REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. E010 OF 2024
IN THE MATTER OF THE ESTATE OF THE LATE THOME MBITI NGULA(DECEASED)
MUEMA THOME MBITI…………………………………… ……….1ST APPELLANT
TITUS THOME MBITI…………………………………………………….2ND APPELLANT
VERSUS
MARYLEEN THOME………………………………..…………. 1ST RESPONDENT
SKYRINE SYOMITI……………………………………….2ND RESPONDENT
JUDGEMENT
Introduction
1. This is an appeal against the ruling of Hon.E.W.Karani made in Kitui Chief Magistrate’s Court Succession Cause No. 54 of 2019 delivered on 14th February, 2024 .
Background Information.
2. The cause before the lower court was in relation to an estate of the late Thome Mbiti Ngula (hereinafter Deceased) who died intestate on 25.10.2000. From the court record the deceased left behind ten issues who are listed in the\ Chief’s letter dated 19th November 2018. The Deceased also left behind several properties including two title deeds registered in his name namely Nzambani/Kyanika/30 and Nzambani/Kyanika/104.
3. Following Deceased demise the Petitioners petitioned for grant of letters of administration the Deceased estate and the same issued on 15th 0ctober,2019 and confirmed on 15th July,2020 and certificate of confirmation of Grant was issued and rectified on 9th /november 2020.
4. Consequently, the respondents Muema Thome Mbiti and Titus Thome filed a summons for revocation of Grant dated 26th May,2021 on the grounds that the proceedings to obtain the grant were defective in substance. Secondly that the Grant was obtained fraudulently by concealment of material facts and the Grant was obtained by means of untrue allegations of facts essential in point of law.
5. The appellants herein opposed the summons through a replying affidavit sworn on 30th July,2021 stating that the deceased had identified and gifted his children portions of land on where to build and farm.
6. Upon hearing the Summon, the honourable magistrate on 14th February, 2024 delivered a ruling as follows;
“Perusing through the Court's record, particularly the Summons for Confirmation of Grant dated 4th January, 2019 and its Affidavit in support thereof, at paragraph 5 thereof, the Respondents herein deponed on how all surviving beneficiaries had agreed on the mode of distribution of Deceased's assets. Also, perusing to the consent thereon dated 41/2019, it is very visible that the 1st Applicant herein did not sign on it. Also, the grant as confirmed and subsequently rectified seem to distribute Deceased's unequally amongst the beneficiaries. Courts of law do not act on impulse or imagination that something may have occurred.
Considering the evidence by parties as on record, it is very clear that the beneficiaries of the estate of the Deceased did not agree on the mode of distribution making the succession proceedings during confirmation of the grant fraudulent and defective in substance due to concealment of material facts from the Court leading to dissatisfaction by some of beneficiaries in the distribution of Deceased's estate. Consequently, its Court's finding that substantive justice will be served if the grant of letters of administration intestate issued to Respondents on 15/10/2019, confirmed on 15/7/2020 and rectified on 9th November, 2020 herein is revoked. Further, for the aforesaid reasons, I do order cancellation of Land Title numbers:-Nzambani/Kyanika/3930, Nzambani/Kyanika/3931, Nzambani/Kyanika/4103,Nzambani/Kyanika/4104,Nzambani/Kyanika/415, Nzambani/Kyanika/4106,Nzambani/Kyanika/4107,Nzambani/Kyanika/418, Nzambani/Kyanika/4109,Nzambani/Kyanika/4110,Nzambani/Kyanika/4111, Nzambani/Kyanika/4112 and Nzambani/Kyanika/4113 to the effect that these titles shall revert to the original Land Title Numbers Nzambani/Kyanika/104 in the name of the Deceased. In the interests of justice and in furthering alternative dispute resolution, parties being siblings, are directed to agree on a mode of distribution of Deceased's estate within 60 days, failure of which, the Court shall proceed and give further orders in distributing Deceased's estate as per the provisions of The Law of Succession Act, CAP 160 Laws of Kenya. It being a family matter, costs shall be in the cause.”
Appeal
7. The appellants Muema Thome Mbiti and Titus Thome Mbithi being aggrieved by the above ruling this instant appeal through a Memorandum of Appeal dated 26th February,2024 setting out twenty one(21) grounds of appeal as follows;
i. THAT the Learned Trial Magistrate erred in fact and law by failing to consider relevant issues placed before her and, in particular, by failing to consider that Thome Mbiti Ngula, the deceased, had already gifted his assets during his lifetime and, subsequently, consistently reiterated his gifting on various occasions.
ii. THAT the learned Trial Magistrate erred in fact and in law by making a finding on the issue of an oral will when neither of the parties had claimed the existence of an oral will. THAT this error is further buttressed by the facts that the proceedings before the court were intestacy proceedings and NOT testate proceedings and THAT the grant of the now revoked letters intestate was not based on an oral will.
iii. THAT the learned Trial Magistrate erred in law and in fact by failing to take into account that the 1st respondent contributed to the payment of the surveyor's fees and participated in the engagement of the Surveyor who was engaged solely to measure, sketch, and put on paper what the deceased had already gifted during his lifetime.
iv. THAT the learned Trial Magistrate erred in law and in fact by NOT finding that the respondents knew of the succession proceedings and wilfully refused to participate in the succession proceedings.
