' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KILGORIS
SUCCESSION APPEAL NO. E001 OF 2022
(CORAM: HON. CHARLES M. KARIUKI – J)
MESHACK TALENNG’O OLE GILISHO……………APPLICANT/APPELLANT
VS
GIDEON OLE KOKONYA (Died 2013)…….....…………...……1 ST RESPONDENT
ABRAHAM KOKONYA…………………………………...….….2 ND RESPONDENT
SAMSON KOKONYA……….………………………..…………..3 RD RESPONDENT
RUTH NASENGELO………………………….....……………….4 TH RESPONDENT
RULING
03/10/2025
BACKGROUND.
The Appellant and Respondent are children of the deceased. The appellant is said to have filed Succession Cause without the consent of the family members and proceed in lower court to the stage of confirmation of grant as he indicated he was a sole beneficiary. Confirmation of grant for 17.09.2021 bequeathed entire Estate to himself. The information reached the Respondents thus by application dated 28.06.2022 they sought revocation of grant on the grounds of fraud and non – disclosure of all beneficiaries entitled to the Estate.
On 08.11.2022, the Trial Court revoked grant and ordered fresh Letters of Administration be applied. This precipitated the instant application with 11 home made grounds. The court gave directions that grant be canvassed via Submissions.
APPELLANTS SUBMISSIONS:
As the Respondents have totally failed to prove such grave allegations of doctoring documents by the Appellant. There averments and contentions remain baseless, irrelevant, mare speculation, fabrications, hearsay and imaginary and without any weight to warrant revocation of confirmed grant.
Court should make a finding that, the Respondents together with their Advocate in record''s action of omitting, ignoring and refusing to annex the said documents amounts to contravention of the said Provisions and statute. Hence, the said documents are baseless without form and any substance and ripe for striking out in its entireties.
Whether the Appellant is entitled to the costs of the cause.
It is the Appellant submissions that, he has established a prima facie case in the instant proceedings. The award of costs do follow the events and the same is discretionary. He relies on the case of Independent candidate of Kenya vs Mutula Kilonzo and 2 Others
The Appellant herein respectfully urges this Honorable Court to find that, he is entitled to the costs of the Application and instant Appeal.
As the Respondents have totally failed to prove such grave allegations of doctoring documents by the Appellant. There averments and contentions remain baseless, irrelevant, mare speculation, fabrications, hearsay and imaginary and without any weight to warrant revocation of confirmed grant.
Court should make a finding that, the Respondents together with their Advocate in record''s action of omitting, ignoring and refusing to annex the said documents amounts to contravention of the said Provisions and statute. Hence, the said documents are baseless without form and any substance and ripe for striking out in its entireties. Whether the Appellant is entitled to the costs of the cause.
It is the Appellant submissions that, he has established a prima facie case in the instant proceedings. The award of costs do follow the events and the same is discretionary. He relies on the case of Independent candidate of Kenya vs Mutula Kilonzo and 2 Others
The Appellant herein respectfully urges this Court to find that; he is entitled to the costs of the Application and instant Appeal It is submitted that, the Appellant herein confirms that he intentionally left out his siblings in his Petition to the Court purportedly because the Respondents herein got some land elsewhere and that the Estate of the deceased then belonged to him exclusively.
RESPONDENTS SUBMISSIONS:
It is submitted that, the Appellant herein confirms that he intentionally left out his siblings in his Petition to the Court purportedly because the Respondents herein got some land elsewhere and that the Estate of the deceased then belonged to him exclusively.
Based on the above lack of full disclosure and failure by the Appellant herein to involve all beneficiaries in his Petition for grant, the Court found the process leading to issuance of the grant defective and contravening Section 76(a) of the Law of Succession Act and proceeded to revoke the grant issued to the Appellant herein. An order revoking the Grant fraudulently taken out by the Appellant herein is issued on 8th December 2022.It is the said Revocation of Grant that is being challenged in this Appeal.
