'
The Applicant herein filed an application vide a Notice of Motion dated 24 th April 2025 seeking the following prayers:
Certiorari- to remove to the Honourable Court for purposes of quashing the decision of the 1 st Respondent dated 8/4/2025 directing that the grant of letters of administration intestate made to Herine Achieng Gari, the 1 st Interested Party, on 16/2/2017 and confirmed on 13/11/2017 be revoked and further that all titles arising from sale and/or transfer of LR No. West Asembo/Siger/596 and LR No. West Asembo/Siger/653 be cancelled and the titles to revert back to the name of the deceased for succession to be done in compliance with the law (the impugned decision).
Prohibition- restraining the Respondents and Interested parties whether by themselves, their agents or persons acting on their behalf from any further implementation of the impugned decision.
Costs of the application be provided for.
The Applicant’s application is supported by the grounds set out on its face as inter alia; that the Exparte Applicant is the registered owner of the property known as West Asembo/Siger 653 (the suit property) which was purchased from the 1 st interested party and a title issued on the 12 th January 2021; that on or about the 8/4/2025, the exparte Applicant was notified of a decision by the 1 st Respondent directing that the Grant of Letters of Administration intestate made to Herine Achieng Gari, the 1 st Interested Party revoked and further that all titles arising from sale and /or transfer of land parcel number West Asembo/Siger/653 be cancelled and the titles to revert back to the name of the deceased for succession to be done in compliance with the law(the impugned decision); that impugned decision was as a result of an application for summons for revocation of grant dated 15/8/2023; that in issuing the said decision, the 1 st Respondent was sitting as a succession court; that as a succession court, the 1 st Respondent was duty bound to comply with explicit provisions of the law, which the 1 st Respondent failed to do so; that the decision issued by the 1 st Respondent is ultra vires, irrational and illegal and ought to be immediately stayed and any further implementation stopped; that the rights of the exparte Applicants have been affected by the impugned decision and are likely to continue being affected; that the impugned decision arbitrarily deprives exparte applicant of his suit property if implemented; that the exparte applicant was not given any notice or granted any opportunity to be heard on the impugned decision before it was made; that the Exparte Applicant’s rights have therefore been violated and which violation will result in the exparte Applicant being deprived of his property unless this Honourable Court intervenes to prevent further violation; that the Exparte Applicant seeks to challenge the decision of the 1 st Respondent on the grounds that it is ultra vires and in excess of jurisdiction, tainted with illegality, based on grave misapprehension of the law and thorough misunderstanding of the facts and which amounts to abuse of power as the same is based on irrelevant consideration and which failed to consider relevant facts and that the decision is Wednesbury unreasonable and irrational; that the decision is ultra vires and in-excess of jurisdiction as well as an abuse of process conferred upon the 1 st Respondent for several reasons to wit:
Rule 44(1) of the Probate and Administration Rules provides that only the High Court has jurisdiction to revoke a confirmed grant. Despite this clear provision of the law, the 1 st Respondent purported to issue an order revoking a confirmed grant;
A succession court in a succession matter has no jurisdiction over title to land and could not issue the orders cancelling the ex parte Applicant’s title to the suit property;
A magistrate court sitting in a succession matter has no jurisdiction to quash a title, as this is a preserve of the Environment and Land Court as per Section 13 of the Environment and Land Court Act, or such magistrates'' court as are duly gazetted as per Section 26 of the Environment and Land Court Act.
The 1 st Respondent who is obligated to ensure that every person is heard in a matter that affects them in compliance with Article 50 of the Constitution and Rule 44(5) of the Probate and Administration Rules, failed to direct or order the ex parte Applicant to be joined or served with any court process, in spite of having knowledge that the ex parte Applicant is the registered owner of the suit property which was subject to the proceedings before him and that the ex parte Applicant was going to be affected by his decision.
That the said action is also based on a grave misapprehension of law and through misunderstanding of facts for the reasons that:
Section 93 of the Law of Succession Act provides that any transfer of any interest in immovable or movable property made to a purchaser by a person to whom representation has been granted shall be valid notwithstanding any subsequent revocation or variation of the grant. The 1 st Respondent in issuing the impugned decision canceling the 1 st Respondent in issuing the impugned decision cancelling this ex parte Applicant’s title proceeded on a grave understanding of the law;
The 1 st Respondent proceeded on a thorough misunderstanding that it had the jurisdiction to revoke a confirmed grant and equally to cancel a title when it had no such jurisdiction;
That the said court ruling was made without according the proprietor of the suit land the opportunity to be heard, in clear violation of natural justice in general and the audi alteram partem rule in particular.
That the Respondent made considerations of irrelevant factors and failed to take into account relevant facts as follows:
Failing to have the ex parte Applicant joined to the proceedings when the ex parte Applicant is the registered owner of the property despite the fact that the 3 rd Interested Party duly informed the court (replying affidavit par 5) that the court did not deem it proper or expedient to direct the Petitioner in that case to enjoin the true owner of the suit land to the proceedings in order to give him opportunity to be heard prior to being deprived of an interest in the land as is mandatorily required by law.