v. THAT the learned Trial Magistrate erred in law and in fact by failing to consider that the 1st Respondent was involved and notified of the succession proceedings by the appellants, whom she instructed to assign her portion of the estate to her daughter EVA VINYA, instructions which were followed to the letter.
vi. THAT the learned Trial Magistrate erred in law and in fact by failing to take into account that by her own admission, the 1st respondent attended, in the presence of her advocate, the family meeting held on 20th December, 2018 a meeting whose sole agenda was these succession proceedings.
vii. THAT the learned Trial Magistrate erred in law and in fact by failing to take into consideration that the 2nd respondent was notified and informed of these succession proceedings and was not only invited to the family meeting of 20th December, 2018 but was facilitated by the 2nd appellant who sent her bus fare to attend said meeting.
viii. THAT the learned Trial Magistrate erred in law and in fact by failing to take into account that the 2nd respondent consented to the appointment of the appellants as administrators as well as to the mode of distribution by appending her signature to the consents filed in court.
ix. THAT the learned Trial Magistrate erred in law and in fact by failing to take into consideration that the appellants, from an abundance of honesty, filed, together with the Petition for Letters of Administration, a Supplementary Affidavit sworn on 01.04.2019 informing the court that the 1st respondent had not signed the Consent to the making of a grant of administration intestate and that they had instructed counsel to file a Citation directed at the 1st respondent.
x. THAT the learned Trial Magistrate erred in law and in fact by failing to take into account that the Citation preferred by the appellants was presented for filing at the court registry, however the executive officer of the court at the time, directed that the appellants proceed by way of gazettement rather than citation, for reasons that the gazettement of the Petition would be sufficient notice to not only the 1st respondent but the general public.
xi. THAT the learned Trial Magistrate erred in law and in fact by failing to take into account that the petition for letters of administration were duly gazetted in the Kenya Gazette Vol. CXXI- No 96 and the 1st respondent who admitted, in sworn testimony, to knowing the nature, purpose and effect of a Kenya Gazette notice did not file an Objection to the succession proceedings.
xii. THAT the Learned Trial Magistrate erred in law and in fact by failing to establish why no reason was advanced by the 1st respondent as to why she did not file an Objection to the petition of letters of administration upon the same being gazetted, especially considering the fact that the 1st respondent, in sworn testimony, termed herself a practitioner and expert in succession matters.
xiii. THAT the learned Trial Magistrate erred in law and in fact when she failed to appreciate that the process of confirmation of grant and distribution of assets cannot form the basis of revoking a grant and as such misapplied the facts to the law applicable in revocation of grants.
xiv. THAT the learned Trial Magistrate erred in law and in fact by finding that the applicants proved any of the grounds under which a grant can be revoked.
xv. THAT the learned Trial Magistrate erred in law and in fact by imputing fraud from the facts of the case whereas the same were not proved. And, further, the learned Trial Magistrate erred in law by not clearly stating the exact fraud that was alleged to have been committed by the appellants.
xvi. THAT the learned Trial Magistrate erred in law by NOT taking into account that the appellants have been residing and utilising their gifted portions of land since the year 1982, which was 18 years before the deceased passed, and continue to do so to date.
xvii. THAT the learned Trial Magistrate erred in law and in fact by delivering an ambiguous ruling incapable of being executed.
xviii. THAT the learned Trial Magistrate erred in law and in fact by exceeding her mandate by directing that she would redistribute the estate instead of directing the parties to file a Petition for letters of administration a fresh and/or Summons for Confirmation of grant.
xix. THAT the learned Trial Magistrate erred in law by directing the parties to consider Alternative dispute resolution after having delivered a ruling on the dispute.
xx. THAT the learned Trial Magistrate erred in law by cancelling a title, being NZAMBANI/KYANIKA/3930, which is registered to Priscilla Kavutha Mwendwa, who was not a party to the proceedings at the lower court and which title is not part of the deceased's estate.
xxi. THAT in any event, the Learned Trial magistrate erred in law and in fact by arriving at the impugned decision contrary to the facts, circumstances and the principles applicable to the case when analysed in their entirety.
8. The appellants are seeking orders that the appeal be allowed and the Ruling of Hon.E.W.Karani against the appellants be set aside.
Submissions
9. This appeal was canvassed by way of written submissions. The appellants filed written submissions dated 5th April,2025 through the firm of Ong’uti Mang’are. The respondent filed written submissions dated 5th June,2025 through the firm of Wairegi Gatetua & Associates.
Appellant’s submissions
10. The appellants submitted on whether the trial magistrate erred in law by failing to appreciate the process of confirmation of Grant and distribution of assets cannot form part of revoking the Grant. It was submitted that the evidence tendered by the applicants for revocation of the Grant did not support the grounds set out under section 76 of the Law of Succession Act. The appellants submitted that there must be direct connection between the grounds alleged, the proof adduced and grounds under which the revocation is allowed.
11. The appellants submitted that there was disagreement in the succession process and the same was disclosed. It was further submission that the trial court reasons are not ground for revocation specifically the mode of distribution and the necessity for agreeing on mode of distribution are not grounds of revocation.
12. The appellants submitted that the only concealment alleged by the applicants was the proceedings were concealed from them. The appellants submitted the respondents were aware of the proceedings and attended family meeting on 20th December,2018.
