1. The genesis of this appeal is the ruling of the trial court dated 11th May 2018 delivered in response to a summons for revocation of grant of letters of administration issued to the respondent in respect of the estate of the late Paul Kamau Njoroge alias Kamau Njoroge.
2. The court record reveals that the parties to this appeal are siblings and the late Paul Kamau Njoroge was their father. The grant whose revocation was sought in the aforesaid summons was issued to the respondent on 18th November 2008 and confirmed on 3rd September 2009. In the ruling dated 11th May 2018, the learned trial magistrate revoked the grant and appointed the appellant and the respondent as co-administrators of their father’s estate.
3. In the same ruling, the court directed the parties to agree on fresh distribution of the estate within 30 days in default of which the orders confirming the grant dated 3rd September 2009 would stand vacated and the certificate of confirmation of grant dated 16th December 2009 would stand cancelled.
4. Vide a summons dated 2nd November 2018, the appellant again moved the trial court seeking nullification of sale by the respondent of two properties to third parties namely, Ruiru/Ruiru West Block 3/836 and Loc.18 /Githima/2847 claiming that the two properties (hereinafter referred to as the subject properties) belonged to their father’s estate and had been unlawfully sold by the respondent pursuant to the grant that was revoked by virtue of the orders made in the ruling dated 11th May 2018 since the parties had failed to reach settlement on distribution within the timelines ordered by the trial court.
5. In the summons, the appellant prayed that titles issued in respect of the subject properties to the 3rd parties in question be cancelled and ownership of the two properties be ordered to revert back to the deceased. Further, the appellant prayed that ownership of all titles, plots and shares which had been transmitted to the respondent pursuant to the revoked grant be similarly cancelled and their ownership be reverted to the deceased to allow for fresh distribution by the court.
6. The record shows that the summons was contested by the respondent through a replying affidavit dated 7th November 2018. After considering the application and the material placed before it, the court delivered its ruling on 8th February 2019 partially allowing the summons.
7. In its ruling, the trial court nullified all titles issued to the respondent vide the cancelled certificate of confirmation of grant dated 16th December 2009 and ordered that the titles be reverted to the names of the deceased. The court however declined to nullify sale of the subject properties on grounds that doing so would amount to condemning the registered 3rd parties unheard. This is what triggered filing of the instant appeal.
8. In her memorandum of appeal dated 11th February 2021, the appellant advanced three grounds of appeal which are reproduced hereunder as follows;
i) That the learned magistrate erred in law when she failed to nullify some of the deceased properties on grounds that it will lead to condemning registered 3rd parties unheard having failed to give directions before the mater commenced for hearing.
ii) That the learned magistrate erred in law and fact when she wrongly evaluated the evidence before her and thus arrived at an erroneous decision.
iii) That the ruling was against the law in that the transfers were done when the grant had already been revoked.
9. The appeal was prosecuted by way of written submissions which both parties duly filed and which I have carefully considered.
Having considered the grounds of appeal, the impugned ruling, the record of the trial court and the rival written submissions filed by the parties, I find that the only issue arising for my determination is whether the trial court erred when it failed to nullify sale of the subject properties to 3rd parties as sought in the application.
10. In her submissions, the appellant urged the court to find that the sale of the subject properties was illegal since it concerned assets of a deceased’s estate which had been sold pursuant to a revoked grant; that the sale contravened Section 82(b)(ii) of the Law of Succession Act which stipulates that no immovable property in a deceased person’s estate shall be sold before confirmation of the grant; that the sale was therefore void abinito and could not have conferred good title to third parties and that in the premises, the trial court erred when it failed to cancel the subject titles to have them restored to the deceased’s name.
11. The respondent on his part supported the trial court’s decision arguing that it was sound in law as the court could not have cancelled titles issued to third parties who the applicant had failed to join as parties in the application seeking revocation of their titles. In his view, the appeal lacked merit and ought to be dismissed with costs.
12. Having considered the application that led to the impugned ruling and having thoroughly scrutinized the trial court’s record, although I fully agree with the appellant’s submissions that disposition of a deceased’s immovable property before confirmation of a grant was illegal as it contravened Section 82 (b) (ii) of the Law of Succession Act, a reading of the record does not show that the subject properties, as a matter of fact, formed part of the deceased’s estate.
13. The inventory of assets constituting the deceased’s estate as set out in both forms P&A 5 attached to the respondent’s petition for grant of letters of administration to the deceased’s estate and the affidavit supporting the summons for confirmation of grant dated 21st August 2009 do not include the subject properties in the assets comprising the estate.