Intentionally ignoring clear interest in land as is mandatorily required by las
The decision is equally irrational and unreasonable for the reasons that:
Under the rule in Allen v Dundas (1775-1802) All 398, it is extremely unreasonable for a court of law to condemn a person for obeying a lawful order issued by a court of law by purchasing property from another person who has been given a lawful authority to sell that property through a grant of probate, simply because the grant of probate has subsequent to the sale been annulled;
An order issued by a court of law is valid and should be obeyed until it is set aside and any act done in obedience of such order remains valid even after the order has been set aside;
Despite clear provisions of the law that protects purchasers of movable and immovable properties, the 1 st Respondent proceeded to cancel and quash titles of such a purchaser;
That 1 st Respondent’s decision to punish the ex parte Applicant through cancellation of his title, behind his back, and thereby subjecting him to losses worth millions of shillings for the sin or crim of obeying a lawful order, by purchasing the suit land from the 1 st Respondent
The Applicant herein swore a verifying affidavit dated 14 th April 2025 in support of his case wherein he avers inter alia; that on or about 8/4/2025, he was notified of a decision by the 1 st Respondent directing that the Grant of Letters of Administration intestate made to Herine Achieng Gari, the 1 st Interested Party on 16/2/2017 and confirmed on 13/11/2017 be revoked and further that all titles arising from sale and/or transfer of land parcel number West Asembo/Siger/596 and West Asembo/Siger/653 be cancelled and the titles to revert back to the name of the deceased for succession to be done on compliance with the law (the impugned decision annexed hereto and marked as JOA-3); that the impugned decision was as a result of an application for summons for revocation of grant dated 15/8/2023 as per the annexed copies of summon for revocation of grant and marked as JOA-3; that in issuing the said decision, the 1 st Respondent was sitting as a succession court and as a succession court, the 1 st Respondent was duty bound to comply with explicit provisions of the law, which the 1 st Respondent failed to do; that the impugned decision is ultra vires, irrational and illegal and ought to be immediately stayed and further implementation stopped; that the Applicant’s rights have been affected by the impugned decision and are likely to continue being affected and that the said decision arbitrarily deprives him of the suit property if implemented; that he was not given any notice or granted any opportunity to be heard on the impugned decision before it was made as his rights have been violated and which violation will result being deprived of his property unless this court intervenes to prevent further violation; that the Applicant seeks to challenge the decision at the 1 st Respondent on the ground that it is ultra vires and in excess of jurisdiction; tainted with illegality; based on grave misapprehension of the law and thorough misunderstanding of facts, amount to abuse of power, based on irrelevant considerations and failed to consider relevant facts and the decision in Wednesbury unreasonable and irrational.
The 2 nd Respondent filed grounds of opposition dated 30/4/2025 wherein it raised two grounds inter alia; that the application is misconceived, frivolous, vexatious and an abuse of the due process of the law; that the Applicant has not appealed or applied to set aside the orders complained of.
The Exparte Applicant filed a further affidavit dated 30/6/2025 in response to 2 nd Respondent’s contention that the appropriate recourse lay in an appeal, and to the 4 th Respondent’s position that the matter ought to have been subjected to review before the 1 st Respondent, that he asserts that he is entitled, as a matter of law to frame his cause of action in a manner that aligns with the specific reliefs sought, provided that the chosen procedure is legally permissible, in the present circumstance, judicial review constitutes the most suitable and efficacious avenue for seeking the intervention of this court in respect of the orders prayed for therein for several reasons; that in judicial review jurisdiction, this court exercises special jurisdiction and is only concerned with the decision making process of a subordinate court or tribunal such as the 1 st Respondent herein, and that the court has special jurisdiction to issue orders of mandamus, prohibition and certiorari as the remedies against acts or omissions by public entities; that the supervisory jurisdiction of this court can be applied in special circumstances and where there is evidence of obvious miscarriage of justice; that it has long been settled that the decision affecting legal rights of an individual which is arrived at by procedure which offends the principles of natural justice is outside the jurisdiction of the decision making authority. As such, a party has the right to challenge the said decision by invoking the supervisory jurisdiction of this court through the writ of judicial review; that he was never made a party to the proceedings before the subordinate court, an adverse decision was, therefore, made without affording him a right to be heard; that an adverse decision having been made without my participation and the same is not binding on me and I have chosen to challenge it by way of judicial review and special jurisdiction of this court; that as impugned decision is not binding on himself, he cannot appeal against it within the confines of law of Succession Act being that he was not a party to the proceedings before the trial court; that the grant obtained by the 1 st Interested Party was issued pursuant to a valid court order, and for the duration it remained in force, and even thereafter, any transaction undertaken pursuant thereto retained their validity in accordance with the provisions of Section 93 of the Law of Succession Act and by issuing a decision contrary to express provisions of the law, the subordinate court acted without jurisdiction and this court has the special jurisdiction to correct the said ultra vires decision under its judicial review jurisdiction; the transfer of the suit property to him by the 1 st interested party did not, in any manner, contravene the established legal principles of nemo dat quod non habet for the following reasons:
That he purchased the suit property from the 1 st Interested party for valuable consideration.
That as the time of the said purchase, the 1 st interested party had a grant of representation in force.
That the 1 st Interested Party was entitled by law to petition for letters of administration.
That his right to the suit property is protected by Article 40 of the Constitution and Section 93(1) of the Law of Succession Act; that if he would have been joined to the proceedings, he would be able to demonstrate the foregoing and a decision contravening my non-derogate right to a hearing would not have been issued; that the Respondent admitted that these are facts that ought to have been considered, albeit in an application for review as opposed to a judicial review and that he has a right to be heard, which right he admits was impinged and I should be given an opportunity to be heard; that in Section 11 of the Interpretation and General Provisions Act, which address the manner in which applied laws are to be construed within the Kenya legal framework, is inapplicable to the interpretation of Rule 44(1) of the Probate and Administration Rules. This is by reason of the definition of “applied law” under Section 3 of the said Act, which expressly defines applied laws as an Act of the Legislature of another country or an order in council of the United Kingdom or the subsidiary legislation of these specific laws. The law of Succession Act and by extension, the Probate and Administration Rules do not form part of applied law as defined under the Interpretation and General Provision Act; that consequently, the High Court’s jurisdiction to entertain applications for revocation of grant as preserved under Rule 44(1) of the Probate and Administration Rules, cannot be subject to reinterpretation or modification through the application of interpretive provisions intended for applied laws; that contrary to the 4 th Respondent’s assertion, Section 48 and 49 of the Law of Succession Act donate to the High Court authority to determine succession dispute where both a magistrate’s court and the High Court are situate. That in this dispute, there is a High Court in Siaya and the magistrates court could not purport to exercise such jurisdiction when there exists a High Court and therefore there is no conflict at all between Rule 44 of Probate and Administration Rules and Section 48, 49 and 93 of the Law of Succession Act; that any contention seeking to advance the notion of a mistaken belief regarding rightful ownership of the suit property and failure to enjoin him as a party to the proceedings is baseless, given that the 4 th Respondent was a party to the impugned proceedings before the 1 st Respondent and was aware that ownership had been transferred to him; that a cursory examination of the court record and pleadings filed before the trial court would have readily revealed that he is the duly registered proprietor of the suit property and/or that there was a third party who was in occupation and ownership of the suit property and that nothing prevented the 4 th Respondent from ascertaining ownership of the suit property as it filed its pleadings in the trial court.