13. The appellants relied on the decisions in John Mundia Njoroge & 9 others V Cecilia Muthoni Njoroge & Another[2016]KEHC 6254(KLR), In re Estate of Charles Boi(Deceased) [2020] KEHC 1263(KLR) and In re Estate of Prisca Ong’ayo Nande(Deceased).
14. The appellant submitted on whether the trial magistrate erred in law and fact by making a finding on issue of an oral Will when neither parties had claimed it. The appellants submitted on oral Will that the trial court mentioned oral wills in his finding but this does not appear anywhere in the parties’ pleadings. The appellants submitted that there was no explanation as to which party pleaded the issue of oral Will. The appellants submitted that court is bound by the matters and or evidence tendered before it by parties. The appellant relied on decision In Re Estate of Prisca Ong’ayo Nande (Deceased)[2020]KEHC 6553(KLR)
15. The appellants submitted on Gift Inter vivos that the Deceased’s property was gifted inter vivos to various recipients during his lifetime. The appellant’s submitted that under paragraph 65 of their submissions they have listed the various proof of gifting.The appellants submitted that gift inter vivo is not a ground for revocation.The appellants urged this court to allow the appeal.
16. Respondent’s Submissions
17. The respondents on their part submitted that the appeal filed in court is fatally defective as the record of appeal does not contain copy of order or decree. The respondents submitted the instant appeal is fatally defective as it is in breach of the mandatory provisions of section 50(1) of the Law of Succession Act. The respondents relied on the decision In the matter of the Estate of Jenipher Oturi Wango(Deceased)( 2025) KEHC 12858 (KLR).
18. The respondents submitted whether the appellants have demonstrated valid reasons to warrant the setting aside of the ruling. The respondents submitted on whether the Deceased gifted his entire estate during his lifetime. It was submitted the appellants failed to demonstrate that the deceased gifted his estate. It was submitted that during hearing of the summons for Revocation of Grant appellant evidence did not meet the threshold of either a gift in contemplation of death or gift by way of a will. The respondents placed reliance on section 31 of the Law of Succession Act and decision in Re Estate of the Late Gideon Manthi(Deceased) (2015) Eklr.
19. The respondents submitted on whether the trial court finding on issue of oral will was lawful. It was submitted that in trial court analysis the magistrate correctly observed that the appellants were alluding that deceased verbally distributed his estate. Respondents referred to page 242 and 243 of the Record of Appeal. The respondents submitted the trial magistrate finding on issue of oral Will was sound
20. The respondents submitted on whether they were aware of the succession proceedings. It was their submissions that it is duty of petitioner to notify the beneficiaries of the filing of the Petition. The respondents submitted the appellants rely on events of 18th December,2018 and 20th December 2018 to insinuate the events constituted the notice to file petition and obtaining consent. The respondents submitted the appellant did not demonstrate by way of evidence they notified the respondents about the filing. The respondents submitted the appellants filed the petition in secrecy.
21. The respondents submitted on whether the letters of administration issued to appellants were defective. The respondents submitted the grant of letters of administration was obtained fraudulently by concealment of material facts before the trial court, the grant was also obtained on account of untrue allegation of facts essential in point of law. The respondents submitted the appellants did not file a citation during the process of obtaining the grant.
22. The respondent submitted on trial court decision to revoke the Grant. It was submitted that the trial court observed the injustice perpetrated by the appellants pursuant to issuance of letters of administration to wit disinheriting the lawful beneficiaries. It was further submitted the trial court noted the proceedings during confirmation of grant had been fraudulently conducted by appellants. It was submission of respondent that the decision of trial court was sound in law.
Analysis and Determination
23. Having considered the appeal, the submissions by counsel and the law, the main issue for determination is whether the grounds warranting revocation of the Grant had been established by the respondents herein.
24. Being a first appeal, this court’s duty is to evaluate the evidence/arguments made before the trial court and arrive at its own independent conclusion (see Selle versus Associated Motors Boat Co. Limited (1968) EA 123).
25. This court has re-evaluated the evidence tendered orally and documents filed at the trial court. I have also considered this appeal and the response made.
26. The appellants have filed this appeal seeking court to set aside orders issued by the trial court on 14th February,2024. I have perused the trial court ruling in respect of summons of revocation of Grant filed by the respondent. In the impugned ruling the trial magistrate revoked the letters of administration intestate issued to Respondents (appellants herein) on 15/10/2019, confirmed on 15/7/2020 and rectified on 9th November, 2020 revoked. Further, for the aforesaid reasons, she ordered cancellation of Land Title numbers : Nzambani/Kyanikaa.
27. The appellants are seeking the above orders to be set aside on grounds that the respondents herein did not demonstrate by evidence the grounds of revocation of Grant under section 76 of Law of Succession Act.
28. Section 76 of the Law of Succession Act Cap 160, Laws of Kenya sets out the grounds upon which a Grant maybe revoked as follows;
“76 Revocation or Annulment of Grant;
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 was obtained fraudulently by 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;
d. that the person to whom the grant was made has failed, after due notice and without reasonable cause either –
i. to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
ii. to proceed diligently with the administration of the estate; or
iii. to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
iv. that the grant has become useless and inoperative through subsequent circumstances.”
29. From the ruling delivered by trial court, the applicants filed summons of revocation of Grant on grounds that the respondents obtained it by means of untrue allegations of facts essential in point of law to justify the Grant. The applicants’ case was that the respondents concealed from them the filing of the petition and a citation was never issued in respect of the succession proceedings. The applicants also stated that they did not sign consent to the mode of distribution.