14. According to these two vital documents, the assets belonging to the estate which were available for distribution were the following;
i) Land parcel No. Loc.18/Githima/1007.
ii) Land parcel No. Loc.18/Githima/1265.
iii) Land parcel Mitubiri/Wempa/Block 1/4842.
iv) Uiguithanio wa Kirere Co-operative Society Ltd Plot No, 1915.
v) Gema Holdings Limited Shares.
vi) Kenya Commercial Bank Ltd Shares.
vii) Standard Chartered Bank Kenya Ltd shares.
viii) Kandara Investments Ltd (Naro Moro)
ix) Kandara Investments Ltd (two plots).
15. The appellant though claiming that the subject properties belonged to their father’s estate did not avail to the trial court any evidence to that effect.
16. Given the foregoing, it is not clear why both parties proceeded before the trial court and before this court on the basis that the subject properties were part of the deceased’s estate which the respondent had unlawfully sold to 3rd parties when that position was not reflected in the evidence availed before the trial court.
17. It is apposite to note that a copy of the green card for one of the subject properties, namely, Ruiru/Ruiru west Block 3/856 which was annexed to the affidavit supporting the summons dated 2nd November 2018 shows clearly that on 14th December 2016, the respondent was registered as the first proprietor of the property. The entries in the green card do not show that the deceased was at any time registered as a proprietor of the property. Similarly, as stated earlier, the evidence on record does not show that the second property namely, Loc.18/Githima/2847 was part of the deceased’s estate. The same is not included in the inventory of assets belonging to the estate.
18. It is apparent that when determining the summons giving rise to the impugned ruling, the learned trial magistrate failed to properly interrogate the evidence on record and blindly accepted the appellant’s averments that the subject properties indeed formed part of the deceased’s estate which was not the case.
19. In the absence of evidence that the subject properties were part of the deceased’s estate, their alleged sale to 3rd parties had nothing to do with the deceased’s estate and could not have affected the interests of the deceased’s beneficiaries. The legality of the alleged sale transactions were for the above reasons not dependent on the existence or otherwise of a confirmed grant.
20. Flowing from the foregoing, I am satisfied that the learned trial magistrate did not have any legal basis to nullify titles issued to third parties in respect of the subject properties. Her decision was therefore correct albeit based on the wrong reasons.
21. Consequently, it is my finding that this appeal lacks merit and it is hereby dismissed.
22. Given that the appeal stems from a family dispute, I will not make any order as to costs.
It is so ordered.
DATED, SIGNED and DELIVERED VIRTUALLY this 23rd day of April 2026.
2. The court record reveals that the parties to this appeal are siblings and the late Paul Kamau Njoroge was their father. The grant whose revocation was sought in the aforesaid summons was issued to the respondent on 18th November 2008 and confirmed on 3rd September 2009. In the ruling dated 11th May 2018, the learned trial magistrate revoked the grant and appointed the appellant and the respondent as co-administrators of their father’s estate.
3. In the same ruling, the court directed the parties to agree on fresh distribution of the estate within 30 days in default of which the orders confirming the grant dated 3rd September 2009 would stand vacated and the certificate of confirmation of grant dated 16th December 2009 would stand cancelled.
4. Vide a summons dated 2nd November 2018, the appellant again moved the trial court seeking nullification of sale by the respondent of two properties to third parties namely, Ruiru/Ruiru West Block 3/836 and Loc.18 /Githima/2847 claiming that the two properties (hereinafter referred to as the subject properties) belonged to their father’s estate and had been unlawfully sold by the respondent pursuant to the grant that was revoked by virtue of the orders made in the ruling dated 11th May 2018 since the parties had failed to reach settlement on distribution within the timelines ordered by the trial court.
5. In the summons, the appellant prayed that titles issued in respect of the subject properties to the 3rd parties in question be cancelled and ownership of the two properties be ordered to revert back to the deceased. Further, the appellant prayed that ownership of all titles, plots and shares which had been transmitted to the respondent pursuant to the revoked grant be similarly cancelled and their ownership be reverted to the deceased to allow for fresh distribution by the court.
6. The record shows that the summons was contested by the respondent through a replying affidavit dated 7th November 2018. After considering the application and the material placed before it, the court delivered its ruling on 8th February 2019 partially allowing the summons.
7. In its ruling, the trial court nullified all titles issued to the respondent vide the cancelled certificate of confirmation of grant dated 16th December 2009 and ordered that the titles be reverted to the names of the deceased. The court however declined to nullify sale of the subject properties on grounds that doing so would amount to condemning the registered 3rd parties unheard. This is what triggered filing of the instant appeal.