The Magistrates'' Courts Act, No. 26 of 2015, which commenced on 2nd January 2016 enhanced the Pecuniary Jurisdiction of 2 nd to 4 th Respondents'' Submissions in Succession Appeal E001 of 2022 the Magistrate Court from Kshs. 100, 000.00 to a maximum of Kshs. 20,000,000.00.
The said statute amended the provisions of the Law of Succession Act, Cap 160, Laws of Kenya, which provide for jurisdiction of magistrate’s courts in probate matters, sections 48 and 49. The changes were affected through sections 23 and 24 of the Magistrates Courts Act. Reliance is made on re Estate of Charles Boi (Deceased) [2020] КЕНС 1263 (KLR) entirely on this point.
Whether the Appeal is merited.
To address grounds 1, 5, 6, 7, 8, 9, 10 and 11 of the Memorandum of Appeal dated 18 th November 2022 are answered by provisions of 21. Section 76 of the Law of Succession Act Cap 160 sets out the threshold for revocation of a Grant.
1t is the Applicant''s case that the Petitioners made a false statement and concealed material facts from the court when he Petitioned the Court for letters of administration and when he sought confirmation of Grant by failing to state all the beneficiaries of that estate.
This is not a disputed fact as it is confirmed in the Appellants Replying Affidavit and Submissions filed before the grant was revoked. The Appellant confirmed that the Respondents are indeed his siblings.
Section 71(2) of the Law of Succession Act Cap 160 provides that before a Court can confirm the grant of letters of Administration where a person dies intestate, it must satisfy itself that all the beneficiaries and all the property belonging to the deceased have been properly identified and have proper comprehension of how the property will be or has been distributed. Reliance made on Similarly, Rule 40 (4) of the Probate and Administration Rules.
ISSUES ANALYSIS AND DETERMINATION
The core is whether the trial court had jurisdiction and if yes justified in revoking grants impugned.
In Kenya, the duty of a first appellate court, such as the High Court or Court of Appeal, is to re-evaluate and re-assess all the evidence presented at the trial level with a fresh perspective and independent mind to arrive at its own independent conclusions on the merits of the appeal. This involves scrutinizing, analyzing, and weighing the evidence and then determining whether the trial court''s conclusions were correct and valid.
Here''s a breakdown of the key aspects of this duty: Independent Re-evaluation:
Unlike a second appeal, a first appellate court is not bound by the trial court''s findings but must conduct its own detailed examination of the entire record. Independent
The court is required to determine whether the trial judge''s findings and conclusions should be upheld or overturned. Reference on the Principles: This duty has been authoritatively stated in cases like Selle & Another -vs- Associated Motor Boat Co. Ltd & Others and reiterated in subsequent cases such as Susan Munyi -vs- Keshar Shiani and Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira .
The appellant admits commission of requirements of full disclosure and failure to involve all beneficiaries in his Petition for grant, the trial Court found the process leading to issuance of the grant defective and contravening Section 76(a) of the Law of Succession Act and proceeded to revoke the grant issued to the Appellant herein. An order revoking the Grant fraudulently taken out by the Appellant herein was issued on 8th December 2022.It is the said Revocation of Grant that is being challenged in this Appeal.
The Magistrates'' Courts Act, No. 26 of 2015, which commenced on 2nd January 2016 enhanced the Pecuniary Jurisdiction of 2 nd to 4 th Respondents'' Submissions in Succession Appeal E001 of 2022 the Magistrate Court from Kshs. 100, 000.00 to a maximum of Kshs. 20,000,000.00.
The said statute amended the provisions of the Law of Succession Act, Cap 160, Laws of Kenya, which provide for jurisdiction of magistrates’ courts in probate matters, sections 48 and 49. The changes were effected through sections 23 and 24 of the Magistrates Courts Act.
The exclusive jurisdiction of the High Court to determine revocation applications, under section 76, was taken away, and the same was extended to the magistrate''s court, with respect to grants of representation that such magistrate''s court would have power to make.
Effectively, grounds 2, 3, 4 and 5 of the Memorandum of Appeal which challenge the jurisdiction of the Trial Magistrate to revoke grant as it is 2 nd to 4 th Respondents'' Submissions in Succession Appeal E001 of 2022 fail. The said position was based on the previous legal position before the Act was amended repealing the said provisions that previously barred magistrates from revoking grants Reliance is made on the decision of In re Estate of Charles Boi (Deceased) [2020] КЕНС 1263 (KLR) entirely on this point.