30. Upon hearing the summon the trial magistrate revoked the grant on ground that the beneficiaries did not agree on the mode of distribution making the succession proceedings during confirmation of grant fraudulent and defective in substance due to concealment of material facts from court leading to dissatisfaction by some of the beneficiaries in the distribution of Deceased’s estate.
31. The appellants have submitted that submitted that there was disagreement in the succession process and the same was disclosed. It was further submission by appellants that the trial court reasons are not ground for revocation specifically the mode of distribution and the necessity for agreeing on mode of distribution are not grounds of revocation.
32. The appellants submitted that the only concealment alleged by the applicants was the proceedings were concealed from them. The appellants submitted the respondents were aware of the proceedings and attended family meeting on 20th December,2018.
33. An appellate court will only interfere with a lower court’s decision where there is misdirection in law or fact, or where the decision is plainly wrong.
34. I have perused the proceedings and pleadings before trial court and I note that the appellants filed a summons for confirmation of Grant after obtaining the letters of administration. The appellants attached a consent dated 4.1.2019 and 1st respondent herein did not sign it. It is clear from the evidence on record that the parties did not agree on mode of distribution.
35. The trial magistrate on holding that the proceedings during confirmation of Grant were fraudulent and defective, proceeded to revoke the letters of administration issued on 15.10.2019, confirmed on 15.7.2020 and rectified on 9th November, 2020. Consequently, she cancelled several titles issued under the said Grant. The trial magistrate further ordered that the parties to agree on mode of distribution of deceased’s estate within sixty (60) days.
36. The contention arising in this appeal is purely on distribution of the estate. The respondents did not prove fraud at the point of issuance of the grant. Fraud is indeed a serious offence and it must be strictly proved. Onus was on the respondents to prove that the grant was indeed obtained fraudulently but, in my view, nothing in the facts and arguments supports this position. Failure by a party to sign the consent to confirmation of a grant is not ground for revocation of the grant. In any event, if a party does not sign the consent to confirmation of grant as way of protesting the proposed mode of distribution, he or she should file formal protest which will be heard and determined by the court before the estate is distributed. This is provided for under Rule 41 of the Probate and Administration Rules.
37. Section 47 of the Law of Succession Act vests courts with wide discretion in granting orders for purposes of safeguarding the estate of a Deceased person as follows:-
“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.”
38. Likewise Rule 73 of the Probate and Administration Rules provide as follows:-
“Nothing in these rules shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”
39. For these reasons, I find the application before the Learned Magistrate did not meet the threshold for revocation of grant. Failure to sign a Consent to confirmation of grant should not form a ground for revocation of grant where a party was aware of the proceedings. If a party fails to sign the Consent to confirmation of grant and mode of distribution, the open option is to express the dissatisfaction by filing an affidavit of protest which the court will consider before confirming the Grant. The learned magistrate stated in her ruling that beneficiaries did not agree on the mode of distribution. Other than revoke the grant the respondents should have been advised to file their proposed mode of distribution for determination by the Court. See the detailed procedure under rule 41 of the probate and administration. I find that there was no valid reason for revoking the Grant. The ruling should be set aside.
40. This Court also notes that the trial Magistrate upon revocation of Grant proceeded to cancel Land Title Numbers:
Nzambani/Kyanika/3931,Nzambani/Kyanika/4103,Nzambani/Kyanika/4104,Nzambani/Kyanika/415,Nzambani/Kyanika/4106,Nzambani/Kyanika/4107,Nzambani/Kyanika/418,Nzambani/Kyanika/4109,Nzambani/Kyanika/4110,Nzambani/Kyanika/4111,Nzambani/Kyanika/4112 and Nzambani/Kyanika/4113.
41. Under Article 162(2)(b) of the Constitution and the Environment and Land Court Act, disputes relating to ownership of land, validity of title, cancellation or rectification of title deeds, fall exclusively within the jurisdiction of the Environment and Land Court. It is only the High Court which has wide powers under Section 47 of the law of succession Act (Supra) which has wide powers to issue orders as may be expedient
42. In the instant matter, the trial court went beyond its mandate by purporting to cancel the registered title deeds. It is a well-settled principle that:
“A court without jurisdiction must down its tools.” Accordingly, any orders made outside jurisdiction are null and void ab initio, regardless of how well reasoned they may be. I therefore find that the magistrate’s court lacked jurisdiction to cancel the title deeds. The order cancelling that title deed should be set aside because the magistrate court lacked jurisdiction to make such orders.
Disposition
For the reasons stated in this judgment I find that the appeal has merits;
I therefore order as follows;
1. The ruling by the Learned Magistrate revoking the letters of administration intestate issued to the appellants on 15th October 2019 and confirmed on 15th July 2020 and rectified on 9th November, 2020 is hereby set aside.
2. The Grant issued on 15th October 2019 and confirmed on 15th July 2020 and rectified on 9th November 2020 is reinstated.