That the claim of inadvertence is baseless and to be disregarded totally; that his inclusion as a party to the impugned proceedings before the 1 st Respondent was imperative, and the failure for his inclusion occasioned procedural and substantive prejudice; that whether or not inclusion to the case would have altered the legal status of the grant in question was a matter reserved for determination of the court and not the 4 th Respondent and that the constitution is very clear that the right to a hearing cannot be limited and it was imperative that he be joined to the proceedings and that no justification exists for the omission to join him in the said proceedings; that the 4 th Respondent acknowledged the failure of his joinder to the proceedings as an honest mistake while the question of efficacy of his joinder to the said proceedings when he is the registered owner of the suit property as Respondent joined Grace Ayieko Odida and Fredrick Otieno Ngong’a (2 nd and 3 rd Interested Party) to the said proceedings as he believed the said persons to be the registered owners of the suit property shows double speak by the 4 th Respondent regarding his right to have been party to the proceedings before the 1 st Respondent; that the claim that Section 76 of the Law of Succession Act allows for revocation of titles issued during the pendency of a valid Grant is devoid of any merit by dint of the explicit provisions of Section 93 thereof; that the claim of forum shopping has no basis as he has filed the instant application before the court, which in any event would have been the court that entertained the appeal had he been joined to the proceedings before the trial court and had he appealed from the decision thereof.
7. The 2 nd Respondent who acts for the 1 st , 2 nd and 3 rd Respondents filed grounds of opposition dated 30 th April 2025 wherein it raised two grounds inter alia; that the application is misconceived, frivolous, vexatious and an abuse of the due process of law and should be dismissed with costs; that the Applicant herein has not appealed from and/or applied to set aside the orders complained of.
The 4 th Respondent filed a replying affidavit dated 12/6/2025 in response to the application wherein he averred inter alia; that he is a stranger to the parties described in the statement of the Exparte Applicant dated 15/4/2025 and that he has never lodged any claim against them, their rights or interests; that he was advised that the issues disguised in the Judicial Review application arise from a misconception of the law and should have properly been before a review or an appellate court and are therefore tantamount to an abuse of court process and should be dismissed in limine; that Article 40 of the Constitution provides for right to property and which does not form part of the non derogable rights under Article 25 of the Constitution and in the same breath, Article 40(6) of the Constitution does not protect a right to property that has been acquired unlawfully as is the case with Exparte Applicant’s title; that Section 93 of the Law of Succession Act in which the Exparte Applicant seeks refuge is subservient to the Constitution and cannot be used to justify and sanitize the fraudulent means employed by the 1 st Interested Party to unlawfully acquire the grant used to administer the estate of the deceased person and that part (b) of the provisions intimates that with sufficiently compelling reasons like the 4 th Respondent was able to demonstrate to the lower court, the invalidation of the grant would definitely operate dictum, ‘’nemo dat quod non habet’’ that no one can transfer a title they did not have in the first place; that the assertion that only the High Court has jurisdiction to revoke a grant as per Rule 44(1) of the Probate and Administration Rules is a narrow understanding , interpretation and application of the law as it is a ground upon which this suit is founded and that Section 11 of the Interpretation and General Provisions Act Cap 2 Laws of Kenya provide that an applied law shall be read with such formal alterations as to names provides that an applied law shall be read with such formal alterations as to names, localities, courts, officers, persons, moneys, penalties or otherwise as may be necessary to make it applicable to the circumstances, and in particular to a reference to a Probate Court, Bankruptcy court or Admiralty court or similar expression, shall be construed as a reference to the High Court exercising the appropriate jurisdiction; that Section 7 of the Magistrate’s Court Act 2015 as read together with Section 48(1) and Section 49 of the Law of Succession Act Cap 160, insists that nothing stops a magistrate from entertaining a succession dispute including an application for revocation of grant in respect to an estate the gross value of which falls within the set out pecuniary limits, that Rule 44(1) that has been relied on by the Exparte Applicant is subject to the parent Act, the Law of Succession Act Cap 160 as set out in Section 3 of the Judicature Act Cap 8 Laws of Kenya; that his failure to enjoin the Applicant in the proceedings before the lower court was not out of spite, ill motive or in bad faith but was purely an inadvertent mistake since he is now 87 years old and that due to the intricacies of age, he was uncertain of the land parcel number occupied by the Exparte Applicant and that he was not in financial capacity to engage a land surveyor to assist and establish the parcel number; that he genuinely believed that West Asembo/Siger/653 was in the name of the 3 rd Interested Part as far as he can remember from the information his late brother Pitalis Odongo gave him and that he maintained in his records and that he was surprised to see in the current application before court that the said land actually is in the name of the Exparte Applicant which parcel was also subject of the suit before the lower court; that failure to enjoin the Exparte Applicant in the suit before the lower court was not fatal and/or prejudicial to him since he has not demonstrated how his inclusion in that suit would have changed the fact that the 1 st Interested party fraudulently obtained the grant in question or varied the outcome before the lower court; that this matter should have been subjected to a review as provided by Section 80 of the Civil Procedure Act as read with Order 45 Rule 1 of the Civil Procedure Rules or in the alternative canvassed by way of an appeal; that the allegations against the judicial officer by the Applicant do not have any legal basis; that a succession court has power under Section 76 of the Law of Succession Act to revoke grants if sufficient reasons are furnished and that the said courts upon revoking the grants are empowered to nullify title deeds emanating from the revoked grant; that the Applicant is forum shopping with the ultimate aim of hiding from justice and that this court should dismiss the instant judicial review application with costs to the 4 th Respondent.