Whether the Appeal is merited.
To address grounds 1, 5, 6, 7, 8, 9, 10 and 11 of the Memorandum of Appeal dated 18 th November 2022 are answered by provisions of 21. Section 76 of the Law of Succession Act Cap 160 sets out the threshold for revocation of a Grant.
1t is the Applicant''s case that the Petitioners made a false statement and concealed material facts from the court when he Petitioned the Court for letters of administration and when he sought confirmation of Grant by failing to state all the beneficiaries of that estate.
This is not a disputed fact as it is confirmed in the Appellants Replying Affidavit and Submissions filed before the grant was revoked. The Appellant confirmed that the Respondents are indeed his siblings.
Section 71(2) of the Law of Succession Act Cap 160 provides that before a Court can confirm the grant of letters of Administration where a person dies intestate, it must satisfy itself that all the beneficiaries and all the property belonging to the deceased have been properly identified and have proper comprehension of how the property will be or has been distributed.
Similarly, Rule 40 (4) of the Probate and Administration Rules provides as follows: -
"4) Where the deceased has died wholly or partially intestate the applicant shall satisfy the court that the identification and shares of all persons beneficially entitled to the estate have been ascertained and determined."
From the language of Rule 40(8), the question as to whether the other persons beneficially interested in the estate have had a say to the distribution proposed is addressed. That is the utility of Form 17.
The input of the other persons beneficially entitled to the estate to the proposed distribution is through Form 17. If it is found that they have not executed any consents in Form 17, then the court ought to arrange to hear them. Rule 40(8) is in mandatory terms, and should be read together with Rule 41(1), with respect to such persons being heard, which says as follows:
"At the hearing of the application for confirmation the court shall first read out in the language or respective languages in which they appear the application, the grant, the affidavits and any written protests which have 2 nd to 4 th Respondents'' Submissions in Succession Appeal E001 of 2022 been filed and shall hear the applicant and each protestor and any other person interested, whether such person appear personally or by advocate or by a representative."
The Trial Court in it''s ruling, after discovering that most beneficiaries had been left out, revoked the grant and the confirmation of grant and directed that only a full hearing of the cause can address the questions raised as to provisions of other beneficiaries under the estate or not.
In the decision of the court in In re Estate of Pius Tembete Kwayiya (Deceased) [2020] e KLR where the court at paragraph 21 held; -
"The administrators knew about the daughters of the deceased. They knew that for a fact, and there was nothing for them to ascertain so far as daughters were concerned. They knew them since they were born of the same mother, and they were raised together with them. The fact of their non-disclosure can only be described as fraudulent and designed to mislead the court as to the true status of the estate and the family of the deceased. The court was misled, lied to and hoodwinked. There was mischief. I reiterate that the proviso to section 71(2) and the provision in Rule 40(4) of the Probate and Administration Rules were not complied with, and, therefore, the confirmation application was fundamentally flawed."
That the above position is in line with the provisions of Section 38 of the Law
of Succession Act clearly provides: -
"Where an intestate has left a surviving child or children but no spouse the net estate shall subject to the provisions of Section 41 and 42 devolve upon the surviving child, if there be only one or shall be equally dived among the surviving children."
It is the courts finding that, in the interest of Justice the grant issued fraudulently based on undisclosed material facts such as the list of all beneficiaries are to be revoked and the ruling of the trial court is upheld. Thus, the court makes the orders.
The court upholds the trial court decision impugned.
The appeal is dismissed with costs to the respondents
The matter IS HERE BY referred back to the trial court for determination of the other questions of administration, beneficiaries, properties of the deceased and the mode of distribution of the deceased person''s estate.