3. The respondents shall file affidavits of protest within 30 days if need be
4. The file to be returned to the lower Court
5. Cost to the appellants.
6. The matter be mentioned before the trial Court on 17th June, 2026
DATED AT KITUI THIS 13TH DAY OF MAY, 2026
L. GITARI
JUDGE
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. E010 OF 2024
IN THE MATTER OF THE ESTATE OF THE LATE THOME MBITI NGULA(DECEASED)
MUEMA THOME MBITI…………………………………… ……….1ST APPELLANT
TITUS THOME MBITI…………………………………………………….2ND APPELLANT
VERSUS
MARYLEEN THOME………………………………..…………. 1ST RESPONDENT
SKYRINE SYOMITI……………………………………….2ND RESPONDENT
JUDGEMENT
Introduction
1. This is an appeal against the ruling of Hon.E.W.Karani made in Kitui Chief Magistrate’s Court Succession Cause No. 54 of 2019 delivered on 14th February, 2024 .
Background Information.
2. The cause before the lower court was in relation to an estate of the late Thome Mbiti Ngula (hereinafter Deceased) who died intestate on 25.10.2000. From the court record the deceased left behind ten issues who are listed in the\ Chief’s letter dated 19th November 2018. The Deceased also left behind several properties including two title deeds registered in his name namely Nzambani/Kyanika/30 and Nzambani/Kyanika/104.
3. Following Deceased demise the Petitioners petitioned for grant of letters of administration the Deceased estate and the same issued on 15th 0ctober,2019 and confirmed on 15th July,2020 and certificate of confirmation of Grant was issued and rectified on 9th /november 2020.
4. Consequently, the respondents Muema Thome Mbiti and Titus Thome filed a summons for revocation of Grant dated 26th May,2021 on the grounds that the proceedings to obtain the grant were defective in substance. Secondly that the Grant was obtained fraudulently by concealment of material facts and the Grant was obtained by means of untrue allegations of facts essential in point of law.
5. The appellants herein opposed the summons through a replying affidavit sworn on 30th July,2021 stating that the deceased had identified and gifted his children portions of land on where to build and farm.
6. Upon hearing the Summon, the honourable magistrate on 14th February, 2024 delivered a ruling as follows;
“Perusing through the Court's record, particularly the Summons for Confirmation of Grant dated 4th January, 2019 and its Affidavit in support thereof, at paragraph 5 thereof, the Respondents herein deponed on how all surviving beneficiaries had agreed on the mode of distribution of Deceased's assets. Also, perusing to the consent thereon dated 41/2019, it is very visible that the 1st Applicant herein did not sign on it. Also, the grant as confirmed and subsequently rectified seem to distribute Deceased's unequally amongst the beneficiaries. Courts of law do not act on impulse or imagination that something may have occurred.
Considering the evidence by parties as on record, it is very clear that the beneficiaries of the estate of the Deceased did not agree on the mode of distribution making the succession proceedings during confirmation of the grant fraudulent and defective in substance due to concealment of material facts from the Court leading to dissatisfaction by some of beneficiaries in the distribution of Deceased's estate. Consequently, its Court's finding that substantive justice will be served if the grant of letters of administration intestate issued to Respondents on 15/10/2019, confirmed on 15/7/2020 and rectified on 9th November, 2020 herein is revoked. Further, for the aforesaid reasons, I do order cancellation of Land Title numbers:-Nzambani/Kyanika/3930, Nzambani/Kyanika/3931, Nzambani/Kyanika/4103,Nzambani/Kyanika/4104,Nzambani/Kyanika/415, Nzambani/Kyanika/4106,Nzambani/Kyanika/4107,Nzambani/Kyanika/418, Nzambani/Kyanika/4109,Nzambani/Kyanika/4110,Nzambani/Kyanika/4111, Nzambani/Kyanika/4112 and Nzambani/Kyanika/4113 to the effect that these titles shall revert to the original Land Title Numbers Nzambani/Kyanika/104 in the name of the Deceased. In the interests of justice and in furthering alternative dispute resolution, parties being siblings, are directed to agree on a mode of distribution of Deceased's estate within 60 days, failure of which, the Court shall proceed and give further orders in distributing Deceased's estate as per the provisions of The Law of Succession Act, CAP 160 Laws of Kenya. It being a family matter, costs shall be in the cause.”
Appeal
7. The appellants Muema Thome Mbiti and Titus Thome Mbithi being aggrieved by the above ruling this instant appeal through a Memorandum of Appeal dated 26th February,2024 setting out twenty one(21) grounds of appeal as follows;
i. THAT the Learned Trial Magistrate erred in fact and law by failing to consider relevant issues placed before her and, in particular, by failing to consider that Thome Mbiti Ngula, the deceased, had already gifted his assets during his lifetime and, subsequently, consistently reiterated his gifting on various occasions.
ii. THAT the learned Trial Magistrate erred in fact and in law by making a finding on the issue of an oral will when neither of the parties had claimed the existence of an oral will. THAT this error is further buttressed by the facts that the proceedings before the court were intestacy proceedings and NOT testate proceedings and THAT the grant of the now revoked letters intestate was not based on an oral will.
iii. THAT the learned Trial Magistrate erred in law and in fact by failing to take into account that the 1st respondent contributed to the payment of the surveyor's fees and participated in the engagement of the Surveyor who was engaged solely to measure, sketch, and put on paper what the deceased had already gifted during his lifetime.
iv. THAT the learned Trial Magistrate erred in law and in fact by NOT finding that the respondents knew of the succession proceedings and wilfully refused to participate in the succession proceedings.