The application was canvassed by way of written submissions. Both parties complied.
The Applicant’s submissions are dated 30 th June 2025.
Counsel for the Exparte Applicant submitted that the 1 st Respondent delivered a decision on 8/4/2025 directing that the Grant of Letters of administration intestate made to the 1 st Interested party on the 16/2/2017 and confirmed on the13/11/2017 be revoked. That all the titles arising from the sale and /or transfer of the parcel of lands known as West Asembo/Siger/596 and West Asembo/Siger/653 were to be cancelled and the titles to revert back to the name of the deceased for succession to be done in compliance with the law.
That the impugned decision arose from an application dated 15/8/2023 which sought revocation of the grant to the 1 st Interested Party and that at the material time, the 1 st Respondent was duly presiding in its capacity as a succession court and was therefore under a legal obligation to strictly adhere to the express provisions of the law which it failed to discharge.
It was submitted that Exparte Applicant is the duly registered proprietor of the suit land as whole namely Land Parcel No. West Asembo/Siger/653 having lawfully acquired the same from the 1 st Interested Party and which the title was issued on 12/1/2021. That the Applicant being the registered proprietor of the suit property was neither served with any summons nor notified of the proceedings before the 1 st Respondent, and remained unaware thereof until the said impugned decision was rendered. That the Applicant intends to convince this court that the 1 st Respondent’s decision is ultra vires and in excess of the jurisdiction as Rule 44(1) of the Probate and Administration Rules provides that only the High Court has jurisdiction to revoke a confirmed grant; a succession court sitting as such has no jurisdiction to cancel title to a suit property; and the Respondents violated the Applicant’s constitutional right to a fair hearing by failing to summons or join the Applicant as a party to the proceedings despite having full knowledge that he is the lawful proprietor of the suit property.
Further, that the impugned decision is a grave misapprehension of law and thorough misunderstanding of facts herein for the reasons that it violates clear provision of Section 93 of the Law of Succession Act; the 1 st Respondent proceeded on a fundamental misapprehension of the law in purporting to exercise jurisdiction to revoke a confirmed grant and to cancel an already issued title to land; the impugned decision was rendered in contravention of the rules of natural justice, and in particular in breach of the audi alteram partem principle; that the impugned decision was riddled with procedural impropriety and thus irrational and unreasonable for the reasons that Applicant was not accorded a chance to be heard; the impugned decision was manifestly unreasonable in that it sought to punish the Applicant for complying with the lawful court orders and proceeding to purchase the suit property on the strength of those orders; that the 1 st Respondent took into account irrelevant considerations and failed to give due regard to material and relevant facts of the case, notwithstanding that the 3 rd Interested party expressly stated that he was not the rightful owner of the suit property and that it was only just and proper that the Applicant being the lawful proprietor that he be joined to the said proceedings. That the impugned decision was tainted with bias against the Applicant and occasioned a gross miscarriage of justice as the 1 st Respondent rendered a determination that was wholly inconsistent with the available facts and applicable law and acted in complete disregard of the Applicant’s constitutionally protected right to a fair hearing and that contrary to 3 rd and 4 th Respondent’s position, the circumstances surrounding the impugned decision rendered judicial review the most appropriate and viable remedy available to the Applicant.
Therefore, the Applicant raised two issues for determination namely whether the court has jurisdiction to exercise judicial review over the 1 st Respondent and whether the Applicant has demonstrated the grounds for the exercise of the judicial review jurisdiction.
On the issue whether the Applicant has audience before the court, it is his contention that the decision of the 1 st Respondent as prosecuted before it by the 4 th Respondent, violated his right to property and to fair hearing, as prosecuted under Article 40 and 50 of the Constitution as well as the right to property as per Section 26 of the Land Registration Act and Section 93 (1) of the Law of Succession Act. That the 1 st and 4 th Respondents acted contrary to law and in violation of constitutional principles. Reliance was placed on Article 165(6) and (7) of the Constitution which provides as follows:
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6) the High Court may call for record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
Further, a reliance was placed in the case of Republic v Magistrates Court, Mombasa; Absin Synegy Limited (Interested Party)) Judicial Review E033 OF 2021(2022) KEHC 10 (KLR), Mativo J (as he then was) stated as follows on the supervisory jurisdiction of the court and judicial review jurisdiction (page 6 of the Applicant’s authorities).
The power conferred to this court under Article 165 (6) of the Constitution is used sparingly only when the lower court or tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction which is the case her. That the High Court under the jurisdiction which is the guise of Article 165 (6) cannot assume unlimited prerogative to correct all species of hardship or wrong decisions and that for it to interfere there must be a case of flagrant abuse of fundamental principles of law or it can interfere where there is an order which has resulted in grave injustice. That the fact that the learned magistrate assumed jurisdiction not expressly conferred upon him by the law and in a blatant breach of Section 14 of the CPA is itself a proper case for this court to exercise its supervisory jurisdiction to prevent grave injustice and abuse of the law. That Judicial Review is the review by a judge of the High Court of a decision, proposed decision; or refusal to exercise a power of decision; proposed decision; or refusal to exercise a power of decision to determine whether that decision or action is un
[...truncated]
The Applicant herein filed an application vide a Notice of Motion dated 24 th April 2025 seeking the following prayers:
Certiorari- to remove to the Honourable Court for purposes of quashing the decision of the 1 st Respondent dated 8/4/2025 directing that the grant of letters of administration intestate made to Herine Achieng Gari, the 1 st Interested Party, on 16/2/2017 and confirmed on 13/11/2017 be revoked and further that all titles arising from sale and/or transfer of LR No. West Asembo/Siger/596 and LR No. West Asembo/Siger/653 be cancelled and the titles to revert back to the name of the deceased for succession to be done in compliance with the law (the impugned decision).