DATED AND DELIVERED THROUGH MICROSOFT TEAMS AT KILGORIS THIS 3 RD OCTOBER 2025
CHARLES KARIUKI
JUDGE
'
IN THE HIGH COURT OF KENYA AT KILGORIS
SUCCESSION APPEAL NO. E001 OF 2022
(CORAM: HON. CHARLES M. KARIUKI – J)
MESHACK TALENNG’O OLE GILISHO……………APPLICANT/APPELLANT
VS
GIDEON OLE KOKONYA (Died 2013)…….....…………...……1 ST RESPONDENT
ABRAHAM KOKONYA…………………………………...….….2 ND RESPONDENT
SAMSON KOKONYA……….………………………..…………..3 RD RESPONDENT
RUTH NASENGELO………………………….....……………….4 TH RESPONDENT
RULING
03/10/2025
BACKGROUND.
The Appellant and Respondent are children of the deceased. The appellant is said to have filed Succession Cause without the consent of the family members and proceed in lower court to the stage of confirmation of grant as he indicated he was a sole beneficiary. Confirmation of grant for 17.09.2021 bequeathed entire Estate to himself. The information reached the Respondents thus by application dated 28.06.2022 they sought revocation of grant on the grounds of fraud and non – disclosure of all beneficiaries entitled to the Estate.
On 08.11.2022, the Trial Court revoked grant and ordered fresh Letters of Administration be applied. This precipitated the instant application with 11 home made grounds. The court gave directions that grant be canvassed via Submissions.
APPELLANTS SUBMISSIONS:
As the Respondents have totally failed to prove such grave allegations of doctoring documents by the Appellant. There averments and contentions remain baseless, irrelevant, mare speculation, fabrications, hearsay and imaginary and without any weight to warrant revocation of confirmed grant.
Court should make a finding that, the Respondents together with their Advocate in record''s action of omitting, ignoring and refusing to annex the said documents amounts to contravention of the said Provisions and statute. Hence, the said documents are baseless without form and any substance and ripe for striking out in its entireties.
Whether the Appellant is entitled to the costs of the cause.
It is the Appellant submissions that, he has established a prima facie case in the instant proceedings. The award of costs do follow the events and the same is discretionary. He relies on the case of Independent candidate of Kenya vs Mutula Kilonzo and 2 Others
The Appellant herein respectfully urges this Honorable Court to find that, he is entitled to the costs of the Application and instant Appeal.
As the Respondents have totally failed to prove such grave allegations of doctoring documents by the Appellant. There averments and contentions remain baseless, irrelevant, mare speculation, fabrications, hearsay and imaginary and without any weight to warrant revocation of confirmed grant.
Court should make a finding that, the Respondents together with their Advocate in record''s action of omitting, ignoring and refusing to annex the said documents amounts to contravention of the said Provisions and statute. Hence, the said documents are baseless without form and any substance and ripe for striking out in its entireties. Whether the Appellant is entitled to the costs of the cause.
It is the Appellant submissions that, he has established a prima facie case in the instant proceedings. The award of costs do follow the events and the same is discretionary. He relies on the case of Independent candidate of Kenya vs Mutula Kilonzo and 2 Others
The Appellant herein respectfully urges this Court to find that; he is entitled to the costs of the Application and instant Appeal It is submitted that, the Appellant herein confirms that he intentionally left out his siblings in his Petition to the Court purportedly because the Respondents herein got some land elsewhere and that the Estate of the deceased then belonged to him exclusively.
RESPONDENTS SUBMISSIONS:
It is submitted that, the Appellant herein confirms that he intentionally left out his siblings in his Petition to the Court purportedly because the Respondents herein got some land elsewhere and that the Estate of the deceased then belonged to him exclusively.
Based on the above lack of full disclosure and failure by the Appellant herein to involve all beneficiaries in his Petition for grant, the Court found the process leading to issuance of the grant defective and contravening Section 76(a) of the Law of Succession Act and proceeded to revoke the grant issued to the Appellant herein. An order revoking the Grant fraudulently taken out by the Appellant herein is issued on 8th December 2022.It is the said Revocation of Grant that is being challenged in this Appeal.
