1. Kimole Nthilo died on 19/5/2018.
2. According to the form P & A 5 filed on 29/8/2012 in Makueni MCC Succession Cause no. 52/2012, he was survived by wives, daughters in law, sons listed here below
a) Margaret Mulatya - daughter in law
b) Johnstone Ndilu Kimole -Son
c) Elizabeth Kimote – Daughter
d) Eliza Nguna Musya – Daughter in law
e) Regina Nduku Kimote - Daughter
f) Margaret Kimote – Daughter
g) Mary Ndunge Mutuku – Daughter
h) Christine Nduku Ngui – Daughter in law
i) Antony Kimote – Son deceased
j) Kimote Tom Mwanzia – Son
k) Joseph Mwania Kimolo – Son
l) William Kimote Ndilu - Son
m) Hellen Kimote Ndilu – Son
n) Jane Wanza KIluva Daughter
o) Margaret Ndilu Kimote – Daughter
p) Patrick Kimote - Son
3. His assets were listed as follows: -
Plot No. 3477 Nguu Settlement Scheme
Title No. Makueni/Kalungu /189
Title No. Makueni/Kalungu /187
Title No. Makueni/Kalungu /188
Title No. Makueni/Kalungu /713
Title No. Makindu/Kalii /803
Title No. Makindu/Kalii /980
Title No. Makindu/Kalii /976
Title No. Makindu/Kalii /858
Title No. Makindu/Kalii /797
Title No. Makindu/Kalii /920
Title No. Makindu/Kalii /813
Title No. Nairobi/Block/113/517
Plot no 18 Kasayani “B” Makueni
4. Form P & A 41 was issued on 3/12/2012 to Tabitha Nzembi Kimote, Daina Kimote, Margaret Mulatya and Johnstone Ndilu Kimote who became the administrators of the estate.
5. They filed Summons for Confirmation Grant on 19/3/2013 and Certificate of Confirmation of Grant was made on 24/9/2013.
6. Vide Summons for Revocation of Grant dated 8/11/2024 Nuru Mukulu Kyalo & Amadi Antony Kimote, sought the revocation of the grant on the ground that their grandmother one Beatrice Kavuli, the mother to their father (Antony Kimote Ndiilu - Both deceased) was one of the three wives of Kimote Nthilo, and that the administrators had omitted them in the successions proceedings, effectively dis-inheriting them.
7. On 5/3/2025 the application was withdrawn from the subordinate court after the counsel for the petitioners filed a preliminary objection to the Summons.
8. The counsel for the applicants then filed the application for revocation of grant here.
9. Counsel for the respondent filed a preliminary objection - on the ground that the application was incompetence and this court lacks jurisdiction to hear the same.
10. The preliminary objection was canvassed by way of written submissions.
11. In support of the preliminary objection the petitioner relied on Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 - as cited with approval by the Supreme Court in application No. 50 of 2014 Aviation & Allied Workers Union of Kenya Vs Kenya Airways Ltd & 3 others [2015] eKLR ‘a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit…”
12. It is submitted that the applicants have not placed before court any document that clothes them with the locus standi to bring this application.
It is also argued that the applicants have uttered a fraudulent certificate of death for their father, lying that he died of Malaria yet it is in the public domain that he was lynched following a robbery.
13. That the application offends section 48(1) of the Law of Succession Act rule 44 of the P & A Rules, the Magistrate’s Act No. 26 of 2015. It is argued that the amendment to the Act empowers magistrates to revoke the grants issued in their own courts pursuant to section 48(1) of the Law of Succession Act, and Section 23 of the Magistrate Act, 2015. The petitioners cited Musine vs Osamo (sued as the Administrators of the Estate of Stephen Osamo (Deceased) 2023 KEHC 2017 (KLR) where Musyoka J held that the Magistrate’s Court had the power to revoke the grants made in their own courts, and the High Court would only come in on appeal. The Judge returned the matter to the CM’s Court for hearing.
14. It is also submitted that the applicants lack legal capacity as they had not demonstrated dependency on the deceased as per section 29 of the Law of Succession Act and that they do not have letters of administration for their father’s estate.
15. It is also submitted that the Summons for revocation is time barred.
16. For the applicants - in opposing the preliminary objection it is submitted that the petitioners had filed similar preliminary objection in the lower court leading to the withdrawal of the application.
17. That the applicants want this court to determine whether they have no forum to raise their issue pursuant to the petitioner’s preliminary objection here and below - whether or not they cannot challenge a grant of administration that has been issued irregularly.
18. They set out the following issues for determination: whether this court has jurisdiction, whether the applicants have locust standi to bring this application, whether their application offends Rule 44(1) of the P&A rules.