Prohibition- restraining the Respondents and Interested parties whether by themselves, their agents or persons acting on their behalf from any further implementation of the impugned decision.
Costs of the application be provided for.
The Applicant’s application is supported by the grounds set out on its face as inter alia; that the Exparte Applicant is the registered owner of the property known as West Asembo/Siger 653 (the suit property) which was purchased from the 1 st interested party and a title issued on the 12 th January 2021; that on or about the 8/4/2025, the exparte Applicant was notified of a decision by the 1 st Respondent directing that the Grant of Letters of Administration intestate made to Herine Achieng Gari, the 1 st Interested Party revoked and further that all titles arising from sale and /or transfer of land parcel number West Asembo/Siger/653 be cancelled and the titles to revert back to the name of the deceased for succession to be done in compliance with the law(the impugned decision); that impugned decision was as a result of an application for summons for revocation of grant dated 15/8/2023; that in issuing the said decision, the 1 st Respondent was sitting as a succession court; that as a succession court, the 1 st Respondent was duty bound to comply with explicit provisions of the law, which the 1 st Respondent failed to do so; that the decision issued by the 1 st Respondent is ultra vires, irrational and illegal and ought to be immediately stayed and any further implementation stopped; that the rights of the exparte Applicants have been affected by the impugned decision and are likely to continue being affected; that the impugned decision arbitrarily deprives exparte applicant of his suit property if implemented; that the exparte applicant was not given any notice or granted any opportunity to be heard on the impugned decision before it was made; that the Exparte Applicant’s rights have therefore been violated and which violation will result in the exparte Applicant being deprived of his property unless this Honourable Court intervenes to prevent further violation; that the Exparte Applicant seeks to challenge the decision of the 1 st Respondent on the grounds that it is ultra vires and in excess of jurisdiction, tainted with illegality, based on grave misapprehension of the law and thorough misunderstanding of the facts and which amounts to abuse of power as the same is based on irrelevant consideration and which failed to consider relevant facts and that the decision is Wednesbury unreasonable and irrational; that the decision is ultra vires and in-excess of jurisdiction as well as an abuse of process conferred upon the 1 st Respondent for several reasons to wit:
Rule 44(1) of the Probate and Administration Rules provides that only the High Court has jurisdiction to revoke a confirmed grant. Despite this clear provision of the law, the 1 st Respondent purported to issue an order revoking a confirmed grant;
A succession court in a succession matter has no jurisdiction over title to land and could not issue the orders cancelling the ex parte Applicant’s title to the suit property;
A magistrate court sitting in a succession matter has no jurisdiction to quash a title, as this is a preserve of the Environment and Land Court as per Section 13 of the Environment and Land Court Act, or such magistrates'' court as are duly gazetted as per Section 26 of the Environment and Land Court Act.
The 1 st Respondent who is obligated to ensure that every person is heard in a matter that affects them in compliance with Article 50 of the Constitution and Rule 44(5) of the Probate and Administration Rules, failed to direct or order the ex parte Applicant to be joined or served with any court process, in spite of having knowledge that the ex parte Applicant is the registered owner of the suit property which was subject to the proceedings before him and that the ex parte Applicant was going to be affected by his decision.
That the said action is also based on a grave misapprehension of law and through misunderstanding of facts for the reasons that:
Section 93 of the Law of Succession Act provides that any transfer of any interest in immovable or movable property made to a purchaser by a person to whom representation has been granted shall be valid notwithstanding any subsequent revocation or variation of the grant. The 1 st Respondent in issuing the impugned decision canceling the 1 st Respondent in issuing the impugned decision cancelling this ex parte Applicant’s title proceeded on a grave understanding of the law;
The 1 st Respondent proceeded on a thorough misunderstanding that it had the jurisdiction to revoke a confirmed grant and equally to cancel a title when it had no such jurisdiction;
That the said court ruling was made without according the proprietor of the suit land the opportunity to be heard, in clear violation of natural justice in general and the audi alteram partem rule in particular.
That the Respondent made considerations of irrelevant factors and failed to take into account relevant facts as follows:
Failing to have the ex parte Applicant joined to the proceedings when the ex parte Applicant is the registered owner of the property despite the fact that the 3 rd Interested Party duly informed the court (replying affidavit par 5) that the court did not deem it proper or expedient to direct the Petitioner in that case to enjoin the true owner of the suit land to the proceedings in order to give him opportunity to be heard prior to being deprived of an interest in the land as is mandatorily required by law.