The Magistrates'' Courts Act, No. 26 of 2015, which commenced on 2nd January 2016 enhanced the Pecuniary Jurisdiction of 2 nd to 4 th Respondents'' Submissions in Succession Appeal E001 of 2022 the Magistrate Court from Kshs. 100, 000.00 to a maximum of Kshs. 20,000,000.00.
The said statute amended the provisions of the Law of Succession Act, Cap 160, Laws of Kenya, which provide for jurisdiction of magistrate’s courts in probate matters, sections 48 and 49. The changes were affected through sections 23 and 24 of the Magistrates Courts Act. Reliance is made on re Estate of Charles Boi (Deceased) [2020] КЕНС 1263 (KLR) entirely on this point.
Whether the Appeal is merited.
To address grounds 1, 5, 6, 7, 8, 9, 10 and 11 of the Memorandum of Appeal dated 18 th November 2022 are answered by provisions of 21. Section 76 of the Law of Succession Act Cap 160 sets out the threshold for revocation of a Grant.
1t is the Applicant''s case that the Petitioners made a false statement and concealed material facts from the court when he Petitioned the Court for letters of administration and when he sought confirmation of Grant by failing to state all the beneficiaries of that estate.
This is not a disputed fact as it is confirmed in the Appellants Replying Affidavit and Submissions filed before the grant was revoked. The Appellant confirmed that the Respondents are indeed his siblings.
Section 71(2) of the Law of Succession Act Cap 160 provides that before a Court can confirm the grant of letters of Administration where a person dies intestate, it must satisfy itself that all the beneficiaries and all the property belonging to the deceased have been properly identified and have proper comprehension of how the property will be or has been distributed. Reliance made on Similarly, Rule 40 (4) of the Probate and Administration Rules.
ISSUES ANALYSIS AND DETERMINATION
The core is whether the trial court had jurisdiction and if yes justified in revoking grants impugned.
In Kenya, the duty of a first appellate court, such as the High Court or Court of Appeal, is to re-evaluate and re-assess all the evidence presented at the trial level with a fresh perspective and independent mind to arrive at its own independent conclusions on the merits of the appeal. This involves scrutinizing, analyzing, and weighing the evidence and then determining whether the trial court''s conclusions were correct and valid.
Here''s a breakdown of the key aspects of this duty: Independent Re-evaluation:
Unlike a second appeal, a first appellate court is not bound by the trial court''s findings but must conduct its own detailed examination of the entire record. Independent
The court is required to determine whether the trial judge''s findings and conclusions should be upheld or overturned. Reference on the Principles: This duty has been authoritatively stated in cases like Selle & Another -vs- Associated Motor Boat Co. Ltd & Others and reiterated in subsequent cases such as Susan Munyi -vs- Keshar Shiani and Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira .
The appellant admits commission of requirements of full disclosure and failure to involve all beneficiaries in his Petition for grant, the trial Court found the process leading to issuance of the grant defective and contravening Section 76(a) of the Law of Succession Act and proceeded to revoke the grant issued to the Appellant herein. An order revoking the Grant fraudulently taken out by the Appellant herein was issued on 8th December 2022.It is the said Revocation of Grant that is being challenged in this Appeal.
The Magistrates'' Courts Act, No. 26 of 2015, which commenced on 2nd January 2016 enhanced the Pecuniary Jurisdiction of 2 nd to 4 th Respondents'' Submissions in Succession Appeal E001 of 2022 the Magistrate Court from Kshs. 100, 000.00 to a maximum of Kshs. 20,000,000.00.
The said statute amended the provisions of the Law of Succession Act, Cap 160, Laws of Kenya, which provide for jurisdiction of magistrates’ courts in probate matters, sections 48 and 49. The changes were effected through sections 23 and 24 of the Magistrates Courts Act.
The exclusive jurisdiction of the High Court to determine revocation applications, under section 76, was taken away, and the same was extended to the magistrate''s court, with respect to grants of representation that such magistrate''s court would have power to make.