v. THAT the learned Trial Magistrate erred in law and in fact by failing to consider that the 1st Respondent was involved and notified of the succession proceedings by the appellants, whom she instructed to assign her portion of the estate to her daughter EVA VINYA, instructions which were followed to the letter.
vi. THAT the learned Trial Magistrate erred in law and in fact by failing to take into account that by her own admission, the 1st respondent attended, in the presence of her advocate, the family meeting held on 20th December, 2018 a meeting whose sole agenda was these succession proceedings.
vii. THAT the learned Trial Magistrate erred in law and in fact by failing to take into consideration that the 2nd respondent was notified and informed of these succession proceedings and was not only invited to the family meeting of 20th December, 2018 but was facilitated by the 2nd appellant who sent her bus fare to attend said meeting.
viii. THAT the learned Trial Magistrate erred in law and in fact by failing to take into account that the 2nd respondent consented to the appointment of the appellants as administrators as well as to the mode of distribution by appending her signature to the consents filed in court.
ix. THAT the learned Trial Magistrate erred in law and in fact by failing to take into consideration that the appellants, from an abundance of honesty, filed, together with the Petition for Letters of Administration, a Supplementary Affidavit sworn on 01.04.2019 informing the court that the 1st respondent had not signed the Consent to the making of a grant of administration intestate and that they had instructed counsel to file a Citation directed at the 1st respondent.
x. THAT the learned Trial Magistrate erred in law and in fact by failing to take into account that the Citation preferred by the appellants was presented for filing at the court registry, however the executive officer of the court at the time, directed that the appellants proceed by way of gazettement rather than citation, for reasons that the gazettement of the Petition would be sufficient notice to not only the 1st respondent but the general public.
xi. THAT the learned Trial Magistrate erred in law and in fact by failing to take into account that the petition for letters of administration were duly gazetted in the Kenya Gazette Vol. CXXI- No 96 and the 1st respondent who admitted, in sworn testimony, to knowing the nature, purpose and effect of a Kenya Gazette notice did not file an Objection to the succession proceedings.
xii. THAT the Learned Trial Magistrate erred in law and in fact by failing to establish why no reason was advanced by the 1st respondent as to why she did not file an Objection to the petition of letters of administration upon the same being gazetted, especially considering the fact that the 1st respondent, in sworn testimony, termed herself a practitioner and expert in succession matters.
xiii. THAT the learned Trial Magistrate erred in law and in fact when she failed to appreciate that the process of confirmation of grant and distribution of assets cannot form the basis of revoking a grant and as such misapplied the facts to the law applicable in revocation of grants.
xiv. THAT the learned Trial Magistrate erred in law and in fact by finding that the applicants proved any of the grounds under which a grant can be revoked.
xv. THAT the learned Trial Magistrate erred in law and in fact by imputing fraud from the facts of the case whereas the same were not proved. And, further, the learned Trial Magistrate erred in law by not clearly stating the exact fraud that was alleged to have been committed by the appellants.
xvi. THAT the learned Trial Magistrate erred in law by NOT taking into account that the appellants have been residing and utilising their gifted portions of land since the year 1982, which was 18 years before the deceased passed, and continue to do so to date.
xvii. THAT the learned Trial Magistrate erred in law and in fact by delivering an ambiguous ruling incapable of being executed.
xviii. THAT the learned Trial Magistrate erred in law and in fact by exceeding her mandate by directing that she would redistribute the estate instead of directing the parties to file a Petition for letters of administration a fresh and/or Summons for Confirmation of grant.
xix. THAT the learned Trial Magistrate erred in law by directing the parties to consider Alternative dispute resolution after having delivered a ruling on the dispute.
xx. THAT the learned Trial Magistrate erred in law by cancelling a title, being NZAMBANI/KYANIKA/3930, which is registered to Priscilla Kavutha Mwendwa, who was not a party to the proceedings at the lower court and which title is not part of the deceased's estate.
xxi. THAT in any event, the Learned Trial magistrate erred in law and in fact by arriving at the impugned decision contrary to the facts, circumstances and the principles applicable to the case when analysed in their entirety.
8. The appellants are seeking orders that the appeal be allowed and the Ruling of Hon.E.W.Karani against the appellants be set aside.
Submissions
9. This appeal was canvassed by way of written submissions. The appellants filed written submissions dated 5th April,2025 through the firm of Ong’uti Mang’are. The respondent filed written submissions dated 5th June,2025 through the firm of Wairegi Gatetua & Associates.
Appellant’s submissions
10. The appellants submitted on whether the trial magistrate erred in law by failing to appreciate the process of confirmation of Grant and distribution of assets cannot form part of revoking the Grant. It was submitted that the evidence tendered by the applicants for revocation of the Grant did not support the grounds set out under section 76 of the Law of Succession Act. The appellants submitted that there must be direct connection between the grounds alleged, the proof adduced and grounds under which the revocation is allowed.
11. The appellants submitted that there was disagreement in the succession process and the same was disclosed. It was further submission that the trial court reasons are not ground for revocation specifically the mode of distribution and the necessity for agreeing on mode of distribution are not grounds of revocation.
12. The appellants submitted that the only concealment alleged by the applicants was the proceedings were concealed from them. The appellants submitted the respondents were aware of the proceedings and attended family meeting on 20th December,2018.