Intentionally ignoring clear interest in land as is mandatorily required by las
The decision is equally irrational and unreasonable for the reasons that:
Under the rule in Allen v Dundas (1775-1802) All 398, it is extremely unreasonable for a court of law to condemn a person for obeying a lawful order issued by a court of law by purchasing property from another person who has been given a lawful authority to sell that property through a grant of probate, simply because the grant of probate has subsequent to the sale been annulled;
An order issued by a court of law is valid and should be obeyed until it is set aside and any act done in obedience of such order remains valid even after the order has been set aside;
Despite clear provisions of the law that protects purchasers of movable and immovable properties, the 1 st Respondent proceeded to cancel and quash titles of such a purchaser;
That 1 st Respondent’s decision to punish the ex parte Applicant through cancellation of his title, behind his back, and thereby subjecting him to losses worth millions of shillings for the sin or crim of obeying a lawful order, by purchasing the suit land from the 1 st Respondent
The Applicant herein swore a verifying affidavit dated 14 th April 2025 in support of his case wherein he avers inter alia; that on or about 8/4/2025, he was notified of a decision by the 1 st Respondent directing that the Grant of Letters of Administration intestate made to Herine Achieng Gari, the 1 st Interested Party on 16/2/2017 and confirmed on 13/11/2017 be revoked and further that all titles arising from sale and/or transfer of land parcel number West Asembo/Siger/596 and West Asembo/Siger/653 be cancelled and the titles to revert back to the name of the deceased for succession to be done on compliance with the law (the impugned decision annexed hereto and marked as JOA-3); that the impugned decision was as a result of an application for summons for revocation of grant dated 15/8/2023 as per the annexed copies of summon for revocation of grant and marked as JOA-3; that in issuing the said decision, the 1 st Respondent was sitting as a succession court and as a succession court, the 1 st Respondent was duty bound to comply with explicit provisions of the law, which the 1 st Respondent failed to do; that the impugned decision is ultra vires, irrational and illegal and ought to be immediately stayed and further implementation stopped; that the Applicant’s rights have been affected by the impugned decision and are likely to continue being affected and that the said decision arbitrarily deprives him of the suit property if implemented; that he was not given any notice or granted any opportunity to be heard on the impugned decision before it was made as his rights have been violated and which violation will result being deprived of his property unless this court intervenes to prevent further violation; that the Applicant seeks to challenge the decision at the 1 st Respondent on the ground that it is ultra vires and in excess of jurisdiction; tainted with illegality; based on grave misapprehension of the law and thorough misunderstanding of facts, amount to abuse of power, based on irrelevant considerations and failed to consider relevant facts and the decision in Wednesbury unreasonable and irrational.
The 2 nd Respondent filed grounds of opposition dated 30/4/2025 wherein it raised two grounds inter alia; that the application is misconceived, frivolous, vexatious and an abuse of the due process of the law; that the Applicant has not appealed or applied to set aside the orders complained of.
The Exparte Applicant filed a further affidavit dated 30/6/2025 in response to 2 nd Respondent’s contention that the appropriate recourse lay in an appeal, and to the 4 th Respondent’s position that the matter ought to have been subjected to review before the 1 st Respondent, that he asserts that he is entitled, as a matter of law to frame his cause of action in a manner that aligns with the specific reliefs sought, provided that the chosen procedure is legally permissible, in the present circumstance, judicial review constitutes the most suitable and efficacious avenue for seeking the intervention of this court in respect of the orders prayed for therein for several reasons; that in judicial review jurisdiction, this court exercises special jurisdiction and is only concerned with the decision making process of a subordinate court or tribunal such as the 1 st Respondent herein, and that the court has special jurisdiction to issue orders of mandamus, prohibition and certiorari as the remedies against acts or omissions by public entities; that the supervisory jurisdiction of this court can be applied in special circumstances and where there is evidence of obvious miscarriage of justice; that it has long been settled that the decision affecting legal rights of an individual which is arrived at by procedure which offends the principles of natural justice is outside the jurisdiction of the decision making authority. As such, a party has the right to challenge the said decision by invoking the supervisory jurisdiction of this court through the writ of judicial review; that he was never made a party to the proceedings before the subordinate court, an adverse decision was, therefore, made without affording him a right to be heard; that an adverse decision having been made without my participation and the same is not binding on me and I have chosen to challenge it by way of judicial review and special jurisdiction of this court; that as impugned decision is not binding on himself, he cannot appeal against it within the confines of law of Succession Act being that he was not a party to the proceedings before the trial court; that the grant obtained by the 1 st Interested Party was issued pursuant to a valid court order, and for the duration it remained in force, and even thereafter, any transaction undertaken pursuant thereto retained their validity in accordance with the provisions of Section 93 of the Law of Succession Act and by issuing a decision contrary to express provisions of the law, the subordinate court acted without jurisdiction and this court has the special jurisdiction to correct the said ultra vires decision under its judicial review jurisdiction; the transfer of the suit property to him by the 1 st interested party did not, in any manner, contravene the established legal principles of nemo dat quod non habet for the following reasons:
That he purchased the suit property from the 1 st Interested party for valuable consideration.
That as the time of the said purchase, the 1 st interested party had a grant of representation in force.
That the 1 st Interested Party was entitled by law to petition for letters of administration.
That his right to the suit property is protected by Article 40 of the Constitution and Section 93(1) of the Law of Succession Act; that if he would have been joined to the proceedings, he would be able to demonstrate the foregoing and a decision contravening my non-derogate right to a hearing would not have been issued; that the Respondent admitted that these are facts that ought to have been considered, albeit in an application for review as opposed to a judicial review and that he has a right to be heard, which right he admits was impinged and I should be given an opportunity to be heard; that in Section 11 of the Interpretation and General Provisions Act, which address the manner in which applied laws are to be construed within the Kenya legal framework, is inapplicable to the interpretation of Rule 44(1) of the Probate and Administration Rules. This is by reason of the definition of “applied law” under Section 3 of the said Act, which expressly defines applied laws as an Act of the Legislature of another country or an order in council of the United Kingdom or the subsidiary legislation of these specific laws. The law of Succession Act and by extension, the Probate and Administration Rules do not form part of applied law as defined under the Interpretation and General Provision Act; that consequently, the High Court’s jurisdiction to entertain applications for revocation of grant as preserved under Rule 44(1) of the Probate and Administration Rules, cannot be subject to reinterpretation or modification through the application of interpretive provisions intended for applied laws; that contrary to the 4 th Respondent’s assertion, Section 48 and 49 of the Law of Succession Act donate to the High Court authority to determine succession dispute where both a magistrate’s court and the High Court are situate. That in this dispute, there is a High Court in Siaya and the magistrates court could not purport to exercise such jurisdiction when there exists a High Court and therefore there is no conflict at all between Rule 44 of Probate and Administration Rules and Section 48, 49 and 93 of the Law of Succession Act; that any contention seeking to advance the notion of a mistaken belief regarding rightful ownership of the suit property and failure to enjoin him as a party to the proceedings is baseless, given that the 4 th Respondent was a party to the impugned proceedings before the 1 st Respondent and was aware that ownership had been transferred to him; that a cursory examination of the court record and pleadings filed before the trial court would have readily revealed that he is the duly registered proprietor of the suit property and/or that there was a third party who was in occupation and ownership of the suit property and that nothing prevented the 4 th Respondent from ascertaining ownership of the suit property as it filed its pleadings in the trial court.