Effectively, grounds 2, 3, 4 and 5 of the Memorandum of Appeal which challenge the jurisdiction of the Trial Magistrate to revoke grant as it is 2 nd to 4 th Respondents'' Submissions in Succession Appeal E001 of 2022 fail. The said position was based on the previous legal position before the Act was amended repealing the said provisions that previously barred magistrates from revoking grants Reliance is made on the decision of In re Estate of Charles Boi (Deceased) [2020] КЕНС 1263 (KLR) entirely on this point.
Whether the Appeal is merited.
To address grounds 1, 5, 6, 7, 8, 9, 10 and 11 of the Memorandum of Appeal dated 18 th November 2022 are answered by provisions of 21. Section 76 of the Law of Succession Act Cap 160 sets out the threshold for revocation of a Grant.
1t is the Applicant''s case that the Petitioners made a false statement and concealed material facts from the court when he Petitioned the Court for letters of administration and when he sought confirmation of Grant by failing to state all the beneficiaries of that estate.
This is not a disputed fact as it is confirmed in the Appellants Replying Affidavit and Submissions filed before the grant was revoked. The Appellant confirmed that the Respondents are indeed his siblings.
Section 71(2) of the Law of Succession Act Cap 160 provides that before a Court can confirm the grant of letters of Administration where a person dies intestate, it must satisfy itself that all the beneficiaries and all the property belonging to the deceased have been properly identified and have proper comprehension of how the property will be or has been distributed.
Similarly, Rule 40 (4) of the Probate and Administration Rules provides as follows: -
"4) Where the deceased has died wholly or partially intestate the applicant shall satisfy the court that the identification and shares of all persons beneficially entitled to the estate have been ascertained and determined."
From the language of Rule 40(8), the question as to whether the other persons beneficially interested in the estate have had a say to the distribution proposed is addressed. That is the utility of Form 17.
The input of the other persons beneficially entitled to the estate to the proposed distribution is through Form 17. If it is found that they have not executed any consents in Form 17, then the court ought to arrange to hear them. Rule 40(8) is in mandatory terms, and should be read together with Rule 41(1), with respect to such persons being heard, which says as follows:
"At the hearing of the application for confirmation the court shall first read out in the language or respective languages in which they appear the application, the grant, the affidavits and any written protests which have 2 nd to 4 th Respondents'' Submissions in Succession Appeal E001 of 2022 been filed and shall hear the applicant and each protestor and any other person interested, whether such person appear personally or by advocate or by a representative."
The Trial Court in it''s ruling, after discovering that most beneficiaries had been left out, revoked the grant and the confirmation of grant and directed that only a full hearing of the cause can address the questions raised as to provisions of other beneficiaries under the estate or not.
In the decision of the court in In re Estate of Pius Tembete Kwayiya (Deceased) [2020] e KLR where the court at paragraph 21 held; -
"The administrators knew about the daughters of the deceased. They knew that for a fact, and there was nothing for them to ascertain so far as daughters were concerned. They knew them since they were born of the same mother, and they were raised together with them. The fact of their non-disclosure can only be described as fraudulent and designed to mislead the court as to the true status of the estate and the family of the deceased. The court was misled, lied to and hoodwinked. There was mischief. I reiterate that the proviso to section 71(2) and the provision in Rule 40(4) of the Probate and Administration Rules were not complied with, and, therefore, the confirmation application was fundamentally flawed."
That the above position is in line with the provisions of Section 38 of the Law
of Succession Act clearly provides: -
"Where an intestate has left a surviving child or children but no spouse the net estate shall subject to the provisions of Section 41 and 42 devolve upon the surviving child, if there be only one or shall be equally dived among the surviving children."
It is the courts finding that, in the interest of Justice the grant issued fraudulently based on undisclosed material facts such as the list of all beneficiaries are to be revoked and the ruling of the trial court is upheld. Thus, the court makes the orders.
The court upholds the trial court decision impugned.
The appeal is dismissed with costs to the respondents
The matter IS HERE BY referred back to the trial court for determination of the other questions of administration, beneficiaries, properties of the deceased and the mode of distribution of the deceased person''s estate.
DATED AND DELIVERED THROUGH MICROSOFT TEAMS AT KILGORIS THIS 3 RD OCTOBER 2025
CHARLES KARIUKI
JUDGE
'