Court became functus officio upon the issuance and confirmation of the grant.
33. The Learned Trial Magistrate held that upon issuing and confirming the grant, the Court became functus officio. He ruled that the Lower Court had no jurisdiction to entertain the applications. This reasoning is legally untenable in succession matters.
34. Section 48 of the Law of Succession Act vests magistrates with the jurisdiction to entertain any application and determine any dispute under the Act, subject to pecuniary limits.
35. The doctrine of functus officio dictates that once a Court renders a final decision, it lacks the authority to revisit or alter that decision. However, this general rule has statutory exceptions. Section 76 of the Law of Succession Act is one such explicit exception.
36. Section 76 expressly provides that a grant of representation, "whether or not confirmed, may at any time be revoked or annulled." The phrase "at any time" is a clear legislative ouster of the functus officio doctrine in revocation proceedings. A Succession Court retains supervisory jurisdiction over the estate. If allegations are raised that a grant was obtained fraudulently by concealing material facts—such as listing property belonging to third parties—the court is statutorily mandated to interrogate the claims.
37. The Court is persuaded by the decision of Mabeya J. in In re Estate of Lawrence Akini Oile (Deceased) [2026] KEHC 5393 (KLR). The Court noted that while Courts generally become functus officio after final judgment, statutory frameworks providing for review or specific interventions preserve the Court's jurisdiction. Section 76 perfectly embodies this preservation. The Lower Court was not functus officio.
(d) Whether the Notice of Preliminary Objection dated 27th September, 2022 was merited.
38. Though the Trial Court did not render itself on the Notice of Preliminary Objection, all the submissions were placed before it. The Leading decision on Preliminary Objections is Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd. [1969] EA 696. Time without number, the Courts have stated that Preliminary Objections ought not to be raised frivolously but only on pure points of law. Any objection based on arguments that call for factual evidences is not a candidate of a pure point of law. Issues of locus standi, whether the Appellants were creditors or beneficiaries of the Estate, whether there were liabilities to be paid from the Estate call for factual arguments. They can only be responded to by way of a Replying Affidavit. This calls for factual analysis and hence cease to be pure point of law. The Notice of Preliminary Objection was therefore not well taken.
39. The impugned ruling of the Lower Court is riddled with procedural and substantive errors. The Appellants were denied a fair hearing. They possess the requisite locus standi to challenge the grant. The Trial Court is fully vested with the jurisdiction to hear and determine the Summons for Revocation on its merits.
40. On costs, the same lie at the discretion of this Court and ordinarily follow the event. The Court is persuaded that the Appellants are deserving of the costs of this Appeal and of the Preliminary Objection raised in the Court below.
Determination
41. The appeal is meritorious and is allowed in the following terms:
a) The Appeal is hereby allowed.
b) The Ruling and Order of the Lower Court delivered on 22nd February, 2023, striking out the Appellants' Summons for Revocation of Grant dated 20th September, 2022 and the Respondents’ Chamber Summons application dated 23rd June, 2022 is HEREBY quashed and set aside. It is instead HEREBY replaced and substituted with an Order overruling the Notice of Preliminary Objection dated 27th September, 2022 which is HEREBY struck out.
c) The Appellants' Summons for Revocation of Grant dated 20th September, 2022 and the Respondents’ Chamber Summons application dated 23rd June, 2022 are HEREBY reinstated for hearing before the Trial Court.
d) The succession cause is remitted back to the Chief Magistrate's Court at Malindi, to be heard and determined on merits by a Magistrate other than Hon. James Ongondo SPM.
e) The costs of this appeal shall be borne by the Respondents who shall also bear the costs of the Lower Court in respect to the Notice of Preliminary Objection which has been struck out.
42. Orders accordingly.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Lewa for the Appellants.
Mr. Michira for the Respondents.
Mr. Mohamed - Court Assistant.