That the claim of inadvertence is baseless and to be disregarded totally; that his inclusion as a party to the impugned proceedings before the 1 st Respondent was imperative, and the failure for his inclusion occasioned procedural and substantive prejudice; that whether or not inclusion to the case would have altered the legal status of the grant in question was a matter reserved for determination of the court and not the 4 th Respondent and that the constitution is very clear that the right to a hearing cannot be limited and it was imperative that he be joined to the proceedings and that no justification exists for the omission to join him in the said proceedings; that the 4 th Respondent acknowledged the failure of his joinder to the proceedings as an honest mistake while the question of efficacy of his joinder to the said proceedings when he is the registered owner of the suit property as Respondent joined Grace Ayieko Odida and Fredrick Otieno Ngong’a (2 nd and 3 rd Interested Party) to the said proceedings as he believed the said persons to be the registered owners of the suit property shows double speak by the 4 th Respondent regarding his right to have been party to the proceedings before the 1 st Respondent; that the claim that Section 76 of the Law of Succession Act allows for revocation of titles issued during the pendency of a valid Grant is devoid of any merit by dint of the explicit provisions of Section 93 thereof; that the claim of forum shopping has no basis as he has filed the instant application before the court, which in any event would have been the court that entertained the appeal had he been joined to the proceedings before the trial court and had he appealed from the decision thereof.
7. The 2 nd Respondent who acts for the 1 st , 2 nd and 3 rd Respondents filed grounds of opposition dated 30 th April 2025 wherein it raised two grounds inter alia; that the application is misconceived, frivolous, vexatious and an abuse of the due process of law and should be dismissed with costs; that the Applicant herein has not appealed from and/or applied to set aside the orders complained of.
The 4 th Respondent filed a replying affidavit dated 12/6/2025 in response to the application wherein he averred inter alia; that he is a stranger to the parties described in the statement of the Exparte Applicant dated 15/4/2025 and that he has never lodged any claim against them, their rights or interests; that he was advised that the issues disguised in the Judicial Review application arise from a misconception of the law and should have properly been before a review or an appellate court and are therefore tantamount to an abuse of court process and should be dismissed in limine; that Article 40 of the Constitution provides for right to property and which does not form part of the non derogable rights under Article 25 of the Constitution and in the same breath, Article 40(6) of the Constitution does not protect a right to property that has been acquired unlawfully as is the case with Exparte Applicant’s title; that Section 93 of the Law of Succession Act in which the Exparte Applicant seeks refuge is subservient to the Constitution and cannot be used to justify and sanitize the fraudulent means employed by the 1 st Interested Party to unlawfully acquire the grant used to administer the estate of the deceased person and that part (b) of the provisions intimates that with sufficiently compelling reasons like the 4 th Respondent was able to demonstrate to the lower court, the invalidation of the grant would definitely operate dictum, ‘’nemo dat quod non habet’’ that no one can transfer a title they did not have in the first place; that the assertion that only the High Court has jurisdiction to revoke a grant as per Rule 44(1) of the Probate and Administration Rules is a narrow understanding , interpretation and application of the law as it is a ground upon which this suit is founded and that Section 11 of the Interpretation and General Provisions Act Cap 2 Laws of Kenya provide that an applied law shall be read with such formal alterations as to names provides that an applied law shall be read with such formal alterations as to names, localities, courts, officers, persons, moneys, penalties or otherwise as may be necessary to make it applicable to the circumstances, and in particular to a reference to a Probate Court, Bankruptcy court or Admiralty court or similar expression, shall be construed as a reference to the High Court exercising the appropriate jurisdiction; that Section 7 of the Magistrate’s Court Act 2015 as read together with Section 48(1) and Section 49 of the Law of Succession Act Cap 160, insists that nothing stops a magistrate from entertaining a succession dispute including an application for revocation of grant in respect to an estate the gross value of which falls within the set out pecuniary limits, that Rule 44(1) that has been relied on by the Exparte Applicant is subject to the parent Act, the Law of Succession Act Cap 160 as set out in Section 3 of the Judicature Act Cap 8 Laws of Kenya; that his failure to enjoin the Applicant in the proceedings before the lower court was not out of spite, ill motive or in bad faith but was purely an inadvertent mistake since he is now 87 years old and that due to the intricacies of age, he was uncertain of the land parcel number occupied by the Exparte Applicant and that he was not in financial capacity to engage a land surveyor to assist and establish the parcel number; that he genuinely believed that West Asembo/Siger/653 was in the name of the 3 rd Interested Part as far as he can remember from the information his late brother Pitalis Odongo gave him and that he maintained in his records and that he was surprised to see in the current application before court that the said land actually is in the name of the Exparte Applicant which parcel was also subject of the suit before the lower court; that failure to enjoin the Exparte Applicant in the suit before the lower court was not fatal and/or prejudicial to him since he has not demonstrated how his inclusion in that suit would have changed the fact that the 1 st Interested party fraudulently obtained the grant in question or varied the outcome before the lower court; that this matter should have been subjected to a review as provided by Section 80 of the Civil Procedure Act as read with Order 45 Rule 1 of the Civil Procedure Rules or in the alternative canvassed by way of an appeal; that the allegations against the judicial officer by the Applicant do not have any legal basis; that a succession court has power under Section 76 of the Law of Succession Act to revoke grants if sufficient reasons are furnished and that the said courts upon revoking the grants are empowered to nullify title deeds emanating from the revoked grant; that the Applicant is forum shopping with the ultimate aim of hiding from justice and that this court should dismiss the instant judicial review application with costs to the 4 th Respondent.