13. The appellants relied on the decisions in John Mundia Njoroge & 9 others V Cecilia Muthoni Njoroge & Another[2016]KEHC 6254(KLR), In re Estate of Charles Boi(Deceased) [2020] KEHC 1263(KLR) and In re Estate of Prisca Ong’ayo Nande(Deceased).
14. The appellant submitted on whether the trial magistrate erred in law and fact by making a finding on issue of an oral Will when neither parties had claimed it. The appellants submitted on oral Will that the trial court mentioned oral wills in his finding but this does not appear anywhere in the parties’ pleadings. The appellants submitted that there was no explanation as to which party pleaded the issue of oral Will. The appellants submitted that court is bound by the matters and or evidence tendered before it by parties. The appellant relied on decision In Re Estate of Prisca Ong’ayo Nande (Deceased)[2020]KEHC 6553(KLR)
15. The appellants submitted on Gift Inter vivos that the Deceased’s property was gifted inter vivos to various recipients during his lifetime. The appellant’s submitted that under paragraph 65 of their submissions they have listed the various proof of gifting.The appellants submitted that gift inter vivo is not a ground for revocation.The appellants urged this court to allow the appeal.
16. Respondent’s Submissions
17. The respondents on their part submitted that the appeal filed in court is fatally defective as the record of appeal does not contain copy of order or decree. The respondents submitted the instant appeal is fatally defective as it is in breach of the mandatory provisions of section 50(1) of the Law of Succession Act. The respondents relied on the decision In the matter of the Estate of Jenipher Oturi Wango(Deceased)( 2025) KEHC 12858 (KLR).
18. The respondents submitted whether the appellants have demonstrated valid reasons to warrant the setting aside of the ruling. The respondents submitted on whether the Deceased gifted his entire estate during his lifetime. It was submitted the appellants failed to demonstrate that the deceased gifted his estate. It was submitted that during hearing of the summons for Revocation of Grant appellant evidence did not meet the threshold of either a gift in contemplation of death or gift by way of a will. The respondents placed reliance on section 31 of the Law of Succession Act and decision in Re Estate of the Late Gideon Manthi(Deceased) (2015) Eklr.
19. The respondents submitted on whether the trial court finding on issue of oral will was lawful. It was submitted that in trial court analysis the magistrate correctly observed that the appellants were alluding that deceased verbally distributed his estate. Respondents referred to page 242 and 243 of the Record of Appeal. The respondents submitted the trial magistrate finding on issue of oral Will was sound
20. The respondents submitted on whether they were aware of the succession proceedings. It was their submissions that it is duty of petitioner to notify the beneficiaries of the filing of the Petition. The respondents submitted the appellants rely on events of 18th December,2018 and 20th December 2018 to insinuate the events constituted the notice to file petition and obtaining consent. The respondents submitted the appellant did not demonstrate by way of evidence they notified the respondents about the filing. The respondents submitted the appellants filed the petition in secrecy.
21. The respondents submitted on whether the letters of administration issued to appellants were defective. The respondents submitted the grant of letters of administration was obtained fraudulently by concealment of material facts before the trial court, the grant was also obtained on account of untrue allegation of facts essential in point of law. The respondents submitted the appellants did not file a citation during the process of obtaining the grant.
22. The respondent submitted on trial court decision to revoke the Grant. It was submitted that the trial court observed the injustice perpetrated by the appellants pursuant to issuance of letters of administration to wit disinheriting the lawful beneficiaries. It was further submitted the trial court noted the proceedings during confirmation of grant had been fraudulently conducted by appellants. It was submission of respondent that the decision of trial court was sound in law.
Analysis and Determination
23. Having considered the appeal, the submissions by counsel and the law, the main issue for determination is whether the grounds warranting revocation of the Grant had been established by the respondents herein.
24. Being a first appeal, this court’s duty is to evaluate the evidence/arguments made before the trial court and arrive at its own independent conclusion (see Selle versus Associated Motors Boat Co. Limited (1968) EA 123).
25. This court has re-evaluated the evidence tendered orally and documents filed at the trial court. I have also considered this appeal and the response made.
26. The appellants have filed this appeal seeking court to set aside orders issued by the trial court on 14th February,2024. I have perused the trial court ruling in respect of summons of revocation of Grant filed by the respondent. In the impugned ruling the trial magistrate revoked the letters of administration intestate issued to Respondents (appellants herein) on 15/10/2019, confirmed on 15/7/2020 and rectified on 9th November, 2020 revoked. Further, for the aforesaid reasons, she ordered cancellation of Land Title numbers : Nzambani/Kyanikaa.
27. The appellants are seeking the above orders to be set aside on grounds that the respondents herein did not demonstrate by evidence the grounds of revocation of Grant under section 76 of Law of Succession Act.
28. Section 76 of the Law of Succession Act Cap 160, Laws of Kenya sets out the grounds upon which a Grant maybe revoked as follows;
“76 Revocation or Annulment of Grant;
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 was obtained fraudulently by 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;
d. that the person to whom the grant was made has failed, after due notice and without reasonable cause either –
i. to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
ii. to proceed diligently with the administration of the estate; or
iii. to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
iv. that the grant has become useless and inoperative through subsequent circumstances.”
29. From the ruling delivered by trial court, the applicants filed summons of revocation of Grant on grounds that the respondents obtained it by means of untrue allegations of facts essential in point of law to justify the Grant. The applicants’ case was that the respondents concealed from them the filing of the petition and a citation was never issued in respect of the succession proceedings. The applicants also stated that they did not sign consent to the mode of distribution.