8. In her memorandum of appeal dated 11th February 2021, the appellant advanced three grounds of appeal which are reproduced hereunder as follows;
i) That the learned magistrate erred in law when she failed to nullify some of the deceased properties on grounds that it will lead to condemning registered 3rd parties unheard having failed to give directions before the mater commenced for hearing.
ii) That the learned magistrate erred in law and fact when she wrongly evaluated the evidence before her and thus arrived at an erroneous decision.
iii) That the ruling was against the law in that the transfers were done when the grant had already been revoked.
9. The appeal was prosecuted by way of written submissions which both parties duly filed and which I have carefully considered.
Having considered the grounds of appeal, the impugned ruling, the record of the trial court and the rival written submissions filed by the parties, I find that the only issue arising for my determination is whether the trial court erred when it failed to nullify sale of the subject properties to 3rd parties as sought in the application.
10. In her submissions, the appellant urged the court to find that the sale of the subject properties was illegal since it concerned assets of a deceased’s estate which had been sold pursuant to a revoked grant; that the sale contravened Section 82(b)(ii) of the Law of Succession Act which stipulates that no immovable property in a deceased person’s estate shall be sold before confirmation of the grant; that the sale was therefore void abinito and could not have conferred good title to third parties and that in the premises, the trial court erred when it failed to cancel the subject titles to have them restored to the deceased’s name.
11. The respondent on his part supported the trial court’s decision arguing that it was sound in law as the court could not have cancelled titles issued to third parties who the applicant had failed to join as parties in the application seeking revocation of their titles. In his view, the appeal lacked merit and ought to be dismissed with costs.
12. Having considered the application that led to the impugned ruling and having thoroughly scrutinized the trial court’s record, although I fully agree with the appellant’s submissions that disposition of a deceased’s immovable property before confirmation of a grant was illegal as it contravened Section 82 (b) (ii) of the Law of Succession Act, a reading of the record does not show that the subject properties, as a matter of fact, formed part of the deceased’s estate.
13. The inventory of assets constituting the deceased’s estate as set out in both forms P&A 5 attached to the respondent’s petition for grant of letters of administration to the deceased’s estate and the affidavit supporting the summons for confirmation of grant dated 21st August 2009 do not include the subject properties in the assets comprising the estate.
14. According to these two vital documents, the assets belonging to the estate which were available for distribution were the following;
i) Land parcel No. Loc.18/Githima/1007.
ii) Land parcel No. Loc.18/Githima/1265.
iii) Land parcel Mitubiri/Wempa/Block 1/4842.
iv) Uiguithanio wa Kirere Co-operative Society Ltd Plot No, 1915.
v) Gema Holdings Limited Shares.
vi) Kenya Commercial Bank Ltd Shares.
vii) Standard Chartered Bank Kenya Ltd shares.
viii) Kandara Investments Ltd (Naro Moro)
ix) Kandara Investments Ltd (two plots).
15. The appellant though claiming that the subject properties belonged to their father’s estate did not avail to the trial court any evidence to that effect.
16. Given the foregoing, it is not clear why both parties proceeded before the trial court and before this court on the basis that the subject properties were part of the deceased’s estate which the respondent had unlawfully sold to 3rd parties when that position was not reflected in the evidence availed before the trial court.
17. It is apposite to note that a copy of the green card for one of the subject properties, namely, Ruiru/Ruiru west Block 3/856 which was annexed to the affidavit supporting the summons dated 2nd November 2018 shows clearly that on 14th December 2016, the respondent was registered as the first proprietor of the property. The entries in the green card do not show that the deceased was at any time registered as a proprietor of the property. Similarly, as stated earlier, the evidence on record does not show that the second property namely, Loc.18/Githima/2847 was part of the deceased’s estate. The same is not included in the inventory of assets belonging to the estate.
18. It is apparent that when determining the summons giving rise to the impugned ruling, the learned trial magistrate failed to properly interrogate the evidence on record and blindly accepted the appellant’s averments that the subject properties indeed formed part of the deceased’s estate which was not the case.
19. In the absence of evidence that the subject properties were part of the deceased’s estate, their alleged sale to 3rd parties had nothing to do with the deceased’s estate and could not have affected the interests of the deceased’s beneficiaries. The legality of the alleged sale transactions were for the above reasons not dependent on the existence or otherwise of a confirmed grant.
20. Flowing from the foregoing, I am satisfied that the learned trial magistrate did not have any legal basis to nullify titles issued to third parties in respect of the subject properties. Her decision was therefore correct albeit based on the wrong reasons.
21. Consequently, it is my finding that this appeal lacks merit and it is hereby dismissed.
22. Given that the appeal stems from a family dispute, I will not make any order as to costs.
It is so ordered.
DATED, SIGNED and DELIVERED VIRTUALLY this 23rd day of April 2026.