19. On locus standi - the applicants submit that no one has disputed that they are grandchildren of the deceased, as their father was son of the deceased. That their claim is supported by section 26, Section 29 of the Law of Succession Act - in particular 29(a) which defines the dependants of a deceased person to include grandchildren.
20. Regarding Rule 44 of the P & A rules – it is submitted that the application is compliant as it has been filed in the High Court nearest the Magistrate’s court.
21. Regarding the jurisdiction of the Magistrate’s court, it is submitted that Section 48(1) of the Law of Succession Act does not confer any jurisdiction on the Magistrate’s court to revoke a grant.
22. Relying on Section 7(1) of the Magistrate’s Act it is submitted that the Magistrate’s court does not have the pecuniary jurisdiction to deal with the estate as its value exceeds the limit of the CM’s Court which is Kshs. 2,000,000. Counsel submits that this estate is approximately 295 Acres and that its least value would be Kshs. 29,500,000 putting it beyond the CM’s Pecuniary jurisdiction of Ksh 20million.
23. It is submitted that this court has jurisdiction unlimited original jurisdiction, criminal, civil conferred by Article 165(1), 165(3) of the Constitution, and any other law as per Article 165(2) (e). That the jurisdiction under the Law of Succession Act falls under the category of any other jurisdiction and that Section 47 of the Law of Succession Act speaks for itself. It states;
47. Jurisdiction of High Court
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:
24. That the applicants’ preliminary objection is a technicality technique to drive the applicants’ empty handed from the seat of justice. This court is urged to decline that invitation “to avoid further ping pong oscillations” between this court and the lower court. The court is urged to invoke its jurisdiction under Article 165, section 47(1) of the Law of Succession Act and do justice. The court is referred to Osho Chemicals Ltd vs Tabitha Wanjiru Mwaniki [2018] eKLR on the duty of court under Section 1 A and 1 B of the Criminal Procedure Act.
25. It is submitted that the petitioners bear the costs of this application.
26. I have carefully considered the application, the rival submissions, and the record of the lower court.
27. The issues to be determined present themselves in the following questions; Does this court have jurisdiction? Do the applicants have locus standi? Is this matter time barred? Who is to bear the costs?
28. On whether the matte is time barred, Section 76 of the Law of Succession Act starts by saying: -
“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 on if its own motion”
29. Clearly – there is no limitation as to when an application for the revocation of the grant may be brought, and when a grant may be revoked: this is for good reason - to restrain those who may take undue advantage of whatever circumstance those beneficially entitled to an estate may have - to dis-inherit them - it is a warning that wrong doing over the estate of a deceased person will be un done by the law as and when they are found out. The answer to that question is in the negative.
30. Does this court have jurisdiction to hear this matter? The applicants argue that this court can assume jurisdiction because it has it conferred by the Law of Succession Act and the Constitution and that the CM’s Court lacks pecuniary jurisdiction.
31. It is correct that this court has original unlimited jurisdiction in civil and criminal matters, and that it is conferred with jurisdiction by the LOSA under s. 47. However, the Magistrate’s court also has jurisdiction and there is an order in which matters are filed. They begin from the lowest court going up.
32. Can the Magistrate’s court revoke a grant it has issued?
33. The petitioner argues that in the affirmative while the applicant argues that that jurisdiction is for this court.
34. Section 48(1) of the Law of Succession Act states;
48. Jurisdiction of Magistrates
(1) Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49, a magistrate shall have jurisdiction to entertain any application and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed the pecuniary limit prescribed under section 7(1) of the Magistrates' Courts Act, Act (No. 26 of 2015).
35. My understanding of this provision is that it was to clarify the jurisdiction of the Magistrate’s court with respect to succession causes. It is clearly evident that it is limited only by pecuniary jurisdiction. I agree with Musyoka J above. The magistrate’s court is empowered to revoke a grant it has issued.
36. That brings us to the question as to whether the estate is beyond the pecuniary jurisdiction of the Chief Magistrate’s court. Counsel submits from the bar that the estate is valued at about Ksh 29 Million yet the maximum jurisdiction of the Magistrate’s court is Ksh 20milion. That submission is unsupported by any evidence. That submission should be made before the trial court which ought to determine the issue.