30. Upon hearing the summon the trial magistrate revoked the grant on ground that the beneficiaries did not agree on the mode of distribution making the succession proceedings during confirmation of grant fraudulent and defective in substance due to concealment of material facts from court leading to dissatisfaction by some of the beneficiaries in the distribution of Deceased’s estate.
31. The appellants have submitted that submitted that there was disagreement in the succession process and the same was disclosed. It was further submission by appellants that the trial court reasons are not ground for revocation specifically the mode of distribution and the necessity for agreeing on mode of distribution are not grounds of revocation.
32. The appellants submitted that the only concealment alleged by the applicants was the proceedings were concealed from them. The appellants submitted the respondents were aware of the proceedings and attended family meeting on 20th December,2018.
33. An appellate court will only interfere with a lower court’s decision where there is misdirection in law or fact, or where the decision is plainly wrong.
34. I have perused the proceedings and pleadings before trial court and I note that the appellants filed a summons for confirmation of Grant after obtaining the letters of administration. The appellants attached a consent dated 4.1.2019 and 1st respondent herein did not sign it. It is clear from the evidence on record that the parties did not agree on mode of distribution.
35. The trial magistrate on holding that the proceedings during confirmation of Grant were fraudulent and defective, proceeded to revoke the letters of administration issued on 15.10.2019, confirmed on 15.7.2020 and rectified on 9th November, 2020. Consequently, she cancelled several titles issued under the said Grant. The trial magistrate further ordered that the parties to agree on mode of distribution of deceased’s estate within sixty (60) days.
36. The contention arising in this appeal is purely on distribution of the estate. The respondents did not prove fraud at the point of issuance of the grant. Fraud is indeed a serious offence and it must be strictly proved. Onus was on the respondents to prove that the grant was indeed obtained fraudulently but, in my view, nothing in the facts and arguments supports this position. Failure by a party to sign the consent to confirmation of a grant is not ground for revocation of the grant. In any event, if a party does not sign the consent to confirmation of grant as way of protesting the proposed mode of distribution, he or she should file formal protest which will be heard and determined by the court before the estate is distributed. This is provided for under Rule 41 of the Probate and Administration Rules.
37. Section 47 of the Law of Succession Act vests courts with wide discretion in granting orders for purposes of safeguarding the estate of a Deceased person as follows:-
“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.”
38. Likewise Rule 73 of the Probate and Administration Rules provide as follows:-
“Nothing in these rules shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”
39. For these reasons, I find the application before the Learned Magistrate did not meet the threshold for revocation of grant. Failure to sign a Consent to confirmation of grant should not form a ground for revocation of grant where a party was aware of the proceedings. If a party fails to sign the Consent to confirmation of grant and mode of distribution, the open option is to express the dissatisfaction by filing an affidavit of protest which the court will consider before confirming the Grant. The learned magistrate stated in her ruling that beneficiaries did not agree on the mode of distribution. Other than revoke the grant the respondents should have been advised to file their proposed mode of distribution for determination by the Court. See the detailed procedure under rule 41 of the probate and administration. I find that there was no valid reason for revoking the Grant. The ruling should be set aside.
40. This Court also notes that the trial Magistrate upon revocation of Grant proceeded to cancel Land Title Numbers:
Nzambani/Kyanika/3931,Nzambani/Kyanika/4103,Nzambani/Kyanika/4104,Nzambani/Kyanika/415,Nzambani/Kyanika/4106,Nzambani/Kyanika/4107,Nzambani/Kyanika/418,Nzambani/Kyanika/4109,Nzambani/Kyanika/4110,Nzambani/Kyanika/4111,Nzambani/Kyanika/4112 and Nzambani/Kyanika/4113.
41. Under Article 162(2)(b) of the Constitution and the Environment and Land Court Act, disputes relating to ownership of land, validity of title, cancellation or rectification of title deeds, fall exclusively within the jurisdiction of the Environment and Land Court. It is only the High Court which has wide powers under Section 47 of the law of succession Act (Supra) which has wide powers to issue orders as may be expedient
42. In the instant matter, the trial court went beyond its mandate by purporting to cancel the registered title deeds. It is a well-settled principle that:
“A court without jurisdiction must down its tools.” Accordingly, any orders made outside jurisdiction are null and void ab initio, regardless of how well reasoned they may be. I therefore find that the magistrate’s court lacked jurisdiction to cancel the title deeds. The order cancelling that title deed should be set aside because the magistrate court lacked jurisdiction to make such orders.
Disposition
For the reasons stated in this judgment I find that the appeal has merits;
I therefore order as follows;
1. The ruling by the Learned Magistrate revoking the letters of administration intestate issued to the appellants on 15th October 2019 and confirmed on 15th July 2020 and rectified on 9th November, 2020 is hereby set aside.
2. The Grant issued on 15th October 2019 and confirmed on 15th July 2020 and rectified on 9th November 2020 is reinstated.
3. The respondents shall file affidavits of protest within 30 days if need be
4. The file to be returned to the lower Court
5. Cost to the appellants.
6. The matter be mentioned before the trial Court on 17th June, 2026
DATED AT KITUI THIS 13TH DAY OF MAY, 2026
L. GITARI
JUDGE