The application was canvassed by way of written submissions. Both parties complied.
The Applicant’s submissions are dated 30 th June 2025.
Counsel for the Exparte Applicant submitted that the 1 st Respondent delivered a decision on 8/4/2025 directing that the Grant of Letters of administration intestate made to the 1 st Interested party on the 16/2/2017 and confirmed on the13/11/2017 be revoked. That all the titles arising from the sale and /or transfer of the parcel of lands known as West Asembo/Siger/596 and West Asembo/Siger/653 were to be cancelled and the titles to revert back to the name of the deceased for succession to be done in compliance with the law.
That the impugned decision arose from an application dated 15/8/2023 which sought revocation of the grant to the 1 st Interested Party and that at the material time, the 1 st Respondent was duly presiding in its capacity as a succession court and was therefore under a legal obligation to strictly adhere to the express provisions of the law which it failed to discharge.
It was submitted that Exparte Applicant is the duly registered proprietor of the suit land as whole namely Land Parcel No. West Asembo/Siger/653 having lawfully acquired the same from the 1 st Interested Party and which the title was issued on 12/1/2021. That the Applicant being the registered proprietor of the suit property was neither served with any summons nor notified of the proceedings before the 1 st Respondent, and remained unaware thereof until the said impugned decision was rendered. That the Applicant intends to convince this court that the 1 st Respondent’s decision is ultra vires and in excess of the jurisdiction as Rule 44(1) of the Probate and Administration Rules provides that only the High Court has jurisdiction to revoke a confirmed grant; a succession court sitting as such has no jurisdiction to cancel title to a suit property; and the Respondents violated the Applicant’s constitutional right to a fair hearing by failing to summons or join the Applicant as a party to the proceedings despite having full knowledge that he is the lawful proprietor of the suit property.
Further, that the impugned decision is a grave misapprehension of law and thorough misunderstanding of facts herein for the reasons that it violates clear provision of Section 93 of the Law of Succession Act; the 1 st Respondent proceeded on a fundamental misapprehension of the law in purporting to exercise jurisdiction to revoke a confirmed grant and to cancel an already issued title to land; the impugned decision was rendered in contravention of the rules of natural justice, and in particular in breach of the audi alteram partem principle; that the impugned decision was riddled with procedural impropriety and thus irrational and unreasonable for the reasons that Applicant was not accorded a chance to be heard; the impugned decision was manifestly unreasonable in that it sought to punish the Applicant for complying with the lawful court orders and proceeding to purchase the suit property on the strength of those orders; that the 1 st Respondent took into account irrelevant considerations and failed to give due regard to material and relevant facts of the case, notwithstanding that the 3 rd Interested party expressly stated that he was not the rightful owner of the suit property and that it was only just and proper that the Applicant being the lawful proprietor that he be joined to the said proceedings. That the impugned decision was tainted with bias against the Applicant and occasioned a gross miscarriage of justice as the 1 st Respondent rendered a determination that was wholly inconsistent with the available facts and applicable law and acted in complete disregard of the Applicant’s constitutionally protected right to a fair hearing and that contrary to 3 rd and 4 th Respondent’s position, the circumstances surrounding the impugned decision rendered judicial review the most appropriate and viable remedy available to the Applicant.
Therefore, the Applicant raised two issues for determination namely whether the court has jurisdiction to exercise judicial review over the 1 st Respondent and whether the Applicant has demonstrated the grounds for the exercise of the judicial review jurisdiction.
On the issue whether the Applicant has audience before the court, it is his contention that the decision of the 1 st Respondent as prosecuted before it by the 4 th Respondent, violated his right to property and to fair hearing, as prosecuted under Article 40 and 50 of the Constitution as well as the right to property as per Section 26 of the Land Registration Act and Section 93 (1) of the Law of Succession Act. That the 1 st and 4 th Respondents acted contrary to law and in violation of constitutional principles. Reliance was placed on Article 165(6) and (7) of the Constitution which provides as follows:
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6) the High Court may call for record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
Further, a reliance was placed in the case of Republic v Magistrates Court, Mombasa; Absin Synegy Limited (Interested Party)) Judicial Review E033 OF 2021(2022) KEHC 10 (KLR), Mativo J (as he then was) stated as follows on the supervisory jurisdiction of the court and judicial review jurisdiction (page 6 of the Applicant’s authorities).
The power conferred to this court under Article 165 (6) of the Constitution is used sparingly only when the lower court or tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction which is the case her. That the High Court under the jurisdiction which is the guise of Article 165 (6) cannot assume unlimited prerogative to correct all species of hardship or wrong decisions and that for it to interfere there must be a case of flagrant abuse of fundamental principles of law or it can interfere where there is an order which has resulted in grave injustice. That the fact that the learned magistrate assumed jurisdiction not expressly conferred upon him by the law and in a blatant breach of Section 14 of the CPA is itself a proper case for this court to exercise its supervisory jurisdiction to prevent grave injustice and abuse of the law. That Judicial Review is the review by a judge of the High Court of a decision, proposed decision; or refusal to exercise a power of decision; proposed decision; or refusal to exercise a power of decision to determine whether that decision or action is un
[...truncated]