37. Do the applicant’s have the locus standi to bring this application. The applicants deponed that they are grandchildren of the deceased, being children of one of the children of the deceased whose estate is the subject of these proceedings. This fact is not disputed. Section 29 of the LOSA in defining dependants includes grandchildren. It states: (b) such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and
38. There are authorities galore that grandchildren step into the shoes of their deceased parent to inherit the parent’s share where it is determined that the deceased parent was beneficially entitled to the estate of his own parent. The court that will hear the matter will determine whether their father was beneficially entitle to the estate and whether the applicants are entitled to that share It is my view that it is for the administrators to deal with this issue and that the applicants are not claiming anything on behalf of the estate. They are simply standing on their father’s place. Their father would not have had to present anything else other than himself to get what he is entitled to. Having not disputed their relationship with the deceased they cannot be heard to raise this issue. I find therefor that the applicants have the locus standi by being the grand children of the deceased.
39. Does the P.O raise a pure point of law? It is noteworthy the petitioners in support of the P.O raise for contest as fraudulent the issue of the manner of death of the father of the applicants, whether or not he died of Malaria/ was killed by a mob. It appears to me the reason why the deceased father of the applicants was left out is the manner in which he died. This is not found anywhere in the law. Whether or not he died of natural causes or was killed does not take away the fact that he is the deceased son of Kimote Nthilu, he had children and the administrators deliberately left them out.
40. The Petitioners by raising this issue bring contest into their own P.O
41. The applicant’s want the court to determine the alleged ping pong brought about by the petitioner’s objections to the Summons for Revocation by the applicants. Counsel for the applicants cannot blame the other party. He has to answer the question why he chose to withdraw the application before the trial court? It is presumed he considered the legal implications and proceeded to withdraw, not merely because there was a P.O but because it was the legal thing to do. That was his decision. He may as well have proceeded to argue the preliminary objection before the trial court and left it there.
42. The petitioners’ counsel’s action of raising preliminary objection on jurisdiction both at the trial court and before this court could easily lead to the conclusion that it is a ploy to obfuscate the real issue, and buy the administrators more time to wreak havoc to the estate before the applicants are heard. Surely it cannot be that the subordinate court would not have jurisdiction, and this court would not have jurisdiction. Where did the Petitioners expect the applicants to go?
43. Having made the foregoing, I find that the P. O is untenable. The same is dismissed. Each party to bear its own costs.
44. The Summons for Revocation of Grant be and is hereby is transmitted to the Chief Magistrate Makueni for directions on hearing and determination within 14 days hereof.
45. Any issues of Pecuniary Jurisdiction be raised before the trial court.
46. Orders accordingly.
Dated, signed and delivered virtually this 30th May 2025
Mumbua T Matheka
Judge
2. According to the form P & A 5 filed on 29/8/2012 in Makueni MCC Succession Cause no. 52/2012, he was survived by wives, daughters in law, sons listed here below
a) Margaret Mulatya - daughter in law
b) Johnstone Ndilu Kimole -Son
c) Elizabeth Kimote – Daughter
d) Eliza Nguna Musya – Daughter in law
e) Regina Nduku Kimote - Daughter
f) Margaret Kimote – Daughter
g) Mary Ndunge Mutuku – Daughter
h) Christine Nduku Ngui – Daughter in law
i) Antony Kimote – Son deceased
j) Kimote Tom Mwanzia – Son
k) Joseph Mwania Kimolo – Son
l) William Kimote Ndilu - Son
m) Hellen Kimote Ndilu – Son
n) Jane Wanza KIluva Daughter
o) Margaret Ndilu Kimote – Daughter
p) Patrick Kimote - Son
3. His assets were listed as follows: -
Plot No. 3477 Nguu Settlement Scheme
Title No. Makueni/Kalungu /189
Title No. Makueni/Kalungu /187
Title No. Makueni/Kalungu /188
Title No. Makueni/Kalungu /713
Title No. Makindu/Kalii /803
Title No. Makindu/Kalii /980
Title No. Makindu/Kalii /976
Title No. Makindu/Kalii /858
Title No. Makindu/Kalii /797
Title No. Makindu/Kalii /920
Title No. Makindu/Kalii /813
Title No. Nairobi/Block/113/517
Plot no 18 Kasayani “B” Makueni
4. Form P & A 41 was issued on 3/12/2012 to Tabitha Nzembi Kimote, Daina Kimote, Margaret Mulatya and Johnstone Ndilu Kimote who became the administrators of the estate.
5. They filed Summons for Confirmation Grant on 19/3/2013 and Certificate of Confirmation of Grant was made on 24/9/2013.
6. Vide Summons for Revocation of Grant dated 8/11/2024 Nuru Mukulu Kyalo & Amadi Antony Kimote, sought the revocation of the grant on the ground that their grandmother one Beatrice Kavuli, the mother to their father (Antony Kimote Ndiilu - Both deceased) was one of the three wives of Kimote Nthilo, and that the administrators had omitted them in the successions proceedings, effectively dis-inheriting them.
7. On 5/3/2025 the application was withdrawn from the subordinate court after the counsel for the petitioners filed a preliminary objection to the Summons.
8. The counsel for the applicants then filed the application for revocation of grant here.
9. Counsel for the respondent filed a preliminary objection - on the ground that the application was incompetence and this court lacks jurisdiction to hear the same.
10. The preliminary objection was canvassed by way of written submissions.
11. In support of the preliminary objection the petitioner relied on Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 - as cited with approval by the Supreme Court in application No. 50 of 2014 Aviation & Allied Workers Union of Kenya Vs Kenya Airways Ltd & 3 others [2015] eKLR ‘a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit…”
12. It is submitted that the applicants have not placed before court any document that clothes them with the locus standi to bring this application.
It is also argued that the applicants have uttered a fraudulent certificate of death for their father, lying that he died of Malaria yet it is in the public domain that he was lynched following a robbery.
13. That the application offends section 48(1) of the Law of Succession Act rule 44 of the P & A Rules, the Magistrate’s Act No. 26 of 2015. It is argued that the amendment to the Act empowers magistrates to revoke the grants issued in their own courts pursuant to section 48(1) of the Law of Succession Act, and Section 23 of the Magistrate Act, 2015. The petitioners cited Musine vs Osamo (sued as the Administrators of the Estate of Stephen Osamo (Deceased) 2023 KEHC 2017 (KLR) where Musyoka J held that the Magistrate’s Court had the power to revoke the grants made in their own courts, and the High Court would only come in on appeal. The Judge returned the matter to the CM’s Court for hearing.
14. It is also submitted that the applicants lack legal capacity as they had not demonstrated dependency on the deceased as per section 29 of the Law of Succession Act and that they do not have letters of administration for their father’s estate.
15. It is also submitted that the Summons for revocation is time barred.
16. For the applicants - in opposing the preliminary objection it is submitted that the petitioners had filed similar preliminary objection in the lower court leading to the withdrawal of the application.
17. That the applicants want this court to determine whether they have no forum to raise their issue pursuant to the petitioner’s preliminary objection here and below - whether or not they cannot challenge a grant of administration that has been issued irregularly.
18. They set out the following issues for determination: whether this court has jurisdiction, whether the applicants have locust standi to bring this application, whether their application offends Rule 44(1) of the P&A rules.
19. On locus standi - the applicants submit that no one has disputed that they are grandchildren of the deceased, as their father was son of the deceased. That their claim is supported by section 26, Section 29 of the Law of Succession Act - in particular 29(a) which defines the dependants of a deceased person to include grandchildren.
20. Regarding Rule 44 of the P & A rules – it is submitted that the application is compliant as it has been filed in the High Court nearest the Magistrate’s court.
21. Regarding the jurisdiction of the Magistrate’s court, it is submitted that Section 48(1) of the Law of Succession Act does not confer any jurisdiction on the Magistrate’s court to revoke a grant.
22. Relying on Section 7(1) of the Magistrate’s Act it is submitted that the Magistrate’s court does not have the pecuniary jurisdiction to deal with the estate as its value exceeds the limit of the CM’s Court which is Kshs. 2,000,000. Counsel submits that this estate is approximately 295 Acres and that its least value would be Kshs. 29,500,000 putting it beyond the CM’s Pecuniary jurisdiction of Ksh 20million.
23. It is submitted that this court has jurisdiction unlimited original jurisdiction, criminal, civil conferred by Article 165(1), 165(3) of the Constitution, and any other law as per Article 165(2) (e). That the jurisdiction under the Law of Succession Act falls under the category of any other jurisdiction and that Section 47 of the Law of Succession Act speaks for itself. It states;
47. Jurisdiction of High Court
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:
24. That the applicants’ preliminary objection is a technicality technique to drive the applicants’ empty handed from the seat of justice. This court is urged to decline that invitation “to avoid further ping pong oscillations” between this court and the lower court. The court is urged to invoke its jurisdiction under Article 165, section 47(1) of the Law of Succession Act and do justice. The court is referred to Osho Chemicals Ltd vs Tabitha Wanjiru Mwaniki [2018] eKLR on the duty of court under Section 1 A and 1 B of the Criminal Procedure Act.
25. It is submitted that the petitioners bear the costs of this application.
26. I have carefully considered the application, the rival submissions, and the record of the lower court.
27. The issues to be determined present themselves in the following questions; Does this court have jurisdiction? Do the applicants have locus standi? Is this matter time barred? Who is to bear the costs?
28. On whether the matte is time barred, Section 76 of the Law of Succession Act starts by saying: -
“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 on if its own motion”
29. Clearly – there is no limitation as to when an application for the revocation of the grant may be brought, and when a grant may be revoked: this is for good reason - to restrain those who may take undue advantage of whatever circumstance those beneficially entitled to an estate may have - to dis-inherit them - it is a warning that wrong doing over the estate of a deceased person will be un done by the law as and when they are found out. The answer to that question is in the negative.
30. Does this court have jurisdiction to hear this matter? The applicants argue that this court can assume jurisdiction because it has it conferred by the Law of Succession Act and the Constitution and that the CM’s Court lacks pecuniary jurisdiction.
31. It is correct that this court has original unlimited jurisdiction in civil and criminal matters, and that it is conferred with jurisdiction by the LOSA under s. 47. However, the Magistrate’s court also has jurisdiction and there is an order in which matters are filed. They begin from the lowest court going up.
32. Can the Magistrate’s court revoke a grant it has issued?
33. The petitioner argues that in the affirmative while the applicant argues that that jurisdiction is for this court.
34. Section 48(1) of the Law of Succession Act states;
48. Jurisdiction of Magistrates
(1) Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49, a magistrate shall have jurisdiction to entertain any application and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed the pecuniary limit prescribed under section 7(1) of the Magistrates' Courts Act, Act (No. 26 of 2015).
35. My understanding of this provision is that it was to clarify the jurisdiction of the Magistrate’s court with respect to succession causes. It is clearly evident that it is limited only by pecuniary jurisdiction. I agree with Musyoka J above. The magistrate’s court is empowered to revoke a grant it has issued.
36. That brings us to the question as to whether the estate is beyond the pecuniary jurisdiction of the Chief Magistrate’s court. Counsel submits from the bar that the estate is valued at about Ksh 29 Million yet the maximum jurisdiction of the Magistrate’s court is Ksh 20milion. That submission is unsupported by any evidence. That submission should be made before the trial court which ought to determine the issue.
37. Do the applicant’s have the locus standi to bring this application. The applicants deponed that they are grandchildren of the deceased, being children of one of the children of the deceased whose estate is the subject of these proceedings. This fact is not disputed. Section 29 of the LOSA in defining dependants includes grandchildren. It states: (b) such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and
38. There are authorities galore that grandchildren step into the shoes of their deceased parent to inherit the parent’s share where it is determined that the deceased parent was beneficially entitled to the estate of his own parent. The court that will hear the matter will determine whether their father was beneficially entitle to the estate and whether the applicants are entitled to that share It is my view that it is for the administrators to deal with this issue and that the applicants are not claiming anything on behalf of the estate. They are simply standing on their father’s place. Their father would not have had to present anything else other than himself to get what he is entitled to. Having not disputed their relationship with the deceased they cannot be heard to raise this issue. I find therefor that the applicants have the locus standi by being the grand children of the deceased.
39. Does the P.O raise a pure point of law? It is noteworthy the petitioners in support of the P.O raise for contest as fraudulent the issue of the manner of death of the father of the applicants, whether or not he died of Malaria/ was killed by a mob. It appears to me the reason why the deceased father of the applicants was left out is the manner in which he died. This is not found anywhere in the law. Whether or not he died of natural causes or was killed does not take away the fact that he is the deceased son of Kimote Nthilu, he had children and the administrators deliberately left them out.
40. The Petitioners by raising this issue bring contest into their own P.O
41. The applicant’s want the court to determine the alleged ping pong brought about by the petitioner’s objections to the Summons for Revocation by the applicants. Counsel for the applicants cannot blame the other party. He has to answer the question why he chose to withdraw the application before the trial court? It is presumed he considered the legal implications and proceeded to withdraw, not merely because there was a P.O but because it was the legal thing to do. That was his decision. He may as well have proceeded to argue the preliminary objection before the trial court and left it there.
42. The petitioners’ counsel’s action of raising preliminary objection on jurisdiction both at the trial court and before this court could easily lead to the conclusion that it is a ploy to obfuscate the real issue, and buy the administrators more time to wreak havoc to the estate before the applicants are heard. Surely it cannot be that the subordinate court would not have jurisdiction, and this court would not have jurisdiction. Where did the Petitioners expect the applicants to go?
43. Having made the foregoing, I find that the P. O is untenable. The same is dismissed. Each party to bear its own costs.
44. The Summons for Revocation of Grant be and is hereby is transmitted to the Chief Magistrate Makueni for directions on hearing and determination within 14 days hereof.
45. Any issues of Pecuniary Jurisdiction be raised before the trial court.
46. Orders accordingly.
Dated, signed and delivered virtually this 30th May 2025
Mumbua T Matheka